Cooley Law Review Journal Fall 2023 by WMU-Cooley Law School

Thomas M. Cooley Law Review Volume 38

Fall 2023

Issue 2

Articles Mushrooms & the Law Prof. Matthew Marin

Notes

The Case for Monetary Bail Hon. John G. McBain

Judicial Misconduct: Shaken Faith in the Judiciary Adam N. Ostrander Digital Jackpot: The Fourth Amendment’s Contours and the Ever-Growing Wealth of Data Carried on Our Person Hope Teachout Teachers’ Employment Contracts: Unjust Salaries and Unconscionable Terms Noah Bowers

Cite this volume as: 38 T.M. COOLEY L. REV. (2023). The Thomas M. Cooley Law Review is published three times annually by the students of the Western Michigan University Thomas M. Cooley Law School, 300 South Capitol Avenue, P.O. Box 13038, Lansing, Michigan 48901. Subscriptions: Special Patrons, $50 per year; Law Firm Benefactors, $100 per year; regular subscriptions, $30 per year. Inquiries and changes of address may be directed to the Law Review, care of the Thomas M. Cooley Law School, phone number 1 (517) 371-5140, ext. 4501. The Thomas M. Cooley Law Review welcomes submission of articles. Manuscripts should be typed, double-spaced, with footnotes. Citations in manuscripts should follow the form prescribed in The Bluebook: A Uniform System of Citation (19th or 20th Ed.). We regret that unsolicited manuscripts cannot be returned. E-mail to LawReview@cooley.edu in Microsoft Word format. Editorial Policy: The views expressed in papers published herein are to be attributed to their authors and not to the Thomas M. Cooley Law Review, its editors, or the Thomas M. Cooley Law School. The Thomas M. Cooley Law Review is a member of the National Conference of Law Reviews. Printed by The Sheridan Press, 450 Fame Ave., Hanover, Pennsylvania 17331. Nonprofit postage prepaid at Lansing, Michigan, and at additional offices. Back issues and volumes, as well as complete sets, are available from William S. Hein & Co., Inc., 1285 Main Street, Buffalo, New York 14209, phone number 1 (800) 828-7571. Printed on recycled paper. Copyright 2023 by Thomas M. Cooley Law School.

THOMAS M. COOLEY LAW SCHOOL James McGrath, President & Dean

BOARD OF DIRECTORS Hon. Louise Alderson, Chairman Aaron V. Burrell Thomas W. Cranmer Hon. Michael P. Hatty Kenneth V. Miller Hon. Bart Stupak Mitchell S. Zajac

Mustafa Ameen Christina Corl John M. Dunn Hon. Jane Markey Lawrence P. Nolan Jordan V. Sutton

PROFESSOR, FOUNDER, AND PAST PRESIDENT The Honorable Thomas E. Brennan (deceased)

DEANS EMERITI Michael P. Cox, Dean and Distinguished Professor Emeritus Keith J. Hey, Dean and Distinguished Professor Emeritus Robert E. Krinock, Dean and Professor Emeritus (deceased) Don LeDuc, Dean Emeriti

DISTINGUISHED PROFESSORS EMERITI Frank Aiello David Berry (deceased) Kathleen Butler Paul Carrier Dennis Cichon David Cotter Heather Dunbar Gerald Fisher Marjorie Gell Christopher Hastings Peter Jason (deceased) Peter Kempel (deceased)

Linda Kisabeth Dena Marks

Daniel Matthews Nelson Miller Lawrence Morgan Kimberly O’Leary James Peden John Rooney (deceased) Devin Schindler Chris Shafer Brent Simmons John Taylor Gerald Tschura Cynthia Ward Nancy Wonch

Gary Bauer Ronald Bretz Jeanette Buttrey Terrence Cavanaugh Julie Clement Mary D’Isa Cynthia Faulkner Hon. Anthony Flores Elliot Glicksman (deceased) James Hicks John Kane Mara Kent Dorean Koenig (deceased) John Marks Dan McNeal Ann Miller Wood Maurice Munroe Charles Palmer Ernest Phillips Lauren Rousseau John Scott Dan Sheaffer Paul Sorenson Gina Torielli Victoria Vuletich William Weiner

Curt Benson Erika Breitfeld Evelyn Calogero Karen Chadwick Pat Corbett Mark Dotson Norman Fell Judith Frank (deceased) Lisa Halushka Emily Horvath Eileen Kavanagh R. Joseph Kimble Gerald MacDonald Jeffrey L. Martlew Helen Mickens Marla Mitchell-Cichon John Nussbaumer Nora Pasman-Green Philip Prygoski (deceased) Marjorie Russell Charles Senger Jane Siegel Norman Stockmeyer Ronald Trosty William Wagner F. Georgeann Wing

PROFESSORS EMERITI Sherry Batzer Heather Garretson Paul Marineau Florise Neville-Ewell Dan Ray David Tarrien

James Carey Lewis Langham Donna McKneelen Norman Plate Kevin Scott L. Patricia Thorpe-Mock

Lisa DeMoss Ashley Lowe Monica Navarro Toree Randall Ronald Sutton Karen Truszkowski

DEANS Tracey Brame Associate Dean of Experiential Learning and Practice Preparation & Director of the Innocence Project & Professor

Katherine Gustafson Assistant Dean of the Tampa Bay Campus & Associate Professor

Duane A. Strojny Associate Dean for Library and Instructional Support & Professor

Amy Timmer Associate Dean of Students and Acting Dean of Graduate Programs

Paul J. Zelenski Senior Vice President and Associate Dean of Enrollment & Student Services

PROFESSORS Tammy Asher Mark Cooney David Finnegan Richard C. Henke Barbara Kalinowski Michael McDaniel Matthew Marin Jeffrey Swartz Christine Zellar-Church

Brendan Beery Mark Dotson Dustin Foster James Hicks Tonya Krause-Phelan Michael K. Molitor Florise Neville-Ewell Patrick Tolan

Bradley Charles Renalia DuBose Joseline Hardrick Emily Horvath Mable Martin-Scott Martha Moore Monica Nuckolls Joan Vestrand

ADJUNCT PROFESSORS Wafa Adib-Lobo Andrew Arena Gary Bauer Mark Brewer Steve Cernak Patrick Corbett Michelle Donovan Steven Fantetti Randy Foreman Hon. Jack Gilbreath Christi Henke Julie Janeway Salvatore LaMendola Randall Leonard

Mustafa Ameenuddin Amy Bandow Michael Behan Chad Brown Veneshia Cezil Elizabeth Devolder Steve Dulan William Fleener Hon. Richard Garcia Nathan Goetting Daniel Houlf Caroline Johnson-Levine Lewis Langham Richard Lovernick

James Anderton V Sherry Batzer Sonya Beverly Joseph Burgess Russel Church Rich DiGiacomo Chad Engelhardt Hon. Tony Flores Laura Genovich Robert Heitmeyer Hon. Curtis Ivy Sheila Lake Michael Leffler Peggy MacDougall

Colin Maguire Paul Marineau Hon. Catherine McEwen Thomas Myers John Nicolucci John Pierce Jennifer Rosa Traci Schenkel Eric Skinner John Taylor Victor Veschio Graham Ward

Steven Mann John McDaniel Christian Montesinos Nicholas Nazaretian Kimberly O’Leary Karen Poole Christopher Sabella Joseph Shada James Sterken David Tirella James Vlasic Deirdre White

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Daryl Manning Timothy McDonald Julie Mullens Bentley Nettles Sarah Ostahowski Teri Quimby Tami Salzbrenner Ben Shotten Edward Sternisha Gregory Ulrich Sarah Walker

WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW TRINITY 2023 BOARD OF EDITORS Adam Ostrander Editor-in-Chief

Michala Ringquist

Maria Pierre

Executive Managing Editor

Executive Symposium Editor

Sarah Tanner

Wyatt Wells

Interim Executive Managing Editor

Interim Executive Symposium Editor

Ethan Loch

Hope Teachout

Executive Articles Editor

Executive Notes Editor

Caroline Quandt

Hannah Murphy Executive Publicity Editor

Managing Notes Editor

Samantha Hulliberger

Professor Mark Cooney

Managing Articles Editor

Faculty Advisor

ASSOCIATE EDITORS Elizabeth Zywicki Zachary Walters Melissa Bianchi Cameron Wilson Adam Kimball Kristin Duffy Francesca Camacho Norelle Miranda

DAWN C. BEACHNAU AWARD This award is presented to the member of the Western Michigan University Cooley Law Review Voting Board of Editors who made the most significant contributions to the Law Review through leadership and dedication. Trinity 2023 Recipient: Ethan Loch & Hope Teachout

JOHN D. VOELKER AWARD This award is presented to the Senior Associate Editor of the Western Michigan University Cooley Law Review who made the most significant contributions to the publication of the Law Review. Trinity 2023 Recipient: Melissa Bianchi

EUGENE KRASICKY AWARD This award is presented to the Assistant Editor of the Western Michigan University Cooley Law Review who made the most significant contributions to the publication of the Law Review. Trinity 2023 Recipient: Adam Kimball

WESTERN MICHIGAN UNIVERSITY COOLEY LAW REVIEW MICHAELMAS 2023 BOARD OF EDITORS Adam Ostrander Editor-in-Chief

Adam Kimball Interim Editor-in-Chief

Wyatt Wells

Sarah Tanner

Executive Symposium Editor

Executive Managing Editor

Hope Teachout

Ethan Loch

Executive Notes Editor

Executive Articles Editor

Caroline Quandt

Hannah Murphy Executive Publicity Editor

Managing Notes Editor

Norelle Miranda

Samantha Hulliberger Managing Articles Editor

Interim Executive Publicity Editor

Professor Mark Cooney Faculty Advisor

ASSOCIATE EDITORS Cameron Wilson Kristin Duffy Francesca Camacho Mya Hurwitz Alexander Hazard Evan Sisk Adriana Burga

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Thomas M. Cooley Law Review Volume 38 Fall 2023 Issue 2

CONTENTS From the Editor …………………………………………………………....xi

ARTICLES Mushrooms & the Law Prof. Matthew Marin………………………...…………………….1 The Case for Monetary Bail Hon. John G. McBain….………………………………………....17

NOTES Judicial Misconduct: Shaken Faith in the Judiciary Adam N. Ostrander……………...………………………………..27 Digital Jackpot: The Fourth Amendment’s Contours and the EverGrowing Wealth of Data Carried on Our Person Hope Teachout……………………………………………............51 Teachers’ Employment Contracts: Unjust Salaries and Unconscionable Terms Noah Bowers…………………………………………………….107

Letter From the Editor Dear Reader, On behalf of the Executive Board of Editors of the Thomas M. Cooley Law School Law Review, I proudly present to you the second issue of the 38th volume of our journal. I would like to take this time to thank you, the reader, for your support. Each and every editor of our law review has worked diligently to review, edit, and prepare the notes and articles contained in this issue, and this would not have been possible without your support. This issue maintains the Cooley Law Review’s commitment to bringing unique, thoughtful perspectives to the most pressing legal issues of the day. It begins with an overview of the unique place that mushrooms and fungi hold in the American legal landscape, and is followed by a Michigan judge’s article making an argument for monetary bail in the criminal justice system. Next, it is a great honor to say that, prior to my becoming Cooley Law Review’s Editor-inChief, my own note on judicial ethics was accepted by the organization. After my own note, there is a note analyzing the Fourth Amendment in the digital age, written by the Cooley Law Review’s own Executive Notes Editor, Hope Teachout. And finally, this issue contains a note by Cooley J.D. student Noah Bowers, commenting on the injustices contained within teachers’ employment contracts. A great many articles were submitted to the Thomas M. Cooley Law Review for consideration. Those I have described here were selected for a variety of reasons, not the least of which is the unique perspectives their authors demonstrate here. Each member of the Cooley Law Review is certain that you will find these works insightful, creative, and sophisticated. Again, I cannot express the gratitude we have for each of our publication’s readers, and I hope that you enjoy reading this publication as much as we have enjoyed preparing it for you. With Great Appreciation, Adam N. Ostrander xi

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MUSHROOMS & THE LAW MATTHEW MARIN1 Ah, the humble mushroom. It exists as a member of one of the five kingdoms of life.2 And they have been around for a long time. In fact, the first mushrooms are now thought to have evolved between 715 and 810 million years ago.3 Because they are such an old life form, many ancient cultures revered mushrooms. For example, the ancient Chinese called Reishi the mushroom of immortality, and it was only served to the Emperor.4 The Egyptians etched fungi into hieroglyphics depicting them as gifts from the gods sent to earth on lightning bolts.5 Even the Bible refers to fungi, stating that if mold is found in a home, a priest should go to that house and shut it up for seven days.6 Mushrooms are a species that we can not live without—they make plant life possible and are also responsible for keeping the world’s delicate ecological balance.7 In addition, do you enjoy leavened bread

1 Matthew Marin is an Associate Professor of Law and Director of Academic

Support Services at Cooley Law School. He has a background in biology and has always had an interest in the study of mycology, cellular biology, and botany. 2 Anne Helmenstine, Kingdoms of Life in Biology, SCI. NOTES (Feb. 19, 2022), https://sciencenotes.org/kingdoms-of-life-in-biology/ (noting that the United States usually recognizes six kingdoms, breaking Monera into Archaea and Bacteria; the other four kingdoms include Animalia, Plante, Protista, and Fungi, with mushrooms being a member of the latter category). 3 Steeve Bonneville et al., Molecular Identification of Fungi Microfossils in a Neoproterozoic Shale Rock, 6 SCI. ADVANCES (Jan. 22, 2020), https://www.science.org/doi/10.1126/sciadv.aax7599. 4 See A Cultural History of Fungi, FAR W. FUNGI (Sept. 27, 2021), https://farwestfungi.com/blogs/far-west-news/a-cultural-history-offungi#:~:text=Mushrooms%20appear%20in%20Egyptian%20hieroglyphics,served %20only%20to%20the%20Emperor. 5 Id. 6 Leviticus 14:33-53; see Richard M. Heller et al., Mold: “Tsara’at,” Leviticus, and the History of a Confusion, NAT’L LIBR. oF MED. 46 (2003) (stating that that tsara’at in the Hebrew Bible was translated to “leprosy,” though scholars suggest the proper translation is “mold”). 7 Douglas Main, World’s Oldest Fungi, Found in Fossils, May Rewrite Earth’s Early History, NAT’L GEOGRAPHIC (Jan. 22, 2020), https://www.national geographic.com/science/article/oldest-fungus-fossils-found-earth-history.

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or the occasional alcoholic beverage?8 Thanks, fungi! With that said, it is approximated that scientists have only discovered and categorized two percent of all the species of mushrooms that exist in our world.9 So with the prevalence of fungi, it should come as no surprise that mushrooms have been at the center of litigation and other legal disputes, issues, and foci. Following are a few common-place and some not-so-common-place situations where mushrooms have proliferated in the legal field. CRIMINAL MUSHROOMS From experienced mycologists10 to those new to the study of fungi, almost all have heard this saying: “Only a few mushrooms will kill you; most will just make you wish you were dead.”11 Throughout the world, there are approximately 100 species of fungi that cause mushroom poisoning in humans.12 In addition, between 15-20 species are deadly if ingested.13 Fungus has been used to commit murder and other flavors of homicide for centuries. One of the most iconic examples is the murder of Emperor Claudius of the Roman

8 Id. 9 First Mushrooms Appeared Earlier than Previously Thought, PHYS.ORG (Jan. 22,

2020), https://phys.org/news/2020-01-mushrooms-earlier-previouslythought .html#:~:text=The%20origin%20and%20evolution%20of,to%20discern%20from% 20other%20microorganisms; see Main, supra note 7 (stating that “[s]cientists have described a little over 100,000 different species [of mushrooms], while estimating that there may be as many as 3.8 million”). 10 See Mycologist, CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/us/ (stating that a mycologist is a person who studies mycology (= the science of fungi)) (last visited Aug. 18, 2023). 11 Phil Daoust, How to Pick Wild Mushrooms, GUARDIAN 2 (Sept. 16, 2010, https://www.theguardian.com/ lifeandstyle/2010/sep/16/wild-mushroom-picking. 12 B. Zane Horowitz, Mushroom Toxicity, MEDSCAPE (updated Apr. 26, 2023), https://emedicine.medscape.com/ article/167398-overview?form=fpf. 13 Id.; see also Top 10 Poisonous Mushrooms, MUSHROOM EXAM (updated July 17, 2023), https://mushroom exam.com/top-10-poisonous-mushrooms.html (stating the 10 most poisonous mushrooms are the following: Death Cap (responsible for 90% of the world’s mushroom-related fatalities), Destroying Angel, False Morel, Autumn Skullcap, Deadly Webcap, Conocybe Filaris, Poison Fire Coral, Deadly Dapperling, Angel Wing, and Fly Agaric).

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Empire.14 On October 13, AD 54, Claudius died within twelve hours after eating his al funghi snack.15 Medical and historical evidence indicates that the mushrooms Claudius ingested contained a deadly muscarine toxin that attacked his nervous system.16 For those of you who are history buffs, you may recall that evidence suggests that Claudius’s fourth wife, Agrippina, hatched this “mushroom-murder plot” to ensure her son, Nero, would inherit the throne.17 Throughout subsequent centuries, mushrooms have been used to kill people. Kim Van Pelt was sentenced to death after receiving a capital-murder conviction for murdering his wife, Sandra Van Pelt, through a tainted meal.18 She died within two hours after eating the dinner cooked by Kim, which included sautéed mushrooms.19 In 2020, Katrina Fouts was convicted of conspiracy to commit the murder of her husband, David Fouts.20 Though the medical examiner was not able to conclude that David’s death was the result of mushroom poisoning or asphyxia, the court noted “that medical testimony is not an absolute requirement to establishing the cause of death in a murder case,” and “[t]he cause of death is not an element of the offence.”21 And in July 2023, there may have been another deadly meal cooked in Australia.22 A woman hosted lunch for her then-separated 14 Kristin Leutwyler, Case Closed: Claudius Killed by Mushrooms, SCI. AM. (Feb.

12, 2001), https://www.scientific american.com/ article/case-closed-claudius-kill/. 15 Id. 16 Univ. of Md. Med. Ctr., Murder by Mushroom – Homicide Is Confirmed in the Death of the Roman Emperor Claudius, NEWSWISE, (Feb. 10, 2001), https://www.newswise.com/articles/murder-by-mushroom-homicide-is- confirmedin-the-death-of-the-roman-emperor-claudius. 17 Id. 18 Van Pelt v. State, 202 So. 3d 707, 715 (Ala. Crim. App. 2015). 19 Id. at 716. 20 Fouts v. State, 207 N.E.3d 1257, 1261 (Ind. App. 2023). 21 Id. at 1264. In some cases, defendants have tried to use mushrooms as a defense to a crime. See Eaker v. State, No. A-11313, 2016 WL 756959, at *2 (Alaska Ct. App. Feb. 24, 2016) (claiming that the defendant took mushrooms and blacked out and was too intoxicated to have the intent to kill); see also Morris v. State, 6710 So. 2d 1151, 1152 (Fla. 1996) (stating that “defense counsel failed to investigate and consider the availability of a voluntary intoxication defense [for grand theft charge when] appellant had consumed mushroom tea and large quantities of alcohol”). 22 Michael Lee Simpson, Australian Police Investigating Deaths of 3 After Ingesting Poisonous Mushrooms Served by Daughter-in-Law, PEOPLE (Aug. 9,

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husband and his parents.23 After eating this home-cooked meal, all three died.24 The police suspect the fatal culprit to be Amanita phalloides—the Death Cap, which is one of the most lethal mushrooms for humans.25 As history evidences, mushrooms have and will likely continue to be a potentially fatal tool used to commit murder. But perhaps their greatest danger lies in innocent mistaken identity.26 CIVIL & FAMILY LAW MUSHROOMS While there have been intentional poisonings over the years caused by the mushroom, what about accidental poisonings that are not purely criminal in nature? Have you ever considered the effect that mushrooms could have on an insurance policy? That’s exactly what poor Mrs. Griffis discovered when her husband passed after eating mushrooms.27 James Griffis consumed mushrooms that contained an organic poison, ptomaine, which resulted in his quick and violent death.28 Subsequently, Mrs. Griffis produced her husband’s life insurance policy, which stated that Mr. Griffis was insured “against loss resulting directly and independently of any and all other causes from bodily injury effected solely through external, violent and accidental means.”29 Against the insurance company, the court held that Mr. Griffis’s death resulted from accidental means; 2023), https://people.com/woman-under-investigation-after-serving- poisonousmushrooms-in-laws-7574440. 23 Id. 24 Id. 25 Id. 26 Max Barnhart, New Hope for an Antidote to Death Cap Mushrooms and Other Poison Fungi, NPR (May 17, 2023), https://www.npr.org/sections/goatsandsoda /2023/05/17/1175494500/new-hope-for-an-antidote-to-death-cap-mushrooms-andother-poison-fungi#:~:text=Mushroom%20poisonings%20are%20tough%20to, with%20no%20proven%20antidote%20available (noting that mushrooms cause about 10,000 illnesses and about 100 deaths each year globally and that most do not result from intentional poisoning but rather mistaken identity). 27 U.S. Cas. Co. v. Griffis, 114 N.E. 83 (Ind. 1916). 28 Id. at 84 (stating that Mr. Griffis ingested the mushrooms around 8 p.m. and about and less than two hours later, he was vomiting, greenish white in color, frothing at the mouth, and unconscious; he passed shortly after midnight). 29 Id. at 83.

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though he had voluntarily ingested the mushrooms, he intended to eat edible mushrooms (not toxic ones), and thus it was an unintentional poisoning.30 On a slightly different note, but still related to accidental mushroom poisoning, fungi have come into play regarding parental rights during family law disputes.31 While under the supervision of their father, Jade, A.K found some wild mushrooms outside, ate them, and became ill; A.K. was later taken to the hospital and released after treatment.32 Jade had assumed that A.K. was being supervised by other adults at his apartment complex while he and his girlfriend were cooking dinner inside his apartment.33 After the mushroom poisoning, A.K.’s mother petitioned to have Jade’s parental rights terminated.34 The court noted that under Arizona’s statute, neglect is defined “as a parent’s ‘inability or unwillingness’ to provide a child with supervision, when ‘that inability or unwillingness causes [an] unreasonable risk of harm to the child’s health or welfare,’” and they must be shown to be an unfit parent.35 Ultimately, the court held that the termination of Jade’s parental rights based on a single act of neglect was not supported by clear and convincing evidence.36 ILLEGAL MUSHROOMS Not all fungi are the white button mushrooms found at the local grocery store.37 Depending on a mushroom’s chemical makeup and how they are used, use or possession could be illegal. Since 1970, the United States Federal Government has deemed mushrooms

30 Id. at 84-85. 31 Jade K. v. Loraine K., 380 P.3d 111, 112 (Ariz. Ct. App. 2016). 32 Id. at 112. 33 Id. at 115. 34 Id. at 112. 35 Id. at 114. 36 Id. at 116. 37 Anything but Common, FRESH MUSHROOMS (last visited Aug. 18, 2023),

https://www.mushroomcouncil.com/ mushroom- 101/varieties/white-button/ (stating that white button mushrooms account for approximately 90% of mushrooms consumed in the United States).

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containing psilocybin a Schedule I controlled substance.38 For years, though, these mushrooms have played a part in the religions of multiple cultures, including for the indigenous people of Siberia, Celtic Druids, ancient Aryan people of modern-day India, Greeks, and Vikings.39 And despite being a Federal Schedule I controlledsubstance, many people still sell, possess, or use psychedelic mushrooms.40 Since 2019, there has been a push to decriminalize the use of mushrooms that produce a hallucinogenic effect.41 Studies have shown that psychedelic mushrooms could positively affect depression, suicide, substance abuse, and posttraumatic stress disorder.42 In addition, some scientific community members believe that psilocybin can restore neuronal connections and ease psychiatric conditions.43 Further, there is evidence that psychedelic mushrooms could help those recovering from traumatic brain injuries or strokes, enhance socialization for those with autism spectrum disorder, and could be used to treat those afflicted with Alzheimer’s or Parkinson’s.44 At the state level, most states, including Florida,

38 Mushroom Laws by State, WISEVOTER (last visited Aug. 18, 2023),

https://wisevoter.com/state-rankings/ mushroom-laws-by-state/. 39 Sofie Mikhaylova, A Cultural History of the Amanita Muscaria Mushroom, PSYCHADELIC SPOTLIGHT (Oct. 25, 2022), https://psychedelicspotlight.com/acultural-history-of-the-amanita-muscaria-mushroom/; see also Richard Harris, Did ‘Shrooms Send Santa and His Reindeer Flying?, NPR (Dec. 23, 2010), https://www.npr.org/2010/12/24/ 132260025/did-shrooms-send-santa-and-hisreindeer-flying (stating that connections have been made between Amanita muscaria, the red mushroom with white flecks on them, and hallucinating, flying, reindeer, and Santa Claus dressed in red with white trim). 40 See Teri S. Krebs & Pål-Ørjan Johansen, Over 30 Million Psychedelic Users in the United States, NAT’L LIBR. oF MED. (Mar. 28, 2013), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3917651/ (stating that there are an estimated 21 million users of psilocybin in the United States). 41 Louisa C. Clark, Move over Cannabis, the Movement to Legalize Psychedelic Mushrooms Is Ready to Share the Spotlight, LAW MEETS SCI. (May 11, 2023), https://www.womblebonddickinson.com/us/insights/blogs/move-over- cannabismovement-legalize-psychedelic-mushrooms-ready-share-spotlight. 42 Id. 43 Id. 44 See Meryl Davids Landau, One Way to Heal a Brain Injury? Let LSD Open Your Mind — Literally, NAT’L GEOGRAPHIC (Aug. 23, 2023), https://www.national geographic.com/premium/article/psychedelics-lsd-heal-brain-injury?rid=444DD

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categorize psilocybin and any materials that contain it as a Schedule 1 substance.45 Currently, five states have decriminalized psilocybin mushrooms in certain municipalities: California, Colorado, Massachusetts, Michigan, and Washington.46 Oregon and the District of Columbia have fully decriminalized these types of mushrooms.47 Though this is far from a majority of states, the trend continues to head toward decriminalization in other states, including Arizona, Maryland, Minnesota, Nevada, and Texas.48 And even if mushrooms with psilocybin cannot be legally sold in most states, other mushrooms that contain legal compounds that still have psychedelic effects are being sold. In 2022, a shop in Ybor City, Florida, claimed to be the first legal dispensary of mushrooms in the United States.49 However, in early 2023, just months after beginning to sell “shrooms,” sales halted after safety concerns were raised by the Florida Department of Agriculture.50 Again, time will determine the legal boundaries of hallucinogenic mushrooms and their future. INTELLECTUAL PROPERTY MUSHROOMS On a happy note, one can appreciate the extent that mushrooms have influenced literary works, movies, television, and social

F725AB5420D7725B02600B101DD&cmpid=org%3Dngp%3A%3Amc%3Dcrmemail%3A%3Asrc%3Dngp%3A%3Acmp%3Deditorial%3A%3Aadd%3DDaily_N L_Wednesday_Science_20230823&loggedin=true&rnd=1692819679350. 45 See FLA. STAT. § 893.13 (stating that possession of more than 10 grams is a firstdegree felony that is punishable by up to 30 years in jail and/or a fine up to $10,000). 46 Mushroom Laws by State, WISEVOTER (last visited Aug. 18, 2023), https://wisevoter.com/state-rankings/ mushroom-laws-by-state/. 47 Id. 48 Clark, supra note 41. 49 Josh Cascio, First Legal Mushroom Dispensary in U.S. Opens in Ybor City, FOX 13 TAMPA BAY (Sep. 21, 2022), https://www.fox13news.com/news/first-legalmushroom-dispensary-in-u-s-opens-in-ybor-city. 50 Sam Sachs, Magic Mushroom Dispensary in Ybor City Halts Sales Months after Start, NEWS CHANNEL 8 (Jan. 13, 2023), https://www.wfla.com/news/localnews/magic-mushroom-dispensary-in-ybor-city-halts-sales-months-after- start/.

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media.51 It’s hard to count exactly how many works focus on or around fungi. They have infiltrated classic poems such as Shakespeare’s 1611 The Tempest, where Act V depicts the magical and ethereal qualities of mushrooms: Ye elves of hills, brooks, standing lakes, and groves, And ye that on the sands with printless foot Do chase the ebbing Neptune and do fly him When he comes back; you demi-puppets that By moonshine do the green sour ringlets make, Whereof the eve not bites; and you whose pastime Is to make midnight mushrooms, that rejoice To hear the solemn curfew . . .52 Other famous works include Lewis Carroll’s Alice’s Adventures in Wonderland, where the Caterpillar tells Alice that “one side [of the mushroom] will make you grow taller, and the other side will make you grow shorter” if she eats it.53 J.R.R. Tolkien’s Lord of the Rings: The Fellowship of the Ring includes a chapter devoted to the Hobbits taking a shortcut to mushrooms.54 Ray Bradbury’s The Halloween Tree depicts mushrooms and toadstools in a frightening ravine, stating that it was “filled with varieties of night sounds, lurkings of black-ink steam and creek, lingerings of autumns that rolled over in fire and bronze and died a thousand years ago [and] from this deep place sprang mushroom and toadstool and cold stone frog and crawdad and spider.”55 And many additional folklore tomes, fairy tales, cookbooks, and recent novels also highlight or reference mushrooms.56 Musical artists over the years have also used fungi as 51 See Sydney Gore, Why Are Mushrooms Taking over My Social Media Feed, My

Medicine Cabinet, and My Closet?, THE STRATEGIST (Aug. 26, 2020), https://nymag.com/strategist/article/mushroom-design-trend-murano.html. 52 WILLIAM SHAKESPEARE, THE TEMPEST act V, sc. I, 34-40. 53 LEWIS CARROL, ALICE’S ADVENTURES IN WONDERLAND 59, 68 (Random House 1946). 54 J.R.R. TOLKIEN, THE LORD OF THE RINGS: THE FELLOWSHIP OF THE RING 107-21 (Clarion Books 2004). 55 See RAY BRADBURY, THE HALLOWEEN TREE 15 (1972). 56 See generally, e.g., KATE SARGEANT, ONE HUNDRED MUSHROOM RECEIPTS (1899) (one of the first English language mushroom cookbooks); J.K. R OWLING , HARRY POTTER AND THE DEATHLY HALLOWS 277 (2007) (stating that “Hermione had not packed any food [for herself, Harry, and Ron], so they had . . . nothing to eat except some wild mushrooms that Hermione had collected from amongst the nearest

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inspiration for compositions and songs, such as Igor Stravinsky’s 1904 The Mushrooms Going to War57 or Jim Lauderdale’s 2021 Mushrooms Are Growing After the Rain.58 Even compositions or works not originally about mushrooms have seen fungi used in subsequent interpretations—take, for example, Walt Disney’s Fantasia and its rendition of Tchaikovsky’s Chinese (Mushroom) Dance.59 And this does not even crack the tip of the iceberg regarding horror films,60 documentaries,61 artwork,62 and other nonfiction works about our small, quiet friends.63 Though some of the above-mentioned works may no longer possess copyright or other intellectual property rights protections, some still do, and many other current works and inventions enjoy

trees”); see also Mike Jay, Fungi, Folklore, and Fairyland, THE PUB. DOMAIN REV. (Oct. 7, 2020), https://publicdomainreview.org/essay/fungi-folklore-and- fairyland/. 57 IGOR STRAVINSKY, THE MUSHROOMS GOING TO WAR (1904); see Igor Stravinsky, The Mushrooms Going to War, YOUTUBE (last visited Aug. 18, 2023), https://www.youtube.com/watch?v=SDpeXknoTfE; see also Molly Helfend, Mushrooms in Literature and Art, THE MED. MUSHROOM CO. (Sep. 14, 2021), https://themedicinalmushroom company.com/blogs/the-medicinal-mushroom-cojournal/mushrooms-in-literature-and-art (noting that Igor Stravinsky composed The Mushrooms Going to War—a six-minute song about mushroom troops being called to arms). 58 See Jim Lauderdale, Jim Lauderdale Shares New Single “Mushrooms Are Growing After the Rain,” JIM LAUDERDALE MUSIC (July 22, 2021), https://www.jimlauderdalemusic.com/news-1/2021/7/22/jim-lauderdale-sharesnew-single-mushrooms-are-growing-after-the-rain. 59 FANTASIA (Walt Disney Productions 1940); see also John Culhane, WALT DISNEY’S FANTASIA 47-55 (Harry N. Abrams, Inc. 1983). 60 Ygraine Hackett-Cantabrana, 7 Fungal Horrors to Watch After ‘The Last of Us’, DREAD CENTRAL (Mar. 13, 2023), https://www.dreadcentral.com/editorials/449237/7-fungal-horrors-to-watch-afterthe-last-of-us/; see also Leah Rachel von Essen, Why Are Horror Novels so Obsessed with Mushrooms?, BOOK RIOT (Jan. 14, 2022), https://book riot.com/mushrooms-in-horror/. 61 FANTASTIC FUNGI (Oct. 11, 2019). 62 The Outpost, Art of Collective Madness in Salvador Dalí’s Impressions, WILDERUTOPIA (Sep. 27, 2016), https://wilderutopia.com/landscape/urban-art/artof-collective-madness-in-salvador-dalis-impressions/; see also Yayoi Kusama, Her Life & Her Mushrooms, YOUTUBE (last visited Aug. 18, 2023), https://www.youtube.com/ watch?v=PsFx4FOS3K4. 63 NAT’L AUDUBON SOCIETY, FIELD GUIDE TO MUSHROOMS (1981); DK, MUSHROOMS: HOW TO IDENTIFY AND GATHER WILD MUSHROOMS AND OTHER FUNGI (2013); DAVID ARORA, MUSHROOMS DEMYSTIFIED (1986).

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patent, trademark, copyright, or trade secret protection.64 For those unaware of the distinctions between the different types of intellectual property protection, a patent refers to an exclusive right granted for an invention, which is a product or process that provides a new way of doing something or offers a new technical solution to a problem.65 Copyright protection gives the owner the exclusive right to copy, distribute, adapt, display, and perform a creative work for a limited time.66 A trademark, on the other hand, is any word, phrase, symbol, design, or combination of these things that identify goods or services.67 A trade secret is a commercially valuable secret known to a limited group of persons that is subject to reasonable steps taken to keep it secret.68 There has been much time and legal expertise devoted to mushroom patents.69 For example, fungi has always been important to the development of new medical advances.70 Patent protection has also been granted for the discovery of new methods to cultivate mushrooms, such as Campbell Soup Company’s patent for a new method of growing shiitake mushrooms by mixing sawdust, wheat straw, fertilizer, and other nutrients.71 Shiitake mushrooms generally require up to 18 months to grow under natural conditions, and the new process cut the time to about three months.72 Recently, there has been increased growth and development of fungi as a source for packaging, textiles, and biofuels.73 In fact, mushrooms have been

64 See generally CRAIG ALLEN NARD et al., THE LAW OF INTELLECTUAL PROPERTY

(Wolters Kluwer 5th ed 2017). 65 Id. 66 Id. 67 Id. 68 Id. 69 See Shung-Chang Jong, The Legal Protection of New Mushroom Strains with US Patents for Commercial Production and Marketing Strategies, in 18 PROC. OF THE INT’L CONG. ON THE SCI. AND CULTIVATION OF EDIBLE AND MED. FUNGI 921 (2012). 70 Paul J. Kersey et al., Selecting for Useful Properties of Plants and Fungi–Novel Approaches, Opportunities, and Challenges, NEW PHYTOLOGIST FOUND. (2020), https://nph.onlinelibrary.wiley.com/doi/full/10.1002/ppp3.10136. 71 Edmund L. Andrews, Patents; New Method to Cultivate a Mushroom, N.Y. TIMES, Oct. 21, 1989, at 34. 72 Id. 73 Kustrim Cerimi et al., Fungi as Source for New Bio-based Materials: A Patent Review, 6 FUNGAL BIOLOGY AND BIOTECHNOLOGY, 17 (2019).

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used to make sustainable packaging since 2007.74 Architects have been exploring how to incorporate mushrooms into building materials, and even NASA has looked into how mushrooms could be a base for bio-habitats in space.75 Regarding biofuels, fungal materials have the potential to replace current petroleum-based materials in the not-so-distant future.76 Mushrooms also make an appearance in trademark law and disputes.77 In the 1970s, Mushroom Makers, Inc., commenced an action against R. G. Barry Corporation for using the trademark MUSHROOM on its women’s jeans, jackets, skirts, and overalls.78 R. G. Barry Corporation was a seller of women’s shoes, sandals, and slippers, and the owner of the registered trademark MUSHROOMS.79 The court held that the “plaintiff’s use of the trademark MUSHROOM as applied to women’s sportswear does not infringe on defendant’s trademark as applied to shoes, slippers, and sandals[.]”80 When making this ruling, the court noted that “the likelihood of confusion [was] far from compelling[,]” and the standard was “whether an appreciable number of ordinarily prudent purchases, or as most recently put, ‘many customers’ [was] likely to be misled or deceived as to the origin of the goods.”81 More recently, trademark law was invoked for the iconic Super Mushroom and 1-Up Mushroom from Nintendo’s Super Mario Brothers.82 In 2017,

74 See Euronews Green, ‘A Real Material for the Future’: Could Homes Made of

Fungi Slash Emissions from Construction?, EURONEWS GREEN (June 6, 2023), https://www.euronews.com/green/2023/06/06/a-real-material- for-the-future-couldhomes-made-of-fungi-slash-emissions-fromconstruction#:~:text=Architects%20have%20created%20Lego%2Dlike,built%20in to%20our%20society%3A%20construction. 75 Id. 76 See Cerimi, supra note 73. 77 See Complaint at 1, Fungi Perfecti, LLC v. Busineer Corp. et al., No. 1:23-cv02794-JPB (N.D. Ga., June 22, 2023). 78 Mushroom Makers, Inc. v. R. G. Barry Corp., 441 F. Supp. 1220, 1222 (S.D.N.Y 1977). 79 Id. 80 Id. at 1234. 81 Id. at 1232. 82 Super Mushroom, NINTENDO WIKI, https://nintendo.fandom.com/wiki/Super_Mushroom (last visited Aug. 18, 2023).

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Nintendo Co., Ltd. applied for trademark protection for these two marks.83 Finally, there is a dearth of trade secret litigation that specifically applies to mushrooms. However, that does not mean this type of intellectual property protection is nonexistent. Instead, it can be found in the culinary and food industry; for example, in the McDonnell and Kemaldean families’ secret mushroom sauce—a key component of their famous mushroom burger.84 And think of other everyday products, such as Campbell’s Cream of Mushroom soup.85 The use of fungi in secret recipes and formulas that the holder of the secret does not want out in the public domain is prolific. COMMODITY MUSHROOMS Speaking of Campbell’s soup and food, do you enjoy the taste of mushrooms,86 or have you ever thought about how much mushrooms affect our economy? Even if you do not enjoy eating them, mushrooms are found at grocery stores around the world.87 In the United States alone, the volume of sales from mushroom crops for 2021-2022 totaled $1.02 billion.88 It should not come as a surprise 83 Sickr, Nintendo Has Applied for Trademarks for Super Mushroom and 1-Up

Mushroom, NINTENDO NEWS (July 9, 2017), https://mynintendonews.com/2017/07/09/nintendo-has-applied-for-trademarks-forsuper-mushroom-and- 1-up-mushroom/. 84 Omar Mouallem, The Mystery of the Lebanese Mushroom Burger, QUENCH MAGAZINE (May 11, 2022), https://quench.me/longform/the-mystery-of-thelebanese-mushroom-burger/. 85 See Ward v. Campbell Soup Co., No. C-950366, 1996 WL 149061, at 2 (Ohio Ct. App. Apr. 3, 1996) (stating that “[t]he process through which Campbell Soup Company prepares Cream of Potato Soup is a trade secret”). 86 Interview by Time Out New York with Tom Colicchio, THE HOT SEAT (Nov. 11, 2008) (stating, “Mushrooms can be very fancy. It’s the closest you can get to eating dirt.”), https://www.timeout.com/newyork/restaurants/tom- colicchio. 87 See generally Adam Sayner, Top 12 Most Expensive Mushrooms in the World, GROCYCLE, https://grocycle.com/ most-expensive-mushrooms/ (detailing the 12 most expensive mushrooms in the world, including Truffles, Morels, Chanterelles, Matsutake, and Yartsa Gunbu (priced at $50,000 per pound)) (last visited Aug. 18, 2023). 88 Nat’l Agric. Stat. Servs., All Mushroom Value of Sales at $1.02 Billion, USDA (Aug. 26, 2022), https://www.nass. usda.gov/Publications/Todays_Reports/reports/mush0822.pdf.

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that high-volume commercial sales of fungi are subject to laws and regulations. The Food and Drug Administration sets out minimum requirements for handling produce, which includes mushrooms.89 For example, there are specific packaging requirements sellers must follow to prevent the buildup of Clostridium botulinum (more commonly known as Botulism).90 And those who want to sell wild mushrooms generally must take a wild mushroom food safety certification course and pass a certification test.91 Additionally, be careful where you harvest mushrooms from, or there could be legal ramifications.92 Whether intentionally or unintentionally, you may be stealing if you harvest them from another person’s private property—or worse, you could be liable for trespass.93 In addition, there could be legal implications if you pick mushrooms in national parks, like the group of people who illegally harvested 234 pounds of morel mushrooms from Crater Lake National Park.94 With that said, many states have enacted regulations

89 Standards for the Growing, Harvesting, Packing, and Holding of Produce for

Human Consumption: What You Need to Know About the FDA Regulation: Guidance for Industry Small Entity Compliance Guide, U.S. DEP’T OF HEALTH AND HUMAN SERVS. FOOD AND DRUG ADMIN., 6-7 (Sep. 2017), https://www.fda.gov/media/107298/download. 90 See 21 C.F.R. § 112.115 (2023) (stating that “[y]ou must package covered produce in a manner that prevents the formation of Clostridium botulinum toxin if such toxin is a known or reasonably foreseeable hazard (such as for mushrooms)); see also About Botulism, CENTERS FOR DISEASE CONTROL AND PREVENTION, https://www.cdc.gov/ botulism/general.html (stating that “Botulism (“BOT-chooliz-um”) is a rare but serious illness caused by a toxin that attacks the body’s nerves and causes difficulty breathing, muscle paralysis, and even death”) (last visited Aug. 18, 2023). 91 Kristen Blizzard, Wild Mushroom Food Safety Certification, MODERN FORAGER (Aug. 26, 2018), https://modern-forager.com/wild-mushroom-food-safetycertification/; see also Sample Test: Wild Mushroom Foraging Certification Program, MIDWEST AM. MYCOLOGICAL INFO., https://midwestmycology.org/wpcontent/ uploads/2019/06/mami-sample-test.pdf (sample wild mushroom foraging certification program test) (last visited Aug. 18, 2023). 92 Emily Bonsant, Mushroom Pickers Trespass on Westside Road, BONNERS FERRY HERALD (June 8, 2023), https://bonnersferryherald.com/news/2023/jun/08/mushroom-pickers-trespasswestside-road/. 93 Id. 94 Kean Mihata, Crater Lake National Park Rangers Seize 234 Pounds of Morel Mushrooms, NAT’L PARK SERV. (July 11, 2016),

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that require permits to harvest mushrooms from state or national forest lands. For example, the Malheur, Umatilla, and WallowaWhitman National Forests allow mushroomers95 to harvest, possess, or transport less than one gallon of mushrooms in Oregon, and less than five gallons of mushrooms in Washington, free of charge.96 The catch is that the collected mushrooms cannot be sold, bartered, or given away.97 If a person wants to harvest mushrooms to sell, possess, or transport in a quantity greater than the free-use amount, then a commercial mushroom permit is required.98 Florida generally does not allow foraging in Wildlife Management Areas without specific authorization.99 Michigan, on the other hand, allows harvesting of mushrooms from some state lands, when not for resale.100 In addition, most states delineate between wild harvesting of mushrooms and cultivation of mushrooms; regarding the latter, if you plan on cultivating and selling on a small scale, there are usually few regulations.101 As noted above, however, large-scale cultivation and sales of mushrooms will trigger food safety and other state or federal regulations.102

https://www.nps.gov/crla/learn/news/crater-lake-national-park-rangers-seize-234pounds-of-morel- mushrooms.htm. 95 Mushroomer, MERRIAM-WEBSTER DICTIONARY (stating that a mushroomer is a person who collects wild mushrooms especially for eating). 96 2023 Mushroom Guide: Malheur/Umatilla/Wallowa-Whitman National Forests, U.S. DEP’T OF AGRIC., https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd1097237.pdf (last visited Aug. 18, 2023). 97 Id. 98 Id. (stating that the cost to pick mushrooms is $2 per day and a 10-consecutive day permit ($20) is required or, in the alternative, the purchase of a $100-annual permit). 99 See Bre Lewis, Things You Can Find and Eat off of Florida Land, FLA. SPORTSMAN (Mar. 11, 2021), https://www.floridasportsman.com/editorial/how-toforage-in-florida/397395#:~:text=Florida%20Wildlife%20 Management%20Areas%20. 100 Foraging for Wild Foods, DEP’T OF NAT. RES., https://www.michigan.gov/dnr/things-to-do/foraging (last visited Sep. 1, 2023). 101 Cornell Small Farms Program, Markets, Regulations, and Food Safety, CORNELL COLL. OF AGRIC. AND LIFE SCI., https://smallfarms.cornell.edu/projects/mushrooms/economics-and-markets/ (last visited Aug. 18, 2023). 102 Id.

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Finally, many states allow for the sale of cottage food, which is food that is made in a home kitchen and sold directly to a consumer.103 Some states are more stringent with their cottage food laws; for example, Arizona requires a person to pass an online food safety and handling course, while Georgia requires a one-time kitchen inspection.104 Florida, on the other hand, does not require licensure, inspection, or training to sell cottage food; however, selling fresh mushrooms out of your house or over the internet is not allowed under these laws.105 Other states, such as Illinois, do allow mushrooms sold through their cottage-food laws,106 though many states, such as Michigan, limit the amount that can be sold out of a home.107 FUTURE MUSHROOMS Mushrooms, both those yet to be discovered or created, will persist much longer than you or me. And this is a good thing—as noted, they pave the way for the future, providing more than just a food source.108 So the next time you see one of these small organisms

103 See generally The Ultimate Guide to Cottage Food Law, CASTIRON,

https://www.castiron.me/cottage-food-law (stating that cottage foods are generally made in a home kitchen and sold directly to a consumer who knows it is cottage food; they are non-potentially hazardous, because they don’t require time or temperature for safety) (last visited Aug. 19, 2023). 104 Id. 105 See FLA. STAT. § 500.80 (2023); see also Cottage Food Operations, DIV. OF FOOD SAFETY (July 2021), https://ccmedia.fdacs.gov/content/download/70108/file/CottageFoodOperations.pdf (stating that dried fruits are allowed but cut fresh fruits or vegetables are not (mushrooms, though fungi, are likely included in the latter category); but cottage foods include homegrown fruits and vegetables can be incorporated into batter and property baked). 106 410 ILL. COMP. STAT. § 625/4 (2022); Frequently Asked Questions: Cottage Food Operations, https://www.henry starkhealth.com/DocumentCenter/View/379/ FAQ-Cottage-Food-2022- (last visited Aug. 19, 2023). 107 Mich. Dep’t. of Agric., Michigan Cottage Foods Information, https://www.michigan.gov/mdard/food-dairy/ michigan-cottage-foodsinformation#ProductList. 108 See Charlotte Pointing, Why Mushrooms Are the Future of Everything, from Sustainable Fashion to Food, PLANT BASED NEWS (Aug. 25, 2022),

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on a walk; or when you’re enjoying a nice glass of wine with a side of cheese; or you decide to open a beer after a hot day; or even if you take the time to be thankful for our ecosystem, climate, and biodiversity,109 think—not only have mushrooms had a profound effect on our laws and legal system, but they continue to affect our daily lives in how we eat, perceive art, approach science, and shape literature. There is no doubt that changes, updates, and surprises to United States laws and the world shaped by mushrooms are on the horizon.

https://plantbasednews.org/news/environment/mushrooms-future-everythingsustainable-fashion-food/. 109 Carol Viana, Benefits of Fungi for the Environment and Humans, CHLORIDE FREE FOUND (Sep. 10, 2021), https://chloridefree.org/en/benefits-of-fungi-for-theenvironment-and-humans/.

THE CASE FOR MONETARY BAIL HON. JOHN G. MCBAIN1 This article is an evaluation of the considerations for courts and law enforcement that are a part of setting bail and the effects that the current movement to eliminate monetary bail will have on those considerations. Aspects of justice, safety for the community, and assurance of defendant participation are addressed. The article also proposes several significant reforms to the current system. Balancing the protection of defendants’ rights and guaranteeing their return to court while protecting public safety is the ultimate goal of pretrial bail and release. This balancing must be individualized to each case. Public safety and a defendant’s return to court must be balanced against the presumption of innocence regarding their charge, including rights to liberty and freedom from punishment before conviction. It is not about one or the other—they are interconnected interests that must be properly weighed in bail-setting determinations. Criminal case monetary bonds should have sufficient sureties under the Michigan Constitution while not being excessive under the federal Constitution. While defendants do not have a right to bail that they can afford and post, their ability to post bail should be a judicial focus in addition to statutory factors in Michigan Court Rule 6.106, 1

Honorable John G. McBain graduated from Michigan State University, then later graduated from Thomas M. Cooley Law School with his J.D. in the Morse Class in 1987. He passed the Florida State Bar Exam and served as an Assistant State Attorney in the 18th Judicial Circuit for 5 years. Judge McBain then accepted a position as the Chief Assistant Prosecuting Attorney in Jackson, Michigan, and would later go into private practice doing criminal defense cases in both State and Federal Court. He was elected the Prosecuting Attorney of Jackson County in 1996, and in 2002 was elected to the 4th Judicial Circuit Court. He has served on the Circuit bench for 21 years, and in that time has also held the position of Chief Circuit Judge. Judge McBain is currently the Senior Circuit Judge and presides over criminal, civil, and family law cases. He would like to thank my law clerk, Paul Haas, for his research and contribution to this article.

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which are used to determine whether a defendant is at risk for either not appearing in court or threatening public safety.2 High monetary bonds with conditions of release are appropriate for defendants charged with high-severity offenses, with lengthy criminal histories, or with histories of failing to appear. Michigan’s Constitution allows defendants charged with serious offenses, including murder, first-degree criminal sexual conduct, armed robbery, or kidnapping with intent to extort money to be held without bond.3 Defendants convicted of two or more violent felonies in the past fifteen years, or charged with a violent felony while out on bond or parole for a violent felony, may also be denied bond.4 Defendants charged with misdemeanors should generally be given personal recognizance bonds with conditions.5 Exceptions include crimes of assault, stalking, some criminal traffic crimes, and where, under the court rules, the defendant’s criminal and nonappearance histories suggest that the defendant is a risk to public safety or will fail to appear in court.6 Setting bail and the conditions of release for defendants charged with violent crimes are among the most challenging decisions made by judges. Low bonds, or bonds that can be readily posted, have resulted in numerous incidents across the country of defendants committing additional crimes after release.7 This year, Illinois is competing to be the first state to eliminate cash bail under the guise of the Pretrial Fairness Act.8 The Illinois Supreme Court, however, has paused its implementation, citing a

MICH. CT. R. 6.106. MICH. CONST. art. 1, § 15. 4 Id. 5 MICH. CT. R. 6.106. 6 Id. 7 Alex Giles, Officers Address Why They Feel the Bond System is Broken, WBTV (May 11, 2023), https://www.wbtv.com/2023/05/11/officers-address-why-theyfeel-bond-system-is-broken/. 8 ACLU Ill., Illinois Network for Pretrial Justice Response to Court Upholding Ending Money Bond in Illinois, 2023, ACLU ILL. (July 18, 2023), https://www.aclu-il.org/en/press-releases/illinois-network-pretrial-justice -response-court-upholding-ending-money-bond-illinois#:~:text=The%20Pretrial %20Fairness%20Act%20will%20improve%20community%20safety%20by%20ke eping,be%20arrested%20in%20the%20future. 3

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number of concerns that the state legislature is attempting to address.9 Members of the Illinois law enforcement community are united against the new law, which was set to take effect on January 1, that eliminates cash bail under most circumstances. 10 Many judges and most state attorneys are also opposed to the new law.11 Illinois is a case study of exploding crime rates and the State’s inability to effectively combat crime and keep its citizens and businesses safe. In 2022, 695 people were murdered in Chicago.12 Many of these victims were murdered by criminals out on bond for other offenses.13 A significant number of those out on bond had extensive criminal histories and arguably posed a risk to public safety.14 Most law enforcement agencies and critics of cash bail reform call it “catch and release” or “lax bail” that transform the jail and courtrooms into revolving doors for defendants arrested with significant records—many with violent crimes.15 Law enforcement criticizes these bail reforms for two reasons. First, they often fail to protect the public.16 Second, the police are discouraged from rearresting criminals that just got released.17 Two groups lack an opportunity to provide input on the elimination of cash bail in most cases. One is the crime victim, whose voice is rarely heard or considered on bail determinations. The second are the citizens who do not get a chance to vote on most of 9

Id. Andrew Hensel, Illinois Law Enforcement Community Overwhelmingly Opposed to Cashless Bail, THE CENTER SQUARE (Sept. 16, 2022), https://www.thecentersquare.com/illinois/. article_51419790-3607-11ed-9f6b-b7b4e7711122.html. 11 Id. 12 Kori Runmore, Chicago Homicides in 2022: 695 People Were Slain. Here's How That Compares with Previous Years, CHI. TRIB. (Jan. 3, 2023), https://www.chicagotribune.com/news/breaking/ct-chicago-homicides-data-tracker20220426-iedehzuq5jdofbhwt3v2w6cjoy-story.html. 13 John Boch, One-Third of Chicago Murder Victims Likely Killed By Someone Released Under Illinois ‘Affordable Bail’ Law, T HE TRUTH ABOUT GUNS (Aug. 16, 2021), https://www.thetruthaboutguns.com/one-third-of-chicago-murdervictims-likely-killed-by-someone-released-under-affordable-bail-law/. 14 Id. 15 Giles, supra note 6. 16 Id. 17 Id. 10

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these bail reform efforts, which transform the criminal justice system in many cases and put them at greater risk of becoming a victim of a violent crime. Many in the media argue that each defendant is entitled to a bond amount that they can afford.18 Proponents of that view argue that any other amount ignores the presumption of innocence and that incarceration before conviction violates constitutional rights to liberty and freedom.19 That view is a bridge too far. The United States Supreme Court held that the presumption of innocence, while axiomatic, “has no application to a determination of the rights of a pretrial detainee during confinement before his trial has begun.”20. In Ohio’s last election, voters passed an amendment to the state constitution that overruled an Ohio Supreme Court decision, stating that public safety was not a relevant factor a judge could consider in the calculation of bail amount.21 If you want to handcuff a judge, require them to disregard public safety by letting a dangerous criminal back on the street after they are arrested with no cash bail. In at least forty other states, protecting public safety is always a required consideration when a judge sets bond in a criminal case.22 The Michigan bail system is deeply rooted in both constitutional and statutory authority. Various stakeholders have advocated for reform, but to date, there has been little change to this system. Former Michigan Supreme Court Chief Justice Bridget McCormick, as part of a criminal justice reform task force, recently said that it would take a constitutional amendment to eliminate cash bail.23 Amending the Michigan State Constitution is an infrequent and complicated process.

Amber Sherman, Innocent until Proven Guilty: An Argument for the Unconstitutionality of the U.S. Bail System, MEDIUM (Sept. 13, 2021), https://medium.com/@thelawaccordingtoamber/innocent-until-proven-guilty-anargument-for-the-unconstitutionality-of-the-u-s-bail-system-2a0c38966b15. 19 Id. 20 Bell v. Wolfish, 441 U.S. 520, 533 (1979). 21 Dubose v. McGuffey, 195 N.E.3d 951, 959 (2022). 22 Jordan Gross, Devil Take the Hindmost: Reform Considerations for States with a Constitutional Right to Bail, 52 AKRON L. REV. 1043, 1065 (2019). 23 Angie Jackson, “18 Ways Michigan Could Change its Criminal Justice Process,” DET. FREE PRESS (January 14, 2020), https://www.freep.com/story/news/local/michigan/2020/01/14/ michigan-jail-reform-criminal-justice/4434827002/.

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Michigan’s Constitution includes the guarantee that all persons shall be bailable by sufficient sureties.24 This means an approved bail agent may post financial security for a defendant. The term “cash bail” originates in a statute and not in the Michigan Constitution. The use of financial security as part of a personal surety posting, or bail bond, in Michigan is properly called “monetary bail.” Michigan law requires a defendant to have a surety who will sign a bond and put up the required surety.25 Michigan pretrial release is governed in relevant part by MCR 6.106.26 The Michigan Court of Appeals held that “[m]oney bail is excessive if it is an amount greater than reasonably necessary to adequately assure that the accused will appear when his presence is required.”27 There is a presumption against monetary bail, and judges are also required to put on the record why they are imposing cash bail and the statutory factors they considered.28 MONETARY BAIL REFORM One possible reform of Michigan bail laws is to impose statutory guidelines. The principal purpose of sentencing guidelines in criminal cases at state and federal levels is to promote sentencing uniformity.29 The same should be true of defendants of similar risk when judges are making bail decisions. The legislature could establish monetary bail guidelines based on the severity of the charge. The benefit of guidelines is that they allow for flexibility within a suggested range while promoting uniformity among judges. One advantage of the monetary bond business is that it is privatized and not paid for by taxpayers. This is a net savings for the system because the agents handle release, monitoring, bonding, and returning the defendant to the court as required. Private bail agents are responsible for paying the full amount of the bond to the court if 24

MICH. CONST. art. I, § 15. MICH. COMP. LAWS § 765.6(2). 26 MICH. CT. R. 6106(C). 27 People v. Edmond, 81 Mich. App. 743, 747 (1978). 28 MICH. CT. R. 6.106(a), (f)(2)h. 29 Guidelines Manual, U.S. SENT’G COMM’N (2021), , https://guidelines.ussc.gov/intro. 25

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the defendant is not produced, which is unique in pretrial diversion practices.30 Bail agents get detailed information about the defendant before the bond is written because they have skin in the game. When the defendant does not show up for a required court appearance, the bail agent is hot on their trail. Most bail agents take quick action to secure the presence of the defendant who is in the wind after their nonappearance in court. They are very responsive to calls from judges when a defendant skips out and fails to appear. Bail agents also work effectively with law enforcement in securing the arrest of a defendant violating the terms of their pretrial release. Bail agents effectively inform defendants of scheduled court hearings. They often drive defendants to court or assist with transportation services. They also reinforce bond conditions, and do not hesitate to revoke a bond if a defendant is not complying with court-ordered bond conditions. They will also revoke bonds at the request of any co-signors, friends, or family of the defendant if they start using drugs or alcohol again or have a high risk to reoffend or abscond. Michigan’s monetary bond system strikes an effective balance between the defendant’s right to pretrial release and protecting public safety. In contrast to defendants released on a cash bond, defendants released with a personal recognizance bond have no one to remind them of their court date or to go after them if they fail to appear for a scheduled court date.31 No one is going out to look for them. Many short-handed law enforcement agencies will even say they are not out looking for them absent direct police contact. They will often remark that they arrested the defendant before, and they were out of the courthouse doors before they finished their paperwork. Pick-up for a missed court date is not a priority for most law enforcement agencies. Many defendants who fail to appear for scheduled court dates are gone for months, some for years. When they move to another state, there often is little interest in extradition. Prosecutors say, “Criminal cases are not like a fine wine; they do not get better with age.” Witnesses get more difficult to find, and victim interest wanes as

Bail, Bonds, and Relevant Legal Concerns, JUSTIA (Oct. 2022), https://www.justia.com/criminal/bail-bonds/. 31 Id.

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time passes after a defendant skips.32 Law enforcement focus moves to active cases. Personal surety bonds that are secured reduce failures to appear.33 Secured bonds cause many defendants to commit fewer new crimes while out on bond.34 Personal surety bonds reduce long-term fugitive rates, meaning defendants are more likely to be returned to court and the criminal process completes itself. They also increase docket efficiencies of trial court judges by reducing incidents of failure to appear that waste criminal justice resources at all levels. A defendant who posts a monetary bond also has some skin in the game, even if it is only $100.00. Many circuit judges use smaller cash bonds of $1,000.00 in felony cases. A defendant can post that bond for $100.00. In cash bond cases, the defendant posts ten percent, and the bail agent posts the rest of the bond, so a defendant could post $200.00 to get out on a $2,000.00 cash/surety bond.35 Often, these bonds have case-specific non-monetary conditions. A high percentage of these defendants can post bond, and a very high percentage appear at their subsequent court dates. Several types of defendants do not bond out for these $1,000.00 cash or surety bonds. One type is where their family wants them to spend some time in jail because of drug or domestic violence issues. Unfortunately, jails are often a holding facility for defendants with mental health issues, and there is little support for their pretrial release. Another, smaller group is defendants that cannot afford the $100.00 or cash portion of the bond. Many of these defendants are indigent and have little or no support in the community. Those indigents present a challenge that can be solved beneficially to both the defendant and the jail.

Isabelle Altman, Statutes of Limitations: Crimes More Difficult, Sometimes Impossible to Prosecute as Time Passes, THE COM. DISPATCH (Nov. 7, 2016), https://cdispatch.com/news/2016-11-07/statutes-of-limitations-crimes-moredifficult-sometimes-impossible-to-prosecute-as-time-passes/. 33 Michael R. Jones, Unsecured Bonds: The as Effective and Most Efficient Pretrial Release Option, at 10-11, PRETRIAL JUST. INST. (Oct. 2013), https://www.nmcourts.gov/wp-content/uploads/2020/11/Unsecured_Bonds_ The_As_Effective_and_Most_Efficient_Pretrial_Release_Option_Jones_2013.pdf. 34 Id. 35 Bail, Bonds, and Relevant Legal Concerns, supra note 28.

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BAIL REFORM: WORK-SERVICE PROGRAMS CAN ASSIST An indigent defendant in the county jail should have an opportunity to earn cash bail through participation in a work service program within the jail. These defendants should be afforded the voluntary opportunity to work in the jail so they can earn the $100.00, or whatever other reasonable amount may be needed to post bond. This benefits both the defendant and the sheriff. The sooner the defendant can bond out, the more the jail saves. Such a program would financially benefit the sheriff and the county in less than one week, considering the cost of housing an inmate. By way of example, the cost of incarceration for one night at the Wayne County Jail is $165.00.36 A jail work program would allow defendants to earn money to post their cash bond while also retaining the services of a cash bail agency to assist in assuring the defendant’s appearance at future court dates. When a defendant fails to appear in court, it is the bail agent that is truly the long arm of the law.37 They have no reluctance about going into another jurisdiction, state, or country to make sure the accused is brought back before the judge. This is something most law enforcement agencies will not do, especially when a defendant is released on their own recognizance. The same could be done in other felony cases where judges might use somewhat higher monetary bonds. The indigent defendants could still earn their minimum cash bail amount within a short time of their arrest and arraignment. Once the defendant has at least $100.00 to apply to a cash or surety bond, judges at all levels should hold short notice hearings to readdress that defendant’s bond. In fact, judges should be required to address monetary bonds, at all stages of a criminal proceeding when a defendant cannot post bond. Some defendants will refuse to work to contribute to their bond. They should, however, be given an opportunity to earn money toward their bond or jail commissary needs. Defendants on more serious felony charges might remain in jail because it is where they should be 36

Sarah Rahal, Wayne County Commissioner Calls for Jail Bond Reform, THE DET. NEWS (April 20, 2019), https://www.detroitnews.com/story/news/ local/wayne-county/2019/04/20/wayne-county-commission-calls-jail-bondreform/3528826002/. 37 Eric Helland and Alexander Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, 47 J.L.& ECON. 93-122 (2004).

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either because of the seriousness of the offense, their history of nonappearance, or for the protection of the community. These cases should be fast-tracked for jury trial. Speedy trial rules should be strictly enforced. CONCLUSION I appreciate the many articles and efforts by bi-partisan groups to reform various aspects of the monetary bail system. The monetary bail system is a critical and necessary stakeholder in our criminal justice system. Michigan’s pretrial release system is one of the best in the nation. There is a need to reform some of Michigan’s monetary bail practices. Michigan has had a reasoned dialogue on these issues while other states like California, New Jersey, Illinois, and New York have made massive changes to their cash bail procedures.38 Some of those states are now reversing the field and are reinstating cash bail laws or expanding judicial discretion on setting cash bonds. Elimination of monetary bail has resulted in significant rises in crime in many states. Michigan’s laws, with some modest reforms, give judges the tools and the guidance to set cash bonds that are fair to the defendant, while at the same time adequately protect crime victims and the public.

Bill Raftery, Bail Reform in 2023? 2022 Efforts in 3 States May Impact the Courts, NAT’L CTR FOR STATE CTS. (Jan. 4, 2023), https://www.ncsc.org/information-and-resources/trending-topics/trending-topicslanding-pg/bail-reform -in-2023-2022-efforts-in-3-states-may-impact-the-courts.

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JUDICIAL MISCONDUCT: SHAKEN FAITH IN THE JUDICIARY ADAM N. OSTRANDER1 Thomas Jefferson once said, “When a man assumes a public trust, he should consider himself as public property.”2 In a representative democracy, the trust placed in elected officials to ethically carry out their duties must be absolute. Without the public’s faith in these elected officials, the social contract espoused by John Locke — which stated that only the consent of the governed gives a government the right to rule — is broken.3 In a time when the public’s faith in its government is so tenuous, every step must be taken to ensure that our elected officials fulfill their duties ethically. Michigan judges’ ethical conduct is investigated by the Judicial Tenure Commission (JTC), an organ of the Michigan Supreme Court. The JTC is underfunded, resulting in a backlog of complaints against Michigan judges, and, consequently, a delay in justice. Even if there was no backlog of judicial grievances, the JTC holds no power to discipline Michigan judges. This system stands in stark contrast to the State of Michigan’s Attorney Grievance Commission and Attorney Discipline Board, which both hold the power to discipline general members of the bar.

Adam N. Ostrander received a Bachelor of Arts in Criminal Justice and Sociology with a Concentration in Social Psychology from Western Michigan University in 2015. He proceeded to work for the following seven years for the Kalamazoo County District Court in a number of capacities, including a great deal of time spent as a Bench Clerk and Judicial Aide to Judges Vincent C. Westra and Alisa Parker-LaGrone, respectively. He anticipates receiving his Juris Doctor from Thomas M. Cooley Law School in December 2024, where, among other roles, he served as the 2023 Editor-in-Chief of the Cooley Law Review. He has accepted a position with Warner Norcross + Judd as an Associate Attorney following the completion of the February 2024 bar exam. 2 B. L. RAYNER, LIFE OF JEFFERSON 356 (1834). 3 JOHN LOCKE, Second Treatise of Government, PROJECT GUTENBERG § 136, https://www.gutenberg.org/cache/epub/7370/pg7370-images.html (last updated Dec. 25, 2021).

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As a result, for a Michigan state court judge to be disciplined, the underfunded JTC, after investigation, must file a formal complaint with the Michigan Supreme Court. The Michigan Supreme Court, in turn, may or may not choose to appropriately discipline that judge. Even if the highest court in the state did appropriately hold these respondent-judges accountable for their unethical conduct, the process is far from efficient. In recent years, the public’s faith in the judiciary, and in the entire government, has reached historic lows. This lack of trust has also seen an increase in demonstrations related to the people’s dissatisfaction with our government. Though this dissatisfaction is not entirely attributable to unethical conduct in the judiciary, the courts are scrutinized in the aftermath of most controversies. This is because the courts are the battlefields where matters of public interest are fought, and where judges are meant to be the law’s unbiased arbiters, doling out justice. This Article proposes several solutions to this issue and endorses an overhaul of the Judicial Tenure Commission, to give it the power to discipline judicial officers as an organ of the Michigan Supreme Court. The proposed structure and use of authority would use the current structure as a base, and incorporate the structure used by the Attorney Grievance Commission. Such a solution would give the Judicial Tenure Commission teeth, to authorize them to do more than merely write a strongly worded letter or pass the buck to the Michigan Supreme Court. This solution also offers more expedient justice — as much transparency as those current model systems provide — and, as the JTC is an organ of the Michigan Supreme Court, it would still hold Michigan judicial officers answerable only to the Michigan Supreme Court. THE PROCESS OF JUDICIAL GRIEVANCES The process of examining a judicial officer’s ethics is often lengthy. The Judicial Tenure Commission (“JTC”) takes in complaints, screens them, investigates them, and refers matters to the

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Michigan Supreme Court.4 If a formal complaint is filed with the Michigan Supreme Court, that court then adjudicates the matter, and, if they see fit, disciplines that judicial officer.

The Judicial Tenure Commission The JTC was created by an amendment of the Michigan Constitution in 1968,5 and purports to “preserve the integrity of the judicial system, to enhance public confidence in that system, and to protect the public, the courts, and the rights of the judges who are governed by these rules in the most expeditious manner that is practicable and fair.”6 This agency does so by accepting, evaluating, and investigating complaints made against Michigan judges. The JTC consists of five judges, two non-judge lawyers, and two non-lawyers appointed by the Governor.7 The agency’s staff evaluate each complaint filed with the agency, and then make a recommendation to the JTC as to whether the complaint warrants further investigation.8 The JTC then makes a determination to either investigate the complaint further or to dismiss the matter altogether.9 A dismissal of the complaint may be done with or without an explanation and may happen at any point throughout the review or investigation process.10 If the JTC chooses to proceed with an investigation, it gives its staff specific instructions about how to do so.11 Further investigation by the JTC may include a variety of methods, such as interviewing witnesses and observing court proceedings. A complaint to the JTC 4

MICH. CT. R. 9.220; see also Mich. Jud. Tenure Comm’n, Preliminary Investigations, MICH. SUP. CT., http://jtc.courts.mi.gov/complaint_process /preliminary_investigation.php (last visited May 23, 2023) (describing the complaint-review). 5 MICH. CONST. art. VI, § 30. 6 MICH. CT. R. 9.200. 7 MICH. CONST. art. VI, § 30(1). 8 Mich. Jud. Tenure Comm’n, Preliminary Investigations, MICH. SUP. CT., http://jtc.courts.mi.gov/ complaint_process/preliminary_investigation.php (last visited May 23, 2023). 9 MICH. CT. R. 9.223(A). 10 Id. 11 MICH. CT. R. 9.220.

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against a Michigan judicial officer is generally confidential, but there are several exceptions.12 The JTC may issue a public statement regarding the complaint. If the JTC resolves the complaint in any way other than simply dismissing the grievance without explanation, the respondent-judge must make a written comment about the complaint.13 To do so, the JTC provides that judge with a copy of the complaint, revealing the complainant’s name and personal information to the respondent-judge.14 After investigation, the JTC may dismiss the complaint with or without an explanation.15 It may also either publicly or privately admonish the judge in question.16 If the JTC believes that the judicial officer has committed an offense worthy of more serious discipline, however, it may instead issue a formal complaint with the Michigan Supreme Court.17

The Michigan Supreme Court Before the JTC turns the matter entirely over to the Michigan Supreme Court, it makes a full record by issuing a formal complaint asking the Supreme Court to appoint a special master,18 allowing the respondent-judge an opportunity to file responsive pleadings,19 and carrying out an evidentiary hearing that is conducted similarly to a civil trial.20 This de novo hearing is held before the special master without consideration to any decisions made in prior hearings.21 The standard of proof in such a hearing is generally upon the preponderance of the evidence.22 The special master then files a report with the JTC, which is subject to briefing by the parties. The 12

MICH. CT. R. 9.261. MICH. CT. R. 9.223(B). 14 Id. 15 Id. 16 Id. 17 MICH. CT. R. 9.223(A). 18 MICH. CT. R. 9.224. 19 MICH. CT. R. 9.230. 20 MICH. CT. R. 9.233(A). 21 Mich. Jud. Tenure Comm'n v. Ferrara, 582 N.W.2d 817, 820-21 (Mich. 1998). 22 Id. at 822. 13

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JTC may still, at that point, dismiss the case. However, it may instead turn over all materials related to the complaint to the Michigan Supreme Court, along with its decision and recommendation. Once the Supreme Court receives everything related to the complaint, the matter may be further extended because the respondent-judge may file a petition to reject or modify the JTC’s decision and recommendation.23 Finally, once all of this is accomplished, the Supreme Court issues an opinion that either disciplines the respondent-judge or dismisses the complaint. The respondent-judge may file a motion for rehearing before the Supreme Court to attempt to alter that ruling.24

The Method of Bringing Judicial Officers to Task is Ineffective Judicial officers’ ethical violations may incur serious, careeraltering repercussions. Common sense might indicate that knowing this would prevent judges from knowingly making ethical violations and encourage them to take precautions to avoid unintentional unethical conduct. Despite the existence of these consequences, however, some Michigan judges still behave unethically. One possible explanation for this is the inadequacy in the method of addressing ethical violations. The JTC’s underfunding causes a backlog in its ability to sift through complaints and conduct proper investigations. However, even if the JTC were not underfunded, its ability to act on its own is limited to, at most, investigation. The JTC lacks the authority to discipline a judicial officer itself and must instead refer any matter to the Michigan Supreme Court for disciplinary action. And finally, although the JTC may make recommendations to the Michigan Supreme Court, the Court may amend, or even completely disregard, the JTC’s recommendations. Further, even if the Michigan Supreme Court dealt with judicial misconduct more harshly and appropriately, its schedule is too full to effectively deal with all matters of judicial misconduct that come before it.

23 24

MICH. CT. R.9.251. MICH. CT. R.9.253.

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These methods of addressing judicial misconduct are dreadfully inadequate.

The Judicial Tenure Commission is Drastically Underfunded As the saying goes, “Money make[s] the world go ‘round,” and the same is true for government agencies.25 There are only so many hours in a day for one person to get work done, and without funding to pay for more staff, the JTC is limited in how many complaints it can effectively process. Although the JTC’s executive director, Lynn Helland, claims that nearly 95% of the complaints filed are not valid ethical complaints and can be dealt with easily, the JTC has seen a rash of increasingly complex investigations, and they now have a large backlog of complaints in need of investigation.26 This is supported by the JTC’s own 2021 Annual Report, which indicates that there were 180 grievances pending at the start of 2021 and 224 pending at the year’s end.27 That the number of outstanding grievances grew only that much is a testament to the JTC staff’s capabilities because the agency received 638 investigation requests.28 Without casting aspersions on the JTC staff, however, this is an unacceptable number of pending complaints. Assuming — as we must — that the JTC staff is working as efficiently as it can, the complexity and sheer number of outstanding complaints shows that the JTC requires a greater operating budget. This is not mere speculation; in March 2022, Helland appeared before the Michigan House Committee on Appropriations Subcommittee on Judiciary to request a budget increase.29 He came 25

RAE SREMMURD, This Could Be Us, on SREMMLIFE (EarDrummers/Interscope Records 2015); see also LIZA MINELLI & JOEL GREY, Money, CABARET (1972), https://youtu.be/4JDWJzKYfdc (last visited July 16, 2023) (Broadway musical). 26 James David Dickson, Backlog of complaints against Michigan judges stacks up, risking 'justice denied,' DET. NEWS, Mar. 15, 2022. 27 MICH. JUD. TENURE COMM’N, ANN. REP. 2021 8 (2022). 28 Id. at 7. 29 COMM. ON APPROPS. SUBCOMM. ON JUDICIARY, COMM. MTG. MINS. 1 (Mich. 2022).

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forward to request $566,000, which consisted of a permanent yearly budget increase of $192,000 and a one-time $374,000 payment to pay for contract attorneys to help the JTC clear out the tremendous backlog of outstanding complaints.30 Just weeks later, however, Helland increased his request to $1.5 million, which consisted of a permanent yearly budget increase of $400,000 and a one-time $1.1 million payment to pay for a greater number of contract attorneys.31 Regardless of which request is eventually considered, the increase in both the number of outstanding yearly grievances and Helland’s public statement regarding the increasing complexity of JTC’s investigations demonstrates that the agency is drastically underfunded.

The Judicial Tenure Commission, By Design, Lacks Authority to Take Effective Action The JTC has a very specific function, and that function is not one of actually disciplining the judges it investigates. Reading both Article VI, Section 30 of the Michigan Constitution and considering the JTC’s structure, this was clearly a conscious decision32 — the JTC is only meant to investigate and make recommendations — because no actual decision can be made to discipline a Michigan judicial officer by anybody other than the Michigan Supreme Court.33 There are certainly benefits to providing great — and perhaps excessive — procedural due process to respondent-judges. There might be negative implications if Michigan judges were viewed as answering to a state agency other than the state’s highest court in the land, the Michigan Supreme Court. If unelected bureaucrats held power over Michigan judges, who are supposed to be neutral, duly elected public officials, it could lead to corruption in the judiciary. This agency also obviously acts as a bulwark against unnecessary waste of time and resources, preventing the Michigan Supreme Court

Dickson, supra note 21. Id. 32 MICH. CONST. art. VI, § 30(2). 33 Id. 31

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from spending thousands of hours investigating petty grievances against any of Michigan’s hundreds of judges. The result of the judicial grievance procedures, however, is that the agency charged with investigating allegations of judicial misconduct lacks teeth. Despite being an organ of the Michigan Supreme Court, the JTC is granted only the power to uncover information. At most, the JTC can publicly admonish the judge for their ethical violations. Whatever one’s position is on the current structure, the JTC’s lack of authority and their occasional willingness to let judicial ethics violations go largely unpunished are contributing factors to the incredibly large number of judicial grievances filed in recent years.

The Michigan Supreme Court is Both Unable, and Sometimes Unwilling, to Take Effective Action As the highest court in Michigan, the Michigan Supreme Court has a very full docket. Judges in Michigan also have full dockets, but as the court of last resort, the Michigan Supreme Court does a great deal of work with each case that comes before it. Additionally, the Supreme Court, having dealt with a number of these ethics cases before, has shown that it may not be as strict as it should be. Allowing unethical judges to remain in place and abuse their power only serves to further alienate the public from the courts. The refusal to remove unethical judges from their positions of power, where they affect hundreds or thousands of Michigan citizens every year, is itself an ethical failing. After all, to quote John Stuart Mill: “Bad men need nothing more to compass their ends, than that good men should look on and do nothing.”34

JOHN STUART MILL, INAUGURAL ADDRESS, DELIVERED TO THE UNIVERSITY OF ST. ANDREWS 36 (Feb. 1st, 1867).

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The Michigan Supreme Court Lacks the Time in its Docket to Appropriately Address the JTC’s Formal Complaints Though its docket has drastically fewer cases than the lower courts of the state, the amount of work that goes into each case grows exponentially with each step of the appeals process. By the time a case is heard before the Michigan Supreme Court, the process requires six months or longer to finalize.35 The Michigan Supreme Court receives an average of 2,000 petitions every year, and it hears roughly 2-3% of those cases.36 In 2018, the Michigan Supreme Court heard the tenth greatest number of all courts of last resort in the United States.37 To say that the Court is busy would be an understatement. In the 2021-2022 term, the Michigan Supreme Court issued 42 opinions, equating to approximately one opinion every 8.7 days.38 Lower courts, such as district courts, might very well resolve hundreds of cases in that time frame. But when factoring in the complexity of the issues in Supreme Court cases, including the number of attorneys and other legal professionals involved in making the cases’ arguments and decisions, this is an incredible number of cases to work through in that time frame. A positive aspect of the current structure, as it relates to dealing with judicial officers’ unethical conduct, is that the Michigan Supreme Court is required to review any decision from the JTC that recommends disciplining a judge.39 This means that once a complaint against a judge has made its way through the JTC’s process of review, investigation, and hearing, if the JTC finds there is reason to seek discipline against a judge, the matter will be heard by the Michigan Supreme Court.

Michigan Supreme Court Caseload, MICH. JUDICIARY (2022), https://www.courts.michigan.gov/publications/statistics-and-reports/statisticsmichigan-supreme-court/. 36 Id. 37 Id. 38 Mich. Opinions, 2021-2022 Term Opinions, MICH. CT. (2022), https://www.courts.michigan.gov/courts/supreme-court/opinions/2021-2022-termopinions/. 39 MICH. CT. R.7.303.

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With the Michigan Supreme Court’s incredibly valuable docket time secured, regardless of whether this is an efficient process or use of the Supreme Court’s time, the next question is whether the Supreme Court should hear these issues, or if it would be better to have a dedicated institution that specializes in addressing unethical judicial conduct.

The Michigan Supreme Court has Failed to Hold Some Judges Accountable for Their Unethical Conduct In the last 51 years, the Michigan Supreme Court has only issued 113 opinions after formal hearings regarding judicial ethical violations.40 In a number of these cases, the Michigan Supreme Court has given considerable deference to the respondent-judges who have come before it. An argument can be made that the Court gave too much deference to those judges who should be held to a higher standard. The Michigan Supreme Court has a non-exhaustive list of factors that it considers when evaluating these formal complaints and considering the JTC’s recommendations. These factors are: (1) misconduct that is part of a pattern or practice is more serious than an isolated instance of misconduct; (2) misconduct on the bench is usually more serious than the same misconduct off the bench; (3) misconduct that is prejudicial to the actual administration of justice is more serious than misconduct that is prejudicial only to the appearance of propriety; (4) misconduct that does not implicate the actual administration of justice, or its appearance of impropriety, is less serious than misconduct that does; (5) misconduct that occurs spontaneously is less serious than misconduct that is premeditated or deliberated; (6) misconduct that undermines the ability of the justice system to discover the truth of what occurred in a legal controversy, or to reach the most just result in such a case, is more serious than misconduct that merely delays such discovery; (7) 40

Mich. Jud. Tenure Comm’n, Michigan Supreme Court Decisions (2022), http://jtc.courts.mi.gov/michigan_supreme_court_decisions/index.php.

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misconduct that involves the unequal application of justice on the basis of such considerations as race, color, ethnic background, gender, or religion are more serious than breaches of justice that do not disparage the integrity of the system on the basis of a class of citizenship.41 Though there is no particular emphasis on any one factor over another, the Court heavily weighs the first factor: whether the ethical misconduct displays a pattern of behavior. Perhaps this is because the JTC does not file many formal complaints before the Court until it has already addressed matters with a judge several times. As an example, in 2012, Judge Wade McCree, Jr. sent a shirtless photograph of himself to a courtroom deputy, and when interviewed during the JTC investigation, conducted himself in an unprofessional and flippant manner.42 Later, in what would be considered an apology statement, he indicated that he was “totally sorry.”43 The opinion found that this conduct was worth merely censuring McCree, admonishing him for his conduct and indicating that this was wrongful.44 Nothing that a layperson would consider actual discipline took place, despite the Michigan Supreme Court finding that this conduct violated no fewer than seven ethical rules found in the Michigan Constitution, the Michigan Court Rules, and the Michigan Code of Judicial Conduct.45 Then, in 2014, Judge Wade McCree, Jr. was finally and appropriately punished for more outrageous conduct that, given his conduct in the JTC’s investigation just two years prior, should come as no surprise.46 McCree began a sexual relationship with a party coming before his court, refused to recuse himself in her case, snuck her into the courthouse, and even had sexual relations with her in his judicial chambers.47 In this case, the Michigan Supreme Court removed McCree from office, and in the event he should ever be re41

In re Brown, 625 N.W.2d 744, 745 (Mich. 1999). In re McCree, 821 N.W.2d 674, 675-76 (Mich. 2012). 43 Id. at 676. 44 Id. 45 Id. 46 In re McCree, 845 N.W.2d 458, 476 (Mich 2014). 47 Id. at 459; see also McCree at 561 n.8. 42

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elected, suspended him without pay for six years.48 Somewhere between these two events, then, we find the threshold for the Michigan Supreme Court to remove a judge from office. In a vaguely similar series of cases — at least, in that one of them involved a male judge abusing his power in a sexually explicit manner — Judge Bruce Morrow was brought before the Michigan Supreme Court for two different formal complaints within ten years. In the first, Judge Morrow was found to have violated both substantive and procedural law in ten different criminal cases.49 Specifically, the Court found Judge Morrow to have committed a “willful failure to observe the law, eroding the public’s confidence in a fair and impartial judiciary.”50 Despite this fact, however, the Michigan Supreme Court declined to adopt the JTC’s recommendation that Judge Morrow be suspended without pay for 90 days and instead suspended him for only 60 days.51 The Michigan Supreme Court indicated that it treats the JTC’s recommendations with great weight, but felt compelled to show Judge Morrow leniency.52 Perhaps the majority believed that this leniency would inspire Judge Morrow to clean up his act. Unfortunately, this was not the case. With only a short time left in his term, Judge Morrow came before the Michigan Supreme Court once more. In a 2022 opinion, the Michigan Supreme Court suspended Judge Morrow without pay for six months for, allegedly, mocking a defendant’s penis in chambers, sexually objectifying women prosecutors, and inquiring about graphic sexual information from those same women, over the course of years.53 Again, the Michigan Supreme Court gave Morrow a break, as the JTC had recommended that Morrow be suspended for one year without pay.54 In 2010, Judge Sanders was given a 42-day suspension without pay for intentionally violating ethics codes found in the Michigan 48

McCree at 476. In re Morrow, 854 N.W.2d 89, 92-93 (Mich. 2014). 50 Id. at 94. 51 Id. at 99. 52 Id. at 95. 53 In re Morrow, 976 N.W.2d 644, 646-47 (Mich. 2022).. 54 Id. at 653. 49

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Constitution, the Michigan Court rules, and the Judicial Code of Judicial Conduct.55 Sanders engaged in conduct that violated nine different ethics rules when she solicited and received campaign funds when she ran for office as a judge.56 Later, in 2015, Sanders was removed from the bench when she was deemed delusional and lacked the ability to make sound decisions on the bench.57 We see an escalation in McCree’s cases, providing a justification for the difference in the Supreme Court’s sanctions. In Morrow’s cases, we see that flaunting the substance and form of the law was worth a two-month suspension without pay, while making sexually suggestive and explicit comments was worth a six-month suspension without pay. And, finally, in Sanders’s cases, we see that actively deciding to violate various ethics rules relating to elections and finances earned her a 42-day suspension without pay, while her psychiatric decline had her removed from office altogether. Some of these results seem appropriate. Certainly, removing Sanders from office when her mental faculties were in decline was done to protect those who would come before her. But her deliberate violation of various financial and election ethics only earned her a 42-day suspension and would appear inconsistent when compared to the 60-day suspension imposed on Morrow for his repeated criminal violations in 2014. It is also an interesting juxtaposition to compare McCree’s mere censure for sending shirtless pictures to a court bailiff, and then failing to comply with the JTC’s investigation, with Morrow’s 60day suspension without pay for his strange and sexually explicit remarks. Overall, the Michigan Supreme Court is too lenient with Michigan judges for unethical conduct, and the Court lacks consistency in addressing these complaints.

In re Sanders, 777 N.W.2d 134, 134 (Mich. 2010). Id. at 136-37. 57 In re Sanders, 865 N.W.2d 30, 30 (Mich. 2015). 56

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TRUST IN THE GOVERNMENT AND THE JUDICIARY, WHICH IS REQUIRED FOR LEGITIMATE GOVERNANCE, IS AT ALL-TIME LOWS Maintaining the public’s trust in the government is a matter of give-and-take. The public must know that the government will fulfill its duties to the people faithfully and ethically. In exchange, the public will, generally, respect the government and comply with reasonable laws and policies. Alternatively, if there is a lack of faith in a government, its people will withdraw from participation. This leads to a nation’s instability and, possibly, eventual failure. The United States has seen a decline in its people’s trust in the government as a whole, and in the judiciary specifically. It is a critical time to reinforce the systems in our government that hold elected officials accountable. It is especially important to do this in the judiciary, as this branch is the stage upon which matters of public policy, law, and justice play out.

The Importance of Public Trust in the Government John Locke’s principle that the government must be accountable to its people or else risk being overthrown is displayed throughout history.58 The American Revolution — as well as dozens of revolutions carried out in countries worldwide — are all prime examples of this concept. When a government does not act in its people’s interest, the people will no longer grant that government authority to govern them. It is critical for the judiciary, specifically, to be trusted by the people. The courts make incredibly important decisions for every person in the country, whether a given person comes before the courts themselves or not. Courts decide how the laws written by the legislature and enforced by the executive branch are applied; courts are the final stop for the application of law on our country’s people. There is real concern that the courts in our country are becoming a

John Locke, Second Treatise of Government, PROJECT GUTENBERG § 222, https://www.gutenberg.org/cache/epub/7370/pg7370-images.html (last updated Dec. 25, 2021).

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political, partisan institution, and this could lead the public to become further detached from participation in governmental processes.59 The history of rebellion and revolution is the history of mankind. Both can occur in a variety of settings and have a variety of causes, but common causes are the people’s outrage against injustice.60 Injustice at any level of government can occur when an elected official abuses their power. The people’s trust in their government is required, and, without it, the United States may become a fragile or failed state and run the risk of widespread social dissidence — or even revolution.61

David F. Levi et al., Losing Faith: Why Public Trust in the Judiciary Matters, 106 JUDICATURE 2, 2 (2022). 60 Jack A. Goldstone, Revolutions: A Very Short Introduction ch. 2 (2013). 61 ANTHONY GIDDENS ET AL, INTRODUCTION TO SOCIOLOGY 182 (7th ed. 2009).

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The Decline of Trust in the Government and the Judiciary United States citizens’ trust in the government has steadily, consistently dropped for decades.62 Last year, a study performed by Pew Research Center found that only as many as 20% of United States citizens trusted the government to do what is right most of the time.63 While this number has dipped lower in recent years, the percentage of United States citizens that trust the government to do the right thing at least most of the time has not risen as high as 30% since 2007.64 This shows an alarming trend that the government is not well trusted.

Public Trust in Government: 1958-2022, PEW RES. CTR. (June 6, 2022), https://www.pewresearch.org/politics/2022/06/06/public-trust-in-government1958-2022/. 63 Id. 64 Id.

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The judiciary does remain the most trusted institution of the United States government. Still, a Gallup poll on citizens’ confidence in the Supreme Court of the United Status — notably taken prior to the Court’s major rulings in 2022 — shows confidence in the highest Court is a measly 25%.65 The people’s faith in the Supreme Court of the United States has never been lower.66

A fragile state is broadly defined as a country that cannot effectively control its own territory.67 John Ciorciari, the executive director of the International Policy Center and the Weiser Diplomacy Center, indicates that a country becomes a fragile state when its government is not considered legitimate by a majority of its

Jeffrey M. Jones, Confidence in U.S. Supreme Court Sinks to Historic Lows, GALLUP (June 23, 2022), https://news.gallup.com/poll/394103/confidence-supremecourt-sinks-historic-low.aspx. 66 Id. 67 Wade Warren, USAID’s Approach to Fragile States Programming in Africa, U.S. AGENCY INT’L DEV., 4 (Feb. 22, 2006), https://www.usaid.gov/sites/default/files/022206_african_fragile_states.pdf.

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citizens.68 With numbers like these, there is a real concern for the United States government’s continued legitimacy and what will happen if it becomes a fragile state. The people’s discontent can be seen in the streets of the United States — and throughout the world — as the number of protests continue to rise.69 These may not all be directed at the locality’s judiciary, but an alarming number of them are geared toward how judges have ruled on complex, partisan issues, such as the recent Derek Chauvin murder trial.70 Ciorciari was specifically concerned that if the court had produced a different holding in the Chauvin case, there would have been a massive decline in government cooperation because the public would see the government as a failed state.71 However, Shobita Parthasarathy, a professor of public policy at the University of Michigan, believes that it is possible to recover from this mistrust, provided that profound institutional change occurs.72 RESTORING THE PEOPLE’S FAITH IN THE JUDICIARY Knowing the importance of holding judicial officers accountable for their ethical violations and the ineffective methods by which they are held accountable under Michigan’s current system means nothing if an actionable proposed solution exists. The Flint Water Crisis is a perfect example of this concept. Years after public admissions that this horrendous health crisis was a 68

Rebecca Cohen, Breaking down Public Trust, FORD SCH. NEWS (June 10, 2021), https://fordschool.umich.edu/news/2021/rebuilding-trust-in-governmentdemocracy. 69 SAMUEL J. BRENNAN ET AL., THE AGE OF MASS PROTESTS: UNDERSTANDING AN ESCALATING GLOBAL TREND 1, 5, (Ctr. for Strategic and Int’l Studies ed, Mar. 2020). 70 Lois Beckett, George Floyd killing: protests flare as Americans await verdict in Chauvin trial, THE GUARDIAN (Apr. 18, 2021, 2:39 PM EDT), https://www.theguardian.com/us-news/2021/apr/18/george-floyd-killing-chauvintrial-verdict-protests/ (last visited May 19, 2023); See generally State v. Chauvin, 955 N.W.2d 684 (Minn. Ct. App. 2021). 71 Cohen, supra note 62. 72 Id.

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government failure at all levels, which led to death and permanent illness in Flint’s residents, the matter has yet to be completely resolved.73 This acknowledgement of wrongdoing may be considered a step forward to some, but the lack of follow-through and true resolution has left Michigan citizens with a deep distrust of their government.74 The State of Michigan cannot continue its refusal to hold government and elected officials responsible for their actions. This begs the question: How can the State of Michigan change its current system to hold its judges accountable for ethical violations?

Appropriately Fund the Judicial Tenure Commission A short-term, non-systemic solution is for the Michigan Legislature to appropriately fund the JTC. With the backlog of grievances piling up, hundreds of complaints are taking an excessive amount of time to be processed, even with the diligent efforts of JTC staff. If nearly 95% of the grievances lack any real substance, there are still several grievances that require thorough investigation.75 Getting to these investigations in the future is not the proper administration of justice, as justice must be swift — delay means there is no true justice. This short-term funding solution — regardless of whatever longterm solution is adopted by the State of Michigan — is required to ensure that justice is done and that all judicial ethical grievances are thoroughly investigated. However, any adopted long-term solution still requires the JTC to function at peak efficiency.

Sara Sidner & Meridith Edwards, For Jackson and Flint, the water may be back but the trust is gone, CNN (Sept. 8, 2022, 12:16 AM EDT), https://www.cnn.com/2022/09/08/us/jackson-flint-water-crisis-trust/index.html. 74 Victoria Morckel, Legacy city residents’ lack of trust in their governments: An examination of Flint, Michigan residents’ trust at the height of the water crisis, 41 J. Urb. L. 585 (2019). 75 Dickson, supra note 21.

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Make the People’s Will Known Through the Ballot Box One possible long-term solution would be to leave the system in place as it is and allow the public to make decisions about who should be on the bench through the ballot box. In stark contrast to the federal judiciary, who are appointed and serve life terms,76 Michigan state judges serve terms of years and are elected by the people.77 Alternatively, they may be appointed by the governor, who is elected by the people; even then, they must still later win elections to maintain that seat.78 There exists the possibility that if enough public scrutiny is given to the current ineffective method of judicial accountability, Michigan voters would vote out any unethical judges and, instead, elect paragons of ethics in their place. Certainly, it would be preferable to have voters make these decisions themselves. Thomas M. Cooley’s own Thomas E. Brennan strongly believed that Michigan voters were savvy enough to elect ideal judges to serve in their communities.79 Though this idea has its merits — clearly the Michigan Legislature of 1968 followed this school of thought when it amended the Michigan Constitution in 1968 — there are flaws inherent in this reasoning. First, it is unlikely that this topic would gather much media attention. This Article cites several media articles as sources, and yet this topic was not addressed at all in the recent 2022 midterm elections. In the rare event that a judicial ethical violation makes a news cycle, it does not garner much attention. This, of course, relates to the primary issue of letting the public make its will known through the ballot box and trusting that this will lead to ethical judges — most voters in non-partisan elections know very little about the judicial candidates.80 Without party lines to guide

U.S. Const. art. III. MICH. CONST. art. VI § 2; MICH. CONST. art. VI § 9; MICH. CONST. art. VI § 12; MICH. CONST. art. VI § 16. 78 MICH. CONST. art. VI § 23. 79 Thomas E. Brennan, Nonpartisan Election of Judges: The Michigan Case, 40 Sw L.J. 23 (1987). 80 Larry C. Berkson, Judicial Selection in the United States: A Special Report, 64 Judicature 176 (1980). 77

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the average voter, a voter often makes decisions based on other cues, such as gender or ethnicity.81 An alternative method that still falls within this general line of thinking is to bring attention to the issue and hope that voters demand that the Michigan Supreme Court cracks down on the judges that answer to them. This does not work for the same reasons described above — which was concerned with trial court- and court of appealslevel judges — but for additional reasons. The Michigan Supreme Court justices must deal with the fact that their election is more politicized than elections for lower-court judges. They must consider that judicial ethics are not often brought up in the media as a cue that this is not a “hot topic” for the purposes of election. Though there are ethical considerations a justice must keep in mind when running an election, they must also worry about effectively running their campaign.82 Further, the Michigan Supreme Court is busy. Aside from any campaign promise to stamp out unethical conduct in Michigan’s judiciary, it is a simple fact that the Court maintains an incredibly full docket. As noted above, in the 2021-2022 term, the Court only issued 42 opinions.83 This means that a Michigan Supreme Court decision was made at a rate of one every 8.7 days. Comparing this rate to the number of trial court cases occurring every day, this seems a small number, but considering the complexity of these cases and how much research and writing must be done to issue an opinion, this is actually a staggering number of cases. It is true that the Michigan Court Rules provide that the Michigan Supreme Court is required to review all JTC decisions and recommendations that recommend disciplining a judicial officer.84 But in the face of this full docket, the question becomes less one of whether the Court will hear matters brought by the JTC, and instead whether the Court should hear them. 81

PHILIP L. DUBOIS, FROM BALLOT TO BENCH: JUDICIAL ELECTIONS AND THE QUEST

FOR ACCOUNTABILITY 245 (1980).

MICH. CODE JUD. CONDUCT 7. Mich. Opinions, 2021-2022 Term Opinions, MICH. CT. (2022), https://www.courts.michigan.gov/courts/supreme-court/opinions/2021-2022-termopinions/. 84 MICH. CT. R. 7.303. 83

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The Michigan Supreme Court simply does not have the time to hear the number of judicial ethics cases that should be brought before a neutral arbiter. Even if the Court did have this time, it would be more efficient to have dedicated agencies that specialize in ethical violations of judicial officers. This lack of time justifies this Article’s recommendation for restructuring the judicial grievance process.

Restructure the Judicial Tenure Commission A more radical, systemic change would be to restructure the JTC altogether. The Michigan Attorney Grievance Commission (“AGC”) is another agency that acts as an organ of the Michigan Supreme Court.85 However, several differences exist between the two agencies: chief amongst them is that the AGC is able to make its recommendations and file its formal complaints before the Attorney Discipline Board (“ADB”),86 which is an arm of the Michigan Supreme Court that has the authority to discipline the respondentattorneys that come before it. 87 Though there are several differences between the two commissions, they operate in essentially the same way — the AGC takes in grievances and conducts investigations. If it finds that there is no need for further investigation, it dismisses the grievance. If it finds that the respondent-attorney should be censured, they may issue a letter outlining its opinion or file a formal complaint with the ADB.88 The ADB consists of six attorneys and three non-lawyers, appointed by the Michigan Supreme Court.89 The formal complaint is then heard before a panel of attorneys appointed by the ADB,90 or, alternatively, by a special master. 91 The panel’s or special master’s findings may be appealed to the Michigan Supreme Court — if it decides to hear the appeal.92 85

MICH. CT. R. 9.108. MICH. CT. R. 9.114; MICH. CT. R. 9.114. 87 MICH. CT. R. 9.110(A). 88 MICH. CT. R. 9.114. 89 MICH. CT. R. 9.110(B). 90 MICH. CT. R. 9.111. 91 MICH. CT. R. 9.117. 92 MICH. CT. R. 9.122. 86

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The process used by the AGC — filing formal complaints before the ADB — is far more efficient than requiring that matters involving attorney unethical conduct be heard before the Michigan Supreme Court. The appointment of special masters and panels allows the process to move more efficiently through an appropriate channel. The matter is investigated and heard before the AGC and the ADB, which are both arms of the Michigan Supreme Court. The possibility of appeal to the Michigan Supreme Court still exists, but only if the Court finds there was some error in the administration of law to the respondent-attorneys before the ADB. This Article proposes that the process used by the JTC be overhauled and reworked to more closely reflect the more streamlined process used by the AGC. In place of having attorneys and laypersons make up a so-called Judicial Discipline Board, it should be made up of judicial officers, attorneys, and laypersons, similar to how JTC already operates. The hearing would then be held before a panel of judges who are appointed by the Supreme Court, or alternatively before a special master. This ensures that Michigan judicial officers are answerable only to an arm of the Michigan Supreme Court, as well as the process of investigation and review of ethical matters conducted by separate agencies. It could accomplish this while still affording judicial officers a great deal of procedural due process and access to the Michigan Supreme Court’s oversight. Even more importantly, this solution would resolve the lack of efficiency inherent in the current system. These judges could then apply the same, non-exhaustive factors of In re Brown to make decisions similar to the Michigan Supreme Court — except the process would be wholly dedicated to the enforcement of judicial ethics — and given the specialization of the appointed judges, could promote consistency across all prior and future judicial grievances. This is the systemic change that must occur to keep up with the various ethics violations alleged against our State’s judicial officers, and to maintain the legitimacy needed of a governmental body. While it is lunacy to believe that any system we create is perfect, our Founding Fathers created their system of laws and governance as a

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living document.93 Changing this system is necessary to pursue true justice in Michigan. As Georg C. Lichtenberg once said: “I cannot say whether things will get better if we change them; what I can say, however, is that they must change if they are to get well[.]”94

U.S. CONST. art. V. Wilhelm Krull, Who is Leading Whom, Where to, What for: And How? Governance and Empowerment in the University of the Twenty-First Century, in UNIVERSITIES IN CHANGE: INNOVATION, TECHNOLOGY, AND KNOWLEDGE MANAGEMENT 117, 123 (Andreas Altmann & Bernd Ebersberger eds., 2012) (quoting GEORG C. LICHTENBERG, Heft K, in SUDELBÜCHER 293 (1825) (German original)). 94

DIGITAL JACKPOT: THE FOURTH AMENDMENT’S CONTOURS AND THE EVER-GROWING WEALTH OF DATA CARRIED ON OUR PERSON HOPE TEACHOUT1 There is a storm on the horizon: A storm poised to wiggle through exposed gaps and crevices to get inside. Society is snuggled away in a house called privacy rights; a house clad in ever-evolving technologies, and shielded by the Constitution that is not so tightly secured; a section is flapping in the wind. The Court needs to tighten the protections or risk exposure. STATEMENT OF THE PROBLEM New technologies stretch the current boundaries of the Fourth Amendment’s search protections, which extend to smartphones. These technologies include wearable technology devices that are connected to a wearer’s smartphone through an app — a smartphone that is often also carried on the wearer’s person. Wearable technologies, including smartwatches and fitness trackers, record a wealth of health and fitness data about their wearer, including heart rhythms, sleep patterns, and other biophysiological data like movements and locations. At what point in the Fourth Amendment’s current application can law enforcement search and access these devices — either directly or through the connected smartphone? A Pew 2020 study revealed that 21 percent of U.S. adults regularly wear a smartwatch or fitness tracker.2 At a basic level, 1

J.D. candidate, Thomas M. Cooley Law School, 2024; M.Arch (postprofessional), University of Texas at Austin - School of Architecture; B.Arch, Illinois Institute of Technology - School of Architecture. Author thanks her friends and professors, with special thanks to her mother for her boundless love and encouragement in this journey. 2 Emily A. Vogels, About One-in-Five Americans Use a Smartwatch or Fitness Tracker, PEW RSCH. CTR. (Jan. 9, 2020), https://www.pewresearch.org/facttank/2020/01/09/about-one-in-five-americans-use-a-smart-watch-or-fitness-tracker/ (“As 2020 begins – and health-related New Year’s resolutions take effect – roughly

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fitness trackers and smartwatches monitor a wearer’s step tracking — in both two and three dimensions, including total distance, floors climbed, and speed.3 Smartwatches track fitness through an accelerometer that measures movement and “acceleration forces.”4 This technology also monitors calories burned, specific fitness activities — including speeds and durations, sleep durations and quality, heart rate, and GPS activity.5 More advanced wearable tech devices also track glucose levels, UV index, and fertility by measuring “skin temperature, breathing rate, and heat loss.”6 These new technologies increasingly sheath our homes and bodies to improve our lives — our very own Vorsprung durch Technik.7 A 2017 study estimated 8.4 billion devices in use: a 31 percent increase from 2016.8 Gartner also estimated that 2020 would one-in-five U.S. adults (21%) say they regularly wear a smartwatch or wearable fitness tracker, according to a Pew Research Center survey conducted June 3-17, 2019.”). 3 Sarah Silbert, All the Things You Can Track with Wearables: Steps and Calories are Just the Tip of the Iceberg, LIFEWIRE, https://www.lifewire.com/whatwearables-can-track-4121040 (last updated Dec. 2, 2020). 4 A Beginner’s Guide to Accelerometers, DIMENSION ENG’G L.L.C., https://www.dimensionengineering.com/info/accelerometers (last visited Dec. 1, 2022) (“What is an accelerometer? An accelerometer is an electromechanical device that will measure acceleration forces. These forces may be static, like the constant force of gravity pulling at your feet, or they could be dynamic — caused by moving or vibrating the accelerometer. What are accelerometers useful for? By measuring the amount of static acceleration due to gravity, you can find out the angle the device is tilted at with respect to the earth. By sensing the amount of dynamic acceleration, you can analyze the way the device is moving.”). 5 Silbert, supra note 2. 6 Id. 7 U2, Zooropa, on Zooropa (Island Records 1993). Translates to progression through technology. See also Mark Sweney, Audi Wins Seven-Year Battle over ‘Vorsprung Durch Technik’ Trademark, THE GUARDIAN (Jan. 22, 2010, 12:43 EST), https://www.theguardian.com/media/2010/jan/22/audi-vorsprung-durchtechnik-trademark (last visited Dec. 1, 2022). 8 Justin Jouvenal, Commit a Crime? Your Fitbit, Key Fob or Pacemaker Could Snitch on You, WASH. POST (Oct. 9, 2017), https://www.washingtonpost.com /local/public-safety/commit-a-crime-your-fitbit-key-fob-or-pacemakercould-snitch-on-you/2017/10/09/f35a4f30-8f50-11e7-8df5-c2e5cf46c1e2 _story.html. See also “Gartner, Inc. forecasts that 8.4 billion connected things will be in use worldwide in 2017, up 31 percent from 2016, and will reach 20.4 billion by 2020.” Newsroom: Press Releases, GARTNER (Feb. 7, 2017), https://www. gartner.com/en/newsroom/press-releases/2017-02-07-gartner-says-8-billionconnected-things-will-be-in-use-in-2017-up-31-percent-from-2016).

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see 20.4 billion devices or “roughly three smart devices for every person on the planet[.]”9 This highly sensitive biophysical and location data is a jackpot for law enforcement. Law enforcement would know when one is sleeping, when one is not, when one is moving to a location, when one is moving from a location, and every location in between. These technologies expose a wearer to gaps in current Fourth Amendment law. The Court’s pace in reacting to these developing issues may create unconstitutional privacy intrusions by law enforcement as a case works its way up to the Supreme Court for determination. Of interest in this comment are the implications for wearable technologies. What is a smart-tech wearer’s reasonable expectation of privacy, and when can law enforcement search these devices, particularly when they are vulnerable through a connected smartphone? How can the Court adapt the current standard’s application to wearable tech devices, and what gaps in the current standard could expose a user’s privacy rights to a search? Fourth Amendment warrant requirements keep the calm because, in the balance between privacy rights and technologies, they guide predictable search contours. Relevant Issues and Present Law The Court’s interpretation of a valid Fourth Amendment search has evolved as technology has advanced. In the last fifteen years, since the development and use of smartphones, the Court has grappled with GPS tracking (Jones), third-party cell phone data (Riley), and third-party data access (Carpenter). National security interests have complicated privacy rights and the Fourth Amendment by recommending a mosaic theory instead of traditional sequential analysis (Jones and Maynard). Ultimately, a warrant is needed unless a Fourth Amendment exception applies. However, Carpenter’s scope was limited to a smartphone’s GPS function and failed to address a smartphone’s other features or address the implications for wearable technologies. Carpenter was decided in 2018 and has paused the current standard at smartphones. But technological advancements happen on a timeframe unfamiliar to the legal system. The Supreme Court must 9

Id.

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now clarify how current Fourth Amendment law extends to postsmartphone technologies, including wearable technologies. The Court should regard the data from these devices with heightened personal protections and draw a clear bright-line rule to law enforcement that warrants are required, within the limited exception for very narrow instances of exigent circumstances. Also, Congress must close backdoor access to data directly from providers using the Stored Communications Act (SCA, codified at 18 U.S.C. Chapter 121 §§ 2701-13) by prohibiting law enforcement access under the “good faith exception” to the exclusionary rule. A bright-line rule will also allow for adaptability as technology further evolves. A bright line creates a smoother working relationship between tech and law enforcement, with the possibility of more trusting cooperation and peace of mind for the many users. The Problem’s Importance Daily life is increasingly connected to wearable or smart home technologies. As technologies develop — such as smaller devices that hold more data or devices with new features — it is essential to know if it is possible to bypass the device itself to access this highlysensitive data directly from a smartphone. The Court needs to set a clear standard of a user’s reasonable expectation of privacy. Further, legal action in the United States may inspire similar action in other countries with similar privacy concerns. And this consistency might encourage compliance and less distrust of law enforcement’s investigatory methods. Roadmap In this comment, Part II looks at the Fourth Amendment’s development up to the current standard. It divides this timeline into a pre-cellphone era and a smartphone era. It also looks at applicable doctrines and exceptions to the warrant requirement in current law. Finally, Part III introduces the current post-smartphone era into the timeline — an era encompassed by wearable technologies. This part then examines a few recent cases involving wearing tech devices and two amici curiae briefs from Carpenter that expose gaps in the current legal framework. Proposed solutions are discussed in the law

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post-Carpenter that aim at closing gaps to better balance privacy rights with law enforcement tools. BACKGROUND: FOURTH AMENDMENT’S CONTOURS PRIOR TO AND REACTING TO THE SMARTPHONE ERA

Development of the Fourth Amendment’s Contours: Inspiration – Entick The Fourth Amendment provides that: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.10 The Amendment protects an individual’s privacy and security from governmental access into their thoughts and actions.11 The Amendment is construed to protect people and not places — our homes and objects are not protected, but we are protected from these places and objects.12 And it applies to the individual states through the Fourteenth Amendment’s Due Process Clause, with the same

U.S. CONST. amend. IV. See also Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 557 (1999) (“The Fourth Amendment was adopted by Congress in 1789 and ratified by the states in 1791 as one of the provisions of the Bill of Rights.”). 11 Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (quoting Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 528 (1967), Riley v. California, 573 U.S. 373, 403, (2014)) (“The ‘basic purpose of this Amendment,’ . . . ‘is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.’ The Founding generation crafted the Fourth Amendment as a ‘response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.’”). 12 Katz v. United States, 389 U.S. 347, 351 (1967) (“[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”).

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exclusions and limitations applying to both federal government officials13 and state law enforcement.14 When is the Fourth Amendment Implicated? Absent a citizen’s voluntary consent, all police activity involves violence or its threat. A “search” is by definition an unwanted, thus forced, invasion of a reasonable expectation of privacy.15 The threshold of the Amendment is unreasonableness. If the search is unreasonable, it is deemed illegal. But when the search is reasonable, it is legal.16 To comply with the Amendment, a search must have a warrant — a warrant that requires probable cause — or fall within a warrantless exception.17 If an officer violates these requirements outside of having a warrantless exception, then the search is unconstitutional, and evidence obtained during the search is inadmissible from a subsequent trial as “fruit of the poisonous tree.”18 This is because, in the balance between personal privacy and investigative tools, the historical nature of the Amendment favored personal privacy.19 13

Mapp v. Ohio, 367 U.S. 643, 655 (1961). United States v. White, 584 F.3d 935, 944 (10th Cir. 2009). 15 Andrew E. Taslitz, Reconstructing the Fourth Amendment: A History of Search and Seizure 1789-1868 2 (2006). 16 U.S. CONST. amend. IV. 17 Nardone v. United States, 308 U.S. 338, 341 (1939). 18 Id. 19 Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 576 (1999) (“The historical evidence also demonstrates that the Framers believed that the orderly and formal processes associated with specific warrants, including the judicial assessment of whether there was adequate cause for the intrusion, provided the best means of preventing violations of the security of person or house. In particular, the Framers thought that magistrates were more capable than ordinary officers of making sound decisions as to whether a search was justified.” Id. Professor Davies states his belief that social hierarchy contributed to the Founders’ distrust of the general warrants process. Id. Similarly, Professor Taslitz notes that “[p]art of the Revolutionaries’ concern with oppressive general searches lay also in the insult of being subjected to actual or threatened state force. Part of that insult was class based: subordinate, uneducated, and ‘low-born’ officers searched the homes of higher-ranked free householders. But the colonists were insulted too not simply by who did the searches but by how the suspects were chosen: arbitrarily, without adequate supporting evidence of individual wrong14

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Ongoing debate and criticism in England regarding general warrants influenced the Amendment’s development, including by William Pitt, who stated: The poorest man may, in his cottage, bid defiance to all the force of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.20 The Court finds that a search occurs under two circumstances.21 One involves property interests (spaces invaded), and the other involves privacy interests (persons invaded).22

When There is an Intrusion into a Property Interest First, a search occurs when law enforcement physically trespasses or intrudes on a person’s personal or real property, including in the search for evidence.23 The seminal case is Jones,24 which quoted the doing and without guidelines limiting officer discretion.” Taslitz, supra note 14, at 5.). 20 Wayne R. LaFave, Search And Seizure: A Treatise on the Fourth Amendment § 1.1(a) (6th ed.). 21 Carpenter, 138 S. Ct. at 2213 (“For much of our history, Fourth Amendment search doctrine was ‘tied to common-law trespass’ and focused on whether the Government ‘obtains information by physically intruding on a constitutionally protected area.’ More recently, the Court has recognized that ‘property rights are not the sole measure of Fourth Amendment violations.’ In Katz . . . , we established that ‘the Fourth Amendment protects people, not places,’ and expanded our conception of the Amendment to protect certain expectations of privacy as well. When an individual ‘seeks to preserve something as private,’ and his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.” Id. (citations omitted).). 22 Id. 23 Id. (quoting United States v. Jones, 565 U.S. 400, 405-06 (2012)) (“Fourth Amendment search doctrine was ‘tied to common-law trespass’ and focused on whether the Government ‘obtains information by physically intruding on a constitutionally protected area.’”). 24 United States v. Jones, 565 U.S. 400, 404-05 (2012) (“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a

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1765 English case of Entick v. Carrington25 that notes the effect of property rights incidental to a search: [O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.26 Professor Davies notes that the original intent of the Fourth Amendment, as a product of its time, has been confused by interpretation through the years, especially since the English court’s predecessor Entick decision.27 Specifically, the intent of the Amendment was less to create a standard of reasonableness and more to guard against the use of general warrants: warrants that “lacked each of the protections afforded by specific warrants: a complainant’s swearing out of specific allegations, the complainant’s accountability for fruitless searches, a judge’s assessment of the grounds for the warrant, and — perhaps most importantly — clear directions to the officer as to whom to arrest or where to search.”28 Davies commented that the “general warrant was reviled as a source of arbitrary power.”29 He argues that the Amendment has a specific meaning and purpose: constructing the “two-clause text was neither mysterious nor incomplete.”30 He advocates that the Amendment was a “specific response to a specific grievance that had arisen in a specific historical context and had been shaped by a specific vulnerability in the

physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”). 25 Entick v. Carrington, 95 Eng. Rep. 807, 817 (C. P. 1765) (Entick is noted by Professor Taslitz as “one of the landmarks of English liberty.” Taslitz, supra note 14, at 21. In Entick, a general warrant succeeded in a trespass suit with an award of 300£ against the government who conducted sweeps upon printers searching for seditious pamphlets. Id. The case, authorized by Lord Camden, challenged the “extralegal usage of [general warrants] since the Glorious Revolution of 1688 legitimated the flawed practice[.]” Id. at 20-21.). 26 Jones, 565 U.S. at 405 (quoting Entick, 95 Eng. Rep. at 817). 27 Davies, supra note 18, at 723–24. 28 Davies, supra note 18, at 655–57. 29 Id. 30 Davies, supra note 18, at 723–24.

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protections afforded by common-law arrest and search authority[:]” the problem of the general warrant.31 He articulates further that: The Framers aimed the Fourth Amendment precisely at banning Congress from authorizing use of general warrants; they did not mean to create any broad reasonableness standard for assessing warrantless searches and arrests. . . . [I]nstead, the Amendment’s ban on too-loose warrants served to reaffirm the common law’s general resistance to conferring discretionary authority on ordinary officers. The silences of the text regarding warrantless intrusions and when warrants were required or excused were not oversights or defects of drafting. Rather, in the common-law context the Framers had no reason to expect that those topics could become unsettled or controversial. The Framers . . . simply did not perceive the problem of search and seizure the same way that we do.32 Professor Davies notes that in interpreting “unreasonable,” particularly as a standard: A word rarely carries only a single meaning. Thus, the precise meaning a word was meant to carry in a text can be identified only by examining the customary usage of a term in the specific context addressed by the text. Moreover, because usages can shift over time, the meaning a word carried in a historical text can be evaluated only by considering the usage of the term in the specific historical context. In current Fourth Amendment doctrine, “unreasonable” is used as a relativistic term connoting inappropriateness in the circumstances. Although the relativistic usage of “reasonableness” does appear in framing-era discourse, and even in framing-era legal discourse, it was not the only meaning the term carried. The modern relativistic meaning of “reasonableness” is pragmatic, but late eighteenth-century legal discourse was usually of a more formal character. In the latter context, 31 32

Id. Id.

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“reasonable” usually connoted logic or consistency, and “unreasonable” connoted illogic or inconsistency in the form of a violation of a rule or principle. Moreover, “unreasonable” had become an extremely potent pejorative in constitutional discourse because “unreasonable” — in the form of “against reason” — had been used in famous episodes in English constitutional history to denounce violations of fundamental legal principle.33 He then looks to Lord Coke’s common law understanding of “against . . . reason,” as synonymous with saying that something is unconstitutional or illegal.34 Therefore, he interprets the Fourth Amendment’s phrasing of unreasonable searches to mean unconstitutional or illegal searches. Along similar lines, Professor Epstein’s article, which contrasts the Fourth and Fifth Amendments’ language, believes that the Amendments were intended to replicate Lord Camden’s protections from Entick in the language of the Bill of Rights; a drafting decision.35 He notes specific language included in the Takings and 33

Davies, supra note 18, at 686–87 (citations omitted). Davies, supra note 18, at 688 (“To understand what Coke meant by ‘against . . . reason,’ one must understand that ‘reason’ carried several different meanings in seventeenth-century common-law discourse. ‘Natural reason’ referred to logic. However, Coke and other legal writers insisted that the common law had its own ‘artificial reason,’ and sometimes used ‘reason’ in legal contexts as a label for the basic principles of the common law. Thus, ‘the reason’ of the common law became a label for principles such as, for example, the maxim that no man could be a judge in his own cause. To say that a statute was ‘against reason’ was to say that it violated basic principles of legality.”). 35 Richard A. Epstein, Entick v Carrington and Boyd v United States: Keeping the Fourth and Fifth Amendments on Track, 82 U. CHI. L. REV. 27, 31–32 (2015) (“The parallel clause in the Fifth Amendment — which was likewise influenced by Entick — reads: ‘[N]or shall [any person] be compelled in any criminal case to be a witness against himself.’ The most obvious way to examine these clauses is to note that they are clearly an effort to mimic in the Bill of Rights the protection that Lord Camden offered in Entick against ‘a warrant to search and seize’ the plaintiff’s papers. Yet the modern need to interpret the Fourth Amendment largely stems from the drafting decision to track the scope of this warrant rather than the common-law theory of trespass against private property that Camden relied on in Entick. With the benefit of hindsight, one can detect three awkward shortfalls in the scope of the Fourth Amendment that flow from this key drafting choice. The first relates to whether the Fourth Amendment’s coverage accurately tracks the rationale of Entick. The second is whether the response to the abuses so evident in Entick is tied 34

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Due Process Clauses of the Fifth Amendment — language not present in the Fourth — omissions he believes were intentional to limit and shape the scope of the Fourth Amendment in contrast to the Fifth Amendment.36 Specifically that Lord Camden, the author of the Entick opinion, “[c]onsistent with his Lockean bent,” 37 applied “standard common-law trespass rules” to Entick,38 where the Fourth Amendment lacks the “capacious term ‘property[ and instead] it contents itself with a list of four items, two of which cover the actual objects of search in Entick: ‘persons, houses, papers, and effects.’”39 He then notes that, in contrast, the Fifth Amendment includes the ‘capacious’ property terms in both the Takings and Due Process Clauses.40 too closely to the observed abuses, such that the Fourth Amendment’s protection is not equal in scope to the set of abuses that it is intended to guard against. The third relates to other kinds of searches that are not covered by the original warrant.”). 36 Epstein, supra note 35, at 34–35 (“[I]t is critical to note the difference in the scope of coverage provided in Entick and in the Fourth Amendment. Consistent with his Lockean bent, Camden applied the standard common-law trespass rules. These rules cover all forms of property, both real and personal, without distinction. Land, ‘goods[,] and chattels’ are all covered by the limitation on governmental power to the full extent of their loss. In contrast, the Fourth Amendment does not use the capacious term ‘property.’ Instead, it contents itself with a list of four items, two of which cover the actual objects of search in Entick: ‘persons, houses, papers, and effects.’ This could easily be construed to exclude constitutional protection for offices, shacks, barns, cars, horses, wagons, meadows, and outhouses on the ground that they fall outside the scope of the Fourth Amendment, even though the logic of Entick applies with full force to them. Indeed, the contrast between the scope of the Fourth and Fifth Amendments is striking because the latter uses the broader term ‘private property’ in connection with the Takings Clause, and the still-broader term ‘property’ in connection with the Due Process Clause. These two Amendments thus avoid textual differentiation among various types of property for natural law-theory purposes. It is an open question whether these word choices — which narrow the scope of the Fourth Amendment — were a product of conscious design or something less. Perhaps the drafters were content with addressing major abuse, leaving analogous situations to be dealt with at some later day. It is also worth noting that the word ‘privacy’ never appears in Entick; the best explanation for this omission is that, at least at that time, the extensive protection given to private property obviated the need to supply additional protection to privacy as such. To be sure, the word ‘private’ appears nineteen times in the opinion, but chiefly in such phrases as ‘private papers’ or ‘private drawer’ and never as a synonym for ‘privacy.’”). 37 Id. 38 Id. 39 Id. 40 Id.

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When there is an Intrusion into a Privacy Interest The Court also finds that a search occurs in the second type when a person’s reasonable expectation of privacy is infringed.41 The seminal case is Katz.42 In Katz, the Court extended the Fourth Amendment’s protections to include a person’s reasonable expectations of privacy, which is satisfied when two prongs are met. First, the person desires privacy, and second, the expectation of privacy is one that society deems reasonable.43 Katz also noted that a “reasonable expectation[] of privacy may be defeated by electronic as well as physical invasion.”44 Development of the Fourth Amendment’s Contours: Pre-Cellphone – Weeks, Katz, and Robinson The Amendment’s contours were first developed in Boyd45 and then in Weeks.46

Carpenter, 138 S. Ct. 2206, 2213 (2018) (quoting Soldal v. Cook Cnty., 506 U.S. 56, 64 (1992)). 42 Id. (Katz did not overrule the trespass theory; as noted in Jones: “Katz did not erode the principle ‘that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.’” Jones, 565 U.S. at 407.). 43 Carpenter, 138 S. Ct. at 2213 (citations omitted) (“[E]xpanded our conception of the Amendment to protect certain expectations of privacy as well. When an individual ‘seeks to preserve something as private,’ and his expectation of privacy is ‘one that society is prepared to recognize as reasonable,’ we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause.”). 44 Katz, 389 U.S. at 362 (1967). 45 LaFave, supra note 20, at § 1.1(b) (quoting J. Landynski, Search and Seizure and the Supreme Court 49 (1966)) (“The Fourth Amendment ‘remained for almost a century a largely unexplored territory.’” In Boyd, the Court sought to answer the question of whether forcing someone to turn over documents constituted an unreasonable search and seizure under the Fourth Amendment. Boyd v. United States, 116 U.S. 616, 622 (1886). The Court determined it was unreasonable. Id. at 627.). 46 Weeks v. United States, 232 U.S. 383, 386 (1914) (In Weeks, officers entered and searched defendant’s residence without either a warrant or consent.).

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Weeks: Development of the Exclusionary Rule In Weeks, the Court faced the question of whether documents seized during a warrantless search constitute an unreasonable search.47 It stated that: [N]o man’s house can be forcibly opened, or he or his goods be carried away after it has thus been forced, except in cases of felony, and then the sheriff must be furnished with a warrant, and take great care lest he commit a trespass. This principle is jealously insisted upon.48 In Weeks, long before the advent of technology, the contours of the Amendment were simpler: within the home, a reasonable search requires probable cause and a valid warrant to enter.49 Weeks thus caused an evolution to the original shape of the Exclusionary Rule, where evidence obtained in violation of one’s Fourth Amendment is barred; “a judicially created remedy designed to safeguard Fourth Amendment rights with a purpose of deterrent effect, rather than a personal constitutional right of the party aggrieved.”50 47

Id. Id. at 390. 49 Id. at 392 (“This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted [sic] under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights.”). 50 United States v. Leon, 468 U.S. 897, 906 (1984) (citation omitted). See also Davis v. United States, 564 U.S. 229, 229–32 (2011) (application of the good-faith exception to the exclusionary rule when a gun was found during a search of the passenger compartment of a vehicle after the occupants were removed and detained. “The Fourth Amendment protects the right to be free from ‘unreasonable searches and seizures,’ but it is silent about how this right is to be enforced. To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation.” Id. “The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations.” Id. at 236–37. “Our cases have thus limited the [Exclusionary] rule’s operation to situations in which this purpose is ‘thought most efficaciously served.’ Where suppression fails to yield 48

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This rule evolved to consider an officer’s “objective good faith” — the Leon Good-Faith Exception — upon a minor violation when considering the exclusion of illegally obtained evidence51 in light of the “substantial costs of exclusion.”52 The “cost-benefit analysis”53 said: [A]nalysis must also account for the “substantial social costs” generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. . . . Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.54 As the Supreme Court stated: “[T]here is nothing new in the realization that the Constitution sometimes insulates the criminality of a few in order to protect the privacy of us all.”55 The balance between privacy and investigation tips towards protecting privacy.

‘appreciable deterrence,’ exclusion is ‘clearly ... unwarranted.’” Id. at 237 (citation omitted).). 51 Id. (“[T]he exclusionary rule does not apply when the police conduct a search in ‘objectively reasonable reliance’ on a warrant later held invalid. The error in such a case rests with the issuing magistrate, not the police officer, and ‘punish[ing] the errors of judges’ is not the office of the exclusionary rule.” Davis, 564 U.S. at 238– 39 (citation omitted).). 52 Id. at 922 (Reaffirmed in Davis: “[T]he harsh sanction of exclusion ‘should not be applied to deter objectively reasonable law enforcement activity.’ Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.” Davis, 564 U.S. at 241 (citation omitted).). 53 Davis, 564 U.S. at 238 (“We abandoned the old, ‘reflexive’ application of the [Exclusionary Rule] doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits.”). 54 Id. at 237 (quoting Hudson v. Michigan, 547 U.S. 586 (2006); other citations omitted). 55 LaFave, supra note 20, § 1.2(a) (quoting Arizona v. Hicks, 480 U.S. 321, 329 (1987)).

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Katz: The Reasonable Expectation of Privacy Doctrine A person has a reasonable expectation of privacy, according to Justice Harlan’s Katz concurrence, when: (1) they act like they expect privacy (in Katz, this involved closing the door of a public phone booth), and (2) society recognizes the expectation of privacy as reasonable.56 The Fourth Amendment prohibits a qualified search without a valid warrant.57 In the reverse, a circumstance that lacks a reasonable expectation of privacy — instead has an unreasonable expectation of privacy — does not implicate the Fourth Amendment unless it involves an intrusion into a property interest.58 The Katz test is subjective.59 Because, as a later Court noted: “[T]he specific content and incidents of this right must be shaped by the context in which it is asserted. For ‘what the Constitution forbids is not all searches and seizures, but unreasonable searches and seizures.’”60 Further, the circumstances may change the reasonableness of the search: “a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.”61 Katz’s progeny have used the synonyms “justifiable,” “reasonable,” or “legitimate expectation of privacy” to describe the interest “invaded by government action;”62 the interest that determines the Fourth Amendment’s effect. In order for “governmental investigative activities” to intrude upon one’s Fourth Amendment rights, there must be both an “interest 56

Katz, 389 U.S. at 361 (Harlan, J., concurring) (The Harlan concurrence states that: “[A] twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ Thus a man’s home is, for most purposes, a place where he expects privacy, but objects, activities, or statements that he exposes to the ‘plain view’ of outsiders are not ‘protected’ because no intention to keep them to himself has been exhibited. On the other hand, conversations in the open would not be protected against being overheard, for the expectation of privacy under the circumstances would be unreasonable.”). 57 Id. 58 Id. at 351. 59 California v. Greenwood, 486 U.S. 35, 39 (1988) (“The warrantless search and seizure of the garbage bags left at the curb outside the Greenwood house would violate the Fourth Amendment only if respondents manifested a subjective expectation of privacy in their garbage that society accepts as objectively reasonable.”). 60 Terry v. Ohio, 392 U.S. 1, 9 (1968). 61 Id. at 17–18. 62 Smith v. Maryland, 442 U.S. 735, 740 (1979); see also Jones, 565 U.S. at 406.

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legitimately protected by the Fourth Amendment,” and the intrusion must invade a “zone of privacy.” Zone of privacy is defined as “the security a man relies upon when he places himself or his property within a constitutionally protected area.”63 Scholars succinctly attribute the Katz rule to the notion that: “secrecy is a prerequisite for privacy[.]”64 However, a scholar notes that “no one seems to know what makes an expectation of privacy constitutionally ‘reasonable.’ The Court has repeatedly refused to offer a singular test.”65 Doctrines Involving an Unreasonable Expectations of Privacy Warrantless exceptions have developed in case law, including in the contexts of searches involving abandoned property,66 vehicle searches (for the safety of law enforcement),67 consent to search,68

United States v. Miller, 425 U.S. 435, 440 (1976) (quoting Hoffa v. United States, 385 U.S. 293, 301-302 (1966)). 64 Brief for Scholars of the History and Original Meaning of the Fourth Amendment as Amici Curiae Supporting Petitioner at 12-13, Carpenter v. United States, 138 S. Ct. 2206 (2018) (No. 16-402) (These scholars also note that Katz’s distilled rule is not a historical component of the Amendment.). 65 Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STAN. L. REV. 503, 504 (2007) [hereinafter Kerr, Four Models]. 66 Hester v. United States, 265 U.S. 57, 58 (1924).See also Abel v. United States, 362 U.S. 217, 241 (1960)) (“The defendant’s own acts, and those of his associates, disclosed the jug, the jar and the bottle — and there was no seizure in the sense of the law when the officers examined the contents of each after it had been abandoned. This evidence was not obtained by the entry into the house and it is immaterial to discuss that.” And “att the time of the search petitioner had vacated the room. The hotel then had the exclusive right to its possession, and the hotel management freely gave its consent that the search be made. . . . [P]etitioner had abandoned these articles. He had thrown them away. So far as he was concerned, they were bona vacantia.”). 67 Arizona v. Gant, 556 U.S. 332, 351 (2009) (“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.” Id. See also Davis, 564 U.S. 229; Maryland v. Wilson, 519 U.S. 408, 412 (1997).). 68 Ysasi v. Brown, 3F.Supp.3d 1088, 1139 (2014).

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container searches,69 third parties,70 and plain view71 among others (including searches conducted in designated areas such as schools or airports). This is because, as the Court noted in Katz, “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.”72 In these situations, the Fourth Amendment does not apply because the Court has determined that no reasonable expectation of privacy exists. Vehicle Search Doctrine There is a lowered expectation of privacy regarding a vehicle than in a dwelling because a vehicle can be peered into more easily and there is a heightened risk to officer safety.73 A vehicle is also usually pulled over in conjunction with probable cause. When it comes to a traffic stop, an officer has three search options regarding the vehicle and persons inside the vehicle — including objects in an occupant’s control — under the justification of protecting the officer’s safety.74 However, officer safety does not justify an unlimited search75 because “[a] routine traffic stop, . . . is a relatively brief encounter and ‘is more analogous to a so-called ‘Terry stop’ ... than to a formal arrest.’”76

Jones, 565 U.S. at 410. Smith, 442 U.S. 735; Miller, 425 U.S. 435. 71 Hicks, 480 U.S. 321, 323 (1987) (quoting Coolidge v. New Hampshire, 403 U.S. 443 (1971), holding modified by Horton v. California, 496 U.S. 128 (1990)) (“[I]n certain circumstances a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the Fourth Amendment.”). 72 Katz, 389 U.S. at 351. 73 Wyoming v. Houghton, 526 U.S. 295, 304 (1999). 74 Knowles v. Iowa, 525 U.S. 113, 117–18 (1998). 75 Id. at 117. 76 Id. 70

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First, an officer may order the occupants to exit the vehicle — both the driver77 and any passengers.78 The Court considers the brief detainment minor when balanced against the officer’s safety in the situation79 because, as the Wilson Court notes, once the vehicle has been validly detained, having the occupants exit the vehicle is “de minimis.”80 Second, the officer may then conduct a Terry pat down of the driver81 and any passengers.82 This type of search is reasonable under the Fourth Amendment.83 This pat down, Stop and Frisk, or a Terry stop, requires the officer’s reasonable suspicion that they are dealing with an individual dangerous to the officer’s safety or to others in the vicinity.84 The standard is that a reasonably prudent officer “in the circumstances would be warranted in the belief that [their] safety or that of others was in danger.”85 The circumstances of the situation will determine the reasonableness of the Stop and Frisk.86 The officer must identify themselves and have a reasonable suspicion.87 Third, the officer may also search the passenger areas of a vehicle to neutralize any accessible weapons upon a reasonable suspicion.88 In this context, an officer may search “incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe 77

Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (quoting Terry, 392 U.S. at 10) (“[H]ardly rises to the level of a ‘petty indignity.’”). But see Delaware v. Prouse, 440 U.S. 648, 663 (1979) (Where “stopping an automobile and detaining the driver in order to check his driver's license and the registration” is an unreasonable search.Id. Because “Nor are [people] shorn of [Fourth Amendment] interests when they step from the sidewalks into their automobiles.” Id.). 78 Wilson, 519 U.S. 408, 410 (1997) (extended Mimms to include passengers). See also Brendlin v. California, 551 U.S. 249 (2007). 79 Mimms, 434 U.S. at 111 (“What is at most a mere inconvenience cannot prevail when balanced against legitimate concerns for the officer’s safety.”). 80 Wilson, 519 U.S. at 412. 81 Terry, 392 U.S. at 30–31. 82 Id. 83 Id. 84 Id. at 27. 85 Id. 86 Id. at 30–31. 87 Id. 88 Michigan v. Long, 463 U.S. 1032, 1035 (1983) (“We hold that the protective search of the passenger compartment was reasonable under the principles articulated in Terry and other decisions of this Court.”).

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the vehicle contains evidence of the offense of arrest.”89 Lacking these conditions, a search is unreasonable and in violation of the Fourth Amendment; an officer must either obtain a valid warrant or satisfy another exception condoning a warrantless search.90 In this last instance, Justice Scalia’s Gant concurrence noted: When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety—and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car.91 In Wyoming v. Houghton, the Court compared detaining a vehicle to historical legislation empowering customs officials to detain vessels without a warrant when there was probable cause that goods subject to a duty were on board.92 The Houghton Court believed the extension to a warrantless search of containers in a vehicle was justifiable.93 The Court reasoned that: Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars, which ‘trave[l] public thoroughfares, seldom serv[e] as ... the repository of personal effects, are subjected to police stop and examination to enforce ‘pervasive’ governmental controls ‘[a]s an everyday occurrence,’ and, finally, are exposed to traffic accidents that may render all their contents open to public scrutiny.94 The rule developed that officers, with probable cause, may search the contents of a car — driver and passenger belongings — to the extent that the objects searched are “capable of concealing the object of the search.”95 89

Gant, 556 U.S. at 351. Id. 91 Gant, 556 U.S. at 351–52. 92 Houghton, 526 U.S. at 300 (citing Carroll v. United States, 267 U.S. 132 (1925)). 93 Id. (citing United States v. Ross, 456 U.S. 798 (1982)). 94 Id. at 303 (citations omitted). 95 Id. at 307. 90

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Container Search Doctrine [E]ven after a police officer lawfully places a suspect under arrest for the purpose of taking him into custody, he may not ordinarily proceed to fully search the prisoner. He must, instead, conduct a limited frisk of the outer clothing and remove such weapons that he may, as a result of that limited frisk, reasonably believe and ascertain that the suspect has in his possession.96 In Robinson, police recognized a car they had stopped four days earlier, and the officer believed the driver was driving without a valid license.97 After stopping the car, the officer patted down the driver and felt something in his pocket, which turned out to be a “crumpled cigarette packet.”98 The officer could feel something in the packet that he did not believe were cigarettes.99 He opened the packet and found capsules; the capsules were later determined to contain heroin.100 The Court held that the officer did not violate Robinson’s Fourth Amendment rights when he opened the cigarette packet without a warrant,101 explaining that: It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest.

United States v. Robinson, 414 U.S. 218, 227 (1973) (“It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.” Id. at 224.). 97 Id. at 220. 98 Id. at 223. 99 Id. 100 Id. 101 Id. at 224.

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The second is that a search may be made of the area within the control of the arrestee.102 The Court noted that this type of search is reasonable to remove any weapons from the arrestee that could be used against the officer, to remove anything from the arrestee’s person they could use later to escape, or to prevent the arrestee from destroying evidence.103 The Court noted the distinction between lawful and unlawful searches of objects on a person as: (1) unlawful when the purpose of the search is to discover evidence to convict the person for an unknown crime, and (2) lawful when the purpose is post-arrest and to acquire weapons or escape tools.104 In Acevedo, the Court applied the Robinson rationale to the search of the “closed container of the truck of [arrestee’s] car.”105 The Court also looked to the rationale of the earlier Ross decision, which held that if there was probable cause for a warrantless search of a vehicle, that extends to a search of the entire vehicle.106 Third-Party Doctrine A party who voluntarily discloses, consents, or hands over property to a third party waives an expectation of privacy.107 This is because if the object was so private, one would not share it with others or let it out of their control. The Court held that the Fourth Amendment: [D]oes not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.108

102

Id. Id. at 226 (citing Chimel v. California, 395 U.S. 752 (1969)). 104 Id. at 232 (citing People v. Chiagles, 142 N.E. 583 (1923)). 105 California v. Acevedo, 500 U.S. 565, 566 (1991). 106 Id. at 570 (citing Ross, 456 U.S. 798). 107 Smith, 442 U.S. at 745; see also Miller, 425 U.S. at 443. 108 Miller, 425 U.S. at 443 (citing United States v. White, 401 U.S. 745, 751-52 (1971)). 103

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Investigators can request the information from the third party. The Court “must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate ‘expectation of privacy’ concerning their contents.”109 The Smith Court held that a reasonable expectation of privacy does not exist when one uses a third party’s property110 because “a person has no legitimate expectation of privacy in information [they] voluntarily turn[] over to third parties.”111 Plain View Doctrine Under the plain view doctrine, the Horton Court distinguishes search from seizure, with different resultant invasions: for a search, the invasion involves loss of privacy; for a seizure, the invasion involves deprivation of property.112 The plain view doctrine is an exception to the warrant requirement113 — a circumstance where a warrant may not be required to search and seize.114 However, an object in plain view is never sufficient on its own to justify a warrantless search.115 The plain view exception has three requirements: first, that the officer’s presence at the site of the search is legal — by consent of the owner, by authority, or through a valid warrant allowing entry into another’s house.116 An officer must not have violated the Fourth Amendment to gain access to the item or object in plain view.117 Second, the item or object must be in plain view118 — moving anything to access the object effectuates a search

109

Id. at 442. Smith, 442 U.S. at 744. 111 Id. at 743–44. 112 Horton v. California, 496 U.S. 128, 133 (1990). 113 Id. 114 Hicks, 480 U.S. at 323. 115 Horton, 496 U.S. at 136 (Citing Coolidge v. New Hampshire, 403 U.S. 443 (1971), holding modified by Horton, 496 U.S. 128) (Using the example that if an officer outside of a house sees drugs on a table through an open curtain, that officer may not use the Plain View Doctrine to enter the house and seize the drugs. The officer first requires a valid search to enter the house, which involves either a warrant or exigent circumstances (an emergency)). 116 Id. 117 Id. 118 Id. 110

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that requires a warrant to access.119 Third, the “incriminating character” of the item/object must be “immediately apparent” to the officer.120 This includes when an officer searches a container to access its contents; if the officer has valid authority to open the container, the plain view doctrine allows the officer to search the contents if all three requirements are satisfied.121

Search Circumstances Implicating the Fourth Amendment The Supreme Court has noted three “types of police-citizen encounters”122 as: consensual encounters which do not implicate the Fourth Amendment; (2) investigative detentions which are Fourth Amendment seizures of limited scope and duration and must be supported by a reasonable suspicion of criminal activity; and (3) arrests, the most intrusive of Fourth Amendment seizures and reasonable only if supported by probable cause.123 Search Incident to an Arrest A search incident to arrest is an exception to the Fourth Amendment warrant requirement historically involving two circumstances — first, the “person of the arrestee by virtue of the lawful arrest,” and second, the “area within the control of the arrestee.”124 An officer does not require a warrant.125 This exception 119

Hicks, 480 U.S. at 325. Horton, 496 U.S. at 136. 121 Id. at 141–42. 122 White, 584 F.3d at 944. 123 Id. at 944–45 (emphasis added). 124 Robinson, 414 U.S. at 224. 125 Gant, 556 U.S. at 339 (2009). See also Davis, 564 U.S. at 232 (“We believe this search was constitutionally permissible under the principles of Chimel . . . . Chimel stands in a long line of cases recognizing an exception to the warrant requirement when a search is incident to a valid arrest. The basis for this exception is that when an arrest is made, it is reasonable for a police officer to expect the arrestee to use any weapons he may have and to attempt to destroy any incriminating evidence then in his possession. The Court recognized in Chimel that the scope of a 120

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was first articulated by the Weeks Court.126 At that time, it only pertained to searching a person and not to searching surrounding or incident property.127 It was extended shortly later to include unlawful objects found on or within the control of the person arrested.128 There are two justifications for this exception to the warrant requirement: first, safety – disarming the arrestee when he/she is taken into custody, and second, preserving evidence for trial.129 A person may be searched within their home130 or when outside their home.131 The Chimel Court noted the scope of this type of search: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to warrantless search must be commensurate with the rationale that excepts the search from the warrant requirement. Thus, a warrantless search incident to arrest, the Court held in Chimel, must be limited to the area ‘into which an arrestee might reach.’” Cupp v. Murphy, 412 U.S. 291, 295 (1973)). 126 Chimel, 395 U.S. 752, 755 (1969) (reversed on other grounds) (quoting Weeks, 232 U.S. 383 (1914)) (The Weeks Court stated that: “What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.” Weeks, 232 U.S. at 392 (1914). 127 Chimel, 395 U.S. at 755 (reversed on other grounds)). 128 Id. at 755–56 (quoting Carroll, 267 U.S. 132 (1925) (“Eleven years later the case of Carroll v. United States brought the following embellishment of the Weeks statement: ‘When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held as evidence in the prosecution.’”). 129 Knowles, 525 U.S. at 116. 130 Chimel, 395 U.S. at 762–63. 131 Robinson, 414 U.S. at 224.

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the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.132 Searching areas away from the arrestee, including other rooms in their home or areas outside of their reach that are otherwise in “closed or concealed areas[,]” requires a warrant.133 The search is not limited in time to only after an arrest, but may occur prior,134 if within a reasonable time. In Rawlings, the arrestee was detained for 45 minutes prior to his arrest.135 During that time, the officers were in his home, where Rawlings offered them coffee and they obliged. 136 The Rawlings Court stated that “[w]here the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”137 In doing so, they implied that the 45-minute delay was not unreasonable. Cupp provides another example of this principle. In Cupp, the defendant voluntarily came to the police station where officers noticed what they believed to be dried blood on a finger.138 Police then collected fingernail scrapings from Cupp without his permission and without arresting him; he left and was arrested a month later for

132

Chimel, 395 U.S. at 762–63. Id. at 763 (“After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; but it is small consolation to know that one’s papers are safe only so long as one is not at home.” Id. at 767–68.). 134 Rawlings v. Kentucky, 448 U.S. 98, 111 (1980) (“Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa.”). 135 Id. at 100. 136 Id. at 108. 137 Id. at 111. 138 Cupp, 412 U.S. 291, 292 (1973). 133

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the murder.139 The Court held that the search was constitutional by way of sufficient probable cause.140 The Cupp Court made distinctions from Davis v. Mississippi, where fingerprints were collected but where Davis lacked probable cause because the evidence was collected purely as part of the investigation.141 Search of One’s Home or Property “A warrantless search is per se unreasonable and is constitutionally prohibited unless the search falls within one of a few exceptions.”142 The warrant requirement recognizes the need to limit privacy invasions and that a neutral magistrate should step between the investigative team and those being investigated.143 Search of One’s Person in the Public Realm This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.144 139

Id. Id. at 295. 141 Davis v. Mississippi, 394 U.S. 721 (1969) (In Cupp, “[t]he respondent was detained only long enough to take the fingernail scrapings, and was not formally ‘arrested’ until approximately one month later. Nevertheless, the detention of the respondent against his will constituted a seizure of his person, and the Fourth Amendment guarantee of freedom from ‘unreasonable searches and seizures’ is clearly implicated[.]”Cupp, 412 U.S. at 294.). 142 68 AM. JUR. 2D Searches and Seizures § 14 (2022). 143 McDonald v. United States, 335 U.S. 451, 455–56 (1948) (“The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing; and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that constitutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.”). 144 Terry, 392 U.S. at 8–9. 140

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When a person is stopped on the street, both the Fourth and Fifth Amendments are implicated. The distinction between the two amendments involves the point when a detained person is considered seized and when that seizure rises to the level of an arrest, to require a Miranda warning.145 Although, as “the Court was articulating a ‘freedom of movement’ standard for Miranda warnings, it was developing what appeared to be a similar ‘free to leave’ standard for determining when a seizure occurred for purposes of the Fourth Amendment.”146 In the Fourth Amendment context, a Terry Stop is an exception; law enforcement are allowed to conduct a reasonable search. In Terry, an officer on routine patrol for shoplifters witnessed two men pacing a city block; with the pair making “roughly a dozen trips” — each time peering into a specific shop window and briefly speaking with a third man.147 He approached the trio and asked their names.148 The men’s “mumbled” responses led the officer to grab and turn Terry towards a wall where he was patted down on the outside of his clothing by the officer, who felt a gun.149 The officer then conducted a pat down of the other two men, finding another gun.150 The officer claimed he only reached under their clothing after feeling the guns during the outside pat down.151 The Court sought to

145

Cruz v. Miller, 255 F.3d 77, 81 (2d Cir. 2001) (“Miranda stated that its requirements apply to ‘custodial interrogation,’ which the Court explained was ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ The Court also noted that the decision was not intended to apply to ‘[g]eneral onthe-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.’ Because most people stopped by police on a street and asked questions would not feel free to leave, these two thoughts created a potential conflict that subsequent decisions have not entirely eliminated. On the one hand, the Court exempted ‘[g]eneral on-the-scene questioning’ from Miranda warnings, yet required them whenever a person is ‘deprived on his freedom of action in any significant way.’” Cruz, 255 F.3d at 81 (quoting Miranda v. Arizona, 384 U.S. 436, 444, 477 (1966)). 146 Id. at 82. 147 Terry, 392 U.S. at 5-6. 148 Id. at 6-7. 149 Id. at 7. 150 Id. 151 Id.

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clarify the limits of Stop and Frisk of a “suspicious person” within the boundaries of the Fourth Amendment.152 The Court reasoned that the officer’s conduct was reasonable because he limited his touching of the Defendant’s person to his clothing’s exterior prior to feeling a weapon and only after removed the weapons and arrested the men.153 He had sufficient probable cause from their suspicious behavior.154 The Court notes that determining the reasonableness of this search circumstance is subjective — “decided on its own facts.”155 However, when an officer “observes unusual conduct . . . in light of [the officer’s] experience,” the officer may “conduct a carefully limited search of the outer clothing of such persons” to attempt to neutralize the threat without violating the Fourth Amendment.156 Further cases have cited Terry as allowing law enforcement to detain persons without probable cause under Terry’s “limited circumstances.”157 This includes when law enforcement have (1) less than probable cause to believe a crime is about to occur,158 (2) belief that a crime is in progress,159 or (3) belief that a crime already occurred.160 Testing the Fourth Amendment’s Contours: Smartphone Era – Jones, Riley, and Carpenter The invention of the smartphone created an obstacle to previous precedent. Before, mobile devices comprised flip phones or pagers; the technology of the device was limited predominantly to receiving calls or text messages. The invention of the smartphone and its rapid 152

Terry, 392 U.S. at 10 (“For this purpose it is urged that distinctions should be made between a ‘stop’ and an ‘arrest’ (or a ‘seizure’ of a person), and between a ‘frisk’ and a ‘search.’”). 153 Id. at 29-30 (1968) (The officer “had reasonable grounds to believe that [Terry] was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized.” Id. at 30.). 154 Id. at 28. 155 Id. at 30. 156 Id. at 30-31. 157 United States v. Hensley, 469 U.S. 221, 226 (1985). 158 Terry, 392 U.S. at 5-6. 159 Adams v. Williams, 407 U.S. 143, 144-45, 147-48 (1972). 160 Hensley, 469 U.S. at 227.

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increase in use involved smaller-sized portable devices with access to mobile apps and the internet. Suddenly, the smartphone user had a portable computer in their pocket. Gant and Davis: Limiting the Vehicle Search Doctrine In Gant, after an anonymous drug tip, law enforcement visited a home where Gant answered the door and told the officers that the owner of the house would return later.161 Police looked up Gant’s name in their system and discovered an outstanding warrant for driving with a suspended license.162 Police returned later to see Gant drive into the driveway; he was arrested.163 At that time, he was handcuffed and placed into the back of a police vehicle — unable to exit.164 Law enforcement then searched his vehicle, where they discovered cocaine hidden in the pocket of a jacket located in the backseat of the vehicle.165 The Gant Court restricted its prior rulings relevant to the vehicle search doctrine, including unlimited searches resulting from minor traffic violations166 and unlimited access to the inside of a vehicle.167 The Court reasoned that at the time of the search, Gant was locked in the police vehicle such that objects in the vehicle were of limited threat to the officers, which included his jacket on the back seat.168

161

Gant, 556 U.S. at 335-36. Id. at 336. 163 Id. 164 Id. at 335. 165 Id. 166 Riley, 573 U.S. 373, 399 (2014) (“Gant restricts broad searches resulting from minor crimes such as traffic violations.”). 167 Gant, 556 U.S. at 341 (“[T]o allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.”). 168 Id. at 344 (“Neither the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case. Unlike in Belton, which involved a single officer confronted with four unsecured arrestees, the five officers in this case outnumbered the three arrestees, all of whom had been handcuffed and secured in separate patrol cars before the officers searched Gant's car. Under those circumstances, Gant clearly was not within reaching distance of his car at the time of the search.”). 162

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Later courts saw Gant as restricting searches to looking for evidence to impeach one of a prior criminal act.169 As a result, the Gant Court held that Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.170 A few years later, the Davis Court adopted a two-part rule for an automobile search incident to an occupant’s arrest: when either the arrestee is within reaching distance of the vehicle during the search, or the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.”171 Jones: Limiting the Container Search Doctrine Justice Sotomayor, in her Jones concurrence, stated: [S]ome people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.172

169

Riley, 573 U.S. at 399. Gant, 556 U.S. at 351. 171 Davis, 564 U.S. at 234–35. 172 Jones, 565 U.S. at 417–18 (2012) (Sotomayor, J., concurring) (citations omitted). 170

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In Jones, the Court determined that attaching a GPS device onto a person’s vehicle constituted a search.173 The police obtained a warrant to install the device within 10 days, but failed to attach the tracker until the 11th day; they monitored Jones for 28 days.174 In their reasoning, the Court tracks its “beeper” decisions in Knotts and Karo, where beepers were placed within containers to track their movements; the Court noted distinctions of whether the owner grants permission prior to handing over the container or whether the recipient accepts the container in an ‘as is’ condition.175 The Court also returned to one of the two original Fourth Amendment implications: when private property is invaded,176 while pointing out that Katz’s reasonable expectation of privacy standard supplements and does not do away with the trespass standard.177 However, in the Alito concurrence, several Justices advocated for another approach — the mosaic theory.178 173

Id. at 404. Id. at 402–03. 175 Id. at 410 (citing United States v. Knotts, 460 U.S. 276 (1983); United States v. Karo, 468 U.S. 705 (1984)) (In Knotts, a beeper was placed into a five-gallon drum of chloroform with the chemical company’s prior consent. The drum was then passed to the suspect. The investigatory intention was to track the movement of the drum as it traveled to its final destination; chloroform is a drug-making ingredient. United States v. Knotts, 460 U.S. 276, 278 (1983). There was no Fourth Amendment violation, because the vehicle and drum could have been tracked using traditional surveillance, because “no such expectation of privacy extended to the visual observation of [the suspect’s] automobile arriving on his premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the ‘open fields.’” Id. at 282. In Karo, a beeper was installed within drums of ether with the owner’s consent — the owner was a government informant — the ether were then passed to the suspects and the beeper allowed investigators to follow the route. United States v. Karo, 468 U.S. 705, 708 (1984). The Court stated that: “We likewise do not believe that the transfer of the container constituted a seizure. A ‘seizure’ of property occurs when ‘there is some meaningful interference with an individual’s possessory interests in that property.’” Id. at 712 (citations omitted)). 176 Jones, 565 U.S. at 404 (“The Government physically occupied private property for the purpose of obtaining information.”). 177 Id. at 406-07 (“Katz did not repudiate that understanding” (referring to the property-based approach)). 178 Id. at 427 (Alito, J., concurring) (“In addition, the Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. 174

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In Jones, the distinction between Knotts and Karo was in the purpose of the tracking device. The relevant questions were (1) in Knotts: where is the drum’s end destination, and (2) in Karo: where are all the places that the drums will visit.179 And in Jones, the 28day surveillance followed Karo, studying every movement and location within the entirety of that duration; all of the locations of the vehicle within the 672 hours.180 Attaching a GPS device was a search by its intrusion into a property interest. Riley and Wurie: Limiting the Incident to Arrest Doctrine Riley noted: In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information

New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.” Id. “Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Id. at 430 (Sotomayor, J., concurring) (citation omitted)). 179 Id. at 420 (Alito, J., concurring) (“If these two procedures are analyzed separately, it is not at all clear from the Court’s opinion why either should be regarded as a search.”). 180 United States v. Maynard, 615 F.3d 544, 558 (D.C. Cir. 2010) (aff’d in part sub nom. Jones, 565 U.S. 400) (Maynard was arrested with Jones, of Jones. “Here the police used the GPS device not to track Jones’s ‘movements from one place to another,’ but rather to track Jones’s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place. Id. (citing Knotts, 460 U.S. at 281)).

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never found in a home in any form — unless the phone is.181 In Riley, the defendant was stopped while driving with expired registration tags, and when officers learned his license was suspended, his vehicle was impounded and searched; during the search, weapons were found.182 In the course of arresting him, officers found a smartphone in Riley’s pocket.183 An officer accessed the contents of the phone, discovering suspicious designations, which was then examined by a detective with gang specialty.184 The detective then searched and found photos leading officers to charge Riley in connection with a prior shooting.185 In Riley’s companion case Wurie, officers arrested the defendant after observing a suspected drug sale, and in the search of his person incident to the arrest found two phones — one a flip phone.186 Officers opened the phone, observed the wallpaper photo, and then accessed the phone’s call log to reverse-trace the phone number labeled “my house.”187 Police then went to that address and executed a search warrant.188 In both instances, defendants were arrested on charges resulting from the warrantless searches of their phones incident to arrest — charges that were not known at the time of the phone’s search.189 In Riley and Wurie, the Court noted that these two cases present a new dilemma for Fourth Amendment jurisprudence: the “modern cell

181

Riley, 573 U.S. at 396-97 (quoting United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2)). 182 Id. at 378. 183 Id. at 379. 184 Id. 185 Id. 186 Id. at 380. 187 Id. 188 Id. at 380-81. 189 Id. at 382.

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phone”190 with its larger and more diverse amount of personal data and “the negligible threat they pose to law enforcement interests.”191 The Court also opined that “warrantless searches incident to arrest occur with far greater frequency than searches conducted pursuant to a warrant.”192 Additionally, the Court pointed to a “search incident to arrest trilogy” of “[t]hree related precedents set[ting] forth the rules governing [searches incident to arrest:]” Chimel, Robinson, and Gant.193 Chimel in the home, and Robinson and Gant in the course of a vehicle stop.194 The Court noted the balancing test to determine when a warrantless search does not violate the Fourth Amendment: “[W]e generally determine whether to exempt a given type of search from the warrant requirement ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’”195 Ultimately, the Court “decline[s] to extend Robinson to searches of data on cell phones, and hold instead that officers must generally secure a warrant before conducting such a search.”196 The Court noted, first, that a warrant could be obtained,197 and second, that once

190

Id. at 385 (“These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. . . . Even less sophisticated phones like Wurie’s, [a flip phone] which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided.). 191 Id. at 381 (“Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.” Id. at 387). 192 Id. at 382. 193 Id. at 382-84. 194 Chimel, 395 U.S. 752 (1969); Robinson, 414 U.S. 218 (1973); Gant, 556 U.S. 332 (2009). 195 Riley, 573 U.S. at 385 (quoting Houghton, 526 U. S. at 300). 196 Id. at 386. 197 Id. at 388.

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the phone is in police custody, the risk of evidence destruction from the owner is rare.198 The Riley Court commented on distinctions from the Robinson container search, where smartphones are more analogous to “minicomputers” with a vast array of capabilities, including data storage, and that “[b]efore cell phones, a search of a person was limited by physical realities and tended as a general matter to

198

Id. (“[I]nformation on a cell phone may nevertheless be vulnerable to two types of evidence destruction unique to digital data—remote wiping and data encryption. Remote wiping occurs when a phone, connected to a wireless network, receives a signal that erases stored data. This can happen when a third party sends a remote signal or when a phone is preprogrammed to delete data upon entering or leaving certain geographic areas (so-called “geofencing”). . . . Encryption is a security feature that some modern cell phones use in addition to password protection. When such phones lock, data becomes protected by sophisticated encryption that renders a phone all but “unbreakable” unless police know the password. . . . With respect to remote wiping, the Government’s primary concern turns on the actions of third parties who are not present at the scene of arrest. And data encryption is even further afield. There, the Government focuses on the ordinary operation of a phone’s security features, apart from any active attempt by a defendant or his associates to conceal or destroy evidence upon arrest. We have also been given little reason to believe that either problem is prevalent. The briefing reveals only a couple of anecdotal examples of remote wiping triggered by an arrest. Id. at 388-89 (citations omitted). Moreover, in situations in which an arrest might trigger a remote-wipe attempt or an officer discovers an unlocked phone, it is not clear that the ability to conduct a warrantless search would make much of a difference. The need to effect the arrest, secure the scene, and tend to other pressing matters means that law enforcement officers may well not be able to turn their attention to a cell phone right away. . . . Cell phone data would be vulnerable to remote wiping from the time an individual anticipates arrest to the time any eventual search of the phone is completed, which might be at the station house hours later. Likewise, an officer who seizes a phone in an unlocked state might not be able to begin his search in the short time remaining before the phone locks and data becomes encrypted. . . . [L]aw enforcement is not without specific means to address the threat. Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this: First, law enforcement officers can turn the phone off or remove its battery. Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves. Such devices are commonly called “Faraday bags,” after the English scientist Michael Faraday. They are essentially sandwich bags made of aluminum foil: cheap, lightweight, and easy to use. They may not be a complete answer to the problem, but at least for now they provide a reasonable response.” Id. at 390 (citations omitted)).

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constitute only a narrow intrusion on privacy.” 199 The Court further noted the rise of app usage, where: “The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.”200 Finally, Riley pointed out that “[c]ell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.”201 Warrants are required to access a phone’s contents, with consideration only to exigent circumstance exceptions.202 The standard post-Riley is that law enforcement must acquire a warrant before searching a phone incident to arrest, especially when the phone has been secured by law enforcement.203 Carpenter: Pulling Doctrines Together [O]ur cases have recognized some basic guideposts. First, that the Amendment seeks to secure “the privacies of life” against “arbitrary power.” Second, and relatedly, that a central aim of the Framers was “to place obstacles in the way of a too permeating police surveillance.”204 The premise of Carpenter was whether the 6th Circuit’s determination that cell-site location data lacked a reasonable expectation of privacy because of third-party doctrine was a correct

199

Id. at 393 (“Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity.” Id. The Court also notes concerns with GPS tracking and browsing histories revealing personal and private interests or concerns. Id. at 396). 200 Id. at 396. 201 Id. at 401. 202 Id. at 401-02. 203 Carpenter, 138 S. Ct. at 2214. 204 Id. (quoting Boyd, 116 U.S. at 630; United States v. Di Re, 332 U.S. 581, 595 (1948)).

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interpretation of the Fourth Amendment.205 The Court’s answer was no.206 The Court’s reasoning noted that the digital data involved “lie[s] at the intersection of two lines of cases[:]”207 first, one’s reasonable expectation of privacy regarding their location and movements,208 and second, what one chooses to share with another versus keeping private, which involves assuming the risk of disclosure by that third party.209 The cell site data at issue in Carpenter is collected, stored, and maintained by third parties and has the ability to create a map of an individual’s whereabouts for a given — often large — duration.210 The data can also reveal web sites visited and other activities where a smartphone or digital device is connected to a cell tower,211 which

205

Id. at 2213 (“Cell phones continuously scan their environment looking for the best signal, which generally comes from the closest cell site. Most modern devices, such as smartphones, tap into the wireless network several times a minute whenever their signal is on, even if the owner is not using one of the phone’s features. Each time the phone connects to a cell site, it generates a time-stamped record known as cell-site location information (CSLI). The precision of this information depends on the size of the geographic area covered by the cell site. The greater the concentration of cell sites, the smaller the coverage area. As data usage from cell phones has increased, wireless carriers have installed more cell sites to handle the traffic. That has led to increasingly compact coverage areas, especially in urban areas.”). 206 Id. at 2221 (“Having found that the acquisition of Carpenter’s CSLI was a search, we also conclude that the Government must generally obtain a warrant supported by probable cause before acquiring such records. Although the ‘ultimate measure of the constitutionality of a governmental search is reasonableness,’ our cases establish that warrantless searches are typically unreasonable where ‘a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing.’ Thus, ‘[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.’”). 207 Id. at 2214. 208 Id. at 2215 (The Court notes its decisions in Knotts and Jones as distinguishing a reasonable expectation of privacy with longer-term tracking compared to monitoring a vehicle that travels amongst the public. Id. (citing Knotts, 460 U.S. 276 (1983); Jones, 565 U.S. 400 (2012))). 209 Id. at 2216 (The Court looks at the development of third-party doctrine applied to the Fourth Amendment. (citing Miller, 425 U.S. 435 (1976); Smith, 442 U.S. 735 (1979))). 210 Id. 211 Id.

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encroaches deeper into the realm of “private papers” territory that the Fourth Amendment originally sought to protect.212 This type of data is endemic to smartphones and wearable tech, where there are an estimated 298 million smartphone users as of 2021, by 85% of U.S. adults.213 In addition, “[i]n 2021, the fitness or activity tracking wrist-wear market worldwide had approximately 206.4 million users. . . . [This] number of users is expected to increase in the coming years, reaching approximately 323.3 million users in 2026.”214 The Carpenter court noted that its decision in Kyllo held that absent a warrant, the Government cannot “capitalize on such new sense-enhancing technology to explore what was happening within the home.”215 And the Court sought to preserve the Amendment’s original goal when it came to developing technologies.216 Past investigations involving paper trails have digitally evolved into every person “effectively [being] tailed every moment of every day for five 212

U.S. CONST. amend. IV. S. O’Dea, Smartphones in the U.S. - Statistics & Facts, STATISTA (May 31, 2022), https://www.statista.com/topics/2711/us-smartphone-market/ (“The smartphone market in the United States is one of the world’s largest, with approximately 298 million smartphone users as of 2021. In line with the overall growth of the smartphone market worldwide, the smartphone penetration rate in the United States has continuously risen over the past several years, reaching 85 percent in February 2021. Revenue from smartphone sales is forecast to reach close to 75 billion U.S. dollars in 2022, as the market recovers from the impact of the coronavirus (COVID-19) pandemic.”). 214 Statista Research Department, Number of Fitness or Activity Tracking WristWear Users Worldwide from 2017 to 2026, Statista (Jun. 16, 2022), https://www.statista.com/forecasts/1314613/worldwide-fitness-or-activity-trackingwrist-wear-users (“Consumers worldwide are forecast to spend 505 billion U.S. dollars in 2022 on electronics.” Where “[r]etail sales of smartphones in the United States, . . . are projected to total around 73 billion U.S. dollars in 2021.” Consumer Electronics, Statista, https://www.statista.com/markets/418/topic/485/consumerelectronics /#statistic1 (last visited Nov. 23, 2022)). 215 Carpenter, 138 S. Ct. at 2214. 216 Id. (quoting Kyllo v. United States, 533 U.S. 27, 34 (2001)) (“We have kept this attention to Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools. As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to ‘assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ . . . Government—absent a warrant—could not capitalize on such new sense-enhancing technology to explore what was happening within the home.”). 213

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years, . . . [where o]nly the few without cell phones could escape this tireless and absolute surveillance.”217 The all-or-nothing approach otherwise involves a heavy burden of sacrifice for society to enjoy constitutional protection. The Court declined to extend the third-party doctrine to these “novel circumstances” implicated by smartphones and tech devices,218 reasoning that “[a] person does not surrender all Fourth Amendment protection by venturing into the public sphere. To the contrary, ‘what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.’”219 However, the Court declined to look beyond the confines of the Carpenter case to address other Fourth Amendment implications by smartphone, wearable tech, and other smart devices.220 Mosaic-Theory Implications Professor Kerr notes that, in Jones, the Court appears “ready to endorse a new mosaic theory of Fourth Amendment protection.”221 However, since Maynard and Jones, the composition of the Court has changed. Support for the theory in 2010 and 2012 with five Justices222 is now at likely four Justices. Therefore, this theory may no longer be a concern for opponents of the approach. The mosaic theory approach looks at each piece, or step, of evidence as a collection that forms a total image of evidence instead of as a sequence of individual pieces or steps of evidence that forms individual trails.223 This theory was first developed in national 217

Id. at 2218. Id. at 2217 (Third-Party Doctrine does not apply to the contents of a communication, but applies to the data furnished to the third party about the communication). 219 Id. (quoting Katz, 389 U.S. 347). 220 Id. at 2220 n.4. 221 Orin S. Kerr, The Mosaic Theory of the Fourth Amendment, 111 MICH. L. REV. 311, 313 (2012) [hereinafter Kerr, Mosaic Theory]. 222 Id. at 320-21 (“A close reading of Maynard/Jones suggests that five justices are ready to embrace the new mosaic approach to the Fourth Amendment: Justices Ginsburg, Breyer, Alito, Kagan, and Sotomayor”). 223 Id. at 313 (“Under the mosaic theory, searches can be analyzed as a collective sequence of steps rather than as individual steps. Identifying Fourth Amendment searches requires analyzing police actions over time as a collective ‘mosaic’ of surveillance; the mosaic can count as a collective Fourth Amendment search even 218

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security cases224 and applied to the Fourth Amendment in Maynard, which stated: The whole of one's movements over the course of a month is not constructively exposed to the public because, like a rap sheet, that whole reveals far more than the individual movements it comprises. The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life, nor the departure from a routine that, like the dog that did not bark in the Sherlock Holmes story, may reveal even more.225 The same approach was then considered in Jones.226 In Jones, the concurring opinions “invite[d] lower courts to consider whether the mosaic theory is viable and if so, how it should be applied. . . . [W]ith mixed results so far.”227 Professor Kerr cautions that mosaic theory is a “major departure from the traditional mode of Fourth Amendment analysis” and advocates that it should be rejected because it would be difficult to “administer coherently.”228 In contrast, the traditional, “sequential approach” to a Fourth Amendment analysis of a search required “courts to take a snapshot of the act and assess it in isolation. [Where] . . . courts focus on each ‘particular governmental invasion of a citizen’s personal security,’ starting with the ‘initial’ step and then separately analyzing the though the individual steps taken in isolation do not. The D.C. Circuit applied that test in Maynard to GPS surveillance of a car. The court held that GPS surveillance of a car's location over twenty-eight days aggregates into so much surveillance that the collective sequence triggers Fourth Amendment protection.”). 224 Benjamin M. Ostrander, Note, The ‘Mosaic Theory’ and Fourth Amendment Law, 86 NOTRE DAME L. REV. 1733, 1734 (2011) (“The “mosaic theory” was first expounded in a case regarding a government action to enjoin a former CIA employee from publishing an exposé of the agency.” Id. (citing United States v. Marchetti, 466 F.2d 1309, 1318 (4th Cir. 1972))). 225 Maynard, 615 F.3d at 561–62. 226 Id. at 544 (citations omitted) (Maynard and Jones were originally charged together; see commentary on Jones, supra.). 227 Kerr, Mosaic Theory, infra at 313 (If a case does make its way to the Supreme Court in the near future, mosaic theory may suffer a definitive rejection in favor of the sequential approach.). 228 Id. at 314-15.

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‘subsequent’ steps.”229 The courts consider a search’s constitutionality when it “cross[es] the boundary from outside to inside surveillance” — where a search confined to exteriors, of objects, persons, or places, is not a search (merely observations), but a search invading an interior, of objects, persons, or places, is a search.230 This approach extends to situations when law enforcement uses investigatory tools that can look beyond an exterior surface to see an interior — Kerr notes thermal imaging devices as an example.231 The sequential approach applies to the two types of searches — when state actors intrude upon property and privacy interests.232 In the original D.C. court case against Maynard and Jones, the “investigators used a wide range of techniques to develop the case against [them].”233 This included wiretaps of their telephones, informants, a camera at the nightclub’s front door, and search warrants for text messages.234 Law enforcement also used “a range of techniques to identify the targets’ location[s].”235 This included visual surveillance and GPS tracking through Jones’s cellphone.236 Enter the mosaic theory; each piece of the search was seen as creating an image that was unreasonable — as a search where members of the public (or law enforcement) using traditional visual surveillance would never have the opportunity to observe in its entirety.237 Justice Ginsburg analogized this approach to rap sheets: where, yes, the individual criminal acts are already public, but that: [B]ringing the information together for easy access made a major difference: “Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the

229

Id. at 315-16. Id. at 317. 231 Id. 232 Id. See also section (II)(A)(1), supra. 233 Id. at 321. 234 Id. 235 Id. at 321. 236 Id at 322. 237 Id. at 325. 230

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country and a computerized summary located in a single clearinghouse of information.”238 She believed the same thought process should apply to Fourth Amendment analysis.239 She reasoned that “[p]rolonged surveillance reveals types of information not revealed by short-term surveillance[.] . . . When considered as a collective whole, the monitoring . . . reveal[s] ‘an intimate picture of the subject’s life that [they] expect[] no one to have[.]”240 Professor Kerr argues that a mosaic theory approach is inappropriate for technological applications because these methods are usually “hidden, and few understand the relevant technologies” to protect their privacy interests.241 ANALYSIS: THE FOURTH AMENDMENT IN A POST-SMARTPHONE ERA Current Fourth Amendment standards are paused post-Carpenter at a smartphone application. But society is now in a post-smartphone era that includes wearable technologies and smart home devices that are connected to the internet and the user’s smartphone through an app. This section aims to point out and address gaps between the two applications. Two Schools of Thought: Law Enforcement-Leaning and PrivacyLeaning Arguments for this topic range between two sides: first, lawenforcement-leaning, favoring a diverse range of investigative tools available for ready use. A proponent might argue that technological developments should benefit investigators as much as the rest of society. These proponents may also argue that there are safeguards in place to protect users — such as choosing which devices to purchase and use, choosing to enable privacy settings, or choosing what to 238

Id. Id. at 326. 240 Id. 241 Id. at 349 (Professor Kerr analogized to the ‘CSI effect,’ where jurors might “derive their expectations of police practices in large part from entertaining but largely fictional television shows.”). 239

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disclose (or not disclose) in the course of use. Law enforcement might also argue that they are using these technologies to prosecute illegal activities. This side may advocate for the many warrantless search exceptions: officer safety, evidence destruction, exigent circumstances, public safety, etc., and may also acknowledge that increased device usage — by law enforcement — also allows for faster access to search warrants. The second is privacy-leaning, favoring an individual’s privacy over its prosecutorial impact. Proponents may argue that few users of technologies are actually aware of what their devices are storing or collecting, meaning they are unaware of what they are revealing when they use a device. Proponents might point to cases where law enforcement “cracked” device encryption242 or cases where officers searched to later have that evidence tossed as a Fourth Amendment violation.243 These proponents are likely to advocate that warrants protect the privacy of the user and that privacy is at the heart of the Amendment’s original intention.244 And that without probable cause or a warrant exception, investigators cannot access the device data. The Speed of Technological Development / Use and Its Investigative Lure First, does a reasonable expectation of privacy necessarily transfer to technologies that are both increasingly capable of unconsented access (compared to the privacies of the past) and that involve third-party developers and use of click-wrap consents? Does the expectation instead lean more to the side of unreasonable? Should it? On the other side, there may be a five-year collection of highly sensitive personal data. This fits together with the question of

242

Alina Selyukh, The FBI Has Successfully Unlocked the iPhone Without Apple's Help, NPR (Mar. 28, 2016, 6:20 PM ET), https://www.npr.org/sections/thetwoway/2016/03/28/472192080/the-fbi-has-successfully-unlocked-theiphone-without-apples-help (“[T]he government said a third party showed the FBI a new method that didn't require Apple's help.” It took about a week after that to unlock the phone without Apple’s assistance. Id.) 243 See supra § (II). This includes many of the aforementioned cases that helped develop the Fourth Amendment’s contours. 244 See supra § (II)(A).

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whether it is reasonable to allow law enforcement to benefit from gaps in the law when such personal data is at stake.245 Courts face rapidly developing technologies at a speed contrary to the Court’s pace, and the Court has yet to create clear guidance to device users, lower courts, and law enforcement. To close gaps between common law and statutory doctrines’ application of the Amendment, clarity is required. And while technology developers try to prevent access by using complicated encryption in the interim, this only slows down access and does not prevent access.246 Two Carpenter Amici Curiae as Exposing Gaps in the Current Standards Electronic Frontier Foundation’s Amicus Brief Cell phones have become “such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”247 The Electronic Frontier Foundation’s (“EFF”) amicus brief in Carpenter advocated that society’s increased use of technologies required an evolved Fourth Amendment that extends warrant protections to these ever-present devices.248 They argued that cellphones are such a fundamental part of life that voluntary

245

E. Berman, Without Warrant, BOS. REV., https://www.bostonreview.net/articles/without-warrant/ (“Voice over Internet Protocol (VoIP), is a technology that allows you to make voice calls using a broadband Internet connection instead of a regular (or analog) phone line.” Voice over Internet Protocol (VoIP), FCC, https://www.fcc.gov/general /voice-over-internet-protocol-voip (last visited Dec. 3, 2022)). 246 See supra note 241 (FBI cracked an iPhone’s password without Apple’s assistance). 247 Brief for Electronic Frontier Foundation et al. as Amici Curiae Supporting Petitioner at 1, Carpenter v. United States, 138 S. Ct. 2206 (2018) (No. 16-402) (citing Riley, 573 U.S. at 385). 248 Id. at 3-4, 30 (“[I]f the Fourth Amendment is to have any force in the digital age, then it must keep up with how Americans use cell phone technology. Using CSLI to determine individuals’ movements is as revealing as the GPS tracking this Court found problematic in Jones, if not more so. And because CSLI is becoming more precise over time, it can rival GPS tracking in geographical accuracy.”).

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conveyance is inapplicable.249 They advocated that Carpenter should extend full Fourth Amendment protection to CSLI data, which the Court did.250 However, the decision ended up limiting the scope to CSLI and did not extend to other smart tech devices or features of a smartphone — including accessing app data.251 Written in 2016, EFF noted the increased complexity of smartphones compared to earlier (pre-2007) cellphones, where “[n]ow more than 77 percent of Americans own smartphones. [And that f]or a significant percentage of ‘smartphone-dependent’ Americans, their phones are their only means of accessing the Internet; this is disproportionately true for young adults, people of color, and lower-income Americans.”252 That was at the time of writing in 2016 — this number is likely much higher in 2022. In 2016, CSLI tracking accuracy was within 50 meters as cell tower demand increased the tower supply, and “providers can determine ‘a phone’s latitude and longitude at a level of accuracy that can approach that of GPS,’” including three-dimensionally.253 Law enforcement can then place (or find) persons at a crime scene.254 This information can be obtained without a warrant because law enforcement can make a request directly to a service provider, using a court order under the Stored Communications Act of 18 U.S.C. § 2703(d).255 249

Id. at 4 (“These cases stand for the proposition that individuals lose their expectation of privacy in certain records they ‘voluntarily’ convey to third parties. But CSLI is purely a byproduct of owning and carrying an operational phone — it is automatically created whenever the phone tries to send and receive information, generally without forethought or conscious action by the owner. And cell phones are so essential to modern life that it is practically impossible to avoid creating CSLI in the first place. As a result, individuals do not ‘voluntarily’ convey this information to cellular providers in any normal sense of the word. Instead, Americans overwhelmingly consider location privacy important and many take steps to limit sharing of their location.”). 250 Id. at 3; see also Carpenter, 138 S. Ct. at 2217 (“Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.” Brief for Electronic Frontier Foundation at 3, Carpenter, 138 S. Ct. 2206 (No. 16-402)). 251 Id. 252 Id. at 8. 253 Id. at 12-13. 254 Id. at 12. 255 Id. at 15.

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AT&T alone received 70,528 requests for CSLI in 2016 and 76,340 requests in 2015. Verizon received 53,532 requests in 2016 and 50,066 requests in 2015. TMobile, the parent company of MetroPCS . . . does not report requests for CSLI specifically, but the company received far more requests for customer data as a whole than its much larger rivals.256 The problem for the cellphone and smart tech consumer is that service providers keep CSLI records for up to five years, which allows law enforcement to see a five-year map of everywhere that person visited online or in person, as well as five years of highly sensitive biophysical data from any wearable tech devices.257 To that end, EFF highlights a flaw in the current standard, where the Stored Communications Act creates a loophole for direct access to this data — and that the data can map durations well beyond the 28-days that constituted a Fourth Amendment search in Jones.258 EFF also highlights the point that cellphones provide the only internet access for some users. This is important when cell phone apps are the connection point to wearable tech and smart home devices; a personal computer may be even more unnecessary for these consumers. But at the same time, the need to define clear, consistent boundaries to protect this information behind warrants is vital. Scholars for the Fourth Amendment’s Amicus Brief In the eighteenth century, . . . arbitrary and unfettered power to search was viewed as endangering the nation itself.259

256

Id. at 13-14. Id. at 17. 258 United States v. Jones, 565 U.S. at 412 (“The concurrence posits that ‘relatively short-term monitoring of a person's movements on public streets’ is okay, but that ‘the use of longer term GPS monitoring in investigations of most offenses’ is no good. Id. “We may have to grapple with these ‘vexing problems’ in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.” Id. at 412-13 (analyzing the GPS installation only as a property-interest search; ignoring Katz’s reasonableness implications)). 259 Brief for Scholars of the History and Original Meaning of the Fourth Amendment at 19, Carpenter, 138 S. Ct. 2206 (No. 16-402). 257

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Similarly, the Scholars for the Fourth Amendment’s amicus brief in Carpenter advocated that the Fourth Amendment has derailed from its original intention.260 These scholars argued that the Fourth Amendment conversation should shift from useless inquiries to one that asks whether extending unlimited access through warrantless searches (extending warrantless search doctrines) threatens the intent of the Amendment: the “right of the people to be secure in [one’s] persons, houses, papers, and effects[.]”261 They began by noting that “[w]hen the Amendment was ratified, to ‘search’ meant to ‘examine,’ ‘explore,’ ‘look through,’ ‘inquire,’ ‘seek,’ or ‘try to find.’”262 They also opined that “the term ‘search’ should be construed more narrowly in that Amendment to mean only conduct violating ‘an actual (subjective) expectation of privacy’ that ‘society is prepared to recognize as reasonable.’”263 They took issue with law enforcement’s reliance on third-party doctrine providing a warrantless search backdoor to access this highly sensitive data;264 especially through the SCA. They argued that looking through records, gathered by any means, is a classic search under the premise of going through one’s papers.265 They stated that an analysis of reasonableness depends only on one’s own (subjective) expectation: Consideration must also be given, as the text of the Fourth Amendment indicates, to whether allowing the government to conduct that type of search would 260

Id. at 4. Id. at 13-14 (quoting U.S. Const. amend. IV) (“By acknowledging that the government’s conduct in this case was a ‘search,’ the Court can shift its focus away from a futile inquiry into how well the average person understands cellular technology, and away from a fruitless quest to identify what ‘society’ is prepared to consider reasonable with regard to the privacy of cell site location information. Instead, this Court can focus on the more straightforward question compelled by the text of the Fourth Amendment: Does granting law enforcement unfettered discretion to access and analyze that information threaten ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches’?”). 262 Id. at 2 (“When the Fourth Amendment was adopted, as now, to ‘search’ meant ‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.’” Id. at 6.). 263 Id. at 2-3 (citing Katz v. United States, 389 U.S. 347, 360 (1967)). 264 Id. at 12-13. 265 Id. at 11. 261

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violate the security of ‘the people.’ . . . [W]hether the decision to engage in a type of search can be left to the unfettered discretion of government agents, free of ‘oversight from a coordinate branch,’ without compromising the security of the people as a whole.266 The Scholars also took issue with the Stored Communications Act, arguing that: [I]ts protections fall short given the formidable power of location data as a tool for monitoring the activities of the people. . . . SCA permits the government to obtain cell site location information if it offers ‘specific and articulable facts showing that there are reasonable grounds to believe’ that the records ‘are relevant and material to an ongoing criminal investigation.’ It does not require the government to limit the records sought, beyond the general requirement of relevance to an investigation, or to demonstrate probable cause, or to provide a sworn statement affirming the facts set forth in the government's application.267 The Scholars highlighted the gap between the SCA and common law requirements and noted that the two require coordination. They also highlighted the position that the Amendment’s original 1791 intention can work with then-unforeseen technologies through warrant use. This is increasingly important as applied to wearable tech in a post-smartphone era because the data gathered from wearable technologies is even more sensitive than the smartphone data gathered in Jones and Carpenter. Here, five years of health data combined with smartphone data create a more robust total image of a tech wearer. The SCA also exposes a major loophole for invisible access. Recent Cases Involving Wearable Technologies There have been few recent cases involving wearable technologies since Carpenter. But it is interesting to see how different court systems handle the data in each case. 266 267

Id. at 17 (citations omitted). Id. at 29 (citing 18 U.S.C. § 2703(d)).

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Australian police, in the murder of a 57-year-old Adelaide woman, used the data from her Apple Watch to solve her murder.268 The watch data contradicted the eyewitness testimony of her daughter-in-law, who ended up being charged as her assailant.269 The daughter-in-law claimed there had been a home invasion by a group of men, that she was also tied up, and was only able to call for help at 10:00 p.m. after she was freed.270 However, the heart rate and activity data from the watch showed that the decedent had gone into shock at least three hours earlier.271 The watch data was used in conjunction with witness testimony from neighbors and a lack of DNA evidence from any alleged assailants at the scene.272 In Germany, authorities used a man’s iPhone and connected Apple Health app to fill in surveillance gaps in a murder and rape investigation of a 19-year-old student.273 The app data showed the man had climbed stairs — which investigators correlated to the time “he would have dragged his victim down the river embankment, and then climbed back up.”274 Investigators recreated the man’s movements from health app data, which matched.275 Researchers in a Vice article voiced concerns with what they saw as a law enforcement trend to gather electronic data to solve crimes at the expense of privacy.276 Authorities gained access to the iPhone data through a backdoor — without assistance from either the

268

Chris Matyszczyk, Apple Watch Data Said to Provide Clues in Murder Trial, CNET (Apr. 4, 2018, 11:12 PM PT), https://www.cnet.com/tech/mobile/applewatch-data-said-to-provide-clues-in-murder-trial/. See also James Felton, Victim’s Apple Watch May Have Just Caught Their Killing in Australian Murder Case, IFLScience (Apr. 3, 2018, 8:51 AM), https://www.iflscience.com/data-fromvictims-apple-watch-may-have-just-caught-their-killer-in-australian-murder-case46943. 269 Matyszczyk, supra note 266. 270 Id. 271 Id. 272 Id. 273 Samantha Cole, Apple Health Data Is Being Used as Evidence in a Rape and Murder Investigation, VICE (Jan. 11, 2018, 8:00 AM), https://www.vice.com/en/article/43q7qq/apple-health-data-is-being-used-asevidence-in-a-rape-and-murder-investigation-germany. 274 Id. 275 Id. 276 Id.

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phone’s owner or Apple — having hired a company to hack the device.277 In a Hartford, Connecticut, case, investigators arrived following a 911 call to find a man cable-tied to a chair and claiming that a masked man had tortured him and killed his wife.278 However, his wife was wearing a Fitbit.279 The Fitbit data showed that the decedent had walked around nearly 1,200 feet after returning home, contrary to her husband’s claim that she was accosted almost immediately after entering the home.280 The device data also showed that she was moving around an hour after her claimed death.281 Other smart devices in the home allowed investigators to recreate a timeline of the murder, including the home’s security system.282 Tracking dogs also failed to find a scent from the alleged intruder leaving the house.283 “Amazon and Fitbit said in statements that they won’t release customers’ data to authorities without a valid legal demand, but they declined to say how many such requests they have received from law enforcement.”284 And Fitbit said: “Respect for the privacy of our users drives our approach[.]”285 Gaps and Proposed Solutions to Current Standards Post-Carpenter An individual detained by law enforcement while wearing a wearable tech device and carrying their smartphone can expect the following standards as a result of current case law:

277

Id. Jouvenal, supra note 7. 279 Id. 280 Id. 281 Id. 282 Id. 283 Id. 284 Id. 285 Id. 278

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The Stored Communications Act — 18 U.S.C. §§ 2701-27 The SCA creates the largest gap in Fourth Amendment standards.286 The SCA allows law enforcement backdoor access to an otherwise unconstitutional search of user data directly from the provider without the user ever knowing their data was requested.287 This includes the CSLI data at issue in Carpenter, which the Court determined was a Fourth Amendment search violation.288 Recently, an Arizona Court noted that: The touchstone of the good-faith-exception analysis is an officer’s objectively-reasonable reliance upon some legal authority, be it a statute—as in Krull—or a warrant—as in Leon. Objectively-reasonable reliance is not present when the authority on which officers rely is so obviously defective as to warn any reasonable officer of its invalidity, or when officers mislead a judge in a warrant application. In cases of non-obvious defects and non-deceptive warrant applications, there is little chance that exclusion will deter police

286

18 U.S.C. §§ 2702(b)(7), 2703(d). The Carpenter decision extended to 18 U.S.C. § 2703(d)’s warrantless access of cell site data records directly from the provider — using the SCA for access was also a Fourth Amendment violation. United States v. Rakestraw, No. CR-1801695-003-TUC-JAS (EJM), 2022 U.S. Dist. LEXIS 184209, at *5 (D. Ariz. Oct. 6, 2022). However, the SCA is still being used to obtain this information under the exclusionary rule’s “good faith exception.” Id. at *6. See § 2702(b)(7), which states: “[T]o a law enforcement agency — (A) if the contents — (i) were inadvertently obtained by the service provider; and (ii) appear to pertain to the commission of a crime; or [repealed].” 18 U.S.C. § 2702(b)(7). See also § 2703(d), which states: “Requirements for court order. — A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.” 18 U.S.C. § 2703(d) (emphasis added). 288 Rakestraw, 2022 U.S. Dist. LEXIS 184209 at *5. 287

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misconduct, as the only errors present in those cases are those of legislators or judges.289 The Arizona court makes an analogy between reliance on an SCA court order and a later-defective warrant.290 This court allowed the data obtained from the illegal SCA court order because the officer had reasonably relied on the validity of the order to qualify under the “good faith” exception.291 Congress needs to close this loophole, or the Court needs to make the SCA’s scope clear post-Carpenter. Interaction Incident to an Arrest After Riley, the search incident to arrest doctrine does not apply to cell phones: a warrant is required to access the contents.292 The only exception is exigent circumstances, where “the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.”293 While the Court has not extended this application to wearable tech, it seems appropriate as the two applications are similar — both are carried on the person and contain highly personal data. However, it is more likely that this doctrine should extend to wearable tech given the more personal nature of the data, the greater extent of these devices’ tracking functions, and that these devices are less likely to

289

Id. at *6. Id. at *7 (“This introduces an important distinction: perfect compliance with the SCA is necessary to avoid SCA violations, but is not necessary to avoid suppression. To avoid suppression, officers need only have reasonably relied in good-faith, under an objective standard, on some legal authority which was later deemed invalid. Such authority could be a statute or a warrant—as in Krull and Leon—or an order under the SCA.” Id. at *7.). 291 Id. at *14–15 (The court held that “[t]he SCA required a showing of relevance and materiality that fell short of the 4th Amendment's requirements. So, any evidence obtained under the SCA should be suppressed unless an exception applies. The good-faith exception applies when suppression would not deter police misconduct. When police act under objectively-reasonable reliance on legal authority later determined unconstitutional, exclusion does not deter any police misconduct because there is no police misconduct to deter. Errors in the legal authority upon which police rely are those of legislators (in the case of defective statutes) and judges (for defective warrants and orders). Id. at *9.). 292 Riley, 573 U.S. at 401. 293 Id. at 402. 290

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implicate an exigent circumstance scenario, since wearable tech devices call out through an attached smartphone — the smartphone would require the exception. However, the SCA gap still allows a possibility of access. Law enforcement’s ability to access data through the SCA has left many tech companies resistant to law enforcement requests in an effort to create a sense of security for their consumers — to encourage people to use their products and deter privacy concerns. Carpenter’s comments on consent — perhaps also extendable to clickwrap consents and third-party doctrine — is notable as easily extendable to wearable technologies.294 Interaction While Driving Here, Gant, Davis, and Carpenter provide that law enforcement may access a driver or passenger’s phone pursuant to the plain view doctrine — if anything creating probable cause appears on the screen to an officer. This likely extends to anything that a user’s wearable tech might cause to appear in plain view of an officer. Outside of this narrow context, a phone or wearable tech carried on a driver or passenger in a vehicle requires a warrant with probable cause prior to accessing the contents of the phone.295 This application of the vehicle search doctrine can easily extend to wearable tech devices on either the driver or passenger in the same manner as the doctrine would apply to their phone. Interaction While in the Public Realm In this scenario, Terry and by extension Riley are implicated. Law enforcement may pat down — stop and frisk — briefly without involving a detention, but an officer may not search the contents of a found phone — especially when they separate the phone from the owner. Terry allows an officer to feel for and remove objects, but not to open and search a phone, which cannot contain contraband like the cigarette packet in Terry.296

294

Carpenter, 138 S. Ct. at 2215-16. See supra notes 160, 164. 296 Terry, 392 U.S. at 7. 295

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Similar to the other circumstances noted above, this extends to wearable tech devices felt during a Terry stop. These devices are likely to be treated like a cellphone but are also less likely to be separated from the wearer in a pat down. Extending Carpenter to Include Wearable Technologies Based on the Court’s comments in Carpenter297 and the amici briefs from interested privacy-rights advocates,298 it is unlikely that the Court will take a hard turn to allow unlimited access to wearable technologies devices in separate decisions where they have not generally allowed unlimited access to smartphones. This holds more true as these technologies are more frequently used by society’s households and implicate more sensitive health data. The increased use of smartphones has been noted in several recent decisions — notably Riley and Carpenter — when the Court restricted a warrantless doctrine’s exception because of a smartphone’s more sensitive contents.299 Therefore, it seems more likely, as wearable tech use increases, that the Court will extend Carpenter and Riley to require warrants to access wearable tech in both the context of a search incident to arrest doctrine and consent through third-party doctrine.

297

See supra § (II)(C)(4). See supra § (III)(C). 299 See supra §§ (II)(C)(3), (4); See also Riley, 573 U.S. at 388-90. 298

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CONCLUSION Law enforcement currently can make warrantless requests for smart technology data using backdoor access from the Stored Communications Act and the good-faith exception of the Fourth Amendment’s exclusionary doctrine. Caselaw extends only as far as the smartphone under Riley and Carpenter, generally requiring a warrant to access the contents of a smartphone — or the GPS data from the phone, which can be acquired instead from the SCA’s loophole. The Court needs to extend Riley and Carpenter to cover both smart technologies and also close gaps in the SCA to provide consistency in Fourth Amendment analysis. Technology’s growing presence and reliance demand it.

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TEACHERS’ EMPLOYMENT CONTRACTS: UNJUST SALARIES AND UNCONSCIONABLE TERMS NOAH BOWERS1 Would you accept an employment contract that pays you less than those you graduated with, requires job performance according to standards poorly defined in the contract, provides insufficient time in the workday to meet those standards, and allocates unchecked discretionary power for your employer to change those standards at any time? A reasonable person would think that this contract is inherently unfair. However, teachers across the nation enter into contracts like this year after year. Being the husband of an educator, I see the harsh realities of teachers’ contracts. Teachers must work for several hours outside the school day’s instructional time to meet the standards required under their contracts. Whether grading, planning, creating lesson materials, recording student data, communicating with parents, or simply using the restroom, the average 49 minutes of preparation time per day provided to teachers under their contracts is not enough to accomplish these tasks.2 It is also common for teachers to work through their lunch breaks — if they even get one, as most states

Noah Bowers is a law student at Thomas M. Cooley Law School, graduating in May 2024 with a Juris Doctor, with a Concentration in Business Transactions. Raised in Louisiana, Mr. Bowers began his legal studies in high school, shadowing the Head of Felony at the 22nd Judicial District Courthouse in Covington, LA. Mr. Bowers earned a Bachelor of the Arts in Political Science with a Concentration in Law and Legal Systems from Louisiana State University, where he graduated with honors in 2021. He first learned about the teaching profession through his wife and his brief experience as a substitute teacher, and the profession’s constantly expanding duties and lack of proportionate pay inspired his research into these issues. Mr. Bowers is inspired daily by his wife and family, who support everything he does. In his free time, Mr. Bowers makes music, practices Spanish, cheers on the Saints, and plays video games. 2 Shayna Levitan, Planning Time May Help Mitigate Teacher Burnout—But How Much Planning Time Do Teachers Get?, NAT’L COUNS. ON TCHR. QUALITY fig.1 (Jan. 12, 2023), https://www.nctq.org/blog/Planning-time-may-help- mitigateteacher-burnoutbut-how-much-planning-time-do-teachers-get.

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don’t provide a duty-free lunch break.3 These standards cause teachers to work more than their contracted hours — typically 35 hours a week— with several excess hours outside the classroom.4 Furthermore, teachers are historically underpaid. In 2021, when adjusted for inflation, teachers’ starting salaries fell to their lowest levels since the Great Recession.5 A 2018 TIME magazine cover headline speaks for itself: “I have a master’s degree, 16 years of experience, work two extra jobs, and donate blood plasma to pay the bills. I’m a teacher in America.”6 So, what can teachers do? Obviously, paying teachers more would supplement the fact that their employment contracts require them to work more than their contracted hours and more than traditional work week hours. However, this does not negate the fact that their contract terms are intrinsically unfair. The doctrine of unconscionability could provide an avenue for courts to intervene and void either specific clauses within the agreements or the agreement as a whole. Although this may not be the best solution for educators, it could open the door for reform. Facing a massive teacher shortage, an increasing percentage of teachers leaving schools, and a decreasing number of people entering the education profession, education reform has been the subject of public debate for years.7 However, challenges to the

Libby Stanford, Teachers Often Don’t Get Lunch or Bathroom Breaks. That’s Why Some States Guarantee Them, EDUC. WK. (May 24, 2022), https://www.edweek.org/teaching-learning/teachers-often-dont-get-lunch-orbathroom-breaks-thats-why-some-states-guarantee-them/2022/05. 4 National Education Association, Teacher Compensation: Fact vs. Fiction, NAT’L EDUC. ASS’N (Sept. 1, 2018), https://www.nea.org/resource-library/teachercompensation-fact-vs-fiction. 5 Tim Walker, Average Teacher Salary Lower Today than Ten Years Ago, NAT’L EDUC. ASS’N (Apr. 26, 2022), https://www.nea.org/nea-today/all-newsarticles/average-teacher-salary-lower-today-ten-years-ago-nea-report-finds. 6 Kate Reilly, ‘I Work 3 Jobs and Donate Blood Plasma to Pay the Bills.’ This Is What It’s Like to Be a Teacher in America, TIME MAG. (Sept. 13, 2018, 6:00 AM EDT), https://time.com/longform/teaching-in-america/. 7 ABC News, US Has 300,000 Teacher, School Staff Vacancies, NEA President Rebecca Pringle Says, ABC NEWS (Aug. 11, 2022, 3:53 PM), https://abcnews.go.com/US/us-300000-teacher-school-staff-vacanciesneapresident/ story?id=88242614; Emma García & Elaine Weiss, U.S. Schools

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legality of teachers’ contracts are rare as courts have only applied the doctrine of unconscionability to arbitration and liquidated damages clauses in teachers’ contracts. The doctrine has never been applied to the standards required, salaries paid, or hours worked. This introduces the question of if the doctrine were applied to these terms, would a court determine the contracts to be so unfair as to be unconscionable? This comment will discuss the history of inequality in the teaching profession, including how teachers are paid less and often work more hours today than other professions. Further, it will review the doctrine of unconscionability and argue that standard teachers’ contracts, as a whole, are unconscionable, by reviewing three modern teaching contracts and their terms as examples. Finally, various solutions to contract inequality in the teaching profession will be offered, including remedies that the unconscionability doctrine affords. BACKGROUND TO INEQUALITY WITHIN THE TEACHING PROFESSION

The Roots of the Inequality “A woman is not a person.”8 At least, that is what the Supreme Court of Wisconsin ruled in 1875.9 In In re Goodell, the court refused to include women within the statutory meaning of the word “person” to deny Lavinia Goodell admission to the bar, stating that the “peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications [to be an attorney].”10 This sentiment originated from the old tradition of coverture, a legal

Struggle to Hire and Retain Teachers, ECON. POL’Y INST. (Apr. 16, 2019), https://www.epi.org/publication/u-s-schools-struggle-to-hire-and-retain-teachersthe-second- report-in-the-perfect-storm-in-the-teacher-labor-market-series/. 8 Laura Vignoles, A Woman Is Not a “Person”: A Review of Bebb v The Law Society 1914, FIRST HUNDRED YEARS (Mar. 1, 2018), https://first100years.org.uk /a-woman-is-not-a-person-a-review-of-bebb-v-the-law-society-1914/. 9 In re Goodell, 39 Wis. 232, 241 (1875). 10 Id. at 245.

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principle dating back to the Middle Ages and adopted in America as a part of English common law.11 Under coverture, married couples were considered one legal entity, and in the eyes of the law, women did not exist as individuals.12 Men controlled the family unit’s property, business, income, and people.13 It wasn’t until states slowly reformed their laws throughout the 19th century14 that “[m]arried women gained the right to own property, engage in business, manage their wages and other income, sue and be sued, and be joint guardians of their children.”15 Even after these changes, however, women still lacked equality and could not progress in the male-dominated world as “most girls received little or no education and most women lacked the preparation and therefore the confidence to pursue a profession.”16 It wasn’t until the previously male-dominated field of teaching was abandoned by men who sought more prestigious professions, new industries, and the lure of the Western frontier, that women were seen as particularly qualified for employment.17 Women were seen as nurturing, maternal, and having high moral character.18 However, as an emerging workforce, women were susceptible to unfair labor standards. Many new teachers were very young, some 14 or 15 years old, having completed only an eighth-grade education.19 Resources were scarce, so teachers taught as many as 60 children in one-room schoolhouses.20 Shockingly, women were paid only a third of what men made, reflecting the sexist culture of the time.21 Over time,

New-York Historical Society, Coverture, N.Y. HIST SOC’Y, https://wams.nyhistory.org/settler-colonialism- andrevolution/settlercolonialism/coverture/ (last visited Apr. 6, 2023). 12 Id. 13 Id. 14 Coverture, ENCYCLOPEDIA BRITANNICA, https://www.britannica.com/topic /coverture (last updated Oct. 8, 2007). 15 Judith E. Harper, Biography, PBS, https://www.pbs.org/kenburns/not-forourselves-alone/biography (last visited Apr. 6, 2023). 16 New-York Historical Society, supra note 10. 17 Teaching Timeline, PBS, https://www.pbs.org/onlyateacher/timeline.html (last visited Apr. 6, 2023). 18 Id. 19 Id. 20 Id. 21 Id.

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conditions improved when teachers unionized,22 but today’s teachers and their salaries are still affected by the history of inequality within the profession. Today’s Inequality Teachers’ Salaries Although a 2016 report shows that 20% of teachers quit teaching because of low pay, there is still a common misconception that teachers are fairly compensated.23 With a 7-hour workday, summers off, and an average salary of $66,397 in 2022, at first glance, one might believe this misconception.24 However, the unfortunate truth emerges when adjusting these salaries for inflation and then comparing them to those with similar education. In 2022, the Economic Policy Institute created a report that looked at 2021 data and found that, when adjusted for inflation, teachers’ salaries remained stagnant since 1996.25 Their average weekly wages increased by just $29 in the past 25 years.26 Furthermore, compared to other educated individuals, the Economic Policy Institute reported that teachers experienced a “teacher pay penalty:” the price one pays for becoming a teacher.27 In 2021, teachers made 32.9% less than other college graduates in average weekly wages, making only 67.1 cents for every dollar compared to graduates in different fields.28 When removing doctors, lawyers, other advanced degree recipients, and retirees from this pool of college graduates to make a more direct comparison to teachers, teachers were still paid 23.5% less than those similarly educated.29 Of course, teacher compensation varies from state to state; however, in every state, those similarly educated had

Id. National Education Association, supra note 3. 24 Walker, supra note 4. 25 Sylvia Allegretto, The Teacher Pay Penalty Has Hit a New High, ECON. POL’Y INST. 4-5 (Aug. 16, 2022), https://www.epi.org/publication/teacher-pay-penalty2022/. 26 Id. at 2. 27 Id. at 1. 28 Id. at 4. 29 Id. fig.B. 23

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greater salaries.30 In fact, the “teacher pay penalty” exceeds 20% in most states.31 With teachers making on average only 76.5 cents for every dollar that those similarly educated make, it is a wonder that we have any teachers willing to endure this wage penalty. The researchers at the Economic Policy Institute focused on weekly wages to avoid comparing hours of the day worked and length of the year worked between different professions.32 However, this comment’s next section shows that teachers work similar or more hours than those in other professions. Time Spent Working While a typical contractual workday for a teacher is the school’s 7 hours of class time, this time is in front of children who need constant observation, redirection, and attention, which forces teachers to do significant amounts of work on their own time, including after school and weekends.33 As class sizes increase due to the teacher shortage34 and school districts change curricula, the amount of work required to meet the standards in teaching contracts becomes overwhelming.35 One teacher relays the weekly amount of work required under her contract: ● ● ● ●

planning daily lessons for multiple subjects; differentiating these lessons for high-performing students; differentiating these lessons for low-performing students; differentiating these lessons for students who need accommodations, such as special education students, English language learners, students with learning disabilities, and students with other impairments; ● meeting with teachers in the same grade to plan broader lesson units and special events;

Id. at 7. Id. fig.C. 32 Id. at 2. 33 National Education Association, supra note 3. 34 ABC News, supra note 6. 35 National Education Association, supra note 3. 31

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● creating the students’ daily schedules, objectives, and morning message; ● preparing, cleaning, and organizing the classroom; ● communicating with parents; ● making copies of lesson materials and homework; ● reading and responding to emails from parents, administration, and colleagues; ● reviewing and giving feedback on student work; ● creating materials and classroom displays to support student learning; ● meeting with administration for curriculum review as part of the required teacher mentoring program; ● reviewing and researching teaching content to better understand topics that the curriculum does not thoroughly explain — such as physics or complex math; ● documenting student data; ● meeting with special education teams for certain students; ● meeting with specific students either one-on-one or in small groups to handle conflicts, rewards, and extra help; ● entering district-required data sets such as progress reports and assessment results.36 If you are tired reading that list, imagine how teachers feel when given on average 49 minutes of duty-free time in the workday to complete it all.37 It is simply impossible; a conclusion that the above teacher reached after squeezing every minute out of her day to attempt it, working through her lunch period and taking no restroom breaks.38 Furthermore, when relaying this list to two educators in my life, my wife and our friend, they confirmed that this was a quintessential example of a work week for them but said that it still did not include everything they must do. Consequently, teachers must work countless hours per week outside of their 35-hour contracted instructional time to meet the standards required by their contracts.39

Kathryn G. Sabath, Contracted Hours + Teacher Balance, HOLDING SPACE FOR EDUCATORS (Apr. 8, 2021), https://www.holdingspaceforeducators.com/blog/contracted-hours-and-teacherbalance. 37 Levitan, supra note 1. 38 Sabath, supra note 35. 39 National Education Association, supra note 3.

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Although described as countless above, one teacher attempted to count the yearly number of hours required to meet the standards in her contract. Her conclusion was that she worked 2,200 hours per year.40 This calculates to 42 hours a week, working year-round.41 Her computation included the hours of the workday, the hours to complete the same standards that the previous teacher included in her list, and 100 hours of professional development meetings and training over the summer.42 According to the National Education Association, participation in professional development over the summer is not uncommon.43 They describe the idea that teachers have summers off as “[o]ne of the most persistent and annoying myths about educators.”44 Teachers are quite busy during summer. 33% of teachers with one year or less of experience, 20% of teachers with two to four years of experience, and 17% of teachers with five to nine years of experience work second jobs over the summer to make ends meet.45 Furthermore, to advance in their field, teachers are expected to earn higher degrees and certifications on their own time.46 While most full-time employees receive training on company time at company expense, teachers seeking to advance must do so during the summers.47 The sentiment that teachers are well paid because of the sevenhour workday and summers off is quite problematic.48 Teachers work more than the traditional hours of a workweek, and during summers, their work does not stop. Teachers work second jobs, seek higher education, attend required professional development meetings and training, and on top of that, still must prepare for the upcoming

Shannon McLoud, I Get Paid for 180 Days of Work Each Year, but I Actually Work More than 250, WE ARE TEACHERS (June 10, 2019), https://www.weareteachers.com/teacher-overtime/. 41 Id. 42 Id. 43 National Education Association, supra note 3. 44 Tim Walker, Almost One-Third of New Teachers Take on Second Jobs, NAT’L EDUC. ASS’N (July 25, 2019), https://www.nea.org/advocating-for-change/newfrom-nea/almost-one-third-new-teachers-take-second-jobs. 45 Id. 46 National Education Association, supra note 3. 47 Id. 48 Id.

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school year. Compared to how much teachers work; other professions fall short. In 2022, a career research company reported statistics on how much time people waste at work doing non-work-related things. While 89% of workers admitted to wasting some time at work every day, 31% waste at least one hour at work every day.49 The report includes checking social media, reading books, surfing the internet, socializing with coworkers, and getting coffee, as some of the many ways employees waste time at work,50 These are all things that teachers must do outside of their contracted hours in front of students.51 On average, the researchers found that U.S. employees waste 2.9 hours per day doing non-work activities.52 When including work-related wastes of time such as needless meetings, the data showed that less than 60% of the time at work is actually spent working.53 While other professions provide compensation for workrelated wastes of time, teachers are often not compensated for after school meetings, bus duty, and other similar responsibilities.54 Teachers work their full contracted workday in front of students and have little time to waste. They simply cannot socialize at the water cooler or go on coffee breaks, as the children under their supervision need to be constantly monitored. With the time needed to complete all the tasks required under their contracts, you likely will not find a teacher checking Instagram, reading a book, or surfing the internet while at work. Instead, they use any available time during the workday to do work-related activities, or else they suffer work piling up that must be completed at home. And as other professions work less and get paid more, it is no wonder why people no longer want to be educators.

Abby McCain, 25+ Wasting Time at Work Statistics [2023]: How Much Time is Wasted at Work, ZIPPIA (Dec. 15, 2022), https://www.zippia.com/advice/wastingtime-at-work-statistics/. 50 Id. 51 Id. 52 Id. 53 Id. 54 National Education Association, supra note 3.

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The Need for More Teachers In 2022, the National Education Association, the largest teachers’ union in the country, estimated that there was a shortage of 300,000 teachers and school staff across the country.55 Compared to the 110,000 teacher shortage in 2018 and a shortage of 0 in 2013, the need for teachers has reached a crisis.56 Furthermore, shortages are likely to increase in 2023 as the Economic Policy Institute reports a climbing percentage of teachers leaving schools: at 13.8% nationwide in 2012.57 One news organization confirmed that this percentage has only grown when looking at data from specific states in 2022.58 In all states, teacher turnover was at its highest point in at least five years.59 Additionally, a 2022 National Education Association poll found that 55% of educators were contemplating leaving the profession sooner than anticipated.60 With more teachers leaving classrooms, shortages will rise; however, this is not the only factor increasing shortages. Many students are losing interest in the teaching profession. By 2022, interest in becoming an educator among high school seniors and college freshmen had reached the lowest level in 50 years, falling “50% since the 1990s and 38% since 2010.”61 From 2008 to 2016, there was a 15.4% drop in the number of education degrees awarded by colleges as well as a 37.8% drop in the number of students enrolled in teacher preparation programs,62 which are generally required to teach.63 Out of those who did enroll in these programs,

ABC News, supra note 6. García & Weiss, supra note 6, at 2. 57 Id. at 8. 58 Matt Barnum, Teacher Turnover Hits New Highs Across the U.S., CHALKBEAT (Mar. 6, 2023, 5:00 AM EDT), https://www.chalkbeat.org/2023/3/6/23624340/ teacher-turnover-leaving-the-profession-quitting-higher-rate. 59 Id. 60 Walker, supra note 4. 61 Matthew A. Kraft & Melissa A. Lyon, The Rise and Fall of the Teaching Profession: Prestige, Interest, Preparation, and Satisfaction over the Last Half Century, BROWN UNIV. 5 (Nov. 2022), https://doi.org/10.26300/7b1a-vk92. 62 García & Weiss, supra note 6, fig.A. 63 All Education Schools, What Is Teacher Certification?, ALL EDUC. SCH.., https://www.alleducationschools.com/ teacher-certification/ (last visited Apr. 6, 2023). 56

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more than a fourth quit them.64 Why are people avoiding the teaching profession? The sections above make this question seem foolish as the reasons are blatant. However, a more subtle reason is in the perception of teachers today. Teaching was once viewed as a considerably prestigious profession.65 However, in 2022, a poll found that perceptions of teacher prestige have fallen drastically: at or near the lowest levels recorded over the last half century.66 Additionally, the poll results showed that 63% of parents would not like their children to become an educator and 82% of households would not encourage it.67 A common sentiment, reflecting the current prestige of teaching, is that teachers are glorified babysitters, which could not be farther from the truth. This lack of prestige in the profession can heavily contribute to teaching’s allure. The Economic Policy Institute has dubbed the culmination of more teachers leaving the profession, less entering it, and the increasing teacher shortage as “the perfect storm” of catastrophe.68 Schools are already experiencing the effects of this storm as 9.4% of schools could not fill vacancies in 2016, while 36.2% found it very difficult.69 Furthermore, in 2022, the National Education Association reported that teachers often had to double their class sizes and that schools could not offer special education services, becoming noncompliant with state requirements. 70 There is a clear need to reduce the national teacher shortage; however, this cannot be achieved without improving the conditions for educators as well as improving the public’s perception of teachers. Considering what teachers do for the children of America, they should be more highly revered. However, the profession as a whole is seen as lesser – a sentiment that is directly reflected in the history of teacher inequality.

García & Weiss, supra note 6, at 5. Kraft & Lyon, supra note 59, at 4. 66 Id. at 12. 67 Id. at 34. 68 García & Weiss, supra note 6. 69 Id. tbl.2. 70 ABC News, supra note 6. 65

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UNCONSCIONABILITY DOCTRINE The unconscionability doctrine is an avoidance doctrine, allowing courts to refuse to enforce unfair contracts or their terms.71 It is an equitable remedy meant to protect those that enter into contracts that are so unjust that they shock the conscience of the court.72 However, the idea of voiding contracts entered into voluntarily seems to conflict with the freedom to contract.73 There exists an unavoidable tension between the concept of freedom to contract, which has long been basic to our socioeconomic system, and the equally fundamental belief that an enlightened society must to some extent protect its members from the potentially harsh effects of an unchecked free market system. . . . [T]he law has developed the concept of unconscionability so as to prevent the unjust enforcement of onerous contractual terms.74 Therefore, courts tend to avoid applying unconscionability as “[p]eople should be entitled to contract on their own terms without the indulgence of paternalism by courts in the alleviation of one side or another from the effects of a bad bargain.”75 This aversion, though, can be overcome when public policy supports a “need to protect vulnerable and weak parties from being taken advantage of by means of contracts.”76 Given the discussion above about the inequality teachers face today, public policy favors better conditions for teachers more than ever. The principles behind the unconscionability doctrine date back to the Roman Code of Justinian (529-565 C.E.) in the doctrine of laesio

Catherine Riley, Signing in Glitter or Blood?: Unconscionability and Reality Television Contracts, 3 N.Y.U. J. INT’L. L. & POL. 106, 116 (2013). 72 Phillip W. Hall Jr., Smells Like Slavery: Unconscionability in Recording Industry Contracts, 25 HASTINGS COMMC’NS & ENT. L.J. 189, 192 (2002). 73 Riley, supra note 69. 74 Rowe v. Great A. & Pac. Tea Co., Inc., 385 N.E.2d 566, 569 (N.Y. 1978). 75 Carlson v. Hamilton, 332 P.2d 989, 990 (Utah 1958). 76 Keith W. Diener, The Doctrine of Unconscionability: A Judicial Business Ethic, 8 U. P.R. BUS. L.J. 103, 117 (2017).

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enormis, or “abnormal harm” in Latin.77 After further development through English courts of equity, unconscionability was adopted in America as early as 1816.78 In Hepburn v. Dunlop & Co., the Supreme Court held that a contract should be set aside if, in good conscience, it should not be enforced.79 However, the doctrine’s codification only occurred in the 1940s with the drafting of the “Uniform Commercial Code” (UCC), and continued to develop in the 1980s with the Restatement (Second) of Contracts.80 UCC § 2-302 provides: If the court as a matter of law finds the contract or any clause of the contract to have been unconscionable at the time it was made the court may refuse to enforce the contract, or it may enforce the remainder of the contract without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.81 Although the UCC applies only to transactions in goods, excluding teachers’ contracts from its applicability, the Restatement applies to contracts generally and has incorporated the UCC’s language:82 If a contract or term thereof is unconscionable at the time the contract is made a court may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result.83 While not legally binding, Restatements are considered authoritative.84 Nevertheless, a majority of states have adopted the

Id. at 104. George A. Nation III, Obscene Contracts: The Doctrine of Unconscionability and Hospital Billing of the Uninsured, 94 KY. L.J. 101, 106 (2022). 79 Hepburn & Dundas’ Heirs v. Dunlop & Co., 14 U.S. 179, 197 (1816). 80 Diener, supra note 74, at 106; Nation, supra note 76, at 107. 81 U.C.C. § 2-302 (AM. L. INST. & UNIF. L. COMM’N 1990). 82 Riley, supra note 69. 83 RESTATEMENT (SECOND) OF CONTS. § 208 (AM. L. INST. 1981). 84 Nation, supra note 76, at 107. 78

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UCC and Restatement principles, applying the unconscionability doctrine to all contracts.85 However, neither the Restatement nor the UCC define unconscionability. This definition has been developed through case law as a question of law for the judge, causing ongoing questions about how courts will decide whether or not unconscionability exists.86 Various definitions of unconscionability emerged in state and federal courts;87 some define an unconscionable contract as “one abhorrent to good morals and conscience,”88 and others require that “no rational, undeluded person would make [the contract], and no honest and fair person would accept [it].”89 However, one consistency between jurisdictions is the “Leff Test.” Professor Arthur Allen Leff created a test for determining unconscionability and separated it into two parts: substantive unconscionability, which looks at the contract’s terms, and procedural unconscionability, which looks at how the contract was formed.90 While some states only require substantive unconscionability to void a contract,91 most states require both.92 Others create a sliding-scale approach to unconscionability where a more egregious finding of substantive unconscionability can reduce the need to find procedural unconscionability and vice versa.93 Procedural Unconscionability Procedural unconscionability involves the bargaining process when entering into a contract,94 and courts will look at all the circumstances surrounding the relative bargaining power of the

Riley, supra note 69, at 117. Hall, supra note 70, at 194. 87 Nation, supra note 76, at 109. 88 Hall v. Wingate, 126 S.E. 796, 813 (Ga. 1924). 89 Eberle v. Eberle, 766 N.W.2d 477, 484 (N.D. 2009). 90 Riley, supra note 69, at 118. 91 Nation, supra note 76, at 110. 92 Riley, supra note 69, at 118. 93 Armendariz v. Found. Health Psychcare Services, Inc., 6 P.3d 669, 690 (Cal. 2000). 94 Id. 86

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parties.95 Courts primarily use the factors of unfair surprise and oppression to determine if procedural unconscionability exists.96 Unfair Surprise Professor Arthur Leff defines unfair surprise as a situation involving misleading bargaining conduct.97 This can arise from hidden provisions, unintelligible language, informal settings when contracting, high-pressure tactics, and lack of time to read and fully comprehend the contract.98 Another factor courts look to is whether the contract terms were within the weaker party’s reasonable expectations when considering their part of the contract.99 Unfair surprise can also be found when the weaker party does not read the contract.100 However, if the parties have previously contracted using the same standard contract, it is less likely that unfair surprise will be found.101 Oppression Oppression results from inequality in the bargaining process when the weaker party lacks meaningful choice.102 This happens when the weaker party could not negotiate to alter the offered terms and is common in standardized, preprinted forms.103 Courts often find oppression in contracts of adhesion.104 Adhesion contracts are “standardized contract forms offered . . . on essentially a ‘take it or leave it’ basis without affording the consumer a realistic opportunity

Nation, supra note 76, at 111. Omar Anorga, Music Contracts Have Musicians Playing in the Key of Unconscionability, 24 WHITTIER L. REV. 739, 745 (2003). 97 Id. 98 Id.; Nation, supra note 76, at 111; Riley, supra note 69, at 118. 99 Arrowhead Sch. Dist. No. 75, Park County v. Klyap, 79 P.3d 250, 263 (Mont. 2003). 100 Anorga, supra note 94. 101 Id. 102 Williams v. Walker-Thomas Furniture Co., 350 F.2d 445, 449 (D.C. Cir. 1965). 103 Nation, supra note 76, at 111. 104 Riley, supra note 69, at 118. 96

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to bargain.”105 Oppression is also evident when the weaker party is not in a position to reject the agreement due to no realistic opportunity to seek a more desirable contract elsewhere.106 Substantive Unconscionability Substantive unconscionability is about unfairness and concerns the terms of the agreement itself.107 Courts will find a contract substantively unconscionable when its terms are so “grossly unfair or … so one-sided or unfair as to shock the conscience of the court.”108 This occurs when a contract’s terms unreasonably allocate the risks involved to the weaker party, are unilaterally advantageous to the stronger party, give more rights and privileges to the stronger party, and favor the stronger party in terms of compensation.109 Furthermore, public policy considerations can be a basis for determining if a contract is substantively unconscionable.110 Public policy involves public welfare and whether or not denying enforcement of a contractual term would further some public good.111 While it is also an independent basis for invalidating a contracts’ terms, courts use public policy for the substantive unconscionability analysis to look at whether the terms are so unfair as to contravene public health, safety, and wellness goals.112 The purpose of the substantive unconscionability analysis is to prevent contract terms that are unilateral and unduly onerous to one party and to facilitate a “modicum of bilaterality.”113

105

Wheeler v. St. Joseph Hosp., 133 Cal. Rptr. 775, 783 (Cal. App. 4th Dist. 1976). 106 Id. 107 Riley, supra note 69, at 119. 108 Nation, supra note 76, at 113. 109 Armendariz, 6 P.3d at 692; Riley, supra note 69, at 119. 110 Riley, supra note 69, at 120. 111 Frishman v. Maginn, 912 N.E.2d 468, 478 (Mass. App. 2009). 112 Riley, supra note 69, at 120. 113 Anorga, supra note 94, at 746; Saika v. Gold, 56 Cal. Rptr. 2d 922, 925 (Cal. App. 4th Dist. 1996).

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STANDARD TEACHER CONTRACTS This section will review three modern teaching contracts and their terms to establish what a standard teaching contract includes. The first is my wife’s 2022 teaching contract: a nonunionized, elementary school teacher in Michigan at a private charter school. The second is her friend’s 2023 teaching contract: a high school teacher in Michigan at a unionized public school. The third is a 2018, unionized, California public school district’s teaching contract applicable to all teachers from kindergarten to high school (K-12). This section also includes a summary of how the first two contracts were entered into, but the last California contract was obtained online with no details on how the teachers entered into it. Furthermore, teacher’s contracts consist of job offers and employee handbooks that together establish the terms of employment. A Non-Unionized, Private Elementary School Teacher’s Contract in Michigan In 2022, my wife applied for a teaching position in Michigan and was hired for a 5th grade teaching position at a local charter school. Although charter schools are open for public enrollment, they are run by a private company and in all other aspects are privatized. In her job offer, it stated her position, grade level, salary, and exempt status under the Fair Labor Standards Act, meaning she is ineligible to receive overtime pay.114 It also contained the following clause: “[The school] reserves the right to add to, delete from or change any of its policies, compensation, benefits, and bonus programs.”115 This clause allows her school to change anything in the contract at will, guaranteeing my wife no rights. Nonetheless, since there was no opportunity to negotiate its removal and she was eager to start working, she accepted it. However, when accepting it, the school presented the offer letter and other documents as “new hire paperwork” and required them to be filled out before employment

114

Job Offer Letter from National Heritage Academies, to anonymous teacher, National Heritage Academies (“NHA”) – Terms of Employment 1 (Jan. 26, 2022) (on file with author). 115 Id. at 2.

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could commence.116 Furthermore, this process was conducted entirely through email. To renew her employment contract in 2023, she simply had to fill out an intent to return form, indicating her intent to return to that school. This contract requires my wife to adhere to the private company’s employee handbook as well as the school’s employee handbook.117 The private company’s handbook includes a clause similar to the one above: “we may change, supplement, or terminate certain policies, guidelines, and benefits.”118 Although not mentioning compensation, this clause allows the company to change their policies as they please without my wife’s consent. The school may decide that she no longer will receive health insurance, that she must have a doctorate to teach, or even that she must pick up the principal’s dry cleaning every Wednesday. For compensation, the handbook states that an employee will receive a “guaranteed” salary each week, so long as they work at least one hour that week.119 This conflicts with the offer letter reserving the right to change or delete compensation. However, another section states that compensation packages are reviewed on an annual basis and are determined at the discretion of the company, considering credentials, qualifications, performance, and experience.120 This clarifies that the amount decided for each year is guaranteed as long as you work weekly, but the determination of that amount is at the sole discretion of the company. This means that my wife could work for a year at $2,000 per week, but that in the next year, the pay could be set at $200 a week. Without compensation guarantees, my wife and other similarly-situated teachers could face a reduction in salary without cause or consent. The company’s handbook also states that she is an at-will employee and may be terminated for any reason at any time without cause or notice.121 While a discipline system is included in the handbook, the company “has no obligation to use any one or more of

116

National Heritage Academies, Employee Handbook 2022-2023, at 37. National Heritage Academies, Job Offer Letter, supra note 112, at 2. 118 Id. at 2. 119 Id. at 16. 120 Id. at 14. 121 Id. at 2. 117

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these forms of discipline prior to discharging an employee.”122 Furthermore, it requires teachers to follow the company’s expectations, their core values, and the school’s policies. While the core values are defined in general terms such as “act with integrity,” “show respect,” or “demonstrate a growth mindset,” the company’s expectations are not defined.123 Therefore, the company may interpret any teacher’s action as not aligning with their expectations or vague core values as a basis for discipline, reduction in pay, or termination. You wish the school was closed for a snow day today? Well, that’s not demonstrating a growth mindset. Finally, the school’s employee handbook defines the school’s policies and procedures, involving things such as field trips, bulletin boards, classroom lighting, and assemblies. However, the company’s handbook states that its provisions control over any school’s handbook.124 The amount of work my wife is required to do as a teacher cannot be accurately described anywhere within these documents. Her school and its company use these broad terms to require her to do excessive amounts of work. Although contracts need not define every duty or performance standard, contracts similar to my wife’s are so broad that they can require someone to do just about anything. A Unionized, Public High School Teacher’s Contract in Michigan My wife and my wife’s friend entered into a teaching contract in a similar way. In 2022, she was hired by a public high school in Michigan. Likewise, she was required to do her “new hire paperwork” via email before a meeting with administration in person. This “new hire paperwork,” of course, included her teaching contract. She accepted it and submitted everything required online. In 2023, she also had to complete an intent to return form to renew her employment contract. The main difference between my wife’s contract and her friend’s is that her friend’s school is unionized. This means that her contract is subject to a bargaining agreement that the union solely negotiated. The union and the school had reached an agreement, lasting from

122

Id. at 54. Id. at 7. 124 Id. at 2. 123

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2018 through 2023.125 Additionally, individual teachers are not able to negotiate on their own behalf because the school exclusively bargains with the union.126 However, she does receive some benefits from this collective bargaining. This clause, similar to the ones in my wife’s contract above, is included in her friend’s school handbook: “[T]he procedures, practices, policies and benefits described here may be updated, modified or discontinued from time to time.”127 The subjects included in the handbook that may be modified or canceled at any time are numerous, ranging from workplace expectations and vacation time all the way to medical insurance and compensation. However, the clause above has one small, but crucial, modification: “[u]nless subject to a bargaining obligation.”128 This means that any term that the union has negotiated in the bargaining agreement is contractually binding to the school and its teachers. It is unable to be modified or removed without further negotiation between the union and the school. Therefore, her friend’s contract has some terms guaranteed for a specific number of years (2018-2023), whereas my wife’s contract is subject to change at any time. The exception is compensation, which may only be changed yearly. The bargaining agreement guarantees several terms that the school must provide: compensation, proper working conditions, reasonable class sizes, at least a 29-minute, duty-free lunch, and health insurance, to name a few.129 However, it also binds the teacher to several terms: teachers must attend at least 6 school functions outside of their contracted hours; they are subject to arbitration for any grievances against the school, forfeiting their right to sue in court; they are transferable to different positions within the school to teach any subject where the school has a lack of teachers; and they

125

Bargaining Agreement from Lansing Schools Education Association, to anonymous teacher, Master Agreement Between Lansing Schools Education Association and Lansing School District Board of Education 2018-2023, at 1 (revised July 13, 2021) (on file with author). 126 Id. at 3. 127 Employee Handbook, LANSING SCH. DIST. 5, https://www.lansingschools.net/downloads/district/employee _handbook.pdf (last visited Apr. 7, 2023). 128 Id. 129 Bargaining Agreement from Lansing Schools Education Association, supra note 123, at 14, 27, 32, 34, 71-72.

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must adhere to the policies and procedures within the school’s handbook.130 Although the agreement does not guarantee student-free planning time within the teachers’ contracted hours, it does provide that if a teacher is not granted a planning period, they will receive a $5,000 stipend.131 Furthermore, there is no long-term employment guarantee as the handbook defines teachers as at-will employees that may be terminated for any reason at any time without cause or notice.132 These guarantees are a great step forward and improve the conditions for teachers subject to this bargaining agreement; however, it also imposes many obligations. A problem arises when teachers subject to this agreement have no say in what is included. Although teachers in the union may vote on such issues at union meetings, teachers that have not joined the union are still subject to the agreement. My wife’s friend did not join her union and had no representation in terms of negotiating her teaching contract. She may not have agreed to attend six school functions outside of her contracted hours or to forfeit her rights to sue via the arbitration clause. She may have wanted planning time guaranteed or her employment to not be terminable at will. In spite of what she may have wanted, she had no opportunity to negotiate the terms of her contract and was not properly represented by a union that she did not join. The terms that she is stuck with are very similar to the terms of my wife’s contract. And although guaranteeing some things, her contract still imposes policies that are ill-defined and modifiable, generating excessive amounts of work. Even the union’s bargaining agreement would not protect her from a school expectation that teachers should pick up the principal’s dry cleaning every Wednesday. Without restructuring teaching contracts, the inequality of the teaching profession will persist. A Unionized, Public K-12 School District’s Contract in California At this point, one might think Michigan teaching contracts are quite unfair. However, the above contracts and their terms are pretty

130

Id. at 9, 12, 24, 32. Id. at 31. 132 Id. at 34. 131

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standard across the nation. Although created in 2016 between the Long Beach Unified School District and the Teachers’ Association of Long Beach, this K-12 California teaching contract is nearly identical to our friend’s 2023 contract above.133 Since it is a unionized school district, the similarities are rather shocking. It requires arbitration, teacher transferability, and teachers to attend school functions outside of their contracted hours.134 It guarantees salaries, reasonable class sizes, at least a 30-minute, duty-free lunch, and health insurance.135 Furthermore, the union is the only bargaining unit that the school will negotiate with.136 Every term in the contract above is mirrored in this California contract; however, the California contract has some interesting, additional terms such as a “Sick Leave Donation Program” where teachers may donate unused sick days to those that need them.137 Despite the additional benefits provided to teachers under this contract, the problematic clauses in the above contracts still exist. The contract uses broad terms to define the standards of the job: “Creating and Maintaining Effective Environments for Student Learning” or “Developing as a Professional Educator.”138 It reserves the right of the school district to change its “policies, rules, regulations, and practices” that are not guaranteed by the union’s bargaining agreement.139 Finally, it prohibits individual negotiations with teachers even if they do not wish to join the union.140 Although these three contracts encompass a wide range of variables—public and private schools, unionized and non-unionized schools, kindergartens and high schools, Michigan and California schools—they all contain similar terms. The standard teaching contract allows schools to adopt, change, and abandon policies at will while providing no accurate description of what it is actually like to

133

Long Beach Unified School District & Teachers Association of Long Beach (TALB), K-12 Teachers Contract, TCHRS. ASS’N OF LONG BEACH (ratified Jan. 5, 2016), http://talb.org/wpcontent/uploads/2018/03/TALBK12_Contract _thru6_30_18.pdf. 134 Id. at 19, 57, 85. 135 Id. at 19, 31, 33, 65. 136 Id. at 9. 137 Id. at 101, 121. 138 Id. at 69. 139 Id. at 10. 140 Id. at 8.

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teach. Furthermore, no real negotiation takes place when entering into these contracts as they are presented as simple forms to be completed, “new hire paperwork,” or as a bargaining agreement already agreed upon. These factors, combined with the inherent inequality within the teaching profession, make standard teaching contracts entirely unfair. ARE THESE CONTRACTS UNCONSCIONABLE?

Procedural Unconscionability When evaluating procedural unconscionability, a court will look at how the contract was bargained for, the relative bargaining power of the parties, and the existence of unfair surprise and oppression.141 When my wife and her friend entered into their contracts, no bargaining existed. My wife simply accepted the offer and signed her “new hire paperwork.” Alternatively, her friend was actually prohibited from negotiating and accepted the contract that the union had created. In terms of bargaining power, the two schools held almost all of it. My wife’s school is associated with a private company, with multiple executives and levels of management that she, alone, would have to go through to negotiate a change in her contract. A large company with multiple representatives and many years of experience, certainly, has more negotiating power than an individual teacher. Furthermore, her friend had no bargaining power as she was not a member of her union. However, even if she had joined her union, it had already negotiated and agreed to that contract, giving her no opportunity to vote on any terms or otherwise be fairly represented. Unfair Surprise Unfair surprise involves misleading bargaining conduct.142 This existed in the informal settings surrounding the negotiation of my

141

Armendariz, 6 P.3d at 692; Nation, supra note 76, at 111; Anorga, supra note

94. 142

Anorga, supra note 94.

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wife’s and her friend’s teaching contracts. The contracts were presented to them as “new hire paperwork” — simple forms that they had to fill out in order to start teaching. Furthermore, in order to renew their contracts to teach for another year, they merely had to fill out an intent to return form without reviewing any contract provisions. A teacher could have completed this process without realizing that they were entering into a binding agreement that involves their rights as an employee. In fact, both my wife and her friend did not fully recognize that they were signing their employment contracts until later. Additionally, this process was completed via email. With the amount of time it takes for parties to respond to emails and the number of people involved in deciding to accept changes, it is not likely that a teacher would email back and forth with multiple people to negotiate, ultimately dissuading them from negotiation. Unfair surprise can be found in contracts through hidden provisions; this informal process somewhat hid the entire contract amongst other forms to be filled out.143 Also, unintelligible language and a lack of full comprehension can be a basis for unfair surprise.144 While many teachers are highly educated, many of them are not lawyers and might not fully comprehend all the legalese within an employment contract. They may not understand all the consequences involved when signing an arbitration agreement or similar clauses because lawyers use language that can be unintelligible to them. Another factor courts look to is if the terms were within the weaker party’s reasonable expectations in performing the contract.145 Anyone entering into a job would assume that their employer would give them adequate time to complete their job. However, for teachers, much of their work must be completed outside of the classroom, something one cannot reasonably expect if they have never taught before. Furthermore, as evidenced above, teachers’ contracts define the standards and procedures of teaching vaguely. If a new teacher were to read their contract and the descriptions of what is expected of them, they would understand very little about what it means to be a teacher. One could not comprehend the amount of work required to teach by only reading a teaching contract.

143

Nation, supra note 76, at 111. Id.; Anorga, supra note 94. 145 Arrowhead, 79 P.3d at 263. 144

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However, if the parties have contracted before, using the same standard contract, unfair surprise is less likely present.146 And after a year of teaching, one is more likely to know the amount of work and time required to perform, and therefore, it is within their reasonable expectations when entering into another contract that another year of teaching will be more of the same. Therefore, my wife and her friend, both experienced teachers, would find it harder to make an argument for unfair surprise. Nonetheless, whether or not the terms were within their reasonable expectations is only one factor in determining whether unfair surprise occurred. Oppression Oppression results from an absence of meaningful choice:147 when a weaker party is not in a position to reject the agreement due to no realistic opportunity to seek a more desirable contract elsewhere.148 Oppression is evident in almost all teaching contracts. As evidenced above, standard teaching contracts involve substantially similar terms: low compensation, excessive amounts of work, and not enough time provided to complete the work. My wife and her friend lacked meaningful choice when entering into their contracts because there was no opportunity for a more desirable teaching contract elsewhere. They were not in a position to reject their agreements because if they did, they would face a similar contract at another school, only to be met with the same low pay, excessive work, and lack of time. Although their contracts can guarantee different things, their terms of employment are essentially the same: adhere to the expectations, policies, and procedures of your school. Furthermore, these policies are equally ill-defined across schools’ contracts, and the schools retain the right to change them at any time. Oppression is often found in contracts of adhesion.149 Adhesion contracts are standardized, preprinted contracts offered on a take-itor-leave-it basis.150 Most teaching contracts can be defined as

146

Anorga, supra note 94. Williams, 350 F.2d at 449. 148 Wheeler, 133 Cal. Rptr. at 783. 149 Riley, supra note 69, at 118. 150 Wheeler, 133 Cal. Rptr. at 783. 147

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adhesion contracts. They require teachers to adhere to predetermined curriculums and handbooks that are unable to be altered through negotiation. If a teacher does not like their school’s curriculum, their only option is to leave that school. My wife’s and our friend’s teaching contracts can be defined as contracts of adhesion. Our friend had no opportunity to negotiate her contract, granting no choice but to either accept or decline the standard, predetermined union contract. Further, my wife only had the choice to either accept or decline her employee handbooks, as trying to negotiate a change to them, especially over email, would be futile. Substantive Unconscionability Substantive unconscionability is about unfairness. A court is likely to find a contract substantively unconscionable when its terms are grossly unfair or one-sided.151 This is evident in many teaching contracts, as standard contracts’ terms tend to favor the schools in regard to compensation. If schools had to pay teachers equally— instead of the current 76.5 cents for every dollar similar professions make—educational funding would disintegrate.152 Instead of finding greater sources of revenue to fund schools, the solution would keep teachers underpaid. Therefore, schools are essentially getting 23.5% of teachers’ work for free. If they were involved in any other profession, they would have to pay the full value for that work, but since the teaching profession is marred by a history of inequality, 76.5 cents is somehow acceptable. Furthermore, teachers work numerous hours outside of their contracted workday, sometimes working greater hours than a full-time, year-round employee when considering the lack of time wasted by teachers during the school day. Schools are receiving considerable amounts of work from teachers and in return, are compensating them disproportionately with low salaries. Therefore, a court is likely to find that, in terms of compensation, teaching contracts favor schools. Additionally, standard teachers’ contracts are unilaterally advantageous to schools, granting them more rights and privileges than teachers. This is evidenced by the contracts discussed above where schools can change their policies and procedures at will,

151 152

Nation, supra note 76, at 113. Allegretto, supra note 24.

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unilaterally increasing teachers’ workloads. Unionized schools’ contracts seem to grant teachers more rights than contracts for nonunionized schools; however, those rights come with trade-offs such as prohibiting individual bargaining, arbitration agreements, and obligations extraneous to the workday. Despite unionization, teachers are commonly at-will employees, and schools reserve the right to terminate teachers’ employment at any time for any reason. Under their contracts, teachers are only granted rights to compensation, benefits, and certain working conditions, while schools control every other aspect of their employment: planning time, workloads, the length of the school day, meetings, the number of school functions they must attend outside of school, whether or not a teacher will be transferred to a different position, and how teachers will be terminated to name a few. A court will also look at public policy considerations to determine if a contract is substantively unconscionable.153 Public policy entails what is best for the public as a whole, and today, with a massive teaching shortage, more teachers leaving the profession, and less entering it, the need for educational reform is drastic. Considering the public-policy need for more teachers, the terms of standard teachers’ contracts directly contravene this need as low salaries, excessive workloads, and a lack of time to complete work only decreases the amount of people who desire to teach. Without better circumstances for teachers, the teaching shortage will only increase. What is best for public welfare, then, is providing better circumstances for teachers, and if a court upheld these terms as fair, it would perpetuate the inequality within the teaching profession. Therefore, a court is likely to find that standard teaching contracts are substantively unconscionable, as they directly interfere with the public’s need for more teachers. Case Law Courts have rarely applied the doctrine of unconscionability to teaching contracts. When they have, it was applied only to arbitration and liquidated damages clauses within those contracts. This section will review those cases and analogize the general terms of standard teachers’ contracts to the specific clauses that courts have ruled on.

153

Riley, supra note 69, at 120.

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Arbitration Clauses in Teaching Contracts In Gabriel v. Island Pacific Academy, Inc., a physical education teacher sued her school for retaliation when they refused to hire her for another school year, allegedly due to her filing a sexual harassment complaint. However, the school sought to compel arbitration pursuant to Gabriel’s employment contract. Decided in 2017, the Hawaii Supreme Court ruled that the contract’s arbitration agreement was unconscionable and invalidated the entire agreement.154 The court focused primarily on substantive unconscionability, employing a sliding scale approach where a more egregious finding of substantive unconscionability can preclude the need to find procedural unconscionability.155 The court found the arbitration agreement’s cost-splitting and fee-shifting requirements substantively unconscionable.156 The cost-splitting clause required teachers to pay up to half their salary upfront in arbitration costs, and the fee-shifting clause required the challenging party to pay the other party’s attorney fees and litigation costs. In determining that these terms were substantively unconscionable, the court examined the terms’ costs compared to Gabriel’s salary as well as their effects.157 Finding that the upfront arbitration costs amounted to at least 25% of Gabriel’s annual salary, the court invalidated this provision due to its unfairness.158 Furthermore, the effects of such terms would “prevent individuals with meritorious claims from even pursuing these claims in the first place.”159 Although the court used this finding of substantive unconscionability to preclude the need to find procedural unconscionability, they noted that the lower court’s determination of procedural unconscionability went unchallenged and adopted it.160 The lower court concluded that the arbitration agreement was

154

Gabriel v. Island P. Acad., Inc., 400 P.3d 526, 543 (Haw. 2017). Id. at 538. 156 Id. at 543-44. 157 Id. at 530, 538-39. 158 Id. 159 Ferguson v. Countrywide Credit Industries, Inc., 298 F.3d 788, 785 n.8 (9th Cir. 2002), quoted in Gabriel v. Island P. Acad., Inc., 400 P.3d 526, 543 (Haw. 2017). 160 Gabriel, 400 P.3d at 539. 155

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procedurally unconscionable because it was an adhesion contract, it was the result of coercive bargaining between parties of unequal bargaining strength, it was drafted and proffered by the stronger of the contracting parties, it was offered to Gabriel on a take-it-or-leaveit basis, and Gabriel was given no opportunity to modify the terms of the employment agreement.161 When comparing standard teaching contracts such as my wife’s and our friend’s to the contract in this case, many similarities arise. Although an arbitration clause is common for standard teaching contracts, many do not contain the terms found unconscionable in Gabriel. However, similarities are found in comparing the terms’ effects as well as their costs compared to teachers’ salaries. The clauses in standard teaching contracts that allow schools to change their policies and procedures will impose a great cost of time and work upon teachers. Comparing this cost of time and work to teachers’ salaries, teacher compensation is inadequate. Similar to how the cost of arbitration was found excessive to Gabriel’s salary and therefore, unfair, the workloads imposed on teachers by their contract’s terms are excessive to their compensation and should be found unconscionable. Furthermore, the effects of the terms in standard teaching contracts perpetuate the growing teacher shortage as low salaries, excessive workloads, and the lack of time to complete work contravene the public-policy need for more teachers. Much like the arbitration clause in Gabriel, having the negative effect of dissuading teachers from pursuing legal claims, the terms of standard teaching contracts have the negative effect of dissuading teachers from remaining in or even entering into the profession. Therefore, using the Gabriel court’s analysis of substantive unconscionability, standard teaching contract’s terms can be found substantively unconscionable. The aspects of procedural unconscionability within Gabriel’s contract can also be found within standard teaching contracts like the ones discussed above. Just like how Gabriel was given no opportunity to modify the terms of the employment agreement, my wife and our friend were given no opportunity to negotiate a change in their handbooks or its policies. These standard teaching contracts were created by the schools, offered on a take-it-or-leave-it basis, and

161

Id. at n.7.

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were adhesive, mirroring the contract in Gabriel. Furthermore, similar to Gabriel’s contract being the result of coercive bargaining between parties of unequal bargaining strength, their contracts were the result of misleading bargaining conduct by the schools with greater bargaining power. Therefore, standard teaching contract’s terms can be found procedurally unconscionable as well. Liquidated Damages Clauses in Teaching Contracts In Arrowhead School Dist. No. 75, Park County v. Klyap, a school district sued a former teacher to enforce a liquidated damages clause in his employment contract that required Klyap to pay 20% of his contracted salary as damages. Since Klyap informed the school that he would be leaving only two weeks before classes began, the school district would have found it difficult to fill that vacancy quickly and sought damages to alleviate that burden. Decided in 2003, the Montana Supreme Court ruled that the contract’s liquidated damages clause, although found procedurally unconscionable, was not overall unconscionable because it lacked substantive unconscionability.162 The court determined that the contract’s clause was adhesive because Klyap had no meaningful choice regarding acceptance of the provision, and the provision was inserted on a take-it-or-leave-it basis.163 Therefore, the court found the clause to be procedurally unconscionable.164 In deciding this, the court stated that schools are the more powerful bargaining party and that Klyap had no real opportunity to negotiate a change in the provision.165 For substantive unconscionability, the court focused on whether or not the clause was unreasonably favorable to the drafter and determined that it was not.166 The court looked at the reasonableness of the liquidated damages amount and the hardship the school would incur if the clause was breached.167 In analyzing other cases, the court found that a 25% liquidated damages clause could be found

162

Arrowhead, 79 P.3d at 267. Id. at 265. 164 Id. 165 Id. 166 Id. at 263. 167 Id. at 266-67. 163

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unconscionable; however, less than that was reasonable.168 Furthermore, they evaluated the hardships that a breach in that clause would impose on the school and concluded that “finding someone who would provide services equivalent to Klyap at such a late date would be virtually impossible.”169 Therefore, the court ruled that the liquidated damages clause was not unreasonably favorable to the school and therefore, that substantive unconscionability did not exist.170 For standard teaching contracts, procedural unconscionability can easily be found. Similar to Klyap’s contract, my wife’s and her friend’s contracts can be defined as adhesion contracts. They had no meaningful choice regarding their acceptance because no realistic opportunity to seek a more desirable contract existed elsewhere. Furthermore, exactly as shown in Klyap’s contract, their contracts were offered on a take-it-or-leave-it basis. Finally, their schools were the more powerful bargaining party, and as stated above, they had no real opportunity to negotiate a change in their contracts. Therefore, procedural unconscionability is apparent in standard teaching contracts. However, standard teaching contracts, as a whole, compared to the liquidated damages clause in Arrowhead, differ in the substantive unconscionability analysis. In Arrowhead, the courts focused on whether the liquidated damages clause was unreasonably favorable to the school, ruling that it was not. In contrast, the terms of standard teaching contracts that allow schools to change their policies and procedures at will are, indeed, unreasonably favorable to the schools. The vague policies in the contracts, as well as the schools’ ability to change them at any time, allow schools to require a teacher to do just about anything. Furthermore, unlike how the court in Arrowhead deemed the liquidated damages clause amount reasonable, teachers’ salaries cannot be construed as reasonable, as they make 23.5% less than those similarly educated — on average. Additionally, the clauses in standard teaching contracts are not created for the purpose of protecting the schools against unnecessary hardships like the liquidated damages clause in Arrowhead. The schools suffer no hardships from paying teachers low salaries,

168

Id. at 266. Id. 170 Id. at 267. 169

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allowing their policies to be modified, and granting teachers little time in the workday to complete the standards required under their contracts. Therefore, a court, following Arrowhead’s analysis of substantive unconscionability, could determine that the terms of standard teachers’ contracts differ from Klyap’s liquidated damages clause in that they can be ruled substantively unconscionable. Overall Unconscionability Standard teaching contracts are unfair. Considering the misleading bargaining conduct by the schools, the inequality in bargaining power, and the lack of meaningful choice when entering into a contract, a court could easily find procedural unconscionability to be present. Although the terms were within my wife’s and her friend’s reasonable expectations, having contracted to teach before, the other factors of unfair surprise predominate as courts put considerable weight on whether or not the contract was adhesive.171 Furthermore, a court could find these contracts substantively unconscionable because the terms are grossly unfair and one-sided, favoring the schools. The terms go against the public-policy need for more teachers, give more rights and privileges to the schools, and favor the schools in terms of compensation. Similar to the arbitration clause ruled unconscionable in Gabriel, the general terms of standard teachers’ contracts have negative effects that contravene the public-policy need for more teachers. Much like the costs of arbitration ruled unfair in Gabriel, teaching contracts’ terms cost teachers much time and work, and when compared to their salaries, this cost is underrepresented in what they are paid. However, dissimilar to the liquidated damages clause in Arrowhead that was deemed reasonable, clauses within standard teachers’ contracts can be found unreasonable, favoring the schools. This is because the main difference in the liquidated damages clause in Arrowhead and the clauses of standard teaching contracts is that the general terms of teachers’ contracts are not meant to protect schools from certain hardships like the liquidated damages clause is. Finally, the amount teachers are paid is unreasonable when compared to other professions, unlike the amount of liquidated damages that was found reasonable in Arrowhead when compared to other cases.

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Riley, supra note 69, at 118.

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Since most states require a finding of both procedural and substantive unconscionability,172 while others require only substantive,173 almost all courts would deem these contracts unconscionable. However, when a court does determine a contract to be unconscionable, the remedies provided by UCC § 2-302 are limited. A court may refuse to enforce the entire contract, remove the unconscionable terms, or limit the application of any unconscionable terms. When a contract contains multiple unconscionable terms, though, courts often avoid the complexities of reforming such a contract and void the contract as a whole.174 So, which terms in standard teaching contracts are unconscionable? As discussed at great length above, the clauses describing the school’s policies as procedures are so broad that schools use them to justify excessive amounts of work. However, these standards, imposing heavy workloads on teachers, can be completely fair if teachers were given an adequate amount of time to complete them or an adequate amount of pay to remedy that lack of time. Therefore, fair compensation can remove the unconscionability from these terms, and the current lack of equal pay is one thing that makes the contracts unconscionable. A further problem arises when schools reserve the right to modify or terminate their policies at any time, as schools can change almost every aspect of teachers’ employment at will. Although schools should be able to adapt their policies quickly to keep up with the ever-changing educational sphere, limits to the extent to which they may change their policies should be imposed to prevent any outrageous policies from being adopted. Without such limits, schools have unfettered power to control teachers’ employment responsibilities, making these clauses unconscionable. Finally, the common at-will-employee status for teachers allows schools to fire teachers for any reason at any time without cause or notice. Although many schools have an employee discipline system within their contracts, they reserve the right to disregard it. Schools should be able to fire employees outright, but doing so without cause or notice is inherently unfair. There should be a system in place allowing teachers to get notice of termination, to know why they

172

Riley, supra note 69, at 118. Nation, supra note 76, at 110. 174 Gabriel, 400 P.3d at 543. 173

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were fired, or alternatively, to know how they will be reprimanded without losing their jobs. It would almost be analogous to a discipline system. If schools were to be bound by their own discipline systems, the unconscionability of the at-will-employee clauses in teachers’ contracts would be removed. Therefore, the inadequate compensation, schools’ unfettered right to modify or terminate their policies, and the at-will-employee status for teachers are the terms within standard teaching contracts that make them unconscionable. Since these contracts contain multiple unconscionable terms, courts will likely void the entire agreement instead of attempting to reform it. This means that standard teaching contracts such as my wife’s and her friends, as a whole, are unconscionable. SOLUTIONS

Solutions the Unconscionability Doctrine Can Afford Alleviating inequality within the teaching profession can be difficult. Although teachers can void their contracts due to unconscionability, this may not be the best solution, as they would then have no job. They may try to negotiate another, more favorable contract with their schools; however, schools are unlikely to rehire teachers who sued them. Most teachers want to keep teaching but wish for better employment conditions. For teachers that do not want to continue teaching, the unconscionability doctrine can provide an avenue for them to leave the profession without further obligations, such as paying liquidated damages. However, voiding their contracts would increase the massive teacher shortage we face today. Maybe worsening the teacher shortage is the only way to facilitate change. Furthermore, the unconscionability doctrine is a doctrine of avoidance, meaning that it is not an independent cause of action. If a teacher were to be sued by their school based on their employment contract, they could argue that their contract was unconscionable and avoid its enforcement. However, a teacher cannot sue solely because their contract is unconscionable. If a teacher had a separate cause of action such as unpaid wages, the unconscionability doctrine could be used to avoid the enforcement of an arbitration clause, allowing that teacher to sue in court. Nonetheless, teachers commonly remain at-

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will employees, and schools can fire teachers for any reason, including suing them. Some states may protect those that are fired for suing their employer by providing them with wrongful termination or retaliation claims. However, these suits can be complex and are beyond the scope of this comment. One strategy teachers have discussed recently to attempt to effectuate change is working only during contracted hours. This means using only the hours of the school day to complete as many duties as they can, and anything unfinished will be left unfinished. With only 49 minutes of preparation time on average within teachers’ workdays, many things simply will not get done.175 The idea behind this strategy is that if schools dislike the amount of work that goes uncompleted when working only contracted hours, they should provide teachers more time during the school day to complete the work, or alternatively, pay teachers more for the extra work completed outside of the classroom. One teacher explained how their entire union decided to work only their contracted hours to encourage more favorable contract negotiations.176 Within a few days, the school and the union reached an agreement.177 The unconscionability doctrine fits into this strategy by allowing teaching contracts to be deemed unenforceable. If a school were to sue a teacher for breach of contract due to poor performance because they were working only their contracted hours, the teacher could simply void the contract. Again, this may not be the best solution, because the teacher would not have a job anymore, the teacher shortage would increase, and the school is under no obligation to rehire that teacher. However, there is strength in numbers, and if an entire union of teachers were to work only their contracted hours like the above teacher’s union, the unconscionability doctrine makes this strategy less risky, effectively disarming any suits the schools may bring about their contracts. The solutions to the inequality within the teaching profession that the unconscionability doctrine affords are limited. When using this doctrine, all outcomes lead to teachers’ contracts being void. This is only beneficial to teachers who wish to leave the profession but fear the enforcement of a liquidated damages clause and to teachers with

175

Levitan, supra note 1. Sabath, supra note 35. 177 Id. 176

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independent causes of action seeking to avoid arbitration. To improve conditions for its teachers, schools must provide more favorable contracts, and the only way the unconscionability doctrine can facilitate that is by making some negotiation strategies less risky, precluding schools from suing for contract claims. However, schools are not flush with resources and cannot afford to simply give all teachers greater compensation. Increasing funds for school and teachers can only happen through legislative educational reform. Legislative Solutions Legislative educational reform may be the only way to truly reduce inequality within the teaching profession. One way a legislature might do this is by allowing teachers to receive overtime pay. The Fair Labor Standards Act requires employers to pay employees one-and-a-half times their hourly wages for every hour that they work in a week exceeding 40 hours.178 However, the Code of Federal Regulations § 541.303 specifically exempts teachers from these overtime protections.179 If the legislature were to remove this exemption from CFR, teachers could be paid in proportion to the excessive amounts of work that are required by their contracts. Teachers’ typical contracted hours are about 35 hours per week, and on top of that, they must work many hours outside of school.180 Removing this exemption strikes a fair deal between teachers and schools. Schools would receive around five hours per week at normal wage rates from teachers working outside the natural workday. If teachers were to exceed these five hours, as they commonly do, the school would be required to pay them overtime. With how prevalent remote jobs are today, implementing some at-home time-tracking system would be simple. Furthermore, schools could offer bonuses to teachers if they work below a certain number of overtime hours to reduce the overall amount of overtime compensation schools must pay. However, removing this exemption still does not solve the

178

John Schmitt et al., Expanding Overtime Protection for Teachers Under the Fair Labor Standards Act, ECON. POL’Y INST. 2 (Nov. 22, 2021), https://www.epi .org/publication/expanding-overtime-protection-for-teachers-under-the-fair-laborstandards-act/. 179 29 C.F.R. § 541.303. 180 National Education Association, supra note 3.

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problem of education funding because schools would find it hard to come up with extra funds to provide overtime compensation. One way for the legislature to raise public school funds and allow education reform is through the legalization of marijuana. Currently, marijuana is illegal federally. Classified as a Schedule I drug under the Controlled Substances Act, the government believes it has no medical use and has a high potential for abuse.181 Nonetheless, 21 states, Washington, D.C., and Guam have legalized the recreational use of marijuana, opposing the federal law.182 And over the years, legalized marijuana has proven to be a great source of tax revenues for states. By the start of 2022, legalized states had raised a combined $13.7 billion in tax revenue solely from recreational marijuana sales, excluding medical marijuana sales.183 From 2018-2021, in just three years, California collected $3,362,314,514 in total tax revenue.184 Given states’ ability to raise over a billion dollars per year, it is surprising that not every state has legalized marijuana. For those that have, they are using these revenues to provide funds to public schools. In 2017, Colorado allocated over $74.4 million in tax revenue from marijuana sales, licenses, and fees to education-related funds.185 Other states like Michigan and Oregon require a certain percentage of the marijuana tax revenue to be put into their state public school fund: 40% in Oregon and 35% in Michigan.186 These funds can be used to give teachers the greater compensation they deserve and end the inequality within the teaching profession. Although 37 states have legalized marijuana for medical purposes, it is still within Schedule I classification, considered to 181

Hansen et al., Where Is Marijuana Legal? A Guide to Marijuana Legalization, U.S. NEWS AND WORLD REPORT (Mar. 16, 2023, 4:28 PM EDT), https://www. usnews.com/news/best-states/articles/where-is-marijuana-legal-a- guide-tomarijuana-legalization. 182 Id. 183 Christy Bieber, Marijuana Tax Revenue: A State-by-State Breakdown, THE MOTLEY FOOL (Nov. 14, 2022, 11:31 AM EDT), https://www.fool.com/research /marijuana-tax-revenue-by-state/. 184 Id. 185 Jill Mullen, How States Use Recreational Marijuana Revenue to Fund K-12 Education, EDUC. COMM’N OF THE STATES (Jan. 30, 2019), https://ednote.ecs.org /how-states-use-recreational-marijuana-revenue-to-fund-k-12education/. 186 Id.

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have no medical use.187 If the legislature were to legalize marijuana federally, states could raise exorbitant amounts of tax revenues that would provide public schools with greater funding. This would allow schools to pay teachers more through either negotiating higher salaries or providing them with overtime pay funding, which would also require legislative action. If the legislature were to remove the teacher exemption from overtime pay and legalize marijuana, it would create a fair deal between teachers and schools as schools would receive greater funding, and teachers would receive wages more representative of the amount of work they actually do. CONCLUSION The mistreatment of teachers today has its roots in sexism as the first female teachers were underpaid solely based on their gender. Today, teachers are still inadequately paid because their contracts require them to work excessive amounts of hours outside of school and provide them with pay that is 23.5% less than those similarly situated. Such standard teaching contracts, as a whole, are unconscionable because a court could find the existence of both procedural and substantive unconscionability within them. Nonetheless, the remedies that the unconscionability doctrine provides teachers are limited. The doctrine may help facilitate education reform by making some negotiation strategies less risky for groups of teachers or unions. However, when applying the doctrine to teachers’ contracts in general, the only result is voiding the contracts entirely. Therefore, the best solution to resolve this inequality within the teaching profession is ultimately legislative reform. But in order to pay teachers more, schools need more funds, and legalizing marijuana has been shown to accomplish this by raising vast amounts of tax revenues on marijuana sales. Furthermore, if the legislature were to remove the specific teacher exemption from the Fair Labor Standards Act, schools could use those extra funds to pay teachers overtime compensation. Overtime compensation seems to be

187

Angela Morrow, Pros and Cons of Legalizing Marijuana, VERYWELL HEALTH (updated Mar. 29, 2023), https://www.verywellhealth.com/what-are-the-pros-andcons-of-medical-marijuana-1132484.

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a fair way to pay teachers for the number of hours they must work outside their contracted hours. Facing a massive teacher shortage, more teachers quitting, and less people entering the profession, the need for more teachers today has never been greater. Education reform is necessary, and without better conditions for teachers, teacher shortages and vacancies will only increase. It is time for the legislature to take action for the sake of our schools, our children, and our teachers.

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