Volume 69, Issue 4
Early History of South Carolina and Its Federal Court (1526-1886) page 46
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Volume 69, Issue 4
EDITORIAL BOARD
Editor in Chief Andrew Doyle doyle_andrew@msn.com Associate Editor James W. Satola jsatola@roadrunner.com Managing Editor Lynne G. Agoston (240) 404-6488 social@fedbar.org
July/August: Annual Meeting & Convention
Book Review Editors Jon Jay Lieberman Soledad M. Valenciano Judicial Profile Editors Hope Forsyth Hon. Karoline Mehalchick Articles Editors Kristine Adams-Urbinati Ellen Denum Sara Gold Niles Illich Bruce McKenna Amanda Thom Columns Editor Ira Cohen Senior Proof Editor Peter Mansfield Proof Editors Melanie L. Alsworth Anna Archer Tamar Birckhead John Black Luke P. Ihnen Elizabeth Kelley Jeffrie Boysen Lewis Glenda McGraw Regnart Kirsten Samantha Ronholt Jeremy S. Weber Stewart M. Young The Federal Lawyer (ISSN: 1080-675X) is published bimonthly six times per year by the Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA, 22201 Tel, (571) 481-9126, Fax (571) 481-9090, Email: social@fedbar.org. Subscription Rates: $14 of each member’s dues is applied toward a subscription. Nonmember domestic subscriptions are $50 each per year; foreign subscriptions are $60 each per year. All subscription prices include postage. Single copies are $5. “Periodical postage paid at Arlington, VA., and at additional mailing offices.” “POSTMASTER, send address changes to: The Federal Lawyer, The Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA 22201.” ©Copyright 2022 Federal Bar Association. All rights reserved. PRINTED IN U.S.A. Editorial Policy: The views published in The Federal Lawyer do not necessarily imply approval by the FBA or any agency or firm with which the authors are associated. All copyrights held by the FBA unless otherwise noted by the author. The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute endorsement of such products or services by the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manuscripts, which, if accepted for publication, are subject to editing. Manuscripts must be original and should appeal to a diverse audience. Visit www.fedbar.org/ tflwritersguidelines for writers guidelines.
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Only a Free Man Can Walk With a Judge: 10 Years of Federal Drug Court in the District of South Carolina By D. Josev Brewer
46
72
The Critical Role That Men Play in Thwarting Bias and Hostility Toward Women By Rachel V. Rose and Mark Kleiman
Early History of South Carolina and Its Federal Court (1526-1886)
Also in This Issue
58 Disability and Access
29 2022 FBA Annual
By Ira Cohen
to the Courts Three Decades Into the ADA: A Retrospective Review of Legal and Judiciary Policy Underpinnings By Mamadi Corra, Ph.D.
66 South Carolina Is
a Leading Domicile for Companies to Form Their Own Captive Insurer
28 Welcome to Charleston!
Meeting & Convention Preview
32 All About Charleston 34 Charleston Restaurant Guide
36 About the Cover Artist
By Joe McDonald and John P. (Jay) Seibels Jr.
July/August 2022 • THE FEDERAL LAWYER • 1
COLUMNS 3 President’s Message It’s Been a Privilege By Anh Le Kremer
4 Beltway Bulletin
PROFILES 20 Hon. Mary Gordon Baker U.S. Magistrate Judge, District of South Carolina By Andrew R. de Holl
Attorney General Merrick Garland Seeks to Improve Compliance With the Freedom of Information Act
22 Hon. J. Michelle Childs
By Cissy Jackson and Dan Renberg
By Hon. Kaymani D. West
6 At Sidebar
25 Hon. Robert Bryan Harwell
By Stewart M. Young
By Derek A. Shoemake and Brendan Barth
A Short Primer on ABA Model Rule 3.8(d) and Its Variants Among the States
9 Diversity & Inclusion
Applying Inclusion Principles in the Prevention of Workplace Harassment By André Smith, David Treworgy, and D. Stuart Phelan
11 In-House Insight
The Contours of the Cosmetic PFAS Litigation: Highlights and Shadows of Forever Chemicals By Michael J. Cahalane, Bryan M. Abramoske, and Noel Y. Cho
15 Focus on Indian Law
Knight v. Thompson Revisited: Ramirez v. Collier’s Implications for Native Prisoners’ Religious Exercise By Emily deLisle
18 Spotlight on Civil Rights A Requiem for Footnote 4
Circuit Judge, U.S. Court of Appeals for the D.C. Circuit
Chief U.S. District Judge, District of South Carolina
BOOK REVIEWS
78 One Damn Thing After Another: Memoirs of an Attorney General Reviewed by Louis Fisher
79 Reginald Rose and the Journey of 12 Angry Men Reviewed by Jon M. Sands
FBA MEMBER NEWS
84 Chapter Exchange 87 Sections and Divisions 88 Member Spotlight 93 Calendar of Events
By Robin Wagner
2 • THE FEDERAL LAWYER • July/August 2022
Federal Bar Association 1220 N. Fillmore St., Ste. 444 Arlington, VA 22201 Ph: (571) 481-9100 • F: (571) 481-9090 fba@fedbar.org • www.fedbar.org BOARD OF DIRECTORS President • Anh Le Kremer akremer@nystromcounseling.com President-Elect • Matthew C. Moschella mcmoschella@sherin.com Treasurer • Jonathan O. Hafen jhafen@parrbrown.com Hon. Alison S. Bachus bachusa@superiorcourt.maricopa.gov Ernest T. Bartol etbartol@bartollaw.com Joey Bowers jbowersfba@gmail.com Richard Dellinger richard.dellinger@newlinlaw.com Anna W. Howard anna.howard@uga.edu Glen R. McMurry GMcMurry@taftlaw.com Adine S. Momoh adine.momoh@stinson.com Michelle M. Pettit michelle.pettit@usdoj.gov Kelly T. Scalise ktscalise@liskow.com Hon. Mimi E. Tsankov (personal capacity) mimi.tsankov@gmail.com Christie C. Varnado cvarnado@seibelsfirm.com Michael S. Vitale mvitale@bakerlaw.com Ex Officio Members W. West Allen wwa@h2law.com Darrel J. Gardner mail@darrelgardner.com Nathan A. Olin nate@oliplaw.com Jenifer Tomchak jen.tomchak@tomchaklaw.com NATIONAL STAFF Executive Director Stacy King sking@fedbar.org Deputy Director R. Yvonne Cockram ycockram@fedbar.org Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org Managing Editor Lynne G. Agoston social@fedbar.org Outreach and Foundation Manager Cathy Barrie cbarrie@fedbar.org Membership Coordinator Clarise Diggs cdiggs@fedbar.org Program Coordinator Daniel Hamilton dhamilton@fedbar.org Director of Sections and Divisions Mike McCarthy mmccarthy@fedbar.org Marketing Director Jennifer Olivares social@fedbar.org Senior Conference Manager Caitlin Rider crider@fedbar.org Database & Technology Administrator Miles Woolever mwoolever@fedbar.org VICE PRESIDENTS FOR THE CIRCUITS First Circuit Scott P. Lopez Second Circuit Olivera Medenica Dina T. Miller Third Circuit Christian T. Haugsby Frank J. McGovern Fourth Circuit Kacy L. Hunt Hannah Rogers Metcalfe
Fifth Circuit Mark L. Barbre Paul D. Barkhurst Sixth Circuit Daniel J. Donnellon Donna J. Mikel Seventh Circuit Melissa N. Schoenbein Eighth Circuit David A. Goodwin Adam Hansen Ninth Circuit Laura A. Conover Darrel J. Gardner Tenth Circuit Kristen R. Angelos Kate Marples Simpson Eleventh Circuit Lauren L. Millcarek Oliver Alan Ruiz D.C. Circuit Patricia D. Ryan Jessica R. Toplin SECTION AND DIVISION CHAIRS Chair, Sections and Divisions Council Nathan A. Olin Admiralty Law Eric S. Daniel Alternative Dispute Resolution Angela Eastman Antitrust and Trade Regulations Robert E. Hauberg Jr. Banking Law Michael Mancusi Bankruptcy Law Angela Sheffler Abreu Civil Rights Law Robin B. Wagner Corporate and Association Counsel David Greene Criminal Law E.J. Rymsza Environment, Energy & Natural Resources Vacant Federal Career Service Karen J. King Federal Litigation Nicole Deese Newlon Government Contracts Vacant Health Law Robert Rappel Immigration Law Hon. Amiena Khan Indian Law Ann E. Tweedy Intellectual Property Law Ira Cohen International Law Federica Dell'Orto Judiciary Hon. Robin Feder Labor and Employment Law Jack Blum Law Student Glen R. McMurry LGBTQ+ Law Christine E. Dieter Qui Tam R. Scott Oswald Securities Law Liam O’Brien Senior Lawyers Albert Lionel Jacobs Jr. Social Security Law Jerrold A. Sulcove State and Local Government Relations Andrew S. Ballentine Taxation S. Starling Marshall Transportation and Transportation Security Law Ami Lovell Veterans and Military Law Stephen Charles Newman Younger Lawyers Jenifer Tomchak
President’s Message
It’s Been a Privilege By Anh Le Kremer
Anh Le Kremer is a former business litigator at Stinson, LLP. She is currently the chief operating officer and general counsel for Nystrom & Associates, a behavioral health organization headquartered in Minnesota.
This is my last column as the outgoing president of the FBA. And what a journey this year has been! I began my term in October 2021 with a vision of what I wanted to accomplish during my presidential year. Immediately, however, I found myself having to pivot to where the association needed me most—on Capitol Hill. I met with members of Congress to advocate on issues that are important to our federal courts and practitioners and to cement the FBA as the go-to resource for nonpartisan input on matters that impact the federal judiciary and federal practice. The FBA has been the voice of the federal bar and bench since 1920. This year, we were particularly vocal on Capitol Hill on the topics of judicial independence, judicial security, and the need for immigration court reform. Judicial independence is the cornerstone of democracy. As the FBA previously noted in February 2020, Judicial Independence, free from external pressure or political intimidation, lies at the foundation of our constitutional democracy. An independent judiciary must be free of undue influence from the executive and legislative branches and must remain committed to the preservation of the rule of law … when criticism of the judges’ rulings crosses the line into personal attacks or intimidation, public respect for our system of justice is undermined ….1 For an independent judiciary to exist, our judges must be able to perform their duties without intimidation, attacks, or fear for their personal safety or the safety of their families. Judicial security is a growing concern in the United States, with the number of threats against federal judges skyrocketing. According to the U.S. Marshals Service, 4,511 threats and inappropriate communications toward federal judges were reported in 2021. Four federal judges have been killed since 1979. In July 2020, a gunman ambushed U.S. District Court Judge Esther Salas’ family in their home in New Jersey and killed her son and wounded her husband. More recently, in June 2022, authorities arrested an armed man outside Supreme Court Justice Brett Kavanaugh’s home who had plotted to kill him. It is imperative that we do all that we can to protect
federal judges and their families so that they may continue to do their jobs without fear for themselves or their families. For that reason, the FBA has been vocal in its support of the Daniel Anderl Judicial Security and Privacy Act (H.R. 4436). The bill, introduced in the aftermath of Judge Salas’ family tragedy and named after her son, aims to protect federal judges and their families by making it easier for them to get personally identifiable information removed from the internet (including their home address, phone numbers, and photos of their homes and cars). In addition to our vocal advocacy around judicial independence and judicial security, I’m also proud of the lead role the FBA has taken on the topic of immigration court reform. The FBA worked for years drafting model legislation in support of an independent Article I immigration court (similar to the tax court) and advocating for this legislation. Elizabeth (Betty) Stevens, Judge Mimi Tsankov, Jeff Hennemuth, and countless others in the FBA worked on this effort over the years, including testifying before a congressional subcommittee. The FBA’s work resulted in Rep. Zoe Lofgren, D-Calif., introducing H.R. 6577, the Real Courts, Rule of Law Act of 2022, in February 2022, which would establish an independent Article I immigration court. While there is still much work to do be done, the bill was a big step toward facilitating a long-lasting solution to separate the politics of immigration enforcement from the needs of immigration adjudication. Besides meeting with various members of Congress, a highlight for me this past year has been connecting with FBA members across the country. Thank you for your support and for all that you are doing individually to advance democracy and support the rule of law. It’s been a privilege to serve you.
Endnotes Fed. Bar Ass’n, Statement on Attacks on the Judiciary (Mar. 5, 2020), https://www.fedbar.org/governmentrelations/fba-statements-letters-and-testimony/ statement-on-attacks-on-the-judiciary/; Fed. Bar Ass’n, Statement on Judicial Independence (Feb. 2017), https://www.fedbar.org/government-relations/ fba-statements-letters-and-testimony/statement-ofthe-fba-board-of-directors-on-judicial-independencefebruary-2017/.
1
July/August 2022 • THE FEDERAL LAWYER • 3
Beltway Bulletin
Attorney General Merrick Garland Seeks to Improve Compliance With the Freedom of Information Act By Cissy Jackson and Dan Renberg
“Sunlight is said to be the best of disinfectants.” —Louis D. Brandeis, 1913
Before joining Arent Fox, Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. Jackson also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. She has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation. Dan Renberg is a former senior Senate staff member and presidential appointee and has helped numerous clients since joining Arent Fox as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included in the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America.
The Freedom of Information Act (FOIA), 5 U.S.C. § 552, was intended to help ensure transparency, accessibility, and accountability in government by providing access to government documents and records. The act provides every person with the legal right to access official records held by government departments and public bodies, the right to correct or update personal information held about them, and the right to be given reasons for decisions by public bodies that affect them. Enacted in 1966 and amended several times since, FOIA’s processes have frequently been criticized as frustrating and ineffective. Indeed, the difficulty of obtaining information under FOIA spurred New Jersey high school students researching unsolved civil rights crimes to draft legislation that would enable people looking for such records to avoid having to go through the FOIA process at all. Their idea was to establish a digitized public collection of these records at the National Archives. In a remarkable example of constituent engagement in our democratic system, the students’ bill, the Civil Rights Cold Case Records Collection Act, became law in 2019, only six months after it was filed. On Jan. 26, the Government Accountability Office (GAO) released a report assessing the pandemic’s impact on FOIA administration.1 The GAO reported that FOIA requests declined by 8 percent in fiscal year 2020 compared to fiscal year 2019. Nevertheless, agencies processed roughly 12 percent fewer requests during this period, and the already substantial backlog of FOIA requests has continued to grow in recent years. According to the report, “[f ]rom fiscal years 2012 to 2020, the government-wide [FOIA request] backlog increased by 97 percent.” On March 15, Attorney General Merrick Garland issued a memorandum2 to the heads of executive departments and agencies providing guidelines intended to “update and strengthen the federal government’s
4 • THE FEDERAL LAWYER • July/August 2022
commitment to the fair and effective administration of FOIA.” The Senate Judiciary Committee turned its attention to FOIA shortly thereafter, with a March 29 hearing. Standing in for Chair Dick Durbin, D-Ill., Sen. Patrick Leahy, D-Vt., noted several instances when FOIA requests made important contributions to government accountability but acknowledged that there is room for improvement. Ranking Member Chuck Grassley, R-Iowa, complimented the attorney general on having issued the guidelines but expressed skepticism about their prospects for significant impact. The new 2022 guidelines focus on four objectives: reinforcing a commitment to the act’s presumption of openness, encouraging more timely and fulsome proactive disclosures, removing barriers to access and reducing request backlogs, and ensuring fair and effective administration of the act’s processes. The memo offers a number of recommendations with respect to each of these objectives, many of which highlight particular provisions of the act. Additionally, as part of the Department of Justice’s (DOJ’s) effort to remove barriers to access and to reduce backlogs, the memo announces that the Executive Office for Immigration Review will no longer require individuals to file FOIA requests to obtain their own immigration court records and urges other agencies to make similar kinds of records more readily available. The memo also reminds agency chief FOIA officers to review all aspects of their FOIA administration, paying specific attention to their backlogs and their allocation of resources to FOIA compliance. The presumption of openness is fundamental to the purposes of the act, and in that regard, the attorney general’s memo makes clear that under FOIA, agencies must identify a concrete—as opposed to speculative—foreseeable harm or legal bar to disclosure and says agencies should confirm in writing that they have considered the foreseeable harm standard when applying FOIA exemptions to a particular request. The memo further emphasizes that the act places the burden on the agency to justify a decision to withhold
information and that DOJ will not defend an agency’s decision that is inconsistent with the act or DOJ’s guidelines. A commitment to these principles can certainly help agencies better fulfill their obligations under FOIA and help the act fulfill its purpose. Even with dedication and commitment, however, agencies have limited resources, as was mentioned several times during the Senate Judiciary Committee hearing. At the conclusion of the hearing, Senator Leahy asked the witnesses to highlight one or two interventions that Congress or the agencies could make to fundamentally improve FOIA administration. In her response, witness Alina Semo, director of the Office of Government Information (OGIS) at the National Archives and Records Administration made an important point: FOIA is not the primary mission of most agencies, and as a result, FOIA programs often don’t receive the attention and funding they deserve. She encouraged Congress to change that focus. The attorney general’s memo merely sets forth “guidelines”—using words like “should” and “encourage”—and the Senate Judiciary hearing was not focused on any proposed legislative changes to FOIA. Whether Congress and the agencies will implement the attorney general’s recommendations as well as those offered by OGIS and GAO, and whether doing so measurably improves administration of FOIA, remains to be seen.
Endnotes U.S. Gov’t Accountability Off., Freedom of Information Act: Selected Agencies Adapted to the COVID-19 Pandemic but Face Ongoing Challenges and Backlogs ( Jan. 2022), https://www.gao.gov/assets/gao-22-105040.pdf. 2 Off. of the Att’y Gen., Memorandum for Heads of Executive Departments and Agencies (Mar. 15, 2022), https://www.justice.gov/ ag/page/file/1483516/download. 1
Editorial Policy
The Federal Lawyer is the magazine of the Federal Bar Association. It serves the needs of the association and its members, as well as those of the legal profession as a whole and the public. The Federal Lawyer is edited by members of its Editorial Board, who are all members of the Federal Bar Association. Editorial and publication decisions are based on the board’s judgment. The views expressed in The Federal Lawyer are those of the authors and do not necessarily reflect the views of the association or of the Editorial Board. Articles and letters to the editor in response are welcome.
The Caplin-Swanson Diversity Fellowship honors the actions taken by two men of great character, our Firm’s founder Mortimer Caplin and Gregory Swanson, the first Black person to study law at the University of Virginia in 1950.
Alejandra Pazzi
2022 Caplin-Swanson Diversity Fellow To read the story of Mr. Caplin and Mr. Swanson or to learn more about the fellowship, please visit our Diversity, Equity and Inclusion page at www.caplindrysdale.com/about-Diversity-Equity-Inclusion July/August 2022 • THE FEDERAL LAWYER • 5
At Sidebar
A Short Primer on ABA Model Rule 3.8(d) and Its Variants Among the States By Stewart M. Young
Stewart M. Young is a member of the editorial board of The Federal Lawyer and currently serves as president of the Utah Chapter of the FBA. He serves as an assistant U.S. attorney (AUSA) in the District of Utah. He previously served as an AUSA in San Diego and as a tenure-track law professor at the University of Wyoming College of Law. He is a graduate of Stanford Law School and Princeton University. Young writes in his personal capacity; the views expressed are not necessarily those of either DOJ or the U.S. Attorney’s Office for the District of Utah.
Over the past several years, the Department of Justice (DOJ) and state/local prosecutors’ offices have undertaken considerable time, expense, and effort to train prosecutors on their professional and ethical duties related to discovery. These entities have sought to ensure that prosecutors understand their collective ethical duties regarding disclosure of evidence, especially in the context of exculpatory evidence concerning their Brady and Giglio obligations. The DOJ and various state/local prosecutors’ offices have made yeoman’s efforts over a long period. And yet, in several recent prosecutions around the country, certain discovery concerns continue to arise. This column will not offer a panacea for these discovery concerns, nor will it excoriate prosecutors. Rather, this seems like an opportunity to discuss discovery issues and offer a primer on the various rules relating specifically to American Bar Association (ABA) Model Rule 3.8(d). Indeed, one hopes this will be a useful primer for criminal practitioners on the rules of professional conduct regarding Rule 3.8(d) throughout various jurisdictions. The ABA established Model Rule 3.8, which outlines the Special Responsibilities of Prosecutors.1 There are myriad prongs within Rule 3.8 that engender important discussion about prosecutorial duties and ethical responsibilities. Rule 3.8 reads (with certain portions removed):2 The prosecutor in a criminal case shall: (a) Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; .... (d) Make timely disclosure to the defense of all evidence or information knowing to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except
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when the prosecutor is relieved of this responsibility by a protective order of the tribunal; .... (g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall: (1) promptly disclose that evidence to an appropriate court or authority, and (2) if the conviction was obtained in the prosecutor’s jurisdiction, (i) promptly disclose that evidence to the defendant unless a court authorizes delay, and (ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit. (h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction. Of course, each of these important sections in and of itself could be its own “At Sidebar” conversation. In this short discussion, however, let us focus on Rule 3.8(d), which the ABA adopted in 1983.3 This Model Rule serves as the North Star for most state bar ethics rules, and is (or should be) well-known to the courts, prosecutors, and defense counsel. For almost 40 years, ABA Model Rule 3.8(d) has guided prosecutors in their duties, while numerous state bars and attorney organizations (and prosecutors’ offices) have conducted extensive training on this (and similar) professional conduct rules. Despite this rule’s place in the pantheon of professional conduct rules for several decades, concerns with its violation still end up in the news fairly often. At this juncture, a quick look at some recent cases relating to Rule 3.8(d) and discovery violations is in order. Here
is a glimpse at some of the more recent cases that have arisen recently: • In September 2020, Judge Alison Nathan, of the Southern District of New York (SDNY), noted his concern in the trial of Ali Sadr Hashemi Nejad about “belated disclosure of arguably (and in one instance, admittedly) exculpatory evidence.”4 • In February 2022, during the 1MDB (the Malaysian state investment fund) trial of former Goldman Sachs banker Roger Ng, SDNY prosecutors “said the government had failed to promptly turn over thousands of pages of emails and other personal documents belonging to a key witness for the prosecution.”5 • In St. Louis, a Missouri ethics panel recommended a public reprimand for the St. Louis Circuit Attorney for “erroneously [telling] the court … that all notes from interviews had been turned over to the defense, [and] … fail[ing] to comply with a legally proper discovery request ….”6 Of course, one of the most famous discovery violation issues over the past 20 years is the DOJ’s prosecution of Alaska Senator Ted Stevens. The aftermath of that case resulted in the publication of the Schuelke Report, which delivered findings relating to the potentially exculpatory material that trial prosecutors failed to turn over in contravention of their discovery obligations.7 While one might not necessarily call this an “epidemic of Brady violations abroad in the land” akin to Judge Alex Kozinski’s famous commentary in United States v. Olsen, the frequency that this occurs in relatively prominent prosecutions could raise some eyebrows.8 So, whither Rule 3.8(d)? Again, this Model Rule adopted by the ABA has been around for almost 40 years. Virtually every state jurisdiction has encoded ABA Model Rule 3.8 into the DNA of their professional responsibility rules.9 A brief view of several different jurisdictions demonstrates that numerous states have adopted the ABA’s model rule in totem and without material change. For instance, the Utah State Bar (where I practice) has adopted ABA Model Rule 3.8(d).10 Other states, including Massachusetts, Colorado, Louisiana, and many others, have also adopted ABA Model Rule 3.8(d) in full.11 Certain states have adopted altered versions of ABA Model Rule 3.8(d), and examining the altered changes to this rule is illuminating. For instance, California’s Rule 3.8(d) takes a slightly different tack than the ABA’s Model Rule and Rule 3.8(d) as adopted by other states. California’s Rule 3.8(d) states that the prosecutor shall make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;12 California’s addition of “reasonably should know” is instructive. While numerous states require only “actual knowledge” by the prosecutor of the evidence that negates the guilt of the accused or mitigates the offense, California places the burden on the prosecutor if they “reasonably should know” about this evidence. DOJ department policy doesn’t necessarily mirror the California rule, but that policy does state that a “prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant … regardless of whether the prosecutor believes such in-
formation will make the difference between conviction and acquittal of the defendant for a charged crime.”13 Other states, like North Carolina, add certain requirements for the prosecutor that go further than just “actual knowledge,” such as requiring the prosecutor to make a timely disclosure “after reasonably diligent inquiry.”14 Reasonably diligent inquiry could be subject to various interpretations, of course, but one hopes that prosecutors take this duty seriously and do more than merely ask their case agents or the prosecution team whether they know of exculpatory evidence that should be turned over to the defense.15 The DOJ Justice Manual provides a helpful (nonexhaustive) list of “What to Review” for this diligent inquiry, and state/local prosecutors offices might want to think about adopting this list if they don’t already have one.16 Meanwhile, the DC Bar’s Rule 3.8(d) isn’t even in Rule 3.8(d). Indeed, the DC Bar appears to take one of the most forceful tacks of all the myriad states’ professional conduct rules when it comes to the special responsibilities of prosecutors relating to exculpatory evidence.17 It includes a separate prong in Rule 3.8 that doesn’t usually appear in the rules of other states, placing significant onus on the prosecutor in that jurisdiction. It reads: The prosecutor in a criminal case shall not: .... Intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense, or in connection with sentencing, intentionally fail to disclose to the defense upon request any unprivileged mitigating information known to the prosecutor and not reasonably available to the defense, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal. 18 Rather than labeling this as Rule 3.8(d), the DC Bar labels this as Rule 3.8(e). DC Bar Rule 3.8(d) requires that the prosecutor “shall not … [i]ntentionally avoid pursuit of evidence or information because it may damage the prosecution’s case or aid the defense ….”19 Placing the burden on the prosecutor to not intentionally avoid pursuing information is highly intriguing. Such a burden squares with the mantra that a prosecutor should seek to do justice in every case and should “ensure confidence in fair trials and verdicts.”20 While other states don’t go as far as the DC Bar in explicitly making this a rule, the North Carolina Bar includes this same statement in its “Comment” portion of the North Carolina State Bar Rules of Professional Conduct.21 While such a statement maybe should go without saying, other states might desire to adopt the DC Bar’s approach and make this statement more explicit. Indeed, when it comes to professional conduct rules, making them more clear and transparent, rather than leaving things unsaid, is possibly a prudent approach. Like the DC Bar’s approach, Ohio’s State Court Rules of Professional Conduct takes a “negative approach” to the prosecutor’s duties. Ohio’s Rule 3.8(d) notes, “The prosecutor in a criminal case shall not do any of the following” and continues: (d) fail to make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate July/August 2022 • THE FEDERAL LAWYER • 7
the guilt of the accused or mitigates the offense, and, in connection with sentencing, fail to disclose to the defense all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by an order of the tribunal;22 Placing the burden on the prosecutor to “not” do things, as opposed to requiring a “positive” burden on the prosecutor to “ensure” things happen, is helpful and instructive. Indeed, we as lawyers (no matter the practice area) tend to look at what we can’t do, rather than what we should do, when we practice law. It seems that the state bars that place the burdens on the prosecutors in this type of “negative” vein clearly grab the attention of the reader.23 Finally, to finish our tour of several different state versions of Rule 3.8(d), we gaze upon the Virginia State Bar Professional Guidelines,24 which apparently have some slight differences with the Virginia State Code. The Professional Guidelines mirror the ABA Model Rule, requiring “timely disclosure to counsel for the defendant … of the existence of evidence with the prosecutor knows tends to negate the guilt of the accused, [or] mitigate the degree of the offense ….”25 The Notes for the Virginia State Bar Professional Guidelines state, in pertinent part: [Rule 3.8(d)] address[es] knowing violations of the [] provision [] so as to allow for better understanding and easier enforcement by excluding situations … for example, where the lawyer/prosecutor does not know the theory of the defense so as to be able to assess the exculpatory nature of evidence ….26 The Virginia State Bar Professional Guidelines state that its Rule 3.8(d) is like the Virginia State Code “but requires actual knowledge on the part of prosecuting lawyers that they are in possession of exculpatory evidence as opposed to simply being in knowing possession of evidence that may be determined to be of such a nature ….”27 Making the issue actual knowledge seems to be an important caveat. There are clearly times when a prosecutor does not know the theory of the defense, and for that prosecutor, assessing potentially exculpatory evidence might be difficult. Of course, these rules should tread in a more liberal direction, and prosecutors should generally seek reasons to provide information to the defense, rather than seek reasons not to provide it. The DOJ Justice Manual clearly notes that prosecutors should take a broader view of potential exculpatory material.28 Overall, most of the state bar rules and guidelines, while mirroring ABA Model Rule 3.8(d), provide some interesting and intriguing differences that are useful to states seeking to strengthen their own version of Rule 3.8(d). Furthermore, when prosecutors are “familiar with laws and policies regarding discovery obligations, [they] are more likely to meet all legal requirements, to make considered decisions about disclosures in a particular case, and to achieve a just result in every case.”29 And a just result in every case should be the paramount goal for all involved in the criminal justice system.
Endnotes Model Rules of Pro. Conduct r. 3.8 (Am. Bar. Ass’n 1983). Id. 3 Id. “The ABA Model Rules of Professional Conduct were adopted by the ABA House of Delegates in 1983. They serve as models for the 1 2
8 • THE FEDERAL LAWYER • July/August 2022
ethics rules of most jurisdictions.” Am. Bar Ass’n, Model Rules of Professional Conduct: About the Rules, https://www.americanbar. org/groups/professional_responsibility/publications/model_rules_ of_professional_conduct/ (last visited July 18, 2022). 4 United States v. Nejad, No. 1:18-CR-224 (S.D.N.Y. Sept. 16, 2020), ECF No. 379. 5 Matthew Goldstein, 1MDB Trial Will Take a Break So the Defense Can Study New Documents, N.Y. Times (Feb. 23, 2022), https:// www.nytimes.com/2022/02/23/business/roger-ng-trial-1mdb.html. Interestingly, this was "the second time in a little over a week" that this had happened. Id. 6 Hailey Konnath, Ethics Panel Wants Reprimand for St. Louis’ Top Prosecutor, Law360.com (May 11, 2022), at https://www. law360.com/whitecollar/articles/1492524/ethics-panel-wantsreprimand-for-st-louis-top-prosecutor?nl_pk=fa0f843b-0ca94fac-825f-74902338d80f&utm_source=newsletter&utm_ medium=email&utm_campaign=whitecollar&utm_ content=2022-05-12. 7 In re Special Proceedings, No. 1:09-mc-198 (D.D.C. Mar. 15, 2012), ECF No. 84. See also Carrie Johnson, Report: Prosecutors Hid Evidence in Ted Stevens Case, NPR.org (Mar. 15, 2012), at https:// www.npr.org/2012/03/15/148687717/report-prosecutors-hidevidence-in-ted-stevens-case. 8 United States v. Olsen, 737 F.3d 625, 626 (9th Cir. 2013) (Kozinski, J., dissenting from order denying the petition for rehearing en banc); Debra Cassens Weiss, ‘Epidemic of Brady violations’ decried in Kozinski opinion, ABA Journal (Dec. 11, 2013), at https://www. abajournal.com/news/article/epidemic_of_brady_violations_ decried_in_kozinski_opinion/. 9 See, e.g., Cal. Rules of Pro. Resp. r. 3.8; Col. R. of Pro. Conduct r. 3.8(d); La. Rules of Pro. Guidelines r. 3.8(d); Mass. Rules of Pro. Resp. r. 3.8; Va. State Bar Pro. Guidelines r. 3.8. 10 Utah Code of Jud. Admin. r. 13-3.8. 11 See supra note 9. 12 Cal. Rules of Pro. Resp. r. 3.8(d). 13 U.S. Dep't of Just., Just. Manual § 9-5.001(C)(1) (2020). 14 N.C. Rules of Pro. Conduct r. 3.8(d). 15 The Justice Manual from DOJ outlines “What to Review” and generally from whom to review, including “The Investigative Agency’s Files,” “The Confidential Informant (CI)/Witness(CW)/ Human Source(CHS)/Source (CS) Files,” “Evidence and Information Gathered during the Investigation,” “Document or Evidence Gathered by Civil Attorneys and/or Regulatory Agency in Parallel Proceedings,” “Substantive Case-Related Communications,” Giglio Information, and “Information Obtained During Witness Interview,” as part of the potentially discoverable material within the custody or control of the prosecution team. Just. Manual § 9.5.002(B), supra note 13. See also Just. Manual § 9.5001(B) (2) (outlining the obligation of federal prosecutors to seek all exculpatory information from all members of the prosecution team and outlining the likely members of that prosecution team). 16 Id. 17 See DC Bar R. of Pro. Conduct r. 3.8. 18 Id. at r. 3.8(e). 19 Id. at r. 3.8(d). 20 Just. Manual § 9.5001(F), supra note 13. continued on page 17
Diversity & Inclusion
Applying Inclusion Principles in the Prevention of Workplace Harassment By André Smith, David Treworgy, and D. Stuart Phelan
This column is designed to empower employees experiencing harassment with appropriate responses to inappropriate workplace behaviors.1 The authors’ recommendations reflect lessons learned addressing real-world situations.2
Concepts An ounce of prevention is worth a pound of cure.3 As a healthy person is less prone to infection, so are healthy work environments less vulnerable to harassment. Deter discrimination and hostility by building the collaborative relationships, rapport, and mutual respect with co-workers that form the foundation for an equitable and inclusive organizational culture.4 Simultaneously, ready yourself and colleagues to counter negative behaviors in a consistently constructive and professional manner. Incivility can be contagious, so address it immediately and never let the disease spread in your office.
Application
The authors share several decades of joint experience. Their relevant career adventures include lawyering, working as EEO and DEI practitioners, teaching and coaching, and consulting, In this column, the authors speak in their personal capacities, however, and not on behalf of any other entity with which they are currently or previously affiliated. Feel free to share your suggestions for how to apply DEI principles to improve the work environment. You can email the authors at phelan.stuart@gmail.com. ©2022 André Smith, David Treworgy, and D. Stuart Phelan. All rights reserved.
Flexibility is fundamental. There is no “one-size-fitsall” solution to the plethora of people problems present in today’s workforce. Like an investment portfolio, your organization’s workforce should be diversified to reap better returns over time; like investments, a diverse workforce must be managed and balanced as circumstances change. You must be agile enough to adapt your Diversity, Equity, and Inclusion (DEI) strategy to the tactical realities you encounter. Learn from experiences and grow.
Preventive Strategies to Deter Harassment and Foster Inclusion Ever notice how just one obnoxious colleague can make work miserable for everybody? This illustrates the impact that one member can have on an organization—for better, or worse. Because every employee’s contribution and perspective matters, every employee shares responsibility for maintaining a fair, inclusive, and harassment-free work environment. You can do your part in three ways. 1. Prepare for early intervention. Rapid response to workplace aggression is best because hostility can
escalate quickly. People can rise to the occasion only with a sufficient level of advance readiness. Be ready when your moment arrives. Educate yourself. Reading your organization’s anti-harassment and equal employment opportunity (EEO) policies is a logical place to start. Knowing what behaviors will not be tolerated and who to contact for assistance will allow you to assess and act promptly should an incident occur. Invest in yourself. Develop conflict resolution tools to bolster your all-important soft skills. Maximize opportunities to attend DEI training related to allyship, civil treatment, negotiation, unconscious bias, and inclusive behavior. Establish organizational conduct and civility standards. Formulating a DEI statement and norms of behavior for your work unit offers an opportunity to communicate expectations and ensure that everyone receives notice of what will be expected of them. The conversation this exercise encourages also provides a collective chance to consider and discuss what equitable treatment entails and what inclusion involves. 2. Model inclusive behaviors. Employees often exert their biggest influence on the work culture through routine daily interactions with others. Diversity is a fact, but inclusion is a choice. Set an example and build connections with your co-workers. Demonstrate civility and professionalism. Treat everyone fairly and with kindness and respect. Welcome newcomers and reach out to the isolated; listen to others’ ideas and validate their opinions; leverage teammates’ unique abilities and recognize their contributions; and encourage collaboration and teamwork. Pay particular attention to interactions with people you dislike or disagree with. Exercise self-awareness in confrontational situations. Establish a high benchmark for professionalism and civility in your office. Treat disagreements as opportunities to build trust and establish your personal reputation for courtesy and diplomacy. Strive to resolve conflicts amicably by reflecting on your role in the dispute and using empathy to understand others. July/August 2022 • THE FEDERAL LAWYER • 9
Leverage opportunities for change. Regardless of your position in the organization, you can play a role in ensuring your workplace is equitable and inclusive. Get involved in committees and participate in social gatherings and volunteer activities. Achieving cultural transformation in your organization will require a long-term effort, so select realistic goals and milestones to help you stay on track, achieve small wins, gauge progress, and build momentum. 3. Be an Ally.5 If you see or hear someone else enduring abuse, offer the harassed individual your support. Let a person under pressure know that they are not alone. A friend in need is a friend indeed. Draw a line. Defending targets of unjustified hostility, such as microaggressions, is an excellent way to set boundaries for acceptable and unacceptable behaviors. Turn the tables. Allyship is also a terrific way to use your position or privileges to prevent, instead of perpetuate, inequities.
Tactical Responses to Stop Harassment and Bullying Harassment is not inevitable and certainly never a condition of continued employment. The authors recommend two defensive techniques to neutralize harassers. These methods work whether you are a witness to or the target of the offensive conduct. 1. Labeling. If you see something, say something. Putting offending individuals on notice that their behavior is unwelcome is often enough to end unpleasant conduct or comments. Only call out a harasser or bully if you feel comfortable and confident doing so. Otherwise, skip ahead to reporting the inappropriate behavior. Announce your disapproval. Knowing that others condemn the conduct or that a target is neither isolated nor defenseless (i.e., easy prey) may avert future attacks. Failing to voice your opposition to bad behaviors, however, might be viewed as consenting to—or even condoning—such conduct.6 Be tactful. You must control yourself before you can control the situation and influence others. Take the high road and do not lower yourself to the harasser’s level. Be gentle but firm, and avoid personal attacks. Politely explain why the behavior bothers you and avoid confrontation. Try using non-accusatory statements, such as “This bothered me because…,” or “I really didn’t like it when you...” 2. Reporting. If the offensive conduct continues after you have labeled it, or you do not feel comfortable confronting a harasser, reporting is your next step. Report any suspected harassment. If a harasser targets you, you probably are not alone; if you witness harassment, what you observed might be only the tip of the iceberg. If in doubt, err on the side of caution and report. Silence shields abusers. Seek aid. The proper individuals to tell are typically explained in your organization’s policy, but a few general rules apply in most cases. Contact law enforcement if you suspect criminal behavior or an imminent threat of violence. Otherwise, tell your supervisor, or the harasser’s supervisor, what happened. If your supervisor is the harasser, report to their superior or the EEO office. Report contents. Try to capture the details about what transpired while the events are still fresh in your memory. Your statement, preferably in writing, will give the harassment investigator a guide. Who was involved? The harasser, the target(s), and anyone else who might have witnessed what occurred. What happened? Actions, behaviors, and comments; context is particularly important with sexual harassment and other forms 10 • THE FEDERAL LAWYER • July/August 2022
of discrimination because often the setting or situation transforms otherwise innocuous words into insults or innuendo. When did it occur? If more than once, how many times? Where did the incident happen? Harassment can occur anywhere connected with work, (e.g., holiday and retirement parties, offsite trainings or conferences, happy hours). How did it make you feel? Harassment has both subjective and objective elements; your personal experience matters immensely. Respect everyone’s privacy. Only notify the people with a need to know. Quietly inform your manager or the EEO office. Do not make a scene or a speech. Discretion protects your anonymity and the privacy of the parties involved. Resist any temptation to conduct your own investigation. No news is typically good news; administrative harassment inquiries are necessarily confidential undertakings, and the outcome should not be discussed beyond the persons necessary to ensure the offensive behaviors do not occur again.
Endnotes In this article, the term “harassment” will encompass the broad spectrum of improper, inimical, and “not-cool” behaviors that fall between professionalism and criminal conduct. Such misbehaviors include bullying, microaggressions, and discriminatory harassment— “unwelcome comments and conduct based on the target’s innate personal, physical, or cultural characteristics.” 2 Our suggestions reflect what we have learned along the way (sometimes the hard way) helping ourselves and others resolve workplace disputes. 3 Benjamin Franklin, On Protection of Towns from Fire, The Pennsylvania Gazette (Feb. 4, 1735), https://founders.archives. gov/documents/Franklin/01-02-02-0002. 4 Equity is “fair treatment and equal access to the same opportunities and resources in the same place at the same time;” and inclusion is “welcoming, valuing, engaging, and fairly treating all persons and perspectives with respect.” 5 The authors’ definition of “ally” is apolitical. Our use of the word in this article simply suggests supportive association with another individual or a group when they might need help. 6 Some harassers try to justify their misconduct on the grounds that they were not aware the behavior was offensive. While certainly no excuse for discrimination or bullying, this rationalization highlights the importance of denouncing incivility. 1
In-House Insight
The Contours of the Cosmetic PFAS Litigation: Highlights and Shadows of Forever Chemicals By Michael J. Cahalane, Bryan M. Abramoske, and Noel Y. Cho
Michael J. Cahalane and Bryan M. Abramoske are partners, and Noel Y. Cho is an associate, at Cetrulo LLP in Boston. They regularly defend clients, including consumer cosmetic companies, in toxic tort litigation in New England. Cahalane is a vice chair for the FBA’s Corporate and Association Counsel Division. ©2022 Michael J. Cahalane, Bryan M. Abramoske, and Noel Y. Cho. All rights reserved.
On Oct. 18, 2021, the administrator of the U.S. Environmental Protection Agency (EPA) announced the agency’s “PFAS Strategic Roadmap,” setting out timelines by which the EPA plans to take action and commit to addressing contamination from per- and polyfluoroalkyl substances—known as “PFAS”— throughout the country.1 The strategic plan includes: (1) considering the lifecycle of PFAS; (2) getting upstream of the problem; (3) holding polluters accountable; (4) ensuring science-based decision-making; and (5) prioritizing protection of disadvantaged communities.2 President Biden’s fiscal year 2023 budget, submitted to Congress on March 28, 2022, would allocate approximately $126 million for EPA’s Strategic Roadmap to safeguard communities from PFAS contamination.3 The increased attention on PFAS, and allocation of funding by the federal government for PFAS mitigation, has been accompanied by a corresponding rise in litigation relating to PFAS in the environment and consumer products. PFAS are a group of chemicals that have been used in a variety of industries, including, auto, aerospace, apparel, biotechnology, construction, electronics, and pharmaceuticals, among others.4 The greatest benefit of PFAS, while also the source of concern, is the potential for the chemical combinations to withstand natural degradation, causing the chemicals to break down very slowly over time.5 Because of this feature, PFAS are used in products such as food packaging, nonstick cooking surfaces, electrical wiring, and firefighting foam. Recently, PFAS have even been identified in ski wax.6 Many concerns emerge from the uses of these chemicals due to their resilient nature. PFAS have been shown to move through soils and contaminate drinking water and accumulate in wildlife.7 As research into PFAS and their effects continue, new litigations regarding these chemicals are starting to develop. One field of emerging litigation is against consumer cosmetic companies for using PFAS in their products. Cosmetic PFAS litigation faces several challenges,
which suggests this litigation may not last, unlike the chemicals on which it is based.
Litigation Primer To date, the majority of PFAS litigation has been centered on environmental cleanup and remediation by PFAS manufacturers.8 The first PFAS pollution claim arose in Minnesota in 2010 against 3M Corporation for contamination of groundwater.9 This lawsuit resulted in a settlement of $850 million, setting aside approximately $720 million for environmental rehabilitation.10 Other states, such as Michigan, have followed suit in bringing claims against PFAS manufacturers for alleged environmental harms.11 In 2020, the Michigan attorney general sued 17 PFAS manufacturing companies, alleging violations under the Natural Resources and Environmental Protection Act; the Michigan Fraudulent Transfer Act; and Michigan common law claims of negligence, trespass, public nuisance, and unjust enrichment.12 More recently, personal injury cases alleging damages from PFAS exposure have been on the rise. As depicted in the 2019 film Dark Waters, PFAS were found in the drinking water of Parkersburg, W. Va., which led to a class-action suit against DuPont and resulted in a $670 million settlement in 2017.13 Following this case, and as part of the class-action settlement, a three-member independent science panel was formed to conduct a population study that would gather data on class members to evaluate PFAS levels and allow future epidemiologic investigations.14 This panel evaluated over 68,000 participants over a 13-month period and concluded that PFAS exposure could lead to several health issues, including kidney cancer, testicular cancer, ulcerative colitis, thyroid disease, and high cholesterol.15 In 2018, to manage more than 500 claims alleging exposure to PFAS from firefighting foam, the Judicial Panel on Multidistrict Litigation created MDL No. 287316 in the U.S. District Court for the District of July/August 2022 • THE FEDERAL LAWYER • 11
South Carolina.17 Plaintiffs in these cases all share common questions of law regarding harms from PFAS exposure and allege personal injury, need for medical monitoring, and property damage, in addition to other economic losses.18 To date, over 2,500 cases have been consolidated in MDL No. 2873.19 Even the fast food industry is facing litigation relating to PFAS, as McDonald’s and Burger King were both sued this year for using PFAS in their packaging.20 These lawsuits came after a report from Consumer Reports that PFAS in fast food packaging can migrate into the packaged food and be ingested, contaminate water and soil after being disposed at landfills, and spread through the air if the packaging is burned.21 McDonald’s and Burger King face claims of false advertising for using PFAS-containing packaging while claiming to sell safe products.22 Thus far, PFAS claims have espoused a variety of theories of liability, from environmental contamination to false advertising. The establishment of a solid scientific basis for finding a causative connection between PFAS and multiple disease types posits an expansion of PFAS litigation. The future litigation landscape threatens to ensnare not only manufacturers of PFAS, but also companies that incorporate PFAS, knowingly or unknowingly, within their products. But while general causation may be scientifically demonstrated, establishing the presence of PFAS in a product, and the method of absorption from a PFAS exposure, may not be that simple.
Highlights and Shadows: Cosmetics and PFAS PFAS are used in cosmetics due to manufacturers’ efforts to increase cosmetic products’ durability and resistance to water, in addition to providing the aesthetic benefit of making skin appear smoother.23 In 2021, researchers from the University of Notre Dame tested 231 common makeup products and found that more than half contained “high levels of PFAS.”24 Testing included products such as liquid foundation, concealer, mascara, and lipsticks.25 These are all products that are commonly used on or around the eyes and lips, which allows chemicals to be easily consumed, as these areas are close to mucus membranes.26 This study did not specifically test for PFAS, however, but rather fluorine, because high levels of fluorine are a marker for PFAS presence.27 From the tested samples, 82 percent of waterproof mascaras, 63 percent of foundations, and 62 percent of liquid lipsticks were found to contain at least 0.384 micrograms of fluorine per square centimeter of the product.28 Meanwhile, Congress has begun exploring regulating the use of PFAS within consumer cosmetic products. On June 14, 2021, the “No PFAS in Cosmetics Act” was introduced in the U.S. Senate.29 This legislation, if passed, will ban the use of intentionally added PFAS substances in cosmetics.30 It states that no later than 270 days after the date of the enactment of the act, the Secretary of Health and Human Services shall issue a proposed rule to ban the use of intentionally added PFAS in cosmetics.31 Notably, the act only concerns “intentionally” added PFAS and does not account for PFAS inadvertently present in or contaminating products. As more scientific studies and legislative actions are undertaken, it is likely that allegations of PFAS-related injuries from cosmetics, and corresponding litigation, will increase. The focus of plaintiffs’ attorneys on PFAS in consumer cosmetic products has already begun. In December 2021, five plaintiffs filed a class action against Shiseido Americas Corporation on behalf of “all consumers who purchased bareMinerals brand products.”32 The plaintiffs in Onaka v. Shiseido 12 • THE FEDERAL LAWYER • July/August 2022
Americas Corp. claim breach of warranty, negligent misrepresentation, fraud, and violation of various state consumer protection laws.33 They also allege that Shiseido’s bareMinerals products are falsely advertised as clean and free of harsh chemicals.34 The plaintiffs allege that these statements are false because bareMinerals contains PFAS, which plaintiffs assert are not clean or natural.35 Also in December 2021, GMO Free USA d/b/a Toxin Free USA filed a lawsuit against Cover Girl Cosmetics and Coty, Inc., alleging that the Cover Girl brand TruBlend Pressed Powder is falsely and deceptively marketed.36 In that case, the plaintiff alleges that the characterization of the product as sustainable is false and misleading because the product contains PFAS, which is a “forever chemical” that does not degrade in the environment.37 The complaint references a growing consumer advocacy movement to eliminate PFAS from products.38 More recently, on April 7, 2022, a class-action lawsuit was filed in Oakland, Calif., against Clorox, in which plaintiffs aver that Burt’s Bees Lip Products contain PFAS.39 The claimants allege that while Burt’s Bees advertised the product as 100% natural, such a statement is not true because the product contains PFAS.40 The plaintiffs allege that a reasonable consumer would fairly and reasonably understand that Burt’s Bees products, which are marketed as clean, conscious, and 100% natural, are free from chemicals, particularly human-made chemicals such as PFAS.41 Similarly, on April 8, 2022, a class-action lawsuit was filed in New Jersey federal court against L’Oreal, alleging fraud, breach of both express and implied warranty, unjust enrichment, and violation of the New Jersey Consumer Fraud Act.42 The complaint includes examples of L’Oreal’s products alleged to contain PFAS to support the plaintiffs’ claims that L’Oreal’s marketing is fraudulent and misleading.43
Blemishes to Conceal None of the current cosmetics PFAS lawsuits detailed above include claims of personal injury, such as those made in the environmental cases. Rather, the cosmetic cases allege false advertising and violations of consumer protection statutes. Plaintiffs will face several challenges in prosecuting any personal injury claims from exposure to PFAS in cosmetics. A significant issue plaintiffs may face in the course of this litigation is the hurdle of testing for PFAS. As the Notre Dame study has shown, PFAS detection has only been assumed based on the finding of high levels of fluorine.44 Following the release of the Notre Dame study, a consumer wellness blog, Mamavation, tested dozens of makeup products for organic fluorine as opposed to individual PFAS “because that testing would be significantly more expensive, and tests only exist for a limited number of the [PFAS] compounds.”45 Additionally, plaintiffs in cosmetic PFAS cases will have difficulty proving exposure. The U.S. Food and Drug Administration (FDA) has previously reported that there is a limited amount of research regarding PFAS absorption through the skin.46 Denmark’s Environmental Protection Agency conducted the only known risk assessment that evaluated PFAS in cosmetics and ultimately concluded that the levels of PFAS in the products sampled were unlikely to pose a health risk for consumers.47 The FDA has stated that additional research is needed in order to ascertain the full impact of PFAS exposure from cosmetic sources. This would require looking into the toxicological profiles for PFAS in cosmetics, determining the extent to which various PFAS in cosmetics can be absorbed through the skin, and identifying any potential human health risks from this type of exposure.48
Further, plaintiffs will have difficulty proving causation in these cosmetics cases. To prove general causation, plaintiffs will be required to show that PFAS exposure is capable of causing the injury or injuries at issue.49 Although some studies suggest that exposure to some types of PFAS at certain intensities may cause a number of health effects, not all studies measured the same type of exposures or even the same PFAS compounds.50 The lack of scientific studies linking specific types of PFAS exposure to particular injuries will make establishing general causation difficult. For example, unlike other common toxic torts, PFAS exposure has no one “signature” disease. In addition, there is a myriad of potential causes for many of the health effects associated with PFAS. Additionally, plaintiffs will be required to prove specific causation, which raises additional challenges in a cosmetic PFAS case. Plaintiffs will find it difficult to prove specific causation as to any particular cosmetic product where they will be required to evidence both the presence of PFAS in that product and sufficient exposure to cause the alleged disease.
Forever Litigation? Notwithstanding the challenges that plaintiffs will face in prosecuting personal injury PFAS cases relating to consumer products like cosmetics, the chemicals and their health effects will face increased attention due to the Biden administration’s commitment to studying and regulating them.51 President Biden has pledged to designate PFAS as a hazardous substance in his Plan to Secure Environmental Justice and Equitable Economic Opportunity.52 If successful, this would lead to broadened federal authority to act on PFAS regulation under the Comprehensive Environmental Response, Compensation, and Liability Act.53 Like the chemicals themselves, PFAS litigation has spread beyond environmental litigation to consumer products. As more products are studied and tested, and as governmental entities release further guidance on PFAS and their associated health effects, it is likely that such consumer product litigation will expand to other areas. Manufacturers who utilize PFAS in their products or packaging should take action now in anticipation of the inevitable litigation to come. First, companies should determine whether they are using PFAS in their manufacturing process or packaging. The Green Science Policy Institute, a group of scientists and policy experts that develops and distributes peer-reviewed research about chemicals of concern, recommends that brands test their makeup for organic fluorine and conduct targeted PFAS testing.54 However, testing for PFAS has proven to be difficult, as there are an estimated 8,000-9,000 individual PFAS compounds, and many formulas are industry secrets.55 The challenge of specifically testing for PFAS is reflected in the cost of such testing, which can range from $100-$300 to test a batch of makeup for organic fluorine and about $10 per compound to test for targeted PFAS.56 Manufacturers (and plaintiffs’ attorneys) seeking product testing may face long wait times since there are few labs that currently perform this type of analysis.57 In addition to independent testing, manufacturers should ask suppliers and vendors to certify that their ingredients or other materials are PFAS-free. Not only will this data be critical to proving the purity of their product in litigation, but it will also be useful in demonstrating that manufacturers acted reasonably in response to the potential health risks of PFAS. Next, companies that are using PFAS should determine whether a commercially reasonable alternative exists that could replace the use
of PFAS in their product or process. By shifting to a non-PFAS-containing alternative, they could avoid potential litigation associated with alleged exposure. This will also support their defense that they valued consumer safety over profits, countering a familiar refrain of the plaintiffs’ bar. Additionally, companies that are using PFAS in their products, manufacturing processes, or packaging should be proactive about warning about the existence of the chemicals. By making disclosures on their own accord, even with no regulatory obligation to do so, companies can anticipate a potential failure-to-warn claim and also protect against allegations of fraudulent or misleading marketing or claims made under consumer protection laws. Finally, all companies should stay abreast of the rapidly changing legislative and regulatory landscape to be sure their use of PFAS is consistent with both federal and state law. Whether in the form of the recently introduced No PFAS in Cosmetics Act or ongoing EPA activity associated with its PFAS Strategic Roadmap, changes to the law affecting PFAS are coming. Companies need to be prepared to adapt their businesses accordingly. We are witnessing the nascent stages of PFAS litigation. As research into these chemicals continues, we can expect litigation to expand to new products and legal theories, including alleged personal injuries from cosmetic products. As this litigation expands, plaintiffs will face significant challenges, particularly in proving exposure and causation. These obstacles notwithstanding, prospective defendants should take decisive action now to eliminate risks associated with forever chemicals and to avoid what could otherwise become forever litigation.
Endnotes PFAS Strategic Roadmap: EPA’s Commitments to Action 20212024, EPA (Oct. 2021), https://www.epa.gov/pfas/pfas-strategicroadmap-epas-commitments-action-2021-2024. 2 Id. 3 Statement by EPA Administrator Regan on the President’s Fiscal Year 2023 Budget, EPA (Mar. 28, 2022), https://www.epa.gov/ newsreleases/statement-epa-administrator-regan-presidents-fiscalyear-2023-budget. 4 Lawrence G. Cetrulo, Toxic Torts Litigation Guide § 48:1 (2021-2022 ed.). 5 PFAS Explained, EPA, https://www.epa.gov/pfas/pfas-explained (last visited Apr. 14, 2022). 6 Violations May Put Ski Wax Users at Risk from Illegal Perfluoroalkyl Substances, EPA ( Jan. 2022), https://www.epa.gov/system/files/ documents/2022-01/pfasskiwax.pdf. 7 Per- and Polyfluorinated Substances (PFAS) Factsheet, CDC (Feb. 2, 2022), https://www.cdc.gov/biomonitoring/PFAS_FactSheet.html. 8 Cetrulo, supra note 4, § 48:17; Juliane Gluge et al., An Overview of the uses of per- and polyfluoroalkyl substances (PFAS) 12 Env’t Sci.: Processes & Impacts 22, 2345, 2349 (2020). 9 Id. 10 Mackenzie Moyer, “Forever Chemicals”: PFAS Contamination and Public Health, 12 Penn. St. L. Rev. 565, 583 (Winter 2021). 11 Cetrulo, supra note 4, § 48:21. 12 See Complaint, Nessel v. 3M Co., 1:20-cv-00787 (W.D. Mich. Aug. 20, 2020), ECF No. 1. 13 Brittany Patterson, ‘Dark Waters’ Puts PFAS Saga On Big Screen as Ohio Valley Contamination Comes to Light, W. Va. Pub. Broad., 1
July/August 2022 • THE FEDERAL LAWYER • 13
(Nov. 22, 2019 at 4:32 PM EST), https://www.wvpublic.org/ news/2019-11-22/dark-waters-puts-pfas-saga-on-big-screen-as-ohiovalley-contamination-comes-to-light. 14 Stephanie J. Frisbee, et al., The C8 Health Project: Design, Methods, and Participants, 117 Env’t. Health Persp. 12, 1873 (Dec. 2009). 15 Id. 16 In re: Aqueous Film-Forming Foams Prods. Liab. Litig., MDL No. 2:18-mn-2873 (D.S.C. Jan. 02, 2019), ECF No. 3. 17 Id. 18 Id. 19 Id. 20 Chrissy Callahan, McDonald’s and Burger King are Being Sued for Use of “Forever Chemicals” in Packaging, Today (Apr. 19, 2022), https://www.today.com/food/restaurants/mcdonalds-burger-kingsued-forever-chemicals-pfas-packaging-rcna24991. 21 Kevin Loria, Dangerous PFAS Chemicals Are in Your Food Packaging, Consumer Reports (Mar. 24, 2022), https://www. consumerreports.org/pfas-food-packaging/dangerous-pfaschemicals-are-in-your-food-packaging-a3786252074/ . 22 Id. 23 Per and Polyfluoroalkyl Substances (PFAS) in Cosmetics, FDA, https://www.fda.gov/cosmetics/cosmetic-ingredients/andpolyfluoroalkyl-substances-pfas-cosmetics (last visited Apr. 22, 2022). 24 Cetrulo, supra note 4, § 48:1. 25 Id. 26 Id. 27 Id. 28 Id. 29 No PFAS in Cosmetics Act, S. 2047, 117th Cong. (2021). 30 Id. 31 Id. 32 See Complaint, Onaka v. Shiseido Americas Corp., 1:21-cv-10665 (S.D.N.Y. Dec. 14, 2021), ECF No. 1. 33 Id. 34 Id. 35 Id.
See Complaint, GMO Free USA v. Cover Girl, 2021 CA 004786 B (D.C. Sup. Ct. 2021). 37 Id. 38 Id. 39 See Complaint, Barrett et al. v. The Clorox Co., 3:22-cv-02193 (N.D. Cal. Apr. 7, 2022), ECF No. 1. 40 Id. 41 Id. 42 See Complaint, Vega v. L’Oreal USA, Inc., 2:22-cv-02049 (S.D.N.J. Ar. 8, 2022), ECF No. 1. 43 Id. 44 Cetrulo, supra note 4, § 48:1. 45 Elizabeth Gribkoff, IN-DEPTH: For Clean Beauty Brands, Getting PFAS Out of Makeup Might Be Easier Said Than Done, Env’t Health News (Mar. 24, 2022), https://www.ehn.org/pfas-inmakeup-2656887006.html 46 FDA, supra note 23. 47 Id. 48 Id. 49 Cetrulo, supra note 4, § 5:4. 50 Id. at § 48:1; What are the health effects of PFAS? CDC Agency for Toxic Substances and Disease Registry, https://www. atsdr.cdc.gov/pfas/health-effects.html (last visited May 2, 2022). 51 Fact Sheet: Biden- Harris Administration Launches Plan to Combat PFAS Pollution, The White House (Oct. 18, 2021), https://www. whitehouse.gov/briefing-room/statements-releases/2021/10/18/ fact-sheet-biden-harris-administration-launches-plan-to-combatpfas-pollution/. 52 The Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity, Biden for President, https://joebiden. com/environmental-justice-plan/ (last visited Apr. 20, 2022). 53 See 42 U.S.C. §§ 9604, 9606, 9607. 54 Gribkoff, supra note 45. 55 Id. 56 Id. 57 Id. 36
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Focus on Indian Law
Knight v. Thompson Revisited: Ramirez v. Collier’s Implications for Native Prisoners’ Religious Exercise By Emily deLisle
Emily deLisle is a Cozen Voting Rights Fellow at the Native American Rights Fund in Washington, D.C. She graduated from the University of Pennsylvania Carey Law School in 2021.
The U.S. Supreme Court’s March 24, 2022, decision in Ramirez v. Collier1 underscored the powerful protections the Religious Land Use and Institutionalized Persons Act (RLUIPA) can offer incarcerated people who seek religious exemptions from generally applicable prison policies. In many respects, Ramirez merely reaffirmed the approach to RLUIPA the Court had already adopted in its 2015 Holt v. Hobbs2 decision. But, seven years later, the Eleventh Circuit’s decision in Knight v. Thompson—a ruling inconsistent with RLUIPA’s plain meaning, the Supreme Court’s instructions on remand, and even the Eleventh Circuit’s own applications of RLUIPA in subsequent cases—continues to deny Native people incarcerated in nonfederal facilities the right to practice their faith, as non-Native prisoners enjoy. Ramirez provides an opportunity to address Knight’s discriminatory application of RLUIPA to claims by Native prisoners as well as the unjust state prison policies that Knight sanctions. Congress passed RLUIPA two decades ago to establish “very broad protection for religious liberty.”3 RLUIPA, like the Religious Freedom Restoration Act (RFRA), establishes a strict-scrutiny-like framework, providing that once an incarcerated plaintiff demonstrates that prison policy or practice imposes a substantial burden on his religious exercise, the state must demonstrate that the policy as applied to that individual is the least restrictive means of furthering a compelling government interest. But, in 2013, when the Eleventh Circuit considered RLUIPA claims brought by Native American prisoners against the Alabama Department of Corrections (ADOC) in Knight, its approach all but negated the statute’s narrow tailoring requirement. ADOC conceded that Alabama’s short hair requirement for male inmates substantially burdened the Native prisoners’ religious exercise. As the plaintiffs’ expert explained at trial, “hair has great religious significance for many Native Americans, and … forcing Native Americans to cut their long hair would amount to an ‘assault on
their sacredness.’” It was also undisputed that the state defendants’ asserted interests in “security, discipline, hygiene[,] and safety within the prisons and in the public’s safety in the event of [prisoner] escapes,” were, in principle, “compelling.”4 The question, then, was whether ADOC had adequately demonstrated that a total prohibition on unshorn hair was the least restrictive means of furthering its interests. The Knight Court ruled that it had, thereby upholding ADOC’s policy and refusing the plaintiffs’ requested exemption permitting them to wear their hair unshorn. This decision rested on three questionable lines of reasoning. First, the Eleventh Circuit extended an extraordinary degree of deference to the state defendants. The Knight Court’s analysis of RLUIPA’s narrow tailoring requirement elevated the Supreme Court’s dicta in Cutter v. Wilkinson—observing that some members of Congress had expected courts faced with RLUIPA claims to afford “due deference to the experience and expertise of prison and jail administrators”5—to a “deference mandate.”6 Applying this deferential standard, the Court concluded that a factual record that contained no statistical evidence and little relevant anecdotal evidence to establish the necessity of its categorical ban on long hair “amply support[ed]” ADOC’s position that there was no less restrictive method of protecting its asserted interests. Much of the defense’s testimony consisted of prison officials’ speculation about the theoretical risks of long hair on male prisoners. Witnesses stated that “prisoners could pull one another’s hair during fights” and “non-exempt inmates might attack exempted inmates out of jealousy for their special long-hair privilege” (emphasis added). The “most thorough defense of the ADOC’s hair length policy” came from a former prison director who “opined that his short-hair policy was a factor in his successful restoration of order and control in Virginia’s prison system.” He cited the “1999 escape of a … prison inmate who had cut his hair to alter his appearance”— July/August 2022 • THE FEDERAL LAWYER • 15
although the escapee was ultimately discovered a few days later—and one dramatic but apparently isolated “incident in which a black widow spider wove a nest in an inmate’s dreadlocks.”7 Second, the Court shifted the burden of demonstrating that there was no less-restrictive alternative to the exceptionless grooming policy from defendants, to whom it properly belonged, onto the incarcerated plaintiffs. “Plaintiffs cannot point to a less restrictive alternative that accomplishes the ADOC’s compelling goals,” the Court wrote, “and neither can we.”8 Third, the Court deemed irrelevant both other jurisdictions’ ability to allow long hair, and even Alabama’s own willingness to allow female inmates to wear their hair long, as evidence that Alabama could permit religious exemptions to its grooming policy for certain members of the male inmate population.9 The plaintiffs filed a petition for certiorari, but the Supreme Court held the petition until after its decision in Holt v. Hobbs, another RLUIPA case that raised strikingly similar issues. Holt concerned a Muslim inmate’s challenge to an Arkansas Department of Corrections policy that forbade him from growing the beard required by his faith. Ruling unanimously for the prisoner, the Supreme Court emphasized several aspects of RLUIPA’s burden on state defendants that directly contradicted the reasoning in Knight. The Holt Court explained that RLUIPA “does not permit ... unquestioning deference” to prison officials and cautioned that courts may not “abdicat[e] their responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard” to policies which burden prisoners’ religious exercise. It underscored that the practice of other jurisdictions necessarily bears on the narrow tailoring analysis, reasoning that “when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course.” And it reiterated that state defendants, not incarcerated plaintiffs, bore the burden of demonstrating that no less-restrictive alternative to the challenged policy was possible.10 Holt also announced a new component of defendants’ burden that the Knight Court had not contemplated: that RLUIPA “requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law [to the] … particular claimant whose sincere exercise of religion is being substantially burdened” (emphasis added).11 The Supreme Court vacated and remanded Knight for reconsideration in light of Holt. But the Eleventh Circuit refused to meaningfully revisit its earlier decision. It insisted that the Knight Court had not engaged in the sort of “‘unquestioning deference’ [to prison officials] that concerned the Holt Court.” It failed to address Holt’s command that a defendant like ADOC offer “persuasive reasons” why it must impose grooming policies far more restrictive than those imposed on inmates in other prison systems or elsewhere in its own system. And it similarly ignored Holt’s requirement that defendants show a compelling interest in applying the challenged policy to the particular Native religious practitioners who sought the exemption.12 The Eleventh Circuit then re-issued its original opinion in Knight virtually unchanged,13 and a second cert petition by the Knight plaintiffs was denied. The gulf that Knight formalized between the religious freedoms available to Native and non-Native prisoners has only widened in the years since. In subsequent RLUIPA cases involving non-Native prisoners, the Eleventh Circuit has applied Holt’s more stringent interpretation of RLUIPA while declining to rely on Knight. In Smith v. Owens, for example, it recognized that “Holt calls for an 16 • THE FEDERAL LAWYER • July/August 2022
individualized, context-specific inquiry that requires the GDOC [Georgia Department of Corrections] to demonstrate that application of the grooming policy to Smith [the RLUIPA claimant] furthers its compelling interests” (emphasis in original) before remanding the case to the Georgia district court to “analyze Smith’s RLUIPA claim as it relates to the GDOC’s revised grooming policy in a manner consistent with Holt v. Hobbs.”14 It cursorily distinguished Knight based on the “focused inquiry, factual findings, and extensive record” purportedly developed in that case.15 More recently, in Smith v. Alabama Department of Corrections, the Eleventh Circuit ruled in favor of a RLUIPA plaintiff who asserted that his Christian faith required his religious advisor to be with him in the execution chamber. It briefly distinguished Knight on the same grounds as it had in Smith v. Owens before invoking Holt to require Georgia prison officials to meet RLUIPA’s heavy burden of proof.16 But, despite Knight’s apparent limitation to its facts, the case remains a persistent obstacle to incarcerated Native Americans’ free exercise. All three states in the Eleventh Circuit—Alabama, Florida, and Georgia—maintain state prison policies that prohibit long hair and permit no religious exceptions. So, too, do Arkansas, Mississippi, South Carolina, and Texas.17 Holt, with its detailed consideration not only of RLUIPA’s requirements generally but of the particular balance of interests implicated where a prisoner seeks a religious exception from a prison grooming policy specifically, should have been enough to reverse Knight and strongly caution other states to allow religious exemptions to their own hair-length policies.18 (At least two states, Indiana and Idaho, have relaxed their total prohibitions on long hair since Holt. Idaho’s Department of Corrections manual now provides that prisoners may wear their hair at “any length,” so long as it is kept clean and neat.19) But even those jurisdictions that remained unmoved after Holt should take notice of Ramirez, which reinforces the aspects of Holt’s understanding of RLUIPA’s heightened scrutiny requirement that most sharply conflict with Knight. Ramirez concerned a death row inmate whose Baptist faith required his pastor to be with him and audibly praying during his execution. He argued that the prison’s blanket rule prohibiting a religious advisor from praying out loud in the execution chamber impermissibly burdened his religious exercise under RLUIPA. An eight-justice majority agreed. The Court noted, with little discussion, that there was no basis for deference to the state or its prison officials. It did not so much as cite to Cutter, the 2005 Supreme Court decision that had mentioned deference and on which the Knight court had so heavily relied. In equally marked contrast to Knight, Ramirez found the fact that the “Federal Government and Alabama have recently permitted audible prayer or speech in the execution chamber” to be important evidence that Texas’s blanket ban on audible prayer was overly restrictive. It underscored Holt’s requirement that defendants “demonstrate that the compelling interest test is satisfied through application of the challenged law [to] the particular claimant whose sincere exercise of religion is being substantially burdened.”20 The Ramirez majority also considered at length less restrictive methods the state might have employed to protect its asserted interests in an orderly and well-monitored execution process before concluding that the state had failed to satisfy its burden because it had not properly considered or explained the infeasibility of those alternatives.21 Ramirez joins Holt in a larger body of recent Supreme Court case law requiring heightened judicial review of government policies alleged to burden religious practice. This context only amplifies
the Supreme Court’s command—defied by the Eleventh Circuit in Knight—that lower courts approach religious liberty claims with exceptional solicitude.22 Knight was wrong on the day it was decided, and Ramirez further highlights its error. It is long past time to extend to Native American prisoners, in every part of this country, the same religious liberties courts guard so fiercely on behalf of those who follow more familiar faiths.
Endnotes No. 21-5592, 595 U.S. ___ (Mar. 24, 2022). 574 U.S. 352 (2015). 3 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 683 (2014). 4 Knight v. Thompson, 723 F.3d 1275, 1280, 1282-83 (11th Cir. 2013). 5 Cutter v. Wilkinson, 544 U.S. 709, 710 (2005). 6 Knight, 723 F.3d at 1285. 7 Id. at 1278-80, 84. 8 Id. at 1285. 9 Id. at 1285-86. 10 574 U.S. 352, 364-65, 369 (2015). 11 Id. at 363 (internal citations and quotation marks omitted). 12 Knight v. Thompson, 796 F.3d 1289, 1292-93 (11th Cir. 2015) (en banc). 13 The Court made just one minor and nonsubstantive change on remand. Compare Knight v. Thompson, 723 F.3d at 1285 (“Plaintiffs’ proposed alternative also does nothing to assuage the ADOC’s concerns about gang-formation and hair-pulling during fights ….”) with Knight v. Thompson, 797 F.3d 934, 945 (11th Cir. 2015) 1 2
(adding the phrase “Alternatively, even assuming that the proposed alternative could eliminate the ADOC’s concerns as to concealment of weapons and contraband and inmate identification” to the sentence quoted above). 14 848 F.3d 975, 981 (11th Cir. 2017). 15 Id. 16 844 F. App'x. 286, 293 (11th Cir. 2021). 17 Texas maintains its exception-less policy on paper, although it has in at least one instance been enjoined from enforcing the rule against a Native American prisoner. Goodman v. Davis, No. 2:12-cv-00166 (S.D. Tex. Feb. 26, 2019), ECF No. 325. 18 See Joel West Williams, The Impact of Holt v. Hobbs on Native American Inmates ( Jan. 23, 2015), http://www.huycares.org/blog/ the-impact-of-holt-v-hobbs-on-native-american-inmates/. 19 Idaho Dep't of Corr., Standard Operating Procedure: Hygiene of Inmates, Inmate Barbers, and Facility Housekeeping (Aug. 21, 1995), http://forms.idoc.idaho.gov/ WebLink/0/doc/281449/Page5.aspx. 20 Ramirez v. Collier, 142 S. Ct. 1264, 1279-81 (2021). 21 Compare id., at 1280-82 with Knight, 723 F.3d at 1286 (“RLUIPA asks only whether efficacious less restrictive measures actually exist, not whether the defendant considered alternatives to its policy.”). 22 See, e.g., Hobby Lobby, 573 U.S. at 728-32 (government failed to satisfy RFRA’s “least restrictive means” prong); Fulton v. City of Philadelphia, 141 S. Ct. 1868, 1880-81 (2021) (government’s asserted interests insufficiently compelling to justify burden on plaintiffs’ rights under the Free Exercise Clause).
At Sidebar continued from page 8
N.C. R. Pro. Conduct r. 3.8(d), Cmt. [2]. Ohio Rules of Pro. Conduct r. 3.8(d) (emphasis added). 23 Of course, all of these rules, in whatever manner they are presented to prosecutors, should grab the attention of the reader, but these different approaches are interesting. 24 Va. State Bar. Pro. Guidelines r. 3.8(d), supra note 9. 25 Id. 26 Id. 27 Id. The guidelines further note, “[t]he Committee felt a change from existing DR 8-102(A)(4) concerning the disclosure of exculpatory evidence to the defense was appropriate by clarifying that it would apply only to that evidence which the prosecutor knows is exculpatory as opposed to a more subjective analysis of evidence which may be in the knowing possession of the prosecutor but which he does not have reason to believe would be exculpatory.” Id. at Committee Commentary. 28 Just. Manual § 9.5001(B)(1), supra note 13. 29 Just. Manual § 9.5002, supra note 13. 21 22
July/August 2022 • THE FEDERAL LAWYER • 17
Spotlight on Civil Rights
A Requiem for Footnote 4 By Robin B. Wagner
Note: All opinions expressed herein are those of the writer alone and do not represent the official position of the Federal Bar Association, The Federal Lawyer, or any organization with which the writer is associated.
Robin B. Wagner (she/her) is chair of the Civil Rights Law Section and a partner at Pitt McGehee Palmer Bonanni & Rivers, PC in Royal Oak, Mich. She practices plaintiff-side employment discrimination and fair housing law as well as other forms of civil rights law. Robin and her wife, Sharon, live in Ann Arbor, Mich., and hope to spend as much of the summer as work will allow kayaking with their little dog Casper or playing golf.
Let us bow our heads and recall that famous footnote you studied in your Con-Law class—somehow the most important footnote in history that appeared in a case about milk regulations. You know, the footnote that provided a caveat to the holding of United States v. Carolene Products Co.,1 that Congress may regulate ordinary commercial transactions, as long as there was some “rational basis” for the legislation. That caveat rose to become the foundation for judicial scrutiny— particularly the need to protect the vulnerable among us from the oppression of majority rule. Carolene Products' Footnote 4 addresses three distinct types of legislation and the forms of judicial scrutiny each may require. First, it suggests that legislation “within a specific prohibition,” such as one in the Bill of Rights, is presumptively constitutional. Second, it addresses legislation that might regulate or restrict voting and other political processes and strongly suggests, but does not hold, that such laws might “be subjected to more exacting judicial scrutiny.” Third, Footnote 4 articulates its most famous formulation: that statutes directed at religious, national, or racial minorities—indeed, whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.2 This third part of the footnote enthralled me as a law student. I was inspired to read this language, articulated by Justice Harlan Fiske Stone decades before the civil rights movement but at a time when the vile implications of the 1935 Nuremburg race laws were increasingly understood across the world. Here was vastly inclusive language—“discrete and insular minorities” could mean persons with disabilities, LGBTQ+ people, and indigenous people—that called for a “more searching judicial inquiry” for laws
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that might oppress any minority, not just the specific named categories of religion, national origin, and race. If one squints a bit, Footnote 4 also applied to women—who are not perhaps numerically a “minority” but certainly could not rely on “those political processes” for economic or political freedom in 1938. Here in this footnote was the promise of the federal courts. It identified the potential of the majority to oppress minorities of all kinds and claimed that the judiciary had the power to guard against such abuses. I aspired to practice civil rights law, and this footnote confirmed for me what had led me to law school in middle age: that the courts are where our civil rights are defined and vindicated, and that the courts will step in to speak for the “discrete and insular minorities” when prejudice against them leads to cruel and oppressive laws—laws that might ban speaking of homosexuality or criminalizing parents and healthcare providers who provide gender-affirming care for transgender kids. But now I am writing this column after the leak of a draft majority opinion in Dobbs v. Jackson Women’s Health Organization3 overturning Roe v. Wade and revising it days after the final decision has been handed down.4 Now armed with the knowledge that the final decision is hardly different from the leaked draft, we know much more about the Court’s current view of the role of the judiciary. Justice Alito’s opinion for the majority in Dobbs mentions voting several times.5 Most disturbing to me, though, is the majority’s insistence that the political process in each state should be the arbiter of whether a woman in that state may determine for herself the outcome of her pregnancy. Voters in one state may see this issue one way, while voters in another state may see it the other, Justice Alito conveys.6 Let’s not forget that when one speaks of “states’ rights” one is harkening to the original “right” to enslave humans—some states saw the issue one way, and other states saw it another way. The federal system is supposed to provide the minimum guarantees for our civil rights in the face of majorities that might see the issue one way or another—and the federal judiciary is to scrutinize laws to protect these rights. Or at least that’s what Footnote 4 promised.
With no hint of irony or acknowledgment that the majority of Americans do not want Roe overturned,7 the conservative Court’s decision
Endnotes 304 U.S. 144 (1938). Id. at 153 n.4. 3 Read Justice Alito’s initial draft abortion opinion which would overturn Roe v. Wade, Politico (May 2, 2022, 09:20 PM EDT), https://www. politico.com/news/2022/05/02/read-justice-alito-initial-abortionopinion-overturn-roe-v-wade-pdf-00029504. 4 No. 19-1392, 597 U.S. ___ (2022). 5 “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Dobbs, 597 U.S. __, __ (slip op. at 6). He asks rhetorically regarding his inaccurate history of abortion legislation: “Are we to believe that the hundreds of lawmakers whose votes were needed to enact these laws were motivated by hostility to Catholics and women?” Id. at 29. Well, yes, perhaps the courts ought to at least question their motives, given widespread animus toward women’s independence and to Catholics for much of U.S. history. 6 Id. at 31. 7 See, e.g., Jean Yi and Ameila Thomson-DeVeaux, Where Americans Stand on Abortion, In 5 Charts, FiveThirtyEight (May 6, 2022, at 06:00 AM), https://fivethirtyeight.com/features/where-americansstand-on-abortion-in-5-charts/. 8 Dobbs, 597 U.S. __, __ (slip op. at 65). 9 For just two of the most recent, see, e.g., Brnovich v. Democratic Nat'l Comm., 141 S. Ct. 2321 (2021) (holding that Arizona’s law restricting ballot collection and barring the counting of out-of-precinct ballots did not violate the Voting Rights Act); Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (holding that claims of partisan gerrymandering present political questions that are not justiciable). 10 U.S. Census Bureau, QuickFacts United States, https:// www.census.gov/quickfacts/fact/table/US/PST045221 (last visited June 6, 2022). 11 Nicholas Jones, et al., 2020 Census Illuminates Racial and Ethnic Composition of the Country, U.S. Census Bureau, https://www. census.gov/library/stories/2021/08/improved-race-ethnicitymeasures-reveal-united-states-population-much-more-multiracial. html (last visited June 6, 2022). 1 2
returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office. Women are not without electoral or political power.8 Long story short, we have learned that the Court’s majority is unconcerned that political processes might not protect discrete and insular minorities from the prejudice of the majority. Short story long, the conservatives on the Court, in a parade of voting-rights decisions, have turned a willfully blind eye to the obvious fact that voting rights are the spoils of a state’s victorious party.9 These justices do not care how a purported “majority” is constructed in today’s political processes, and they maintain that any laws created by these processes need no scrutiny. We “discrete and insular minorities” should just trust the system. Even as we shake our heads in disbelief, there is a reason for hope. With Justice Ketanji Brown Jackson about to take her place on the Supreme Court, we will for the first time in our history see in our highest bench a representation of gender and race roughly proportional to the demographics of our population—four women and three persons of color, compared to 50.8% female10 and 38.4% non-white.11 Those of us who are not white men are beginning to see ourselves and our lived experiences reflected in the judiciary. Maybe the pendulum will swing us back to a place where the federal courts once again protect our rights from the prejudice and caprice of our political processes. In the meantime, we will litigate with uncertainty as precedents are shattered, and we will gain and lose essential rights as we cross state lines. So today, I pour one out for Footnote 4 as well as for that law student so enthralled and inspired by its promise. Justice Stone’s perspicacity in 1938 was grounded in empathy for minorities who are vulnerable to political processes that might be abused by a majority. It has been replaced by cynicism grounded in circular logic—that we should simply work within our highly partisan and disproportional political processes and not expect the Court to bother if the result seems to oppress the vulnerable among us.
Keep in Touch With the FBA Update your information online at www.fedbar.org or send your updated information to membership@fedbar.org. July/August 2022 • THE FEDERAL LAWYER • 19
Judicial Profile
Hon. Mary Gordon Baker
U.S. Magistrate Judge, District of South Carolina by Andrew R. de Holl
T
Andrew R. de Holl is an assistant U.S. attorney in Charleston, S.C.
he Charleston bar is a tight-knit group. Despite the frenetic demands of practicing law in the 21st century, we, by and large, are a group of close friends who remain engaged in our community, commit to true collegiality, and are always willing to help. One of the most well-rounded examples of those core qualities is U.S. Magistrate Judge Mary Gordon Baker. Judge Baker’s immersion in the law has been lifelong. Born and raised in downtown Charleston, Judge Baker was the daughter of Charlie Baker, a revered trial lawyer in town. With no cell phones or email back then, it was common for clients to call the Baker home to speak with their lawyer on evenings and weekends. Judge Baker often was the one answering the phone, chatting with her father’s clients and taking messages if he wasn’t available to talk. From having those conversations and watching her father work, Judge Baker came to understand early on that practicing law was ultimately a way to help people facing difficult situations. Throughout her entire upbringing, her father’s work fascinated her. Tragically, Mr. Baker passed away while she was in high school at Ashley Hall. Long before that, however, he had inspired Judge Baker to become every bit the compassionate, brilliant advocate he had been. Judge Baker studied political science at the University of South Carolina. After graduating Phi Beta Kappa and magna cum laude in 1981, she continued her education in the law by working as a securities litigation paralegal for two years at Fried, Frank, Harris, Shriver and Jacobson in Washington, D.C. Armed with that practical litigation background, she then returned to South Carolina and excelled at her alma mater’s law school. Judge Baker was a member of the Order of Wig and Robe, the Moot Court team, and the Order of the Barristers. She received American Jurisprudence awards for her performance in contracts and in damages. In addition to serving as an associate editor on the Journal of Law and Education, she published an article in it titled “The Teacher’s Need to Know Versus the Student’s Right to Privacy.”
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During her final year of law school, her classmates chose her to receive the Claud N. Sapp Award, given to the third-year law student who possesses the best combination of scholarship, leadership, and industry. A seasoned litigator, Judge Baker has tried more than 20 cases to a jury—both civil and criminal, and both sides of the aisle. She began practicing as an associate at Nexsen, Pruet, Jacobs & Pollard in Columbia, S.C., where she focused on business litigation and civil rights. After four years of civil private practice, she joined the U.S. Attorney’s Office in South Carolina, working in its criminal division. Over her 16 years in the office, Judge Baker investigated and prosecuted an array of complex cases, including bank fraud, securities fraud, and drug conspiracies, and she frequently instructed other federal prosecutors at the National Advocacy Center in Columbia. She also served as senior litigation counsel, deputy chief of the criminal division, and first assistant U.S. attorney. The year 2006 brought a dramatic change in the judge’s practice: she joined the Federal Public Defender’s Office, representing indigent criminal defendants in both trial and appellate courts. In addition to working on hundreds of criminal cases, she co-edited
the first published collection of pattern jury instructions for federal criminal cases in South Carolina. In fall 2013, Judge Baker returned to private practice, joining Duffy & Young as special counsel and handling civil matters for both plaintiffs and defendants. When asked about the most rewarding part of being a trial attorney, Judge Baker reflects, “It was a constant challenge. For me, it was the highest calling—the most exciting way to practice law. You know, a trial lawyer’s job is never really complete. The learning process never ends because you can always improve and can always make something better for the next case. I loved that.” She also appreciates the uncommon number of perspectives she gained by litigating on both sides of the v in both civil and criminal law: “It taught me how to stand in the shoes of the other lawyer. When you understand how the other side will look at your case, you can be better prepared.” Of course, Judge Baker did not spend her entire litigation career working on cases. To the contrary, she committed herself to maintaining the integrity of her profession and to ensuring it served the greater good. As a young lawyer, she participated in the state bar’s Young Lawyers Division and chaired a project to help the public better understand what lawyers do and how they can help others. Following that, she chaired the bar’s Pro Bono Committee while also sitting on its Service to Indigents Committee. Later, she became a fellow in the American College of Trial Lawyers, and she served on the state Supreme Court’s Commission on Continuing Legal Education and Specialization. In 1998, her law school gave her the Compleat Lawyer Award, an honor for alumni who have made significant contributions to the legal profession and exemplify the highest standards of professional competence, ethics, and integrity. Long known by her double name, Mary Gordon Baker was given another one— “Your Honor”—when she was sworn in on Jan. 5, 2015. After decades at counsel’s table, she found moving to the bench “almost surreal.” Not only was she wearing a robe she had respected her entire life, but she now had chambers just down the street from her father’s former office a couple blocks from where her brother (an outstanding litigator himself ) practices. And in those chambers, her father’s law degree hung on the wall next to her own. Seven years later, she still finds her position exhilarating. Recognizing how well her unusual background prepared her for the bench, she calls her judgeship “the perfect blend of my leadership skills and my legal skills. I get to learn something new every day. I have an incredible staff and we make a great team.” As one of the District of South Carolina’s eight magistrates, Judge Baker handles a high volume of civil and criminal matters. By rule, her criminal duties include handling pretrial matters in felony cases and trying federal misdemeanors.1 But her passion for the criminal justice system has led her to participate in the BRIDGE Program, the district’s federal drug court, and in a reentry program known as
REAL court. These programs use counseling, substance abuse and mental health treatment, and community supervision to rehabilitate defendants so that they may successfully return to their communities and avoid reoffending. These two additional roles have been some of the most meaningful work in the judge’s long career. One of Judge Baker’s favorite parts of her job is its numerous opportunities to mentor young lawyers. On top of regularly speaking at legal education programs and participating in the James L. Petigru American Inn of Court, she and other judges host a program at the Charleston courthouse known as “Bridging Broad Street.” Established by two local luminaries—Charles Goldberg and U.S. District Judge Patrick Michael Duffy—these lunchtime gatherings give newer lawyers opportunities to meet up with one another during the day and learn from some of their most experienced peers, who attend as guest speakers. The program is an update to an old Charleston tradition of lawyers meeting up over coffee at a drug store and helping one another work through tricky issues in their cases. Judge Baker’s father was once a sought-after ear at those meetings, and the judge is thrilled to facilitate a way for lawyers to continue that tradition. Judge Baker fosters collegiality everywhere she goes; if you walk down the street with her, the warm words she offers others makes you wonder if she’s ever met a stranger. At the courthouse, she greets every guard, clerk, and custodian by name, and she carries that inviting spirit into her chambers and her courtroom. Some of that comes from her natural extroversion. But she also understands litigation’s grinding tendency and knows that, when lawyers are locked into contentious debate or are feeling worn down by the work, a little kindness from the judge can go a long way. “The practice of law is never easy—you have to find a way to reduce the stress. Find the joy in it,” she encourages lawyers. “Don’t let the mechanics of practice beat you down to the point that you forget to treat your colleagues with dignity and respect. And remember: the case is not about you; it is about your client’s interests.” When asked for advice to any lawyer appearing before her, Judge Baker’s answer sums up both her personality and her approach to being a judge: “Just reach out. We are always here. My team is always accessible. I want to have the opportunity to introduce myself and get to know you.”
Endnotes See 28 U.S.C. § 636(a) (2012); Local Crim. Rule 58.01(A)-(B) (D.S.C.).
1
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Judicial Profile
Hon. J. Michelle Childs
Circuit Judge, U.S. Court of Appeals for the D.C. Circuit by Hon. Kaymani D. West
I U.S. Magistrate Judge Kaymani “Kay” West was appointed to the bench on Jan. 1, 2012, and serves in the Florence Division of the District of South Carolina. She earned her B.A., summa cum laude, from Columbia College in Columbia, S.C., and her J.D. from the University of South Carolina School of Law. After graduating from law school, she served for one year as judicial law clerk to Hon. Joseph F. Anderson Jr. She then began practicing law with the civil defense law firm of Nelson Mullins, where she was a partner at the time of her judicial appointment. Judge West is a member of the South Carolina Bar; the ABA, where she serves on the National Conference of Federal Trial Judges and is an ABF Fellow; and the FBA, serving as president of the South Carolina Chapter from 2009-2010.
f you plan to spend the day following Judge Childs, you should take your vitamins, be well rested, and, if possible, rent a pair of roller skates. In addition to all the usual descriptors attributed to judges at her level—such as intelligent, articulate, diligent, and possessing a good judicial temperament—when it comes to Judge Childs, one often hears adjectives like energetic, go-getter, untiring, and unflappable. Behind her dimpled smile is a strong “get it done” attitude that have made her a true force of nature and an asset to South Carolina’s federal bench, and now to the U.S. Court of Appeals. Judge Childs spent her early childhood in Detroit, and as a child, she aspired to be a police officer like her late father. She later changed her mind and wanted to be a psychologist because she “liked talking to people and analyzing their situations.” Judge Childs’ mother was transferred from Michigan Bell to Southern Bell in 1979, prompting the family to move to Columbia, S.C. Judge Childs notes that her mother was a single parent during most of her childhood, and she considers her to be the person having the greatest influence on her life. “I observed my mother work hard to give me and my sister all that we needed to have better opportunities.” Judge Childs attended the public schools of Richland County School District One. While in high school, Judge Childs was exposed to the legal profession as a result of participating in a mock trial program. She enjoyed the experience of representing a client and attempting to persuade the judge on issues related to her case. It was at that time that she began to notice the need for lawyers in society and “felt a desire to become a part of this noble profession.” Upon graduation from high school, she matriculated in the University of South Florida Honors Program, earning a B.S. in management. After graduating from college, Judge Childs continued her education by enrolling in a dual-degree program, earning a J.D. from the University of South Carolina School of Law in December 1991 and an M.A. in personnel and employment relations from the University of South Carolina School of Business in
22 • THE FEDERAL LAWYER • July/August 2022
May 1991. During her second summer of law school, she also participated in a summer-study-abroad law program through Cambridge University. Judge Childs said that she decided to do the dual-degree program because she was interested in personnel and employment law and wanted both business and legal perspectives on these issues. Additionally, in thinking about her future, she was considering a shift from a law firm to an in-house counsel position in a corporate human resources department. As a young lawyer, she received accolades from both programs—the USC Compleat Lawyer Award Silver Medallion (1997) and the USC Moore School of Business Outstanding Young Alumni Award (2005). Judge Childs began her legal career in one of South Carolina’s largest law firms handling labor and employment and general litigation matters. While she was fortunate to have received many opportunities and resources that allowed her to excel in her legal career, Judge Childs always felt the need to work harder and longer to prove that she was capable of any task. In 2000, when she became partner in her law firm, she was the first African-American female to become partner in a major law firm in the state of South Caro-
lina. Because she was the first in her family to complete college and law school—thus lacking any lawyer role models—she navigated her way to success with the help of various mentors. Judge Childs now reciprocates by serving as a mentor to young lawyers and considers this to be one of her proudest accomplishments. Judge Childs remarked that she wants young lawyers to “recognize their awesome responsibility to represent their client or agency zealously within the confines of the law. I also want them to understand that it is a privilege to practice law, so they always need to do more to help our communities and ‘pay it forward.’” Not long after making partner at her firm, she was recruited by the then-governor to serve as the deputy director of the South Carolina Department of Labor, Licensing and Regulation (LLR), where she was responsible for managing the programs of Wages and Child Labor, Occupational Safety and Health, Occupational Safety and Health Voluntary Programs, Migrant Labor, and Elevators and Amusement Rides. Two years later the governor appointed her to the South Carolina Workers’ Compensation Commission, where she served as a commissioner for four years until throwing her hat into the ring to run for an at-large seat on South Carolina’s state circuit court bench. While she was happy being a lawyer, Judge Childs says she started thinking about becoming a judge after she made partner in her law firm. “My mentors and close friends placed this idea in my head, and I started to give it some serious consideration. I really did not know how to go about becoming a judge, but I knew that hard work and a great reputation were key ingredients.” In South Carolina, unlike most jurisdictions, candidates for state court judgeships are first screened and, if found qualified by the Judicial Merit Selection Commission, then presented for election by the state legislature (general assembly). Judge Childs was elected by the general assembly in 2006. As a circuit court judge, she served as the chief administrative judge for general sessions (criminal court) for Richland and Lexington counties, the state grand jury, and the business court. The now-retired chief justice of the S.C. Supreme Court, Jean Hoefer Toal, often extols Judge Childs’ work ethic and tells the story of how one night she asked Judge Childs to work late to handle a very confidential matter involving the court. Judge Childs completed the project and continued to work right up to giving birth to her only child. Judge Childs was nominated by President Barack Obama for one of two open seats as federal district judge for the District of South Carolina. Upon her appointment in August 2010, her waiting docket included a long list of pending motions that, based on the Civil Justice Reform Act deadlines, had to be resolved by March 2011. Overwhelmed but undaunted, Judge Childs put her shoulder to the proverbial wheel and, with the help of her judicial law clerks, disposed of over 300 motions by the March deadline. Meanwhile, she also completed
a three-week trial in December 2010. She acknowledges that it is an awesome responsibility to be a judge and that there will be decisions that weigh heavily on your conscience. However, “you will just have to do your best to be considerate, thoughtful, and patient as you make tough and sometimes unpopular decisions.” As if she did not have enough to do as a federal district court judge, Judge Childs enrolled in the Master of Laws program at Duke University and earned her LLM in judicial studies in May 2016. She notes that “as the law continues to evolve, judges have to be eternal students of the law and always eager to learn.” She wrote her thesis on the life and legacy of the late Matthew J. Perry, Jr., a noted civil rights attorney and the first African-American U.S. district judge in South Carolina. Judge Perry administered the oath to Judge Childs when she became a federal judge, and Judge Childs occupied Judge Perry’s chambers in the Columbia courthouse that bears his name. She kept much of the décor as Judge Perry left it, including the U.S. seal in his chambers and the red carpet and red bench chair in his courtroom. Red was Judge Perry’s favorite color, and his was the only courtroom in the courthouse with that color theme. Judge Childs opened her chambers to school children and other visitors and informed them about the life of the iconic judge. Bringing the Perry/Childs saga full circle, in December 2019, the Richland County Bar Association presented Judge Childs with the prestigious Matthew J. Perry, Jr. Civility Award, which is presented to attorneys and judges who, in the opinion of the Executive Committee of the Richland County Bar Association, best exemplify the word “civility.” Judge Childs has always been active in professional and civic organizations and has served on numerous boards as a member, chair, or president. In addition to the South Carolina Chapter of the FBA, some of these have included the ABA, the American Law Institute, the South Carolina Bar, the John Belton O’Neall Inn of Court, the Columbia Urban League, the Columbia Chapter of The Links, Inc., and the ETV Endowment of South Carolina, Inc. She is often asked to assume leadership roles in these organizations and, somehow, she does it all and makes it seem effortless. When asked the secret to doing them all so well, she responded, “I try to choose and commit to activities that I care about so that I can dedicate the appropriate amount of time to make a difference. I also try to balance work and my volunteer activities to be as effective as I can for both.” Based on the number of awards and accolades Judge Childs has received from these organizations and from the community—too numerous to list here—it is obvious she has found the right balance. As an example of her effectiveness, in 2018, while serving as chair of the ABA’s National Conference of Federal Trial Judges and as executive board member of the S.C. Chapter of the FBA, Judge Childs took the lead on creating a joint CLE Seminar with participants from both organizations—the first of its kind in the state. The July/August 2022 • THE FEDERAL LAWYER • 23
highly successful seminar was held at the Greenville Federal Courthouse and included judges from around the country presiding over hearings in actual cases. True to her nature, when at the last minute one of the judges was unable to attend, Judge Childs stepped in and presided over the hearing herself—while making sure the rest of the hearings and panels proceeded smoothly. As a much sought-after speaker, Judge Childs has traveled extensively to give presentations regarding the rule of law or other specialized areas of the law. She has visited South Africa, Turkey, and Canada, and she has much respect for the judges in other countries, particularly those in countries that do not emulate the democracy of the U.S. legal system or those challenged by not having the appropriate resources to administer justice or laws. When she traveled to South Africa in 2000, its bar organizations had just desegregated and the country was still feeling the residual effects of apartheid. She noticed that the female African students she encountered held their heads down when speaking to the presenters, and she learned that the students were required to do so as a sign of respect. “It was very apparent to me how fortunate I was to live in a democratic society and not experience the fears of those women in South Africa,” she remarked. Regarding diversity in the legal profession here in the United States, Judge Childs feels that it is something much needed in our judiciary. “In order for people to have a fair perception of the courts and the administration of justice, they need to perceive that judges are appointed and elected fairly and have broad experiences and perspectives regarding the issues that come before them.” Judge Childs certainly has had many broad experiences that have helped shape her perspective. “Having had so many roles in the law, both in the private and public sector, has afforded me the opportunity to view
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24 • THE FEDERAL LAWYER • July/August 2022
society through many lenses. As a result, I have continued to respect the need for the public’s perception of the fair administration of justice in our courts, and I continue to try to execute that arduous responsibility.” As to her more personal experiences, Judge Childs is the wife of a physician. She and her husband have very busy work schedules and even busier schedules at home as their young daughter keeps them on the go with her many extracurricular activities. Judge Childs says that being a wife and mother has “really helped me to understand that, in many instances, the decisions that I make impact more than just the individuals or parties that are before me. Therefore, I try to bring that perspective with me as I make decisions.” In the 12 years she has been on the federal bench, Judge Childs has presided over a variety of cases. When asked what types of cases are the most memorable, she said, “I mostly remember cases that have an impact on our societal norms and expectations, for example, samesex marriage, discrimination, environmental claims, and significant criminal matters. These cases require a lot of thought and objectivity.” When asked what makes a good judge, Judge Childs offered the following: “A good judge is always prepared and willing to listen intently to the issues and arguments presented by the parties. She ensures that the parties are afforded due process in a fair forum in which the outcome does not appear to be pre-determined. She is kind, considerate, and deliberate as she respects the parties’ positions and fears throughout the process.” Because of her not-so-straightforward career path, Judge Childs says that she does not have a “formula” for someone aspiring to become a federal judge. However, what has worked for her is to have faith that you will meet your destiny, be genuine, work diligently, and serve others. As to her legacy, Judge Childs hopes that all those who appeared before her believe that they had a fair opportunity to present their issues, that she was deliberate and well-reasoned in her decisions, and that she was kind and courteous. I have no doubt that she will fulfill that legacy. As a testament to her judicial acumen and cachet, earlier this year, President Biden placed Judge Childs on his short list of individuals considered for nomination to the U.S. Supreme Court. Although another judge was eventually nominated for that position, President Biden nominated Judge Childs for a seat on the U.S. Court of Appeals for the District of Columbia, and she was confirmed by the Senate in a strong bipartisan vote on July 19, 2022.
Judicial Profile
Hon. Robert Bryan Harwell
Chief U.S. District Judge, District of South Carolina by Derek A. Shoemake and Brendan Barth
C
hief U.S. District Judge R. Bryan Harwell, of the District of South Carolina, looks at home on the bench. Perhaps this is because serving as a judge seems to be part of the family business. One of his uncles, James R. Harwell, was a magistrate judge for Florence County, S.C.; another uncle, Baxter “Hicks” Harwell Jr., was a legendary judge on the South Carolina Circuit Court; and Chief Judge Harwell’s father, David Walker Harwell, served as chief justice of the South Carolina Supreme Court. However, those who know Chief Judge Harwell best will tell you that his comfort on the bench also stems from his 20 years spent practicing law.
Before the Bench Derek A. Shoemake is an assistant U.S. attorney in the District of South Carolina and clerked for Hon. G. Ross Anderson Jr. and Hon. R. Bryan Harwell, both with the U.S. District Court for the District of South Carolina. Prior to his time as a prosecutor, he had wide-ranging experience in private practice. Brendan Barth is a partner at Barth, Ballenger and Lewis in Florence, S.C., and clerked for Hon. R. Bryan Harwell. He has practiced extensively in the trial courts of South Carolina, with a focus on family law, personal injury, and criminal defense, including both state and federal offenses.
Even before his legal career began, Chief Judge Harwell demonstrated the intellectual aptitude and dedication that would pave the way for his future successes. Born and raised in Florence, S.C., Chief Judge Harwell graduated from Clemson University in 1980 in only three years. He accomplished a similar feat when he earned his Juris Doctor degree from the University of South Carolina School of Law in only two and a half years. He rounded out his legal training by serving as a law clerk for both South Carolina Circuit Court Judge Rodney A. Peeples and U.S. District Court Judge G. Ross Anderson Jr. Chief Judge Harwell returned home to Florence in 1984 and became a partner with the law firm of Harwell, Ballenger, Barth & Hoefer. During his decades-long career as a lawyer, he handled a dynamic general practice that involved a broad range of civil and criminal matters. As he was admitted to the bars of the U.S. Supreme Court, the U.S. Court of Appeals for the Fourth Circuit, the U.S. District Court for the District of South Carolina, and the state of South Carolina, Chief Judge Harwell’s litigation career involved countless trials and appearances in courtrooms across South Carolina. Based on lessons learned from watching the other lawyers in his family and in his law practice, Chief Judge Harwell was known to digest every detail of a case and approach its resolution with pragmatism. His prowess in the courtroom was recognized with an
invitation to the American Board of Trial Advocates, and he served on many other legal-related professional organizations. Chief Judge Harwell also worked as a certified mediator and arbitrator. His experience as a mediator—where he shepherded litigants through all manner of legal proceedings—would be particularly useful when Chief Judge Harwell made his way to the bench.
Adjusting to the Robe Chief Judge Harwell’s move to the bench came in 2004, when President George W. Bush nominated him to fill a district court vacancy in Chief Judge Harwell’s home town of Florence. At the time, U.S. Senator Lindsey Graham heralded the nomination and highlighted Chief Judge Harwell’s “deep knowledge of the law” and ability to treat those who would appear before him with respect. “I’ve had the pleasure of knowing Bryan for almost twenty years,” said Senator Graham. “I have complete confidence in his ability to be an outstanding federal judge. His legal experience and unwavering character make him an ideal choice. He will make his state and nation proud serving on the federal bench.”1 Those who practiced with Chief Judge Harwell echoed similar sentiments. Kevin Barth, his longtime July/August 2022 • THE FEDERAL LAWYER • 25
friend and former law partner, noted that Chief Judge Harwell had been a “lawyer’s lawyer” during his time in practice. “It was a true pleasure practicing law for twenty years with a good partner and good lawyer like Bryan,” said Barth. Chief Judge Harwell was ultimately confirmed by the U.S. Senate on June 24, 2004, and received his commission on June 30, 2004. Now in his 15th year as a judge for the U.S. District Court for the District of South Carolina, and in his first year as chief judge for that court, Chief Judge Harwell has presided over numerous significant cases. These cases range from a precedent-setting trademark dispute to a death penalty trial to substantial civil rights cases. However, Chief Judge Harwell eschews the spotlight and treats every case before him as if it is the most meaningful case on his docket. Thus, his friends, colleagues, and former law clerks explain that what sets Chief Judge Harwell apart is not the cases over which he’s presided, but the aptitude, thoroughness, and work ethic he carried from private practice to the bench.
Keys to Success As Barth correctly predicted when Chief Judge Harwell was nominated, the last 15 years have shown that the federal bench “added a great trial judge.” William Tinkler, a former law clerk for Chief Judge Harwell who has also tried cases before him, said Chief Judge Harwell would often view a case through the lens of his time as a practicing attorney and the education he received at the hands of his judicial family members, particularly his father. “When I was working for him, he would often remind us not to forget how hard it is to be a lawyer,” explained Tinkler. Lawyers who appear before Chief Judge Harwell know that he’ll be able to quickly digest the legal issues at play, and that he’ll move cases with skill and without delay. Tinkler attributes his aptitude to a practical understanding of legal substance and procedure. “He intimately understands how the law affects the parties and how the procedural rules affect the lawyers,” said Tinkler. Chief Judge Harwell would catalogue this information, creating an ever-burgeoning research file where he has saved decades of key cases, articles, and other legal writings in a meticulously organized cabinet. “I’d often hear, ‘Check the research file, there’s got to be a case on this,’” said Nick Lewis, who served as one of Chief Judge Harwell’s first law clerks and who is now a partner at his former firm. Chief Judge Harwell is also as thorough as he is skilled. Lawyers who have appeared before him often say that it is not uncommon for Chief Judge Harwell to be the most prepared person in the room. “The biggest takeaway that I had from years of clerking with Judge Harwell,” said Lewis, who has also appeared before Chief Judge Harwell, “was that you can never be over-prepared for Court. As the presiding judge, he made sure to know each and every case that came before him for trial both frontwards and backwards.” Although 26 • THE FEDERAL LAWYER • July/August 2022
he has been chief for less than a year, his preparedness is already assisting the other judges in the district. “Chief Judge Harwell has always been there to answer my questions,” said U.S. District Judge Donald C. Coggins, who was confirmed as a district judge for the District of South Carolina in November 2017. “Quite often he offers helpful materials as well.” In chambers, Lewis said Chief Judge Harwell would spend hours considering all possible scenarios and arguments, and ensuring that he was well-prepared in the event that any of those potential arguments were raised. Before any hearing, Chief Judge Harwell will have read every relevant filed document, every key case cited in those documents, and various legal writings on related topics. “I have attempted, with varying degrees of success, to carry this mindset into my practice of the law,” said Lewis. The thoroughness that Chief Judge Harwell brings to his docket is only made possible by a boundless work ethic. For more than six years after his appointment to the bench, Chief Judge Harwell served as the junior judge in the district, handling a large caseload that routinely required travel to courthouses nearly three hours away from his chambers. Even after more than a decade and a half on the bench and reaching the height of seniority, it is still not uncommon for Chief Judge Harwell to be among the last people to leave the courthouse after having sent his law clerks home hours before. This dedication was not limited to the courtroom. He served as a JAG officer in the South Carolina Army National Guard. Interested in education, he taught business law at Francis Marion University and chaired the governing board of Florence-Darlington Technical College. His work in both the legal profession and the community earned him the Order of the Palmetto, South Carolina’s highest civilian award. Most importantly, Chief Judge Harwell managed to do all this while spending time with his wife and his two children, who were both school-age during the vast majority of Chief Judge Harwell’s time on the bench. Chief Judge Harwell’s storied career shows no signs of slowing down. A lifetime spent with judges and lawyers has crafted a pragmatic and skilled jurist who still maintains, as Senator Graham said upon his confirmation, a “great understanding of people.” In that way, the lawyer’s lawyer from Florence became one of the great lawyer’s judges on the South Carolina federal bench.
Endnotes Sen. Lindsey Graham, Press Release: Florence Attorney Bryan Harwell Nominated to Federal Bench ( Jan. 21, 2004), https://www.lgraham.senate.gov/public/index. cfm/press-releases?ID=1EB33D92-B94B-4391-B118DEE1FDE303EB
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Welcome to
Charleston! hen I first sat down to write this welcome message two years ago in preparation for the FBA’s 2020 Annual Meeting & Convention, which was to be in held in Charleston, the world was just beginning to understand the implications of the COVID-19 pandemic. Eventually, the South Carolina Chapter planning committee’s expectations succumbed to the new reality that an in-person conference in 2020 was not going to be feasible. Taking inspiration from our state’s motto, Dum Spiro Spero (While I Breathe, I Hope), the chapter remained optimistic. We are most grateful that rather than cancel the Charleston event, the FBA agreed to postpone it to 2022. In the past decade, the city of Charleston, which celebrated its 350th anniversary in 2020, has topped almost every travel list as an ideal location to visit. When you come to Charleston and experience the historical landmarks and architecture, world-class restaurants, top-rated golf courses, peaceful beaches, and luxury hotels and spas, you will see why. The conference will be headquartered at the historic Francis Marion Hotel, which dates back to 1924. The hotel’s 1996 restoration merited a National Trust for Historic Preservation award. Named for South Carolinian and Revolutionary War general Francis Marion, who earned the nickname the “Swamp Fox” for his ability to elude capture by the British by disappearing into the Lowcountry swamps, the hotel is centrally located amid the shops, restaurants, and dynamic nightlife of Upper King Street. On Thursday evening, attendees will hop on a trolley bus for a brief trip past some of the city’s iconic build-
ings and end with a cocktail reception at South Carolina Society Hall and an optional guided tour of Charleston’s renowned “Four Corners of Law.” Be sure to plan well ahead to make dinner reservations at one of the city’s award-winning restaurants, many of which are within easy walking distance. We’ve included a restaurant guide in this issue to give you some ideas. Friday evening’s networking reception is located just blocks away from the hotel, at the William Aiken House. Our theme for the evening will be the “Charleston Renaissance,” the period between 1915 and 1940, when the city experienced a “multifaceted cultural renewal” fueled by mainly local “artists, musicians, writers, historians, and preservationists.”1 We anticipate a fun-filled evening reminiscent of Charleston’s most creative epoch. In addition to the receptions, the chapter is planning a full menu of CLE and speakers, including a keynote address by U.S. District Judge Richard Gergel, discussing his book Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring. While we have made do with virtual meetings over the past two years, we were missing the handshakes, eye contact, and personal interaction and networking that make attending the FBA conventions in person such a valuable experience. We hope you will join us in Charleston in person in September to enjoy South Carolina’s hospitality at its finest! The South Carolina Encyclopedia 156 (Walter Edgar ed. 2006).
1
Christie Companion Varnado Chair of the South Carolina Chapter’s 2022 Annual Meeting & Convention Committee
28 • THE FEDERAL LAWYER • July/August 2022
Schedule Preview
All events take place at the Francis Marion Hotel unless otherwise noted. Sessions are posted in Eastern Time and are subject to change.
Thursday, September 15 8:30 a.m.–9:30 a.m. General Session: Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the 9:40 a.m.–10:40 p.m. 11:00 a.m.–Noon Noon–1:30 p.m. 1:30 p.m.–2:30 p.m. 2:45 p.m.–3:45 p.m. 4:00 p.m.–5:00 p.m. 5:30 p.m.–7:30 p.m.
Awakening of America, Hon. Richard Gergel, U.S. District Court for the District of South Carolina Concurrent CLE Sessions Concurrent CLE Sessions Younger Federal Lawyer Awards Luncheon Concurrent CLE Sessions Concurrent CLE Sessions Concurrent CLE Sessions Opening Cocktail Party at the South Carolina Society Hall & "Four Corners of Law" Tour
Friday, September 16
9:00 a.m.–10:00 a.m. General Session: Promoting Diversity & Inclusion During the Great Resignation 10:10 a.m.–11:10 a.m. General Session: Unified: How Our Unlikely Friendship Gives Us Hope for a Divided Country, Sen. Tim Scott (R-S.C.) and Former Rep. Trey Gowdy (R-S.C.) 11:30 a.m.–12:30 p.m. General Session: Wellness in the Legal Profession 12:30 p.m.–2:00 p.m. Public Service Awards & Fellows Induction Luncheon 1:00 p.m. –3:00 p.m. Fourth Circuit Oral Arguments at the Waring Judicial Center 2:00 p.m.–3:30 p.m. General Session: Cybersecurity & Identify Theft, Frank W. Abagnale Jr. 2:00 p.m.–5:15 p.m. Rising Professionals Series Presented by the South Carolina Chapter & Charleston County Bar Association 3:00 p.m.–3:15 p.m. Fourth Circuit Swearing-In Ceremony at the Waring Judicial Center 3:45 p.m.–4:45 p.m. Circuit Vice Presidents Meeting 3:45 p.m.–5:30 p.m. Misc. Business Meetings 6:00 p.m.–9:30 p.m. Convention Reception at the William Aiken House
Saturday, September 17
9:00 a.m.–10:45 a.m. Chapter Leaders Meeting 9:00 a.m.–10:45 a.m. Section & Division Leaders Meeting 11:00 a.m.–Noon General Session: Grace Will Lead Us Home: The Charleston Church Massacre and the Hard, Inspiring Journey to Forgiveness, Author Jennifer Berry Hawes Noon–1:30 p.m. National Awards Luncheon 2:00 p.m.–4:00 p.m. National Council Meeting 7:00 p.m.–9:00 p.m. Presidential Installation Celebration July/August 2022 • THE FEDERAL LAWYER • 29
Hosted by the South Carolina Chapter
Thursday Reception
Friday Reception
Kick off your time in historic Charleston with an opening cocktail party. Guests have the option to arrive early and join a brief walking tour of the “Four Corners of Law,” a crossroad of four historic buildings representing federal, state, municipal, and ecclesiastical law, led by local attorneys, historians, and guides.
Convention attendees are invited to an evening reception evoking the spirit of the Charleston Renaissance of the 1920s hosted by the South Carolina Chapter. Located three blocks from the hotel on iconic King Street, the William Aiken House is a local treasure with 19th century architectural charm, scenic grounds, and museum-caliber artwork and antiques.
Cocktail Party
Date: Thursday, September 15 Time: 5:30 p.m.–7:30 p.m. (tour buses start loading at 5:00 p.m.) Location: South Carolina Society Hall (72 Meeting St., Charleston, SC 29401) Featuring remarks and official proclamation by Charleston’s Mayor John Tecklenburg
Preview of General Sessions Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of America Judge Gergel will discuss the 1946 acquittal by an all-white jury of a South Carolina police chief for the brutal beating and arrest of a decorated African American veteran and its impact on President Harry Truman’s order to end segregation in the U.S. armed forces and on presiding federal court judge J. Waites Waring’s pivotal dissent in the 1951 case of Briggs v. Elliott, which became the model for the Supreme Court’s unanimous decision in Brown v. Board of Education.
Unified: How Our Unlikely Friendship Gives Us Hope for a Divided Country South Carolina natives and friends Sen. Tim Scott and Rep. Trey Gowdy, despite having very different backgrounds, discuss how our alienation from each other is destroying the fabric of society and offer hope that through embracing differences, we can heal our divided country.
Grace Will Lead Us Home: The Charleston Church Massacre and the Hard, Inspiring Journey to Forgiveness Pulitzer Prize winning journalist and author Jennifer Berry Hawes will discuss her book Grace Will Lead Us Home, which examines the horrific 2015 mass shooting at the Mother Emanuel AME church in Charleston and its aftermath, including the forgiveness offered to the perpetrator by the victims’ family members at his arraignment hearing.
Preview of CLE Sessions Access to Legal Representation and the Importance of Pro Bono Representation in Immigration Proceedings
Convention Reception
Date: Friday, September 16 Time: 6:00 p.m.–9:30 p.m. Location: William Aiken House (456 King St., Charleston, SC 29403)
The Defense and Relator's Counsel Discuss Getting a Case Resolved This panel will review the resolution process of False Claims Act cases from the perspectives of the defense and relators, and consider the possibility of impending government intervention.
Scamming Governments: Oversight and Accountability Institutions As headlines begin to tell the story of corporate scams, this panel will dig further into the establishments and processes that seek to protect government funds both at home and abroad.
The Privacy Mindset of the U.S. v. EU: Implications for U.S. Businesses in a Post-COVID Era This panel will examine what U.S. businesses with global reach must do to comply with privacy requirements in the United States and in Europe. With a focus on the tech sector, panelists will discuss the due diligence requirements and the latest litigation and review a recent case analysis from the perspective of a local South Carolina-based tech company.
Twelve Angry Youtes Kill a Mockingbird, Tweet Tweet Judge Joseph F. Anderson Jr. draws on his 36 years of experience as a trial court judge to present a refresher course on trial advocacy techniques, featuring valuable lessons from some of the most memorable courtroom movies.
Under Surveillance: How ICE's Radically Expanded Use of Enhanced Technology Has Upended Privacy Throughout the United States With issues found in the May 2022 report from the Georgetown University Center on Data and Privacy, this panel will review the type of information that is obtained from immigrants detained or monitored by the Department of Homeland Security. Panelists will recommend strategies for attorneys to use in their ethical obligation in advisement of their clients.
This panel will discuss the importance and value of pro bono representation and how the Executive Office for Immigration Review encourages and fosters pro bono representation.
Unwanted Government Attention: Bankruptcy Issues That Will Draw Objections From U.S. Trustees and State Attorneys General
Artificial Intelligence and Civil Rights: Impacts on Employment, Housing, and Criminal Justice
As Chapter 11 filings rise, there’s an anticipation for a busy year within the bankruptcy practice in 2023. This panel will review “first priority” matters for governmental entities and provide strategies for practitioners to avoid government objection.
Although artificial intelligence and machine learning technologies are changing the world, they also create concerns about how technologies developed under the Silicon Valley ethos fit within the framework of existing civil rights laws. A panel of leading experts will examine the legal issues and current and impending regulatory trends from the use of these cutting-edge technologies.
Coming Soon to a Courthouse Near You? ESG Disclosure Requirements, Risks, and Strategies Throughout the Supply Chain Corporate Environmental, Social and Governance (ESG) reporting and disclosure obligations are becoming increasingly important considerations for risk managers and litigators. Panelists will discuss issues relating to the litigation implications of the rule and prospects for legal challenge of the final rule.
30 • THE FEDERAL LAWYER • July/August 2022
Registration packages and information available online! www.fedbar.org/event/fbacon22 Early-bird registration ends Friday, August 19!
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387 King Street Charleston, SC 29403
RESERVATIONS Booking: Call (843) 722-0600 or 1 (877) 756-2121 and reference the FBA Annual Meeting & Convention group to book discounted reservation. All reservations must be guaranteed and accompanied by a first night room deposit or guaranteed with a major credit card. Group Rate: $269/night (plus state and local taxes) Cut-off Date: Reservations must be made no later than 5:00 p.m. ET on Friday, August 12. Any reservations received after the cut-off date or until the block is full, whichever is sooner, will be accepted directly by the hotel based on room-type and rate-available basis. SPONSORSHIP OPPORTUNITIES AVAILABLE!
Join our distinguished list of sponsors who help make both long-standing and new FBA conferences and seminars possible. Contact Barbara Bienkowski (sponsor@fedbar.org) to secure your sponsorship today!
July/August 2022 • THE FEDERAL LAWYER • 31
All About
Charleston! Information courtesy of Explore Charleston.
Cuisine
Charleston cuisine is all about celebrating our seafaring and agrarian cultures; reveling in the abundance gathered from our waters, gardens, and fields; and being embraced by some of the world’s most gracious hospitality.
History
In the Lowcountry, history is a connection to the past that lives in the hearts of locals, is apparent in regional traditions, graces the facades of homes, punctuates the vernacular, and seasons the food. In fact, Charleston celebrated its 350th birthday in 2020.
32 • THE FEDERAL LAWYER • July/August 2022
Explore Charleston
First-Timer’s Guide
Outdoors
The Charleston area—with its 90 miles of coastline—has considerable eco appeal. Paddle through a salt marsh at sunrise, hit the golf course midmorning, build a sandcastle after lunch, sail at sunset— Charleston’s soul-stirring landscapes lure everyone outdoors.
Shopping
With an eclectic mix of local boutiques, luxury retailers, art galleries, and independent artisans and clothiers, Charleston offers something special for everyone.
Family
From hands-on history lessons and miles of sandcastle-ready beaches to museums and sweet treats, there are so many things to do in Charleston with kids.
Arts & Culture
Charleston has been a hub for visual and performing arts dating back as far as 1736 with the completion of the nation’s first permanent playhouse, Dock Street Theatre, to the modern-day internationally acclaimed Spoleto Festival.
July/August 2022 • THE FEDERAL LAWYER • 33
Charleston
Restaurant
Guide
34 • THE FEDERAL LAWYER • July/August 2022
BY CHRISTY ALLEN
Charleston may have more excellent restaurants per capita that just about anywhere in the United States. This list includes only a sliver of what the Lowcountry has to offer. These are some personal favorites (and many are relatively close to the conference location at the Francis Marion Hotel, 387 King Street). They are organized from pricey to less pricey. All are locally owned and operated. Most places in Charleston require reservations, sometimes weeks in advance, so please plan ahead. While you can certainly use more well-known online guides, carolinas.eater.com offers a great go-to guide to eating. Bon appétit!
Halls Chophouse • 434 King Street
Malagon • 33 Spring Street
High-end family-owned steakhouse with amazing white-glove service. A favorite for holidays and special occasions. Live music on weekends and a packed downstairs bar.
European café serving Spanish tapas and cured ham selections. Menu includes dozens of options, including the not-to-be-missed “bomba de la Barceloneta”—a pork-stuffed mash potato bomb with tomato and aioli.
Charleston Grill • 224 King Street Fine dining with exquisite Lowcountry cuisine and renowned wine offerings, the menu boasts the world’s best fare—from the local catch to artisan meats. Offers a luxurious setting with dark woodpaneled walls and live jazz.
Bertha’s Kitchen • 2332 Meeting Street
Road
Soul food at its best—fried chicken, stuffed porkchop, fried fish, lima beans, collards, and on and on. Counter service.
FIG • 232 Meeting Street
Rodney Scott’s BBQ • 1011 King Street
Enjoy fine dining at this James Beard award-winning restaurant. Upscale takes on classic southern food with influences from all over. FIG offers a chic and cozy atmosphere and is a local favorite.
Whole hog smoked South Carolina barbeque, smoked chicken, and catfish, along with sides of mac ‘n cheese, collards, beans, coleslaw, and Ella’s banana puddin’. The real deal. Take-out, eat-in, or drive-thru.
The Ordinary • 544 King Street Modern twist on a classic southern oyster hall with upscale atmosphere and bustling dining room and bar. Wines are specially curated for every taste. (Book reservations four weeks out; limited seating.)
Chez Nous • 6 Payne Court Fine dining in a quaint, romantic spot tucked away on a side street; offers amazing French-inspired cuisine with a small menu that changes daily.
Husk • 76 Queen Street Celebrated southern food sourced daily from family-owned, artisanal farms and purveyors. Emphasis is on heirloom products and methods.
The Grocery • 4 Cannon Street
Callie’s Hot Little Biscuit • 476½ King Street
Southern biscuit takeout shop; biscuits filled with country ham, jam, and pimento cheese, plus a range of changing treats; open 8:00 a.m.-2:00 p.m.
Graft Wine Shop & Bar • 700b King Street
Posh wine bar with tasting options, snacks, and retail shop.
Bennett Hotel • 404 King Street Camellias—a champagne lounge inspired by the look of a pink “Faberge jewel box.” Decadent by-the-glass offerings, small bites, and desserts. La Patisserie—popular morning baker à la Paris; take n’ go (or dine in ) fine French pastries and coffee selections.
Neighborhood corner bistro in casual setting; hand-crafted dishes in an open kitchen, great for larger parties.
Ink Rooftop & Lounge • 565 King Street
167 Raw • 193 King Street & 289 East Bay Street
Night clubs in Charleston are hard to find. If that’s your scene, this is the place to go. South-Beach-inspired vibes with sushi, wings, tacos, and exotic cocktails.
Seafood, seafood, and more seafood in an upscale setting; two locations.
Lenoir • 68 Wentworth Street Award-winning chef and TV personality Vivian Howard serves up traditional southern dishes with a modern take in a bustling bistro with outdoor seating.
Charleston Farmers Market Saturdays 8:00 a.m.-2:00 p.m. at Marion Square, the park between King & Meeting and across from the Francis Marion Hotel. Veggies, fruit, gifts, food trucks, and more.
Melfi’s • 721 King Street Italian eatery showcasing fresh pasta, classic dishes, large salads, and plates to share.
July/August 2022 • THE FEDERAL LAWYER • 35
About the Cover Artist BY BETH RICHARDSON
Walking through the historic city of Charleston, S.C., one is immediately transported to another time and place. This lovely city, surrounded by centuries old buildings, streets of cobblestone and ballast, palm trees, and ocean breezes is covered by a brilliant blue sky—a sky that turns into the magical, vibrant colors of a sunrise or sunset or the deep raging color of an impending storm. The intensity of those colors has drawn appreciative tourists, locals, and “natives,” into the Anglin Smith Fine Art gallery for the past 21 years. The large gallery windows, set along the corner of Queen and State streets, filled with paintings of the marshes and the beaches, the street, and the buildings beyond, and of course, that big colorful sky, beckon passersby to enter this magical place.
Born in Columbia, S.C., to parents Betty Anglin, already an established artist, and Cody, an attorney, Jennifer and her two twin siblings (yes, triplets!) entered a home surrounded by art. Additionally, Cody, who served as president of the South Carolina Trial Lawyers Association and governor of the American Trial Lawyers Association, presented many opportunities to travel to national conferences with his young family. Betty jumped on those trips to introduce her children to galleries and museums wherever they found themselves. It is not surprising that all three children were influenced
Whether painting landscape or architecture, I aim to capture a dramatic sense of light and mood. My paintings are a visual reaction of my emotional response to my surroundings. Night scenes, panoramic vistas of the city’s rooftops, and big, dramatic skies are recurrent themes in my work. Painting with a sense of immediacy and exaggerating color and using painterly brushstrokes categorize my style as impressionistic realism." — JENNIFER SMITH ROGERS It is here that Jennifer Smith Rogers, a co-owner of the gallery with her mother and twin sister, can frequently be seen with her easel propped up in the back corner. Painting scenes of Charleston rooftops and buildings, or from her travels along the East Coast, the Tennessee countryside, San Francisco, or New York, or further afield in Italy or Mexico, Jennifer liberally splashes the canvas with colorful, confident brushstrokes, creating the dramatic pictures for which she has become known. 36 • THE FEDERAL LAWYER • July/August 2022
by the excursions. Now well established in the art world, both Jennifer and her sister Shannon are highly regarded painters like their mother, Betty Anglin Smith, and brother Tripp is an accomplished photographer; works by each of them are exhibited in the gallery and are collected both nationally and internationally.
Jennifer is a proud Clemson Tiger, where she began her college career studying architecture. After one year, she discarded that pursuit in favor of studio art and graduated three years later with a BFA degree. Although she may have abandoned it academically, architecture is never far from Jennifer’s inspiration, as she is especially drawn to the buildings and surrounding landscapes in which she finds herself. It is the reflection of the light on those structures that moves her, especially at the end of the day when the contrast of light and dark is most dramatic. She refers to her style as “impressionistic realism,” utilizing painterly brushstrokes and local color to capture the immediacy of the moment. Jennifer’s paintings are widely collected by individuals; business establishments, such as the former McCrady’s Tavern in Charleston, S.C.; the James F. Martin Inn at Clemson University; and corporations, including The Walt Disney Company, Charleston Gaillard Center, The Medical University of South Carolina, and Ethyl Corporation. Jennifer is a member of the Plein Air Painters of the SouthEast, Oil Painters of America, and the American Impressionist Society. She also serves on the board of the Clemson Architectural Foundation, and she is represented by Anglin Smith Fine Art.
July/August 2022 • THE FEDERAL LAWYER • 37
38 • THE FEDERAL LAWYER • July/August 2022
Only a Free Man Can Walk With a Judge: 10 Years of Federal Drug Court in the District of South Carolina D. JOSEV BREWER
U
.S. Attorney Bill Nettles asked her to pass the syrup. Reaching across the country inn table, Judge Brucie Hendricks obliged. Nettles probably made some obvious quip about escaping “sticky situations” in the exchange. Nettles is like one part Robert Kennedy and one part Tiger King. Many miles from the District of South Carolina, the team members—including the district’s chief probation officer, Dickie Brunson; one of his officers, Lori Johnson; Ann Walsh, an assistant federal public defender; and Nathan Williams, an assistant U.S. attorney—contentedly ate their New England breakfast. Although all the players were present, there was no adversarial system, at least that morning, in their family-style meal. After breakfast, they took a quick team photograph under the changing leaves and then headed to meet their counterparts at the federal court in the District of New Hampshire. Only months earlier, in the spring of 2010, David C. Norton, chief judge for the District of South Carolina, had asked Judge Hendricks to assemble an exploratory team of stakeholders to design the district’s first ever drug court.1 Hendricks, at the time a federal magistrate but now a district judge herself, admits, “I didn’t even really know what a drug court was, honestly. There was hardly any
precedent for them in the federal system. But, I was so tremendously honored to be given this blank slate.”2 Some diversionary opportunity had long been an aspiration of the judges in the Charleston Division, most notably Judges Michael Duffy and Sol Blatt. But, the traditional view among many federal practitioners had commonly been that federal defendants, for a variety of reasons, were not suitable candidates for diversionary opportunities. Upon his appointment, however, Nettles had gone to Norton to discuss starting a drug court, and they agreed that the climate was increasingly right.3 When Norton approached Hendricks about facilitating the program, she recalls him saying, “If we can save one life, it will be worth our efforts.”4 His words would be prescient. Hendricks, not known for passivity or procrastination, launched a full-frontal assault on her new mandate, calling upon everyone she knew, however remotely connected to drug court programming. Providently, two of the nation’s highest-profile state drug court judges—Judge Charles Condon and Judge Chuck Simmons—happened to sit in South Carolina. They both had overseen drug courts for many years and had substantial standing with the National Association of Drug Court Professionals (NADCP), the country’s leading resource on national drug court standards and best practices; indeed, Judge Simmons was on its board. Hendricks also reached out for guidance from U.S. District Judge Keith Starrett, who ran a reentry court in the Southern District of Mississippi, especially with respect to the “10 Key Components” of the drug court model, an essential quality of effective programs.5 Judge Hendricks required her team to participate in formal training with the National Drug Court Institute, and that early team spent countless hours performing the necessary literature review in preparation. So, in its final stages of due diligence, the South Carolina contingent had flown to New Hampshire to meet with U.S. District Judge July/August 2022 • THE FEDERAL LAWYER • 39
Former U.S. Attorney Bill Nettles is flanked by U.S. District Judge David C. Norton and former U.S. Attorney General Holder at a BRIDGE graduation. Nettles and Judge Norton were the program’s early visionaries.
Joseph Laplante and the members of his drug court program, the LASER Docket, to observe firsthand a federal drug court in action. At that time, LASER was one of only seven federal front-end or diversionary drug court programs in the entire country. In their meeting, the South Carolina team saw the complicated interplay between the U.S. Attorney’s Office, the Federal Public Defender’s Office, and the judiciary as they attempted to maintain their unique roles and obligations in the system while submitting to a more cooperative one. As the team sat informally discussing the weekly progress of the LASER participants, the members were not afraid to disagree about how to handle defendants not performing well or the process they were due in potential sanction. The New Hampshire team confessed that the interagency conversation had taken nearly two years to resolve differing views as to procedure and that it remained a constant work in progress. Judge Laplante made it clear that at some point you just had to “jump,” which, for a lifelong Lowcountry surfer like Hendricks, was a comfortable invitation. She has been fond of aggressively citing the Voltaire aphorism, “The best is the enemy of the good.” So, within months, on Nov. 10, 2010, the BRIDGE program, named for the iconic bridge leading into downtown Charleston, was established by Order of Judge Norton.6 Cribbing heavily from the design of the LASER program and the best practice standards of the NADCP, the District of South Carolina adopted a three-phase program that would focus on the participant’s sobriety first, stability second, and, finally, their independence. Its curriculum mandated ongoing substance abuse programming, concomitant counseling, work or vocational rehabilitation, financial literacy, and physical 40 • THE FEDERAL LAWYER • July/August 2022
fitness and well-being.7 Successful completion of the program would likely qualify the participant for a noncustodial outcome, although it was not guaranteed. This article was originally slated for publication in 2020, which would have commemoratively corresponded with the program’s 10year anniversary. COVID-19, of course, had other plans.
What Is Drug Court? “Drug court” is an unfortunate misnomer. Indeed, and respectfully, it was likely some strategic misstep in the 1980s to have adopted the name in the first instance, and it probably counts as the single largest impediment to its own success, especially in the federal system. The phrase “drug court” implies two incorrect things. First, that it involves drug offenses exclusively. And, second, that it is any kind of court at all. The former is wrong because it is too limiting, and the latter is wrong because it implies something potentially ultra vires. The two words taken together have created a lot of confusion and a sense of philosophical toxicity for many jurists and prosecutors alike. Truthfully, “drug court” is simply intensive pretrial supervision and, therefore, is procedurally and legally consistent with the obligation to order bond conditions and supervision already incumbent upon judges in every court in this country, both state and federal. In this important sense, therefore, it is not something new. It is an intensification of the very thing most judges and prosecutors prefer—oversight. Indeed, drug court in the federal system is precisely an effectuation of the district court’s bond authority already explicit in Section
William, a graduate of the BRIDGE Court, shares with U.S. Attorney General Holder and U.S. District Judge Brucie Howe Hendricks before a packed gallery about what it means to “walk with a judge.”
Westward Expansion
3142 of Title 18 of the United States Code.8 That section anticipates that supervision might include substance abuse treatment, psychiatric treatment, educational programing, employment, and other special conditions—the precise requirements imposed on participants of drug court. And, drug court is not ever exclusively for drug offenders. It involves supervision for drug or controlled substance addicted defendants, whose underlying offense might literally be of any kind, so long as there exists a nexus between the substance addiction or abuse and the criminal misconduct. So, drug court participants may have committed property or financial crimes, like mail theft or counterfeiting, typically in subsidization of their habit, in addition to traditional drug-related or firearm offenses. Critically, the drug court approach recognizes two important social-science truths. First, substance-addicted defendants will routinely not be able to control their addiction and will repeatedly violate supervision or otherwise recidivate without a kind of programming that makes some allowance for inevitable failures in the recovery process.9 And second, a system of swiftly applied sanctions and rewards, administered by a judicial officer, creates a potent incentive structure that, when combined with traditional clinical rehabilitation, produces enduring sobriety.10 But, it is not easy. Melia Carney, one of the programs earliest graduates, recalls, “I felt really overwhelmed. I thought the Judge and the team were being over the top and mean. I had the mind of a child.”11 But Carney also fondly remembers that as a result of the program, “I grew up.” Essential to that maturation was the close involvement of U.S. Probation Officer (USPO) Lori Johnson, also present at that foreshadowing fall breakfast in New Hampshire. Although the distinguished first, Johnson is only one of numerous probation officers in the District of South Carolina who have worked tirelessly to supervise drug court defendants through the years; while the judge is the program’s teeth, the USPO is undoubtedly its muscular jaws. Probation officers closely supervise the participants, ensuring their daily adherence to program requirements and fielding an almost endless stream of indecipherable text communications around the clock from ever-needy participants. Squarely not in the job description, however, was “Saturday morning meditation and yoga.”12 But, according to Carney, Johnson would take her to yoga classes every weekend throughout much of her time in the program, a practice Carney maintains even to this day. Subsequent to her graduation, Carney, a one-time heroin conspirator, has been entrusted by a major retail store with the role of asset protection manager, a particularly poignant validation of the woman she has become. She reflects, “I’m just always in a good mood now.”
In 2014, the judges of the District of South Carolina voted to make the BRIDGE program available districtwide, with one program in each of the four major divisions. That decision was made after some expected disagreement as to the propriety of drug court and the obligation of any particular judge to participate. Typical concerns included the seriousness of federal indictments, the basic legal authority of judges to oversee the program, the availability of pretrial diversion, and the demand on precious judicial resources. Those concerns have been shared by federal stakeholders for many decades, but years of data, borne out of the experiment in state court programs, has offered increasing belief that those successes might be replicated in the federal system. In a thorough and widely disseminated memorandum, Chris Schoen, an assistant U.S. attorney, previously with the federal court, had chronicled many of the salient arguments in favor of federal programs.13 Most notably, there was significant evidence that drug courts might actually offer the most potential benefit in the federal system. First, notwithstanding the average seriousness of federal indictments, the U.S. Sentencing Commission’s own data indicates that 40.6 percent of all federal defendants were a criminal history category I in 2021 and that, therefore, there were potentially numerous nonviolent offenders with suitable backgrounds for a diversionary opportunity.14 Second, and most importantly, the avoided costs of successful federal drug court defendants were not conceptual; they offered real and actualized savings. Whereas many of the state drug court participants would be otherwise facing probationary or timeserved outcomes even in the absence of any drug court opportunity, nearly all the potential federal defendants would be facing actual and costly incarceration.15 Of the 65,848 defendants convicted in U.S. district court in 2020, more than two-thirds (68 percent) were sentenced to prison.16 The median term of incarceration imposed on those convicted of drug offenses in federal court was 33 months,17 whereas the median time served by those convicted of felony drug offenders in state court in 2010 was 13-14 months.18 Any successes in the federal system, therefore, would produce additional and real savings relative to outcomes in the state system. U.S. District Judge Mary Lewis, who, in conjunction with now U.S. Circuit Court of Appeals Judge Michelle Childs, oversees the BRIDGE program in the Columbia Division of the District of South Carolina, had her own early reservations. While enthusiastic about the invitation extended by Judge Hendricks and the program’s eventual success, she admits that drug courts have a “limited place in the federal system and that it shouldn’t be easy to qualify.”19 She empathizes with the reservations of some of her fellow jurists. But, Judge Lewis has witnessed firsthand the tremendous stories of recovery and has seen fulfilled lives, reunited with families, and gainfully employed in culinary arts and other industries. She and Judge Childs, who was recently elevated to the U.S. Court of Appeals for the D.C. Circuit, represented a particularly exceptional example of how a standardized program like BRIDGE can still be tailored July/August 2022 • THE FEDERAL LAWYER • 41
Former U.S. Attorney General Eric Holder looks on at a BRIDGE Court graduation from the ceremonial courtroom of the historic federal courthouse in Charleston, S.C.
for the particular needs of a division, locale, or jurist. It is rare for two Article III judges to preside over a drug court together, and the participants benefited from the unique contribution of both. Judge Lewis confesses that staff meetings, where the drug court team must resolve any problems that might have arisen since the last drug court hearing, are often difficult and that “Judge Childs is far more patient!”20 “But we always showed a unified front; there was no territorialism,”21 Lewis states. The net effect was a boon for the participants. Judges Childs and Lewis epitomized the delicate balance between the grace and consequence the program requires.
The Data Is In The data corroborates that the program has made a difference. In 2017, Clemson University performed a Retrospective Cost-Benefit Analysis of the South Carolina BRIDGE Program.22 That study concluded that, based on the fixed cost of $31,977.65 to incarcerate a federal inmate, the BRIDGE program, districtwide, had created a net savings of $3.3 million after accounting for professional and operational costs to conduct the program.23 Those savings equated to over $47,000 in savings per participant, including both graduates and nongraduates.24 With respect to recidivism, based on internal data collection, over the past 10 years, less than 5 percent of BRIDGE graduates have reoffended. Nationally, 79 percent of formerly incarcerated individuals reoffend after six years.25 The effectiveness of the BRIDGE program is consistent with decades of research in the state system. “The effectiveness of Drug 42 • THE FEDERAL LAWYER • July/August 2022
Courts is not a matter of conjecture. It is the product of more than two decades of exhaustive scientific research.”26 Indeed, “[m]ore research has been published on the effects of adult Drug Courts than virtually all other criminal justice programs combined.”27 There is evidence that drug courts produce between $2.21 and $3.36 in savings for every $1.00 invested.28 And, the best programs have “reduced crime by as much as 45 percent over other dispositions.”29
Walking With a Judge Judge Hendricks got the news that same day. Although regularly appointment viewing, the ceremonial courtroom overlooking Meeting and Broad Streets in Charleston, S.C., was starting to fill particularly early. The BRIDGE was set for a double graduation that afternoon, but probation informed Hendricks that one of the graduates had tested positive. Always a pall cast whenever a participant relapses, it was more complicated this particular day. Robbie Shumate, the clerk of court in Charleston, had been rushing around for weeks coordinating the logistics for a visit by Attorney General Eric Holder. Judge Hendricks reflects, It was the ultimate lesson in accountability and the reality of drug court. Nothing is brushed under the rug. You have to meet your maker no matter who was in town, including, or maybe especially, the Attorney General of the United States. It is one of those days you don’t want someone to relapse. But, that is what happens in drug court. The range was pretty
powerful. He got to see one success and one disappointment and how our team handled both. It was the entire spectrum of drug court experience all at once. But, Hendricks emphasizes, “The one who did graduate delivered a healthy drug court baby. It was like a double reward.”30 In the crowd was William White, an alumnus of the program. As federal drug court participants go, White’s background was more complicated. But, he had been a superstar participant during his time in the program and a superstar advocate after his successful completion. White routinely came back to support the progress of new participants and was always available to share his experience to interested audiences, including visits by both federal judges and U.S. attorneys from across the country. As was her custom, Judge Hendricks would call on any graduates in attendance to offer a few words of encouragement to the new graduate, and she invited White that day to come forward from the gallery and into the well where she stood near the attorney general having come down from the bench. White, in his affable Gullah, talked easily about his experience, what had mattered to him, and the hopes he had for the newly minted graduate. He shook the attorney general’s hand. “Do you have any last thoughts?” Judge Hendricks asked. “Well Judge Hendricks, I just appreciated all those times we walked the bridge together.” A fitness fanatic herself, Judge Hendricks had brought to bear the entire weight of modern literature on the correlation between healthy exercise habits and sobriety, often encouraging the participants, under the care of a physician, of course, to participate in regular physical activity. And, about once a quarter, all the participants and the drug court team, including Judge Hendricks, would walk together, unsupervised by marshals or any escort, across the Ravenel Bridge. Judge Hendricks asked him why he appreciated walking the bridge together. He had probably said it some other time, but it was like extemporaneous poetry to everyone in attendance that day. He paused for a second and said, “Because only a free man can walk with a judge.” It has become a sort of mantra. But, it has not all been so quixotic. One participant absconded literally the same day she was admitted into the program in a premeditated escape. Another participant was serendipitously observed by a drug court team member at an outdoor concert, where the participant was holding aloft an adult beverage drunkenly yelling, “Warnky’s back!” And, simply put, over half of participants do not complete the program and are returned to normal prosecution. Moreover, the court has struggled at times to fulfill one of the most basic best practice recommendations of the NADCP—that drug courts strive for racial and demographic diversity.31 Drug courts are, of course, in part, a response to some of the disproportionalities in the system with respect to certain racial minorities and, therefore, should be a source of redress in this regard.32
State of the Union Of course, the BRIDGE is only illustrative. According to the Federal Judicial Center (FJC), there are approximately 30 federal pretrial diversionary programs, which include the full menu of Alternatives to Incarceration (ATI), from drug to veterans to youth offender courts. That number has remained relatively constant over recent years after a sort of Cambrian explosion from 2008 through 2015. Christina Ruffino, an education specialist with the FJC, has said
that there has “been a slowdown in recent years and that we may be reaching some saturation.”33 “Judges and probation officers are still not receiving formal docket and caseload credit for their work with these programs and that may have chilled some additional adoption,” she theorizes. But, Ruffino emphasizes that those involved are “very passionate,” and she believes the number of existing drug courts represents a healthy status quo while more is done to confirm their usefulness in the federal system. The drug court program in the District of South Carolina has been a gateway, in a manner of speaking. The district also launched a reentry program for supervised release supervisees called REAL Court, modeled on the same basic tenets. More recently, Judge Hendricks has piloted a new opioid initiative called ACT Force, which is an interagency program that coordinates the resources of law enforcement, medical providers, and other not-for-profit agencies in response to overdose emergencies in the Charleston area. In addition to numerous other dignitaries and experts, it counts Michael Botticelli, President Obama’s drug czar, among its advisors. ACT Force is replicating a New York City program, which relies on sophisticated software to monitor crisis incidents and agency responsiveness.
A Dream Realized Judge Hendricks handed him his graduation coin and a signed picture of various bridges across South Carolina, as had become custom. His graduation was more than a recognition of recovery. It was an authentic miracle. The gallery was again filled with friends and family and court personnel and community mentors and so many that had supported Nicholas Patazio along the way. Fourteen months earlier, on the very same day he entered drug court, he had been rushed to the emergency room, having nearly fatally overdosed on heroin. And now, here he stood, sober for all that time since, and with a young child on the way as well—Judge Norton’s simple aspiration fulfilled. But it was not just one life saved. There have been over 60 graduates in the first 10 years in the District of South Carolina, and even more in the most recent two. Countless other participants have been affected, even if not fully graduated, and hundreds more across some 30 other federal districts. A recent study of seven front-end federal programs involving in excess of 500 participants total found that completion of such programs was “associated with improved outcomes, such as increases in employment and fewer positive drug tests, and a lower probability of arrest.”34 That study focused largely on the performance of participants while on pretrial supervision relative to pretrial supervisees not in such programs.35 It found that participants and graduates violated at a lower rate and were “significantly less likely to receive a prison term that matched their counterparts” who were not participants in front-end programming.
We Are All Witnesses (and Ambassadors) The best case for drug court is the thing itself. To observe one is to be persuaded, almost uniformly. That, of course, cannot be accomplished in print, and so a transcript must suffice. In 2014, then Attorney General Loretta Lynch visited the Pretrial Opportunity Program (POP) in the Eastern District of New York. She heard numerous testimonials from program graduates and was addressed by U.S. District Judge John Gleason, a vocal and active champion for various ATI. Emily L. shared the following: July/August 2022 • THE FEDERAL LAWYER • 43
I was a child born into addiction. My mom was an alcoholic, my father is still a current and active crack addict. I was brought up in the streets of Brooklyn … In 2002, this is how it started for me becoming addicted to cocaine … I had my five-week old baby and I went into my house and I found my mom in the house deceased, decomposed. And I thought my life was over. That’s why I turned my life over to drugs … and it got worse. And then the best thing that could have happened to me was July 27th, when I was arrested for these drug charges that I had in federal court. That was the best thing that happened to me. ... My lawyer came to see me and he said, I think it’s possible to get your bail back, but it’s only under one circumstance; you have to agree to go into [the Pretrial Opportunity Program (POP)]. ... I came out, I got my GED … And I got my CDL … My eyes is going on the prize right now, I’m looking for a job that I can get a pension. When I get old, I can reap the benefits. ... This POP program has done so much for me. And I did what I had to do so you guys won’t take it from nobody else that do deserve it that comes behind me. It works, and it’s people that do want to change their life, but they just don’t know how. Sometimes that silver bracelet will make you change your life, just one time, that’s all you need.36 U.S. Attorney Nettles would often emphasize that exact point to the early BRIDGE graduates in Charleston, saying, “Others are counting on you. You are ambassadors of this program. Don’t screw it up.” Drug court is a little like a family-style breakfast under changing leaves. Cantankerous and messy. Sticky even. Something old and something new. A celebration. You might be asked to reach across the table. And, someone will definitely have to be excused to provide a “sample” at some point. And even though the season transitions, the sentiment does not: to identify outcomes that are “sufficient but not greater than necessary, to comply with the purposes” of sentencing.37 For many federal defendants, drug court is that sufficiently sufficient result. And, in this sense, drug courts expand the discretion of jurists to fashion a precisely tailored remedy. It is an aggrandizement of their options and not a limitation as some would fear. The District of South Carolina and sister districts are testimony to that experience over these many years. And others are counting on us as ambassadors not to screw it up. D. Josev (Joe) Brewer is a former assistant U.S. attorney for the U.S. Attorney’s Office in the District of South Carolina. He left the Department of Justice to start his own practice, The Law Office of D. Josev Brewer, focusing on federal and state criminal defense and complex civil litigation. Brewer was previously a business litigation associate at the international law firm of Hunton & Williams LLP. Additionally, he was a two-time federal law clerk to Hon. P. Michael Duffy and Hon. Brucie Howe Hendricks. In those capacities, he helped prepare the historic Charleston County Voting Rights Act case and develop the first federal pretrial drug court in the District of South Carolina. ©2022 D. Josev Brewer. All rights reserved.
44 • THE FEDERAL LAWYER • July/August 2022
Endnotes Telephone interview with Judge Bruce H. Hendricks, U.S. District Judge (Nov. 13, 2019). 2 Id. 3 Id. 4 Id. 5 Douglas B. Marlowe, Research Update on Adult Drug Courts 3, U.S. Dep’t of Just., Off. of Just. Programs (Dec. 2010). 6vi In re Pilot Bridge Program 2:10-mc-5008-DCN (D.S.C. Nov. 10, 2010). 7 United States Probation and Pretrial Servs., Dist. of South Carolina, Greenville Division Bridge Program, https://www.scp.uscourts.gov/greenville-division (last visited July 19, 2022). 8 18 U.S.C. § 3142. 9 See John A. Bozza, Benevolent Behavior Modification: Understanding the Nature and Limitations of Problem-Solving Courts, 17 Widener L. J. 97, 111 (2007). 10 See id. 11 Telephone interview with Melia Carney, BRIDGE Graduate (Nov. 25, 2019). 12 Id. 13 Chris Schoen, Interim Report on the Bridge Drug Court Program (on file with author and J. Hendricks). 14 United States Sent’g Comm’n, Fiscal Year 2021 Overview of Federal Criminal Cases 7 (Apr. 2022), https://www.ussc. gov/sites/default/files/pdf/research-and-publications/researchpublications/2022/FY21_Overview_Federal_Criminal_Cases.pdf. 15 Laura Baber, Kevin Wolf, Christine Dozier, & Roberto Cordeiro, A Viable Alternative? Alternatives to Incarceration across Seven Federal Districts, Fed. Prob. 83 No. 1 (2018) (analyzing sentencing outcomes relative to federal defendants not participating in drug court programs). 16 Mark Motivans, Federal Justice Statistics, 2020 at 11, Bureau of Justice Statistics (May 2022), https://bjs.ojp.gov/content/pub/ pdf/fjs20.pdf. 17 Id. 18 E. Ann Carson, Prisoners in 2013 at 2, Bureau of Justice Statistics (Sept. 30, 2014), https://bjs.ojp.gov/content/pub/pdf/ p13.pdf. This annual report has not included an updated median sentence table since the 2014 addition. 19 Telephone interview with Judge Mary G. Lewis, U.S. District Judge (Nov. 26, 2019). 20 Id. 21 Id. 22 Lori Dickes, Retrospective Cost-Benefit Analysis of the South Carolina Bridge Program (2017) (on file with author). 23 Id. 24 Id. 25 Mariel Alper, Matthew R. Durose, & Joshua Markman, 2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014) at 1, U.S. Dep’t of Just., Off. of Just. Programs (May 2018), https:// bjs.ojp.gov/content/pub/pdf/18upr9yfup0514.pdf. 26 Marlowe, supra note 5, at 3. 27 Id. 28 Avinash Singh Bhati, John K. Roman, & Aaron Chalfin, To Treat or Not To Treat: Evidence on the Prospects of Expanding Treatment to Drug Involved Offenders, Urban Inst., Just. Pol’y Ctr. (May 1
2008), https://www.ojp.gov/pdffiles1/nij/grants/222908.pdf. 29 West Huddleston & Douglas B. Marlowe, Painting the Current Picture: A National Report on Drug Courts and Other Problem-Solving Court Programs in the United States 9, Nat’l Drug Ct. Inst. ( July 2011), https://www.ndci.org/sites/default/files/nadcp/PCP%20 Report%20FINAL.PDF. 30 J. Hendricks, supra note 1. 31 Nat’l Ass’n of Drug Ct. Pros., Adult Drug Court Best Practice Standards Vol. I at 11 (2018), https://www.nadcp.org/ wp-content/uploads/2018/12/Adult-Drug-Court-Best-PracticeStandards-Volume-I-Text-Revision-December-2018-1.pdf.
See id. Telephone interview with Christina Ruffino, Fed. Jud. Ctr., (Dec. 9, 2019). 34 Laura Baber, Kevin Wolf, Christine Dozier, & Roberto Cordeiro, A Viable Alternative? Alternatives to Incarceration across Seven Federal Districts, Fed. Prob. 83 No. 1 (2019). 35 Id. 36 Transcript of Record at 29-31, Presentation of Alternatives to Incarceration in the Eastern District of New York (E.D.N.Y. Oct. 30, 2014) (emphasis added). 37 18 U.S.C. § 3582 (2018). 32 33
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46 • THE FEDERAL LAWYER • July/August 2022
Early History of South Carolina and Its Federal Court (1526-1886) IRA COHEN
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o doubt, 1861 was a year of great trials and tribulations for Charleston, S.C. On December 11 of that year, a wind-driven fire cooked 600 dwellings, including all of the city’s public buildings, into smoldering rubble and ash. A few months before that, on September 20, the city of Charleston’s census report for 1861 reflected that the city had 48,409 residents.1 Eight months earlier, on April 12, 1861, Confederate shore batteries opened fire on Fort Sumter in Charleston Bay, S.C. The next day, amid the smoky, sulfurous haze left behind by the collective discharge of 50 guns and mortars, propelling more than 4,000 rounds at the Union garrison for 34 consecutive hours of merciless bombardment, the Union commander was constrained to surrender the fort. That was 161 years ago. Yet, the fort still stands—a silent testament ] to man’s strength and perseverance. And we, the fortunate inheritors of the people, culture, history, and laws of reunited people of the United States of America—remember and reflect.
The Four Corners of Law Early in the evenin’, just about supper time Over by the courthouse, they’re startin’ to unwind … Down on the corner, out in the street…2 There are innumerable, time-worn street corners dotting the downtowns near stately old stone courthouses scattered across the southland. In Charleston, S.C., however, there is one crossing in particular, located a short distance from the famed Francis Marion Hotel,3 which is quite unique. The so-called Four Corners of Law is encountered only in Charleston.4 Each edifice represents one of four separate and
distinct legal jurisdictions. On the southeast corner stands St. Michael’s Episcopal Church,5 which represents God’s (or ecclesiastical) law; on the northeast corner is Charleston City Hall, representing city law;6 turning to the northwest corner, one would see the Charleston County Courthouse7 (originally the provincial capital), representing state law; and, lastly, on the southwest corner, the U.S. Post Office and Courthouse,8 signifying federal law, rises over the street. Reportedly, the local folk in the “Holy City” like to jest, “You can go to the Four Corners to get married, get taxed, and go to jail.” The Four Corners evolved into the way it looks today over the course of two centuries. However, our concerns, and the subjects in this article, date back even longer. As the curtain closed on the antebellum era, strange times descended upon beautiful and affluent Charleston and the South in general. In a fantastical story that could have come from The Twilight Zone, brother found himself pitted against brother in the throes of a brutal civil war. Largely obscured by history, seldom written about, and hidden by the fog of war are the stories of rebel government organs that rose up as the mirror-image versions of various federal government organs, such as the Confederate Patent Office (1862-1865, in Richmond, Va.) and the Confederate courts.9 For Charleston’s humble beginnings and a recounting of its rich history and judicial evolution, we must mentally journey back in time to April 1670, over 350 years ago, to a landing point about 12 miles outside the city of Charleston. Some measure of factual and historical background is necessary, so it would be appropriate and instructive to recount the early history of the colony, later, the province, and, finally, the state of South Carolina. We then will take up judicial origins and development in turn.
Early Explorers and Settlers of the Carolinas “During the settling of the American colonies, it was said that the Spaniards would first build a church, the Dutch would first build a fort, and the English a tavern. Welcome to Charleston, an English colony.”10 July/August 2022 • THE FEDERAL LAWYER • 47
The earliest European attempts to settle the lands of South Carolina were not by the British. First came the Spanish, then the French, and, still later, the Spanish again, all of whom were miserably unsuccessful in colonizing the area in question. The first recorded Spanish expedition reached the Carolina coast, near Winyah Bay, headed by explorer Francisco Gordillo. But unfortunately, the settlement in 1526, called San Miguel de Gualdape (near present-day Georgetown), was an abject failure in less than a year when, out of 500 people, only 150 survived to board the ship for the return voyage home. In 1562, the French sailed to the coast and claimed the land for France. Meanwhile, the soldiers under the command of naval officer Jean Ribault built a settlement named “Charlesfort” (now known as Parris Island); it was likewise doomed in less than a year’s time, however. In 1565, the Spaniards founded St. Augustine (in what today is Florida). A few years later, in 1566, the Spanish established the settlement of Santa Elena on the previous Spanish-held site and made it the first capital of Spanish “Florida.” The Spanish built and rebuilt two forts there (San Salvador and San Felipe), but by 1576, the area was largely abandoned due to attacks by local Native Americans. The Spaniards’ unfulfilled search for gold in the New World was also a contributing factor.
In the Years Before the British In 1577, the Spanish returned once more to Carolina and built Fort San Marcos. It was used until 1582 or 1583, when a second Fort San Marcos was constructed. This fortification had a moat dug around it in 1586 in anticipation of an attack by Sir Francis Drake. However, before that could occur, Drake and his troops attacked the Spanish further south, in St. Augustine, and burned that town. Leaving to support the troops further south, Santa Elena and the fortifications were abandoned by the Spaniards for the last time in 1587. At its height, the town had about 60 dwellings, with an estimated population of 400 to 450 people. After that time, the Spanish devoted more financial and military resources to settlements in Florida, thereby forfeiting Carolina to British settlers.
The British Are Coming—Pre-Colonial History of South Carolina For chronological and historical context, colonists from Great Britain had settled Jamestown (in Virginia) in 1604 and the Mayflower Puritans’ Plymouth Colony (in Massachusetts) in 1620. Three years later, in 1623, the First Charter for Carolina was issued by King Charles I of England (1600-1649) to Sir Robert Heath (1575-1649). It is here that Carolina’s nexus to the judiciary starts, for Sir Robert was an English judge and politician.11 As it turns out, that initial charter was never used, and King Charles’ political fortunes, and personal fate, took a precipitous dive. In 1649, Charles I was tried and beheaded by Oliver Cromwell, the Lord Protector of the Commonwealth of England, Scotland, and Ireland. Following Cromwell’s death, his son Richard renounced power, thus ending the Protectorate and resulting in the restoration of the monarchy. The king’s son and heir, Charles II (1630-1685), took the throne in 1660. As remuneration for their stalwart loyalty, aid, and assistance against Cromwell (the elder), Charles II resolved to reward eight of his former generals. In 1663, England’s King Charles II awarded the Carolina territory 48 • THE FEDERAL LAWYER • July/August 2022
(a land area comprising the modern-day Carolinas and Georgia) to eight of His Majesty’s friends who had helped him regain the throne after several years in exile. In 1666, English Captain Robert Sanford set out to explore the area and named the Ashley River12; at the same time, he took possession of Carolina13 for the Crown and the nobles, who were dubbed the “Lords Proprietors.” In 1669, settlers hoisted sail from London, crossing the Atlantic in three ships, the Albemarle, the Port Royal, and the Carolina. Despite the trials and tribulations of the voyage, including weathering a hurricane in Barbados, on March 15, 1670, the Carolina arrived in Seewee Bay14 and established Albemarle Point in April of that year.15 The population of that settlement in 1670 was 140 free people and 15 enslaved people. A decade later, in 1680, the colony was relocated to “Charles Town” (known, after the American Revolution, as “Charleston”). By that time, the population had grown to 1,000 free people and 200 enslaved people. Originally planned as a Protestant colony by Lord Proprietor Anthony Ashley Cooper and philosopher John Locke (yes, that John Locke)16 in 1670, the freshly minted Fundamental Constitution of Carolina granted broad religious freedom,17 which was carried out not only in word but in deed; this, in turn, affected the social and religious composition of the fledgling province. Sephardic Jews and French Huguenots came to Charles Town in droves. Indeed, up until the early 19th century, Charleston had the largest Jewish population of any city in North America. Here’s a little aside from our history lesson. Generally speaking, the Lords Proprietors were needy nobles. Notwithstanding that fact, what the Lords Proprietors evidently did not want was any interference by some pesky lawyers.18 And so the first Constitution of South Carolina actually banned the practice of law as a profession. Desirous of simplicity—and, no doubt, the retention of power—the undereducated nobles would be free to run things as they saw fit under the auspices of a Grand Council. Thus, they conducted all colonial affairs, a virtual monopoly on executive, legislative, and judicial functions. To keep things in some semblance of order, administrative courts were established under the council’s direct control.19 The early 1700s were a time of growth for the young settlement. The population in 1700 had burgeoned to 3,100 free people and 2,400 enslaved people. Then, in September of that year, a hurricane struck.20 Just a few months later, the first free public library in America was founded on Nov. 16, 1700. The city was assaulted anew in 1706 by the Spanish and French during Queen Anne’s War. It was, however, a disaster for the attackers; the Charles Town colonists captured a French ship and crew. In that same general period, from 1710 to 1713, the so-called “Powder Magazine”21 was built. Completed in 1713, the Powder Magazine is South Carolina’s oldest government building. The building was used as an arsenal from 1713 to 1748 and during the American Revolution to defend the city. After 1780, it was retired, and by the early 19th century, it was privately owned. Today a National Historic Landmark serves as a museum.22
The Province of South Carolina (1712-1776) The South Carolina and North Carolina colonies originally were part of one colony called the Carolina Colony. The division of the Carolina Province into North Carolina and South Carolina was completed by 1712. The Province of South Carolina lasted from 1712 to 1776.
In addition to the city’s land connections, the city also had a long and endearing maritime connection. Returning sea captains tended to affix pineapple fruits to their fence posts to let their friends and neighbors know that they were home safely and invite visits so that the old salts could regale their guests with tall tales of the seven seas.23 That nautical nexus included incursions by and encounters with pirates. The infamous Captain Edward Teach (“Blackbeard”) (1680-1718) sailed to the area in 1718 and took hostages for ransom. Charles Town had been a favorite target of pirate attacks. Blackbeard settled for a medicine chest in exchange for his prisoners. He lived to tell that tale, but Blackbeard’s luck ran out later that same year, at Ocracoke Island, in the sister colony of North Carolina.24 The “Gentleman’s Pirate,” Stede Bonnet (1688-1718), did not fare well in Carolina either. A wealthy Barbadian landowner-turned-criminal, Bonnet, was captured after a battle in the Cape Fear River (by North Carolina) and brought back to Charles Town for trial. He was tried for piracy and convicted by a jury before Sir Nicholas Trott, presiding as a vice-admiralty judge. Bonnet appeared without counsel and conducted his own defense—as terrible an idea then as it is today. After a plea to the governor for clemency, which resulted in no less than seven delays of execution, Bonnet finally was hanged at White Point Garden25 in Charles Town on Dec. 10, 1718. A rebellion broke out against the Lords Proprietors in 1719. Acting on a petition of the colony’s residents, the British government appointed a royal governor for South Carolina in 1720. In 1720, the population had risen to 6,500 free people and 12,000 enslaved people. After nearly a decade in which the British government sought to locate and buy the Lord’s Proprietors, in 1729, both North Carolina and South Carolina became British royal colonies of the Kingdom of Great Britain. Over the fullness of time, South Carolina became one of the wealthiest early colonies, largely due to exports of cotton, rice, tobacco, and indigo dye. Much of the colony’s economy depended on slave labor that supported large land operations similar to plantations. In particular, Eli Whitney’s invention of the cotton gin26 in 1793 led to an explosion in cotton growth and production. Indeed, Charles Town was the fourth largest city in colonial America and by far the wealthiest. With its immense wealth and resources, Charles Town was a leader in many things. (The city’s spelling had varied over time, but its name was officially changed, upon incorporation, in 1783, to “Charleston”). It boasted a number of “firsts,” including the first public college, museum,27 and playhouse28 in the United States. The first golf club in North America, the South Carolina Golf Club, opened in 1786 on a peninsula field known as Charleston Green. In 1773, the Charleston Museum, the oldest in the United States, was founded.29 In that same year, Lord Charles Montagu (17411784), His Excellency, the Royal Governor of the Province of South Carolina (having served in that office since 1766), fled, along with a group of fellow Loyalists, to Nova Scotia, Canada. There was an insurrection in the air and endless talk of rebellion in some quarters.
Colonial Judicial History of South Carolina During colonial times in Carolina, the English Common Law was followed. As for the judiciary, the Court of King’s Bench and Common Pleas was founded around 1725 and was based in Charles Town. A few families, it appears, dominated the legal and judicial scene in the colony.
One family in the area that prominently served the public, wearing one legal hat or another, was the Pringles. It is worth looking into their story, which began with Judge Robert Pringle Jr.,30 who was born in 1702 in Scotland, in Edinburgh County. Pringle was a merchant, planter, legislator, and jurist in Charles Town. Not trained in the law, Pringle was made the assistant judge of the Court of Common Pleas & General Sessions in 1760 or 1761. In that capacity, he served as the solitary assistant jurist to the ever-unpopular Chief Justice Charles Shinner. During the Stamp Act crisis (1765-1766), the judge tried to open court sessions without the requisite stamped paper. As a result, he was removed from the bench in 1769 or 1770. He then retired from public life. On January 13, 1776 (before the Revolution), he died in Charles Town at age 73 or 74 and was buried in St. Michael’s Church Cemetery.31 Judge Pringle’s second marriage to Judith Mayrant Pringle (1723-1802) in 1751 resulted in three offspring. One of the children was John Julius Pringle; he arrived in this world on July 22, 1753, in Charles Town. John Pringle32 graduated from the College of Philadelphia in 1771. He became a lawyer by studying jurisprudence in England and by “reading law”33 with John Rutledge (who became, among other things, a U.S. Supreme Court justice). Admitted to the bar in 1781, John Julius garnered a reputation for writing articles defending colonial rights. Though not a judge, John Julius had a very distinguished legal career, serving first as a state assembly speaker and later as the U.S. attorney for South Carolina at the request of George Washington. From 1792 to 1808, he functioned as the attorney general of South Carolina. In 1805, President Thomas Jefferson offered him the post of U.S. attorney general, which Pringle declined for personal family reasons. The other family that dominated the area’s legal arena was the Drayton family. These pillars of the Charleston community truly were great public servants and contributors to the judicial evolution of the colony. Several chief justices served on South Carolina’s highest court from 1698 to 1795. One jurist worth discussing is William Henry Drayton (1742-1779), who was in this office from April 13, 1776. He was educated in England (Oxford), read law, and was admitted to the South Carolina Bar. Drayton also was a plantation owner in Charleston. After publishing a series of pamphlets opposed to the actions of Americans against England, he was made a member of the Colonial Council. Later, Governor William Bull made him a judge in the Colony’s Court in 1774. He certainly had the right familial connections. His mother, Charlotta Bull Drayton, quite fortuitously was the daughter of Governor Bull. But Judge Drayton pushed his luck and career fortunes when he wrote a pamphlet titled “The American Claim of Rights” (supporting the rebel cause). He was promptly removed by the Crown from all colonial offices. In that fateful year of 1776, under the state’s interim constitution, Drayton returned to his council seat and was seated as the state’s chief justice of the Supreme Court. Subsequently, he served in Philadelphia as a delegate for South Carolina to the Continental Congress in 1778 and 1779. But, unfortunately, it was there, that Judge Drayton succumbed to typhus. The Drayton family was, without a doubt, the crème de la crème of the Carolina community. One of William Henry’s cousins, William July/August 2022 • THE FEDERAL LAWYER • 49
Drayton, served as a U.S. congressman. Representative Drayton was the son of Judge William Drayton Sr. As for other hereditary affiliations, it is noteworthy that Judge Drayton’s son, John Drayton (1766-1822), later became the governor of South Carolina (1800-1802 and 1808-1810) and, still later, a U.S. district judge (1812-1822).34 Judge Drayton’s home and plantation, Drayton Hall, still can be toured today; it is located on the northwestern outskirts of Charleston and now is an impressive museum site.35 A new chief justice of the State Supreme Court of South Carolina was appointed in 1791. He was none other than John Rutledge (17391800), who took office on February 16, 1791, and served until 1795. Rutledge is better known, of course, for having also served as a U.S. Supreme Court justice (and chief justice). In any event, he certainly exerted a marked influence on other Charleston lawyers (and judges) of the time.
Charles Town During the Revolutionary Period (1774-1782) Revolutionary times cast their pall over Carolina. On June 18, 1775, Lord William Campbell, the last royal governor, arrived at the colony. He would have a very rough and eventful tenure. During the American Revolution, there were more battles in South Carolina than in any other state (e.g., battles at King’s Mountain and Cowpens). Presaging the fight to come, in the spring of 1776, General Sir Henry Clinton and Admiral Sir Peter Parker sailed into Charles Town’s waters with a veritable armada carrying 3,000 regular British troops. The unenviable responsibility for the city’s defense devolved upon Major General Charles Lee. One of the mottos of South Carolina is “Dum spiro spero” (“While I breathe, I hope”). The phrase lived up to its billing, as the unthinkable happened on June 28, 1776, when a contingent of rag-tag colonists, holed up in a makeshift fort on Sullivan’s Island, traded fire with nine British warships hell-bent on the conquest of Charles Town. The fort’s unyielding protector, Colonel William Moultrie, called it “one continual blaze and roar.” The battle lasted around nine hours, but Fort Sullivan’s palmetto logs held up against the barrage, and, eventually, the attacking fleet withdrew. That gallant effort staved off the British occupation of Charles Town for four years and became a symbol of American resilience. In gratitude, the fort was renamed Fort Moultrie36 in honor of its resolute commander, and South Carolina later adopted the Moultrie banner as its state flag.37 The siege of Charles Town began in earnest on March 29, 1780, and, like a biblical event, endured for 40 days. The city’s defenders finally surrendered to the British on May 12, 1780. Adding insult to injury, in August of that year, many prominent citizens were rounded up and imprisoned in the dungeon of the Old Exchange.38 A year later, on Aug. 4, 1781, Colonel Isaac Hayne was hanged by the British. Unluckily for the colonel, a few months later, the city would be liberated by General Washington’s troops under General Nathaniel Greene. A year later, on Nov. 14, 1782, the brave men of Colonel Tadeusz Kościuszko of General Washington’s Continental Army heartily fought off the Redcoats on tiny James Island. James Island turned out to be the area’s final action of the Revolutionary War.39 Eight decades later, during the Civil War, the Battle of Secessionville was fought on James Island.40 The defeated Brits marched out of the city in 1782. On Aug. 13, 1783, the city formally was incorporated, and, perhaps more crucial50 • THE FEDERAL LAWYER • July/August 2022
ly, the name was officially changed to “Charleston.” In 1787, the state selected its delegates to sign the U.S. Constitution—namely, Charles Cotesworth Pinckney, Pierce Butler, and John Rutledge. These names would be prominent in the Pantheon of early South Carolinian leading citizens. In 1790, as the new decade dawned, there were now 141,000 free people and 107,000 enslaved people in Charleston. After the Revolution’s end, in May 1791, President Washington visited Charleston for a week during his “victory tour” of the South.41
The U.S. District Court of the District of South Carolina Today, sessions of the U.S. District Court for the District of South Carolina are held in the cities of Aiken, Beaufort, Charleston, Columbia, Florence, Greenville, and Spartanburg. The district was one of the original 13 courts established by the Judiciary Act of 1789, 1 Stat. 73, on Sept. 24, 1789. Over the centuries (in 1823 and again in 1912), Congress saw fit to divide the court into an Eastern District and Western District. However, in 1898, in the case of Barrett v. United States,42 the U.S. Supreme Court decided that South Carolina legally constituted a single judicial district. That ruling did not deter Congress from dividing it in 1912, but in 1965, in the legislative branch’s latest move in this game of “the old switcheroo,” it converted the court back to a single judicial district, and it has remained that way ever since.43 Between 1789 and 1886, a total of seven jurists sat on the bench of this court. Of those judges, five “died with their boots on” in office, one resigned just before the breakout of the Civil War, and the first post-war jurist retired. The longest-serving jurist was Judge Bee, who sat for a robust period of 22 years, followed by Judge Bryan at 20 years, Judges Lee and Gilchrist at 16 years each, Judge Magrath at four years, and Judge Drayton at one year. The courtroom and the judge’s chambers which made up the District Court (with Judge Drayton presiding), had its humble beginnings in the Exchange Building.44 Since then, the court may be likened to a Royal Monarch butterfly, flitting every so often from one place to another. In 1792, Judge Bee relocated to the Charleston County Courthouse located at Meeting and Broad Streets, which remained the court’s home until 1837. The U.S. Circuit Court met there as well.45 In that year and until 1846, the court met in the Planter’s Hotel. From 1846 until 1860, the court then held sessions on Chalmers Street. In 1866, when Judge Bryan took the bench, the court heard cases at the John Rutledge House. Later, in 1869, the court moved to the Charleston Club House. By 1884, the court had moved again, this time to the U.S. Custom House. Commencing in 1896, the U.S. Post Office and U.S. District Court have shared a dedicated structure, adorned in wood and marble, located near the Four Corners of Law.
Hon. William Drayton Sr.46 The first federal district judge appointed to the single seat on the new court was William Drayton Sr. (1732-1790). However, he enjoyed active service for less than a year, from late 1789 to mid-1790. Born on March 21, 1732, in Ashley River, S.C., Judge Drayton was a recess appointment made by President George Washington on Nov. 18, 1789. Drayton was subsequently nominated to the same seat by the president on Feb. 10, 1790. At the time, the judicial salary for
a federal district judge in South Carolina was $1,800.47 That would be the equivalent of $57,188.32 in 2022.48 Judge Drayton had been educated at the Middle Temple49 in London by 1754. Later on, he read law (1756), after which he promptly became a justice of the peace in Berkeley County, S.C. (1756-1763). From 1765 to 1778, he was chief justice for the Province of East Florida. Then, in 1789, he became a judge of the South Carolina Admiralty Court. Also, in 1789, he switched over to become an associate judge of the Supreme Court of South Carolina. While he was not long on the federal bench, Judge Drayton is memorable for several reasons. The court’s opening ceremony was held on Dec. 14, 1789. At that time, the judge showcased his Presidential Commission and appointed Thomas Hall as the first clerk of court.50 In addition, lawyer Julius Pringle, Esq., was appointed U.S. attorney by the judge. Alacrity was called for, as a trial needed to be held in the coming days. Consequently, a few days later, on Dec. 19, 1789, Judge Drayton reconvened the court to establish rules for admission to practice, set the terms of court, and create jury lists.51 The first action to be tried in this district before Judge Drayton was an admiralty action, namely, George Abbot Hall, Collector of the Port of Charleston v. Eight Barrels of Sugar, etc., on board the Sally Sloop and Letty. Proceedings commenced therein on Jan. 7, 1790, ending quickly on Jan. 22, 1790, by Judge Drayton’s entry of a default judgment in the case.52 The court’s second case was likewise an admiralty proceeding, Thomas Athenson v. Brigantine Mercury. The records of both the Hall case and the Athenson case are available for scholarly review.53 Judge Drayton died while in office on May 18, 1790, at the relatively young age of 58. However, like the Pringle clan, the Drayton family was an omnipresent force in the early South Carolina legal and political landscape. To illustrate, Judge Drayton’s only child, William Drayton, was commissioned a colonel during the War of 1812 and later became a U.S. congressman for South Carolina (1825-1833).54
Hon. Thomas Bee55 Following Judge Drayton’s relatively brief tenure on the federal bench, the next presidential appointment for the position was Thomas Bee (1739-1812), whose active service on the court ran from 1790 to 1812. Like Judge Drayton, Judge Bee was appointed by President Washington. That transpired on June 11, 1790, and the U.S. Senate confirmed Bee on June 14, 1790. A hometown boy born in 1739 in Charleston, Judge Bee was educated at the University of Oxford56 in England. He read law (1761) and then entered private practice in Charleston (several times, in fact). A prolific public servant, Judge Bee held a myriad of civic positions, including Member, South Carolina Commons House of Assembly (1762-1765 and 1772-1776); Member, South Carolina Greater Assembly (1776-1778); State Representative, South Carolina (1778-1789 and 1781-1782); Lt. Governor, South Carolina (1780); Delegate Continental Congress (1780-1781); and South Carolina State Senator (1788-1790). Additionally, he was nominated to be the chief judge of the Fifth Circuit Court of Appeals on February 21, 1801 (confirmed Feb. 24, 1801), an appointment which he declined. In 1800, Charleston’s population rose to 196,000 free people and 147,000 enslaved people. Following the Hurricane of 1804, and a few months shy of the opening of the War of 1812, on Feb. 18, 1812, Judge Bee died while in office at age 73.
During the War of 1812, South Carolina and our nation’s iconic warship, the U.S.S. Constitution, earned its famous nom de guerre during the War of 1812 in the heat of a naval battle with Britain’s H.M.S. Guerriere on Aug. 19, 1812. It seems that several shots from the British frigate bounced off the oaken sides of the U.S. ship. The press dubbed the venerable ship “Old Ironsides” as a result. Where did the government secure the seemingly impenetrable live oak used for the iconic vessel? It was hewn from 60 acres of oak trees from the swamps of South Carolina and Georgia.57 The Bee family boys were lawyers and fighters. In fact, two of Judge Bee’s grandsons held the rank of Confederate generals. First, Barnard Elliott Bee was a brigadier general who died at the First Battle of Bull Run (Manassas Junction, Va.) on June 17, 1861, at the fairly young age of 37. As a side note, it was Barnard Bee who supposedly first used the term “stonewall” in reference to then Brigadier General Thomas J. Jackson and his men, giving rise to the memorable moniker “Stonewall Jackson” and the “Stonewall Brigade.” The other scion of the Bee family hive, Hamilton P. Bee, also served as a Confederate States of America brigadier general from 1862 until the war’s end. Despite having several horses shot out from under him and being wounded, Hamilton Bee survived the war. Long after the war, he opened a law practice in San Antonio for a year or so before he died in 1874 at the age of 75.
Hon. John Drayton58 After the death of Judge Bee, Washington and South Carolina turned once again to the ever-reliable Drayton family for the passing of the judicial baton. It was an easy choice. After all, John Drayton’s family had been true blue Carolinians since the 17th century. Indeed, Magnolia Plantation and Gardens (464 acres) dates back to 1676 under the stewardship of the family patriarch and matriarch Thomas Drayton Jr. and Ann Fox Drayton. Since that time, there have been 15 generations of Draytons in Charleston. Thomas died in 1717. John Drayton Sr., brother of Thomas, built Drayton Hall in 1738 on a plot of adjoining land. John was the well-to-do proprietor of hundreds of commercial plantations, totaling some 76,000 acres of land. Upon Thomas’s death, John bought Magnolia from his nephew. Thomas’s second son, Charles, was a medical doctor who benefited from an education at Edinburgh University in Scotland. Charles was the father of Judge John Drayton. The judge’s father, John Sr., died during the American Revolution in 1779 when forces ransacked both Magnolia and Drayton Hall under the leadership of British Major General Augustine Prévost (17231786).59 Fleeing for his life with his family, the elder John Drayton suffered a seizure and died after crossing the Cooper River.60 John Drayton (1766-1822) was Judge Bee’s successor to the South Carolina District Court bench. He was born in Drayton Hall. Appointed by President James Madison on May 4, 1812, and confirmed by the Senate, and commissioned on May 7, 1812, Drayton’s years of active federal judicial service ranged from 1812 to 1822. Born on June 22, 1766, in Charleston, Judge Drayton was educated at Inner Temple61 in London. After reading law (1788), he entered into private practice in Charleston (1788, 1789-94, 1796-98, and 1811-12). As with other judges of the period, Judge Drayton, besides being a planter, held many public posts, including but not limited to State Representative of South Carolina (1792-1796); Lt. Governor of South Carolina (1798-1800); State Senator, South Carolina (180508); and Governor, South Carolina (1801-1803 and 1809-1810). July/August 2022 • THE FEDERAL LAWYER • 51
Unfortunately, Judge Drayton’s federal service was terminated only by his death in Charleston on Nov. 27, 1822.
Hon. Thomas Lee62 The next jurist to grace the District of South Carolina bench was Thomas Lee (1769-1839). Judge Lee actively served the district for 16 years, from 1823 to 1839. Born on Dec. 1, 1769, in Charleston (Province of South Carolina, British America), Judge Lee read law and was admitted to the bar in 1790. He was engaged in private practice in the city from 1790 to 1791. Embarking early on in a judicial career, as he was just 22 and admitted to the bar only one year, he became an associate judge on the Court of General Sessions and Common Pleas in Charleston (1791 to 1792). Later, he served as a solicitor for the Southern District of South Carolina from 1792 to 1794 and state solicitor general of South Carolina from 1794 to 1798. With a federal court vacancy created by Judge Drayton’s passing at the end of 1822, on Feb. 7, 1823, Judge Lee was nominated by President James Monroe63 to the seat on the U.S. District Court for the District of South Carolina vacated by Judge John Drayton. Judge Lee was confirmed by the U.S. Senate and commissioned on Feb. 17, 1823. In 1830, Congress raised the compensation for this federal judicial position to $2,500 per annum.64 In 2022 dollars, that salary would be equivalent to $79,428.26.65 Judge Lee sat on the bench until his death on Oct. 24, 1839, in Charleston.
Hon. Robert Budd Gilchrist66 Following in the footsteps of Judge Lee on the bench was Robert Budd Gilchrist (1796-1856), another Charleston native, born on Sept. 28, 1796. Judge Gilchrist served in the District Court of South Carolina for 14 years, from 1839 to 1856. Judge Gilchrist received his education at South Carolina College (now the University of South Carolina), receiving both an Artium Baccalaureus (i.e., a B.A.) degree (1814) and an Artium Magister (i.e., an M.A.) degree (1817). As with most of his predecessors and successors, he read law; he was admitted to the bar in 1818. Commencing in 1831 until his appointment to the bench, Gilchrist was the U.S. attorney for the District of South Carolina. On Oct. 30, 1839, President Martin Van Buren67 gave Gilchrist a recess appointment; the president nominated him on Jan. 23, 1840, and the Senate confirmed and commissioned him on Feb. 17, 1840. By 1840, the population of Charleston was 259,000 free people and 327,000 enslaved people. Judge Gilchrist’s federal service terminated on May 1, 1856, in Charleston due to his death at age 59.
Hon. Andrew Gordon Magrath68 After having previously served as a U.S. district judge, Andrew Gordon Magrath (1813-1893) was the last Confederate governor of South Carolina from 1864 to 1865. Like many of his predecessors and his successor, he was born in Charleston. Judge Magrath graduated from South Carolina College with an A.B. (1831). He later attended Harvard Law School for legal training. However, it was in Charleston, in 1835, where he read law under James L. Petigru, Esq.,69 and gained his command of the law. On May 9, 1856, Judge Magrath was nominated by President Franklin Pierce70 to the seat on the U.S. District Court for the District of South Carolina that had been left vacant by Robert Budd Gilchrist. 52 • THE FEDERAL LAWYER • July/August 2022
Judge Magrath was confirmed and was commissioned by the U.S. Senate on May 12, 1856. Judge Magrath’s appointment to the federal bench ultimately brought him national attention and fame, or infamy, depending upon whether you wore blue or grey. Although personally opposed to the slave trade, Judge Magrath handed down a significant legal victory for slave-trade proponents and states’ rights advocates in April 1860. The vessel Wanderer had been seized for illegal transportation of enslaved Africans. Proceedings took place contemporaneously in Boston and Charleston. Judge Magrath held that the 1820 federal piracy statute was inapplicable to the slave trade. In eschewing that statute, which carried a penalty of capital punishment, Judge Magrath effectively declawed it, sending an unmistakable message to federal authorities that they could not hope to prosecute slave traders in South Carolina’s federal district court.71 A few months later, Judge Magrath made the newspapers again. It is said that he became the first federal official to resign his post in opposition to the election of Abraham Lincoln to the presidency in 1860.72 In defiance of Honest Abe’s election victory, on November 7, just one day after the election, Judge Magrath rose from his chair and resigned from the bench, famously declaring: In the political history of the United States, an event has happened of ominous import to fifteen slaveholding States. The State of which we are citizens has always been understood to have deliberately fixed its purpose whenever that event should happen. Feeling an assurance of what will be the action of the State, I consider it my duty, without delay, to prepare to obey its wishes. That preparation is made by the resignation of the office I have held. For the last time, I have, as a Judge of the United States, administered the laws of the United States within the limits of the State of South Carolina. While thus acting in obedience to a sense of duty, I cannot be indifferent to the emotions it must produce. That department of Government which I believe has best maintained its integrity and preserved its purity, has been suspended. So far as I am concerned, the Temple of Justice, raised under the Constitution of the United States, is now closed. If it shall be never again opened, I thank God that its doors have been closed before its altar has been desecrated with sacrifices to tyranny.73 Magrath may have led the pack, but of course, he was not alone in the desertion of his federal duties. When the war broke out, all of the federal judges in the South resigned … all except for one lone holdout, Judge West Hughes Humphreys of the District of Tennessee. Judge Humphreys accepted a seat on the Confederate bench (18611865), yet he refused to resign his federal commission. Congress had a remedy for that; in 1862, it impeached, convicted, and removed Judge Humphreys from office.74 In 1860, when South Carolina issued the “Ordinance of Secession on December”75 and then, in short order, the “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union,”76 on Dec. 24, 1860, Charleston’s population had risen to 271,000 free people and 487,000 enslaved people.77 On December 20, the ordinance of Secession at Institute Hall in Charleston had proclaimed South Carolina to be an independent commonwealth. It was not long before Judge Magrath was back on the bench, just sitting under a different colored flag. In 1861, Judge Magrath once
again donned his judicial robes in Charleston. Jefferson Davis had appointed him as a Confederate district judge. As related above, on April 12, 1861, Confederate forces opened fire on Fort Sumter, thus hurling the first salvos of the Civil War. In retaliation, on Dec. 19 of that year, the Union sunk the “Stone Fleet”78 in the harbor to effectuate a blockade of Charleston. A few years passed. The war raged on. Then, beginning on Aug. 22, 1863, different Union ships, no longer submerged, no longer stone silent, bombarded downtown Charleston … and they persisted not for a day, not for a week, not for a month, but for 587 days. It all started with a shell exploding on Pinckney Street.79 Despite the continual barrage, Judge Magrath remained on the Confederate District Court bench until 1864, where he was noted, among other things, for his opposition to the centralization of power by the Confederate government in Richmond, Va. As the national conflict dragged on and desperation set in for the South, the South Carolina General Assembly appointed Judge Magrath to be the Governor of South Carolina in December 1864. However, he served for less than a year in his stint as the state’s chief executive. By April 14, 1865, the Stars and Stripes flag was once again flying over the ramparts of Fort Sumter. Within a month, the governor would be clapped in irons. In the aftermath of the collapse of the Confederacy, the Union Army arrested Governor McGrath on May 25, 1865, and remanded him to Fort Pulaski (in Georgia) for imprisonment until his pardon and release in December of that year. After prison and his release, McGrath, ever a survivor, returned to the lucrative private practice of law in his hometown of Charleston from 1865 to 1893. On Apr. 9, 1893, he died in Charleston at age 80.80
Hon. George Seabrook Bryan81 George Seabrook Bryan (1809-1905), another Charlestonian, was the first U.S. District Court judge to sit in the District of South Carolina after the American Civil War. He remained on the federal bench for 20 years, from 1866 until his retirement on Sept. 1, 1886. Judge Bryan appears to have read law like so many of his contemporaries. He was nominated by President Andrew Johnson82 on Feb. 9, 1866, to the seat vacated by Judge McGrath prior to the outbreak of hostilities between the North and South. He was confirmed and commissioned by the Senate on March 12, 1866. During his tenure on the bench in 1867, the federal government increased the compensation for his office to $3,500.83 That salary would have had equivalent purchasing power in 2022 dollars of $69,124.05.84 Around that era, by 1870, the population of Charleston had mushroomed to 290,000 free people and 466,000 African-Americans.85 To be sure, Judge Bryan came from an old and illustrious family. He was the grandson of George Bryan (1731-1791) of Dublin, a judge of the Supreme Court of Pennsylvania. After a long retirement, Judge Bryan died on Sept. 28, 1905, at age 96, in Flat Rock, Henderson County, S.C.
The Life and Times—and Tragedy—of Justice Rutledge Smart. Scholarly. Solid family. Lion of a lawyer. Respected jurist. Yet, from the words of his own mouth, John Rutledge’s lack of political savvy and personal hubris caused a sudden free fall from the heights of judicial history, a nosedive that would make even the mythological Icarus wince. Rutledge, a leading citizen and lawyer of Charleston was an associate justice of the U.S. Supreme Court from Feb. 15, 1790, until
March 5, 1791. He also very briefly served in the capacity of the second chief justice of the Supreme Court, succeeding Chief Justice John Jay. However, the last post was a relatively short-lived appointment, commencing on Aug. 12, 1795, and ending with his resignation about four months later, on Dec. 28, 1795. In September 1789, President Washington nominated Rutledge as a charter member of the first class of associate justices of the newly minted U.S. Supreme Court, along with John Blair Jr., William Cushing, Robert H. Harrison, and James Wilson. The chief justice was New Yorker John Jay. However, as fate would have it, Rutledge resigned from the Supreme Court in 1791, without ever hearing a case, to take the helm as chief justice of the South Carolina Court of Common Pleas and Sessions.86 John Rutledge became taken by and engaged with the law as a child and began reading law at age 17 under lawyer James Parsons, Esq. By age 19, he was on a ship bound for England to study at London’s Middle Temple. Upon completing his legal studies, Rutledge retraced his steps back to Charleston and founded what quickly and profitably became an enviable legal practice. On May 1, 1763, Rutledge married Elizabeth Grimké (born 1742), with whom he had ten children. He was a devoted husband and family man. Unfortunately, Elizabeth’s death in 1792 would cause Rutledge much grief and illness in his later years. Elizabeth was the daughter of Charleston lawyer Frederick Grimké and a cousin of the famous abolitionist sisters, Sarah and Angelina Grimké, also the daughters of a lawyer/judge.87 After the resignation of Chief Justice John Jay in June 1795 (to accept the governorship of New York), Rutledge was called upon, once again, to serve on the U.S. Supreme Court, this time as chief justice. Due to a protracted Senate recess, President Washington named Rutledge by virtue of a recess appointment, commissioning Rutledge on June 30, 1795; Rutledge took the Judicial Oath on August 12. Unfortunately, the Senate did not reconvene until December of that year. When it did finally meet, it spelled big trouble for Rutledge. In truth, Rutledge had no one to blame but himself. While Congress was out, on July 16, 1795, Rutledge orated a highly controversial speech denouncing the recent Jay Treaty88 with Great Britain. He reportedly went so far as to say in the speech that “he had rather the President should die than a sign that puerile instrument”—and that he “preferred war to an adoption of it.”89 Rutledge’s words likely echoed popular sentiments against the Jay Treaty. However, the governmental establishment and ruling political class favored it, and Jay personally was highly regarded, so Rutledge’s bold verbal assault did not play well in Washington, D.C. It should come, then, as no surprise, that the politically incorrect rant of Rutledge against his former colleague on the court, Justice Jay, and his signature treaty lost Rutledge vital support in the circles of power and, in particular, in the Senate. His reputation lay in ruins. The Senate soundly rejected Rutledge’s nomination in a humiliating 10-14 vote. Rutledge thereupon resigned and withdrew from public life.90 The docket of the U.S. Supreme Court was then exceedingly sparse, so only two cases were decided during the short time that Rutledge served as chief justice. First, in United States v. Peters,91 the Court ruled that federal district courts had no jurisdiction over crimes committed against Americans in international waters. Second, in Talbot v. Jansen,92 the Court held that a citizen of the United States did not waive all claims to U.S. citizenship by either renouncJuly/August 2022 • THE FEDERAL LAWYER • 53
ing citizenship of an individual state or becoming a citizen of another country. As a result, the Rutledge Court had laid down a precedent for multiple citizenships in the United States. Rutledge’s mental state markedly declined after his wife’s death, so the Senatorial snub may have been too much to bear. Allegations of alcohol abuse and even mental illness made the rounds among rumormongers and gossipers. And so it was that on a cold day in December, the dejected jurist headed for the pier, just a day after Christmas in 1795, where he attempted suicide by drowning. However, when he launched himself off the wharf and into Charleston Harbor, he was spied by two slaves who rescued the old justice. A virtual recluse after that incident, he died on June 21, 1800, at the age of 60.
Final Thoughts Over 161 years ago, in what must have been, notwithstanding the color of one’s uniform, a surreal moment, Confederate General P.G.T. Beauregard93 allegedly stood on the second-floor piazza of the Edmondston-Alston House94 to watch the fiery spectacle of the ferocious day-and-a-half-long bombardment of Fort Sumter in Charleston Harbor. Nowadays, the piazza welcomes visitors sipping bourbon on the rocks or mint juleps while taking panoramic photos of the majestic Charleston Harbor. We have gone from the Four Corners of Law to the Four Flags of Foreigners exercising dominion over South Carolina. Still, later, two more flags (the banners of the United States of America and the Confederate States of America) would fly as a country divided, then reunited in 1865, and would profoundly affect the federal judicial landscape of the area. Through it all, however, ever-engaging and ever-enduring, the Southern hospitality of the “Big Sweet Grass Basket” lived, and still lives, on. As the second of South Carolina’s two-state mottos declares: “Animus Opibusque Parati”95 (“Prepared in Mind and Resources.”)96 Ira Cohen, of Weston, Fla., has been practicing intellectual property law for over 39 years. He served as judicial law clerk to Hon. Harold J. Raby, U.S. magistrate judge for the Southern District of New York (1982-1985). Cohen is chair of the Intellectual Property Law Section of the FBA as well as a sustaining member of the FBA, a Life Fellow of the Foundation, columns editor for The Federal Lawyer, an FBA moot court judge, and an FBA mentor. He gratefully acknowledges the contributions of his editorial assistant, Geraldine Orlando, in connection with this article.
Endnotes Frederick A. Ford, Census of the City of Charleston, South Carolina, For the Year 1861, Charleston City Council (1861), http://www. genealogytrails.com/scar/charleston/citycensus_1861.htm. 2 Creedence Clearwater Revival, Down on the Corner, on Willy and the Poor Boys (Fantasy Records 1969). 3 Francis Marion Hotel, https://www.francismarionhotel.com (last visited May 31, 2022). 4 “The intersection of Meeting and Broad St. was coined the ‘Four Corners of Law’ by Robert Ripley—of Ripley’s Believe It or Not!—in the 1930s.” Justine Palkowski, Charleston’s Four Corners of Law, CHS Today (Mar. 21, 2019), https://chstoday.6amcity.com/charlestonsc-four-corners-law/. 5 St. Michael’s, the first Anglican Church south of Virginia, was built between 1752 and 1761 and is the oldest church in town. Be sure to 1
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check out cedar-box Pew Number 43 (a/k/a “the Governor’s Pew”), which was used for worship by George Washington on May 8, 1791. The church’s colonial clock and bells (eight), believed to be the oldest working clock and bell tower in the U.S., were imported from England in 1764. Dr. Jenny Gesley, Four Corners of Law, Charleston, SC—Pic of the Week, In Custodia Legis, Law Librarians of Congress (Oct. 6, 2017), https://blogs.loc.gov/law/2017/10/fourcorners-of-law-charleston-sc-pic-of-the-week. 6 The City Hall, adorned in Italian marble, was constructed between 1800 and 1804. Originally, it housed the First Bank of the United States (1791-1811) (proposed by Alexander Hamilton), modeled after the bank of England. It became the City Hall in 1818. Id. 7 The Charleston County Historic Courthouse was built in 1753 and originally used as the statehouse for the British Royal colonial government. In or around 2001, the building was vacated and restored to how it looked in 1792. The first reading of the Declaration of Independence to the public took place there. Id. 8 When Britain ruled South Carolina, the land under the U.S. Post Office and Courthouse was the designated place for the gallows for public executions. The construction of the post office/court building, in the Second Renaissance Revival style, was completed by 1896. It houses both the federal district court and the circuit court. Id. 9 Apart from the Confederate District Courts, there were also courtsmartial and other military courts. 10 Mark R. Jones, Wicked Charleston: The Dark Side of the Holy City (2005). 11 Sir Robert Heath was an attorney general, a chief justice of the Court of Common Pleas, and, later, the Lord chief justice. Paul E. Kopperman, Sir Robert Heath, 1575-1649: Window on an Age (1989) 12 The Ashley and Cooper Rivers, which border Charleston’s historic central district, both are named for the same man. Lord Anthony Ashley Cooper (the First Earl of Shaftesbury) was one of King Charles’ friends and a Lord Proprietor. He is credited with picking Charleston’s location and with establishing the progressive “Grand Modell” for the town, along with John Locke. Jen Ashley, The History Behind Several Charleston, S.C. Street Names, CHS Today (Aug. 9, 2018), https://chstoday.6amcity.com/street-names-historycharleston-sc/. 13 “The Carolinas were named for King Charles I and King Charles II. Derived from the Latin Carolus, the colony was originally named ‘Carolana,’ with the spelling eventually changed to ‘Carolina.’” Province of South Carolina, Acad. Dictionaries and Encyclopedias, https://en-academic.com/dic.nsf/enwiki/271975 (last visited June 2, 2022). 14 The Isle of Palms was originally named Hunting Island and then Long Island; believed to be at least 25,000 years old, it was first inhabited by the Seewee Indians. The Best South Carolina Beaches for Avoiding Crowds, Livability ( July 20, 2021), https://livability.com/ sc/experiences-adventures/the-best-south-carolina-beaches-foravoiding-crowds/. 15 Charles Towne Landing State Historic Site. Today, this area is a state park that sits on a marshy point off the Ashley River. It marks the spot where the English settlers landed in 1670 and found a colony for England. David Baker, Charles Towne Landing State Historic Site, S.C. State Parks, https://southcarolinaparks.com/charles-townelanding (last visited June 2, 2022). 16 John Locke (1632-1704) was a notable English physician and philosopher. Hailed by many as the “Father of Liberalism,” he
wrote, among many other works, “Letters Concerning Toleration” (1689-1692). 17 The Charter expressed tolerance for most religions, except Catholicism. Lord Cooper and his English royal friends were, shall we say, not on the best terms with the Roman Catholic Church. 18 Among the immortal Bard’s most celebrated lines, and taken from William Shakespeare’s Henry VI, Part 2, Act IV, Scene 2, is the sage advice of Dick the Butcher to improve the country: “The first thing we do, let’s kill all the lawyers.” Written in 1591, those theatrical lines would have been well known to both Ashley Cooper and Locke. 19 Chief Justice Nicholas Trott made a record of such proceedings from 1682-1712. Later on, a collection of colonial and state law was compiled by Judge John Grimké covering the time before Justice Trott to the formation of the United States in 1790. See M. Eugene Sirmans, Colonial South Carolina: A Political History 1663-1763, 3-15 (1966). 20 Other tropical hurricanes struck the city in 1728, 1752, and 1804, respectively. 21 South Carolina’s oldest public building formerly saw service as a gunpowder storage place. Built in 1713, the building had 3-foot thick walls and a remarkable design that would cause any explosion to shooting upward, sparing the town’s buildings and town folk. 22 This is the last standing piece of the city’s original military fortifications. 23 In South Carolina today, the omnipresent pineapple symbol is viewed as a mark of hospitality. 24 At the request of Carolina planters, the lieutenant governor of Virginia dispatched a British naval force that succeeded in killing Blackbeard. The infamous pirate’s body was decapitated and his head affixed to the end of the bowsprit of his ship, Queen Anne’s Revenge. 25 You can find this today, a 5.7-acre, monument-strewn park, located at the tip of the peninsula. 26 Invented in 1793, the cotton engine (or “gin”) was patented in 1794. 27 Located at 360 Meeting St., the museum was started as a storehouse for natural and local history collections. 28 The first theater in America, the Dock Street Theatre, was built in 1736 on the corner of Church and Dock Streets. It burned down in 1740. 29 Routinely regarded as “America’s First Museum,” this special place was established around the time of the American Revolution. Its exhibits highlight Native Americans and slaves of the area. 30 Judge Robert Pringle Jr., Find a Grave, http://www.findagrave.com/ memorial/163574686/robert-pringle (last visited May 31, 2022). 31 Through Judge Pringle’s extensive writings, we are treated to a birds-eye view of life in colonial South Carolina. See Walter B. Edgar, The Letter Book of Robert Pringle (1972). 32 John Julius Pringle Sr., Find A Grave, http://www.findagrave.com/ memorial/26344223/john-julius-pringle (last visited May 31, 2022). 33 “To prepare for a legal career by working in a lawyer’s office as a clerk while studying legal texts on one’s own time. Most American lawyers in the 18th and 19th centuries obtained their legal educations solely by reading law. Today, few American states allow applicants to take the bar exam without attending law school.” Reading Law, Black’s Law Dictionary 1516 (11th ed. 2019). 34 See discussion supra. 35 Founded in 1738, Drayton Hall is the oldest plantation house in the country. 36 Fort Moultrie stands on Sullivan’s Island. This historic military site (in use from 1776-1947), boasts a wealth of artifacts and great views of Charleston Harbor and Fort Sumter.
The British bombardment had little effect on Fort Sullivan because its walls were fortified with Carolina palmetto logs that absorbed the force from the cannonballs. The sabal palmetto later was named the state tree, and the Moultrie battle flag’s palmetto design is depicted on the state flag. 38 Completed in 1771, the Old Exchange Building has seen action, over the course of 250 years, as a commercial exchange, custom house, post office, city hall, military headquarters, courthouse, and museum. The cellar is referred to as the Provost Dungeon. 39 The colonel was almost killed there. The Continental Congress would later promote Kosciuszko to brigadier general for his war-time service. 40 In 1935, composer George Gershwin penned the famous folktaleturned-opera Porgy and Bess, which relates the tale of a crippled street-beggar from the slums of Charleston. 41 Washington lodged at the Daniel Heyward House, built between 1770 and 1772 (the date is known because of a coin dated 1772 found inside a window frame, as was then the custom). 42 Barrett v. United States, 169 U.S. 218 (1898). 43 Current judges of the District of South Carolina (and their seats of court)—Chief Judge: Hon. R. Bryan Harwell (Florence); Judges: Hon. David C. Norton (Charleston), Hon. Richard M. Gergel (Charleston), Hon. J. Michelle Childs (Columbia), Hon. Timothy M. Cain (Anderson), Hon. Mary Geiger Lewis (Columbia), Hon. Bruce H. Hendricks (Charleston), Hon. Donald C. Coggins Jr. (Spartanburg), Hon. Sherri A. Lydon (Florence), Joseph F. Anderson Jr. (Columbia), Hon. Henry M. Herlong Jr. (Greenville), Hon. Cameron McGowan Currie (Columbia), Hon. Margaret B. Seymour (Columbia), and Hon. Terry L. Wooten (Columbia). District Judges, U.S. Dist. Ct., Dist. of S.C. http://www.scd. uscourts.gov/Judges/distjudge.asp (last visited June 2, 2022). 44 The District Court’s travels, as recounted and summarized in this paragraph, are well-articulated by District of South Carolina Judge Richard Mark Gergel’s article. Hon. Richard Mark Gergel, The Establishment and Early History of the District Court of South Carolina, S.C. Law. 32-39 ( July 2015). 45 Inasmuch as there were no separate circuit judges at that time, U.S. Supreme Court Justices like John Rutledge would “ride circuit,” sometimes sitting on a panel with a district judge. 46 Biographical Directory of Article III Judges, 1789-present: Drayton, William, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/ drayton-william (last visited June 2, 2022). 47 Judicial Salaries: U.S. District Court Judges by State, 1789-1891, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/judicial-salariesu.s.-district-court-judges-state-1789-1891 (last visited June 2, 2022) (hereinafter “Judicial Salaries”). 48 CPI Inflation Calculator: $1,800 in 1790 Worth Today, Officialdata.org, https://www.officialdata.org/us/ inflation/1790?amount=1800 (last visited June 21, 2022). 49 The Honorable Society of the Middle Temple is one of the four Inns of Court, the others being Inner Temple, Gray’s Inn, and Lincoln’s Inn. To be admitted to the bar, and practice as a barrister (trial/court lawyer), in England and Wales, one must be a member of one of the Inns of Court. 50 General Minutes of the U.S. District Court, District of South Carolina (Dec. 14, 1789) (on file with the National Archives at Atlanta) (a copy on file with the author courtesy of Christy F. Allen and Brian Duffy). 37
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Id. Id. 53 Id. 54 Colonel William had a number of children and grandchildren; in a not uncommon scenario, some ended up on different sides of the Civil War. 55 Biographical Directory of Article III Judges, 1789-present: Bee, Thomas, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/beethomas (last visited June 2, 2022). 56 “As the oldest university in the English-speaking world, Oxford is a unique and historic institution. There is no clear date of foundation, but teaching existed at Oxford in some form in 1096 and developed rapidly from 1167, when Henry II banned English students from attending the University of Paris.” University of Oxford History, U. of Oxford, http://www.ox.ac.uk/about/organisation/history?wssl=1 (last visited May 31, 2022). 57 Amazing Facts About the USS Constitution, Past Factory, http://www.pastfactory.com/history/amazing-facts-about-theuss-constitution/2/?session_token=1de64e78-32a3-444d-9457ba3237eccd23&bucket_id=211-000001&edge=1 (last visited May 31, 2022). 58 Biographical Directory of Article III Judges, 1789-present: Drayton, John, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/draytonjohn (last visited June 2, 2022). 59 Aside from his largely unsuccessful attack on Charleston, and his rear guard’s victory at the Battle of Stono Creek, in 1779, Major General Prévost unflatteringly is remembered for his army’s indiscriminate looting and related acts which antagonized the local populace. 60 In 1865, the house was licked by flames, yet survived the Civil War and the ire of Union soldiers. Apparently, a member of the family, Doctor John Drayton, placed yellow flags around the perimeter of the abode, thus signifying that the house was being used for the treatment of smallpox. 61 The Honorable Society of the Inner Temple, commonly known as the Inner Temple. 62 Biographical Directory of Article III Judges, 1789-present: Lee, Thomas, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/leethomas (last visited June 2, 2022). 63 James Monroe (1758-1831) served as the fifth president of the United States. 64 See Judicial Salaries, supra note 47. 65 CPI Inflation Calculator: $2,500 in 1830 Worth Today, Officialdata.org, http://www.officialdata.org/us/ inflation/1830?amount=2500 (last visited June 21, 2022). 66 Biographical Directory of Article III Judges, 1789-present: Gilchrist, Robert Budd, Fed. Jud. Ctr., http://www.fjc.gov/history/judges/ gilchrist-robert-budd (last visited June 2, 2022). 67 Martin Van Buren (1782-1862) was the eighth president of the United States (1837-1841). 68 Biographical Directory of Article III Judges, 1789-present: Magrath, Andrew Gordon, Fed. Jud. Ctr., http://www.fjc.gov/history/ judges/magrath-andrew-gordon (last visited June 2, 2022). 69 Petigru (1789-1863) was a lawyer/statesman in South Carolina; he rose to become the state attorney general. Also instrumental in the legislature, he was opposed to state secession in 1860. 70 Franklin Pierce (1804-1869) was the 14th president of the United States. 51 52
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In marked contrast, in June 1860, the federal court in Boston condemned the Wanderer as a slave-trading ship. 72 Lincoln won the presidency with just 39.8 percent of the popular vote (with little support from the southern states); he won the electoral college with 180 votes. 73 Andrew Gordon Magrath, Pipiwiki, (citing The Daily Dispatch, November 10, 1860), http://www.pipiwiki.com/wiki/Andrew_ Gordon_Magrath (last visited May 21, 2022). 74 Judge Humphreys sat in Knoxville; he fled to Alabama where he was captured in December 1864 and made a prisoner of war. Having been impeached and convicted, he could never again hold federal office, but he practiced law in Nashville after the war, from 1866 until his death in 1880. 75 Dwight Hughes, The Old Stone Fleet: A Failure and Complete, Emerging Civ. War (Dec. 7, 2016), https://emergingcivilwar. com/2016/12/07/the-stone-fleet-a-failure-and-complete/. 76 Bruce Sterling, Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union, Wired (Dec. 7, 2019), http://www.wired.com/beyond-thebeyond/2019/12/declaration-immediate-causes-induce-justifysecession-south-carolina-federal-union/. 77 George C. Rogers Jr. et al., A South Carolina Chronology, 1497-1992 (1994). 78 The Stone Fleet consisted of a flotilla of old vessels (mostly whaling ships) loaded up with stone. The Union Navy deliberately scuttled the boats at the mouth of Charleston Harbor for the purpose of obstructing blockade runners and other Confederate supply-chains. 79 Many area homes are painted with a shade of dark green known as “Charleston Green.” In the aftermath of the Civil War, the federal government dispatched buckets of black paint for home repair. Incensed, and fuming at the notion of using “Yankee Black,” the local residents mixed the black paint with a bit of southern “Rebel Yellow,” and, voila, a unique green hue. 80 Magnolia Cemetery Trust, 70 Cunnington Avenue, Charleston, SC 29405. Magnolia Cemetery, Find a Grave, https://www.findagrave. com/cemetery/70585/magnolia-cemetery (last visited May 21, 2022). 81 Biographical Directory of Article III Judges, 1789-present: Bryan, George Seabrook, Fed. Jud. Ctr., http://www.fjc.gov/history/ judges/bryan-george-seabrook (last visited June 2, 2022). 82 Andrew Johnson (1808-1875) served as the 17th president of the United States (1865-1869). He assumed the presidency following the assassination of Abraham Lincoln; the only southern senator to remain loyal to the Union, in 1868, he became the first president to be impeached. (He was not convicted and served out his term, but he did not run for re-election). 83 In 1891, rather than have different amounts of compensation for the district judges in the various states, Congress made all district judges’ salaries set at a uniform amount of $5,000 per annum. See Judicial Salaries, supra note 47. 84 CPI Inflation Calculator: $3,500 in 1867 Worth Today, Officialdata.org, http://www.officialdata.org/us/ inflation/1867?amount=3500 (last visited June 21, 2022). 85 Today, South Carolina is the 23rd largest state, with over 5 million inhabitants. 86 Established in 1712, the court had the same powers as its English counterpart and generally followed English judicial practice. 87 Judge John Faucheraud Grimké (1752-1819) was a strong pro71
slavery advocate and believer in the subordination of women. Grimké had 14 children born of wedlock; he also had several more children with slaves. He was a judge of the Superior Court of South Carolina and is perhaps best known for his compilation of the Public Laws of the State of South Carolina. 88 On Nov. 19, 1794, representatives of the American government and Great Britain inked Jay’s Treaty, which settled certain outstanding issues unresolved since the birth of America. While unpopular with the American public, it did maintain peaceful relations and preserve U.S. neutrality. 89 Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): Recess appointments and the Court, SCOTUS Blog (Feb. 15, 2013), https://www.scotusblog.com/2013/02/scotus-forlaw-students-sponsored-by-bloomberg-law-recess-appointmentsand-the-court/. 90 Rutledge holds the record for shortest tenure of a chief justice. In addition, he holds the dubious distinction of being the first Supreme Court nominee to be rejected by the Senate, and he also remains the only “recess appointed” justice not to be subsequently confirmed by the Senate.
United States v. Peters, 3 U.S. (Dal.) 121 (1795). Talbot v. Jansen, 3 U.S. (Dal.) 133 (1795). 93 Pierre Gustave Toutant Bearegard (1818-1893) (a/k/a “The Little Creole”; “Little Napoleon”; and “The Hero of Fort Sumter”). Pierre Gustave Toutant Bearegard, Masters Champs, https://gh.masterschamps.org/15566-pierre-gustave-toutantbeauregard-1818-1893.html (last visited May 31, 2022). 94 Of Charleston’s many fine house museums, only the EdmondstonAlston House commands a magnificent view of Charleston Harbor. 95 Adam Carruthers and J.C. Robertson, Virgil Aeneid, Book II, line 799 (W.A. Gage 1918). 96 South Carolina’s other motto, Dum Spiro Spero (“While I Breathe, I Hope”), was the motto of the Irish Viscounts Dillion. This refers to the figure of Hope (Spes) on the state seal. Additionally, there are two other Latin mottos on the seal: “Quis separabit?” (Who will separate us?) and “Meliorem Lapsa Locavit” (Having fallen, she has planted a better one). Designed in 1776, while John Rutledge was president of the Provincial Congress of South Carolina, it was first used by Rutledge in 1777. 91 92
Contact the Federal Bar Association to claim your missing issue of The Federal Lawyer or order additional copies at (571) 481-9100 or social@fedbar.org. July/August 2022 • THE FEDERAL LAWYER • 57
58 • THE FEDERAL LAWYER • July/August 2022
Disability and Access to the Courts Three Decades Into the ADA: A Retrospective Review of Legal and Judiciary Policy Underpinnings MAMADI K. CORRA, PH.D.
T
he federal judiciary has been at the forefront of the quest for securing basic rights for people with disabilities1. From cases dealing with “freedom from involuntary servitude”2 to those that involved rights to “education,”3 treatment and “least restrictive environment,”4 “habilitation,”5 and “most integrated setting,”6 federal court decisions have had an important impact on the evolution of disability rights.7 Yet, until very recently, the right to access to courts themselves has not been clearly adjudicated. It was only in 2004, more than a decade after passage of the ADA, that the U.S. Supreme Court affirmed the constitutionality of Title II of the ADA “as it applies to the class of cases implicating the fundamental right of access to the courts.”8 In his majority opinion in Tennessee v. Lane, Justice John Paul Stevens wrote that Title II “seeks to enforce a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review.”9 The opinion noted that these other guarantees included the right of access to courts protected by the due process clause of the Fourteenth Amendment.10 Three decades after passage of the ADA, this article takes a retrospective review of the statutory and judiciary policy underpinning access to courts for individuals with disabilities.11 In doing so, it analyzes the scope of statutory mandates for access to courts. And since, unlike state and local courts, the federal judiciary relies on judicial policy adopted by the Judicial Conference of the United States, the review also examines the scope of judiciary policy guides on disability and court access. Accordingly, the goals of this article are three-fold. First, it seeks to identify key legal and policy provisions guaranteeing access to courts for individuals with disabilities. Second, it seeks to explore some limitations of such legal and policy provisions. And third, it examines some possible implications of such limitations.
The second part of the article begins with an examination of federal statutory and regulatory protections of access to courts,12 focusing on Title II of the ADA13 and Section 504 of the Rehabilitation Act.14 That discussion is extended in the third part to judiciary policy on access and disability. As part of this discussion, the statutory foundations of federal judiciary policymaking are outlined, albeit briefly. The article concludes with practical implications on court access for individuals with disabilities.
Statutory Provisions for Access to Courts Two main federal antidiscrimination statutes provide a legal foundation for access to courts by individuals with disabilities. Section 504 provided the earliest legal basis for access via its nondiscrimination July/August 2022 • THE FEDERAL LAWYER • 59
mandate for programs and activities that receive federal funds.15 While using Section 504 as a foundation, the ADA16 widened its scope.
Section 504 Since 1973, Section 504 has provided statutory protections for individuals with disabilities in a wide range of domains, including access to courts. Its antidiscrimination mandate declared that [n]o otherwise qualified individual with a disability in the United States … shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.17 A key controlling phrase here is “any program or activity receiving federal financial assistance.” That is to say, the antidiscrimination mandate is limited to programs receiving such financial assistance. The statutory definition of “program or activity” is set to “operations of a department, agency, special purpose district, or other instrumentality of a state or of a local government”;18 “a college, university, or other postsecondary institution, or a public system of higher education”;19 “a local educational agency … system of career and technical education, or other school system”;20 “a corporation, partnership, or other private organization, or an entire sole proprietorship”;21 an entity “which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation”;22 or any combination of these.23 The Civil Rights Restoration Act of 198724 amended various civil rights statutes, including Section 504, by defining the term “program or activity” to mean “all of the operations of ... a department, agency ... or other instrumentality of a State or of a local government.”25
ADA Using Section 504 of the Rehabilitation Act as a foundation, the ADA sought to broaden the antidiscrimination mandate. Its five major sections extended the antidiscrimination mandate to the areas of “employment,”26 “Public Services,”27 “Public Accommodations and Services Operated by Private Entities,”28 “Telecommunications Services for Hearing-Impaired and Speech-Impaired Individuals,”29 and several “Miscellaneous Provisions.”30 As entities providing “public service,” courts generally fall within the purview of Title II of the ADA. Title II of the ADA extends the scope of Section 504 provisions to include government entities that do not receive federal financial assistance. Its antidiscrimination mandate provides that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.31 A “qualified individual with a disability” is defined as an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or 60 • THE FEDERAL LAWYER • July/August 2022
the provision of auxiliary aids and services32 meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.33 Here, the definition of a “public entity” delimits the statute’s scope to state and local entities. “Public entities” include “(A) any state or local government; (B) any department, agency, special purpose district, or other instrumentality of a state or states or local government.”34
Scope of Applicability of Section 504 and the ADA to Courts By definition, state and local courts are “instrumentalities”35 of state and local governments. Accordingly, state and local courts receiving federal funding fall within the purview of Section 504. By federal regulations implementing Section 504, all such programs and activities are required to “evaluate and modify [their] policies and practices that do not meet the [nondiscrimination] requirements.”36 Moreover, as “instrumentalities” of state and local governments, Title II of the ADA applies to state and local courts. And, importantly, the applicability of Title II of the ADA is not contingent upon receipt of federal funds. Unlike Section 504, Title II of the ADA applies to state and local courts, whether or not they receive federal funds. That is, all the operations of such courts are subject to Title II. Such courts are required to ensure that there are effective “methods for making aurally delivered materials available to individuals with hearing impairments ... methods making visually delivered materials available to individuals with visual impairments ... and ... other similar services and actions.”37 By contrast, federal courts are not instrumentalities of state orlocal governments and are thus not subject to Section 504 or Title II of the ADA.
Statutory Provisions With Applicability to Federal Courts Though accessibility laws such as the ADA and Section 504 do not apply to the federal judiciary, there are some statutory provisions for access to federal courts. The Court Interpreters Act38 of 1978 is one such provision. This act governs access to federal courts for deaf, hard-of-hearing, and speech-impaired individuals.39 The Court Interpreters Act instructs the director of the Administrative Office of the United States Courts (AO)40 to “establish a program to facilitate the use of certified and otherwise qualified interpreters in judicial proceedings instituted by the United States.”41 And to “prescribe, determine, and certify the qualifications of individuals who may serve as certified interpreters … for the hearing impaired (whether or not also speech impaired) ….”42 It also authorizes appropriation of funds to these and other specified ends. “Judicial proceedings instituted by the United States” are defined as all proceedings, whether criminal or civil, including pretrial and grand jury proceedings (as well as proceedings upon a petition for a writ of habeas corpus initiated in the name of the United States by a relator) conducted in, or pursuant to the lawful authority and jurisdiction of a United States district court.43 The Court Interpreters Act of 1978 is therefore limited to “Judicial proceedings instituted by the United States.”44 That is, criminal, civil, pre-trial, and grand jury proceedings initiated by the United States.45 By subsequent policy of the AO, this was extended to all proceedings held under the jurisdiction of such courts.46 The Court Interpreters Act is also limited to proceedings held
under the jurisdiction of a “United States district court.” That is to say, “any court which is created by an Act of Congress in a territory and is invested with any jurisdiction of a district court established by [Congress]”.47 Moreover, a “court” is defined as “any court of any State, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Northern Mariana Islands, or the Virgin Islands, and any Indian tribal court or courts of Indian offense.”48 It follows that the definition of courts here delimits the scope of the Court Interpreters Act to proceedings held in U.S. district courts. This effectively means criminal and bankruptcy court proceedings (as well as cases in which the U.S. is a plaintiff ) held in the 94 U.S. district and bankruptcy courts. It excludes proceedings held in all of the U.S. appellate courts—the 13 U.S. circuit courts and the U.S. Supreme Court. It also excludes proceedings held in the U.S. specialty courts—the U.S. Court of Federal Claims and the U.S. Court of International Trade. Finally, this statute is considered to be specific to “communication disabilities.”49 A second relevant statute is the Architectural Barriers Act of 1968.50 This statute mandates removal of architectural and communication barriers in buildings and facilities—including all state, local, and federal court facilities—that are constructed or altered with federal funds. A key limitation of this statute is that it is restricted to buildings constructed after the enactment of the law. Because many courts in the United States are built prior to 1968, such court buildings are exempted from this law. Only alterations to facilities of such courts are subject to the statute. Finally, the Federal Courts Improvement Act of 200051 gives the judiciary the authority to use appropriated funds to hire personal assistants for judges and judicial employees with disabilities. Under this legislation, which amends 5 U.S.C. § 3102, the head of each agency in the judicial branch may provide for personal assistants that the agency head determines are necessary to enable disabled court personnel (e.g., judge, judicial employee) to perform their official duties. Federal law allows for the appointment of personal assistants for judicial employees with disabilities. This statute, however, initially allowed such an appointment with the appointee mandated to “serve without pay from the agency.”52 The Federal Courts Improvement Act of 2000 provided for the appropriation of funds to this end. Importantly, the definition of “agency” in this statute includes “(A) an Executive agency; (B) the Library of Congress; and (C) an office, agency, or other establishment in the judicial branch.”53 A “handicapped employee” is defined as “an individual employed by an agency who is blind or deaf or who otherwise qualifies as a handicapped individual within the meaning of section 501 of the Rehabilitation Act of 1973.”54 Notably, 5 U.S.C. § 3102 (as amended by section 311 of Public Law No. 106-518, the Federal Courts Improvement Act of 2000) specifically applies to the federal courts. And, more importantly, it is not explicitly limited to U.S. district courts. It is applicable to “an office, agency, or other establishment in the judicial branch.”55 Yet, this amendment specifically focuses on employment accommodations. That is, it includes the provision (and, as amended, funding) to accommodate a disabled employee of the federal judiciary to perform his or her work-related duties.
The Federal Judiciary The Judicial Conference of the United States Based on a statute enacted in 1922, 28 U.S.C. § 331 established the Judicial Conference of the United States56 as the national administra-
tive policymaking body of the federal judiciary.57 The general mandates of the Judicial Conference are to “make a comprehensive survey of the condition of business in the courts of the United States and prepare plans for assignment and transfer of judges to or from circuits or districts where necessary,”58 as well as to “submit suggestions and recommendations to the various courts to promote uniformity of management procedures and the expeditious conduct of court business.”59 And 28 U.S.C. §§ 2071-2077, comprising a chapter titled “Rules of Courts,” provide statutory bases for judicial rulemaking. These statutes authorize the Supreme Court and “all courts established by Act of Congress” to “from time to time prescribe rules for the conduct of their business.”60 Moreover, the Judicial Conference is authorized to “review rules prescribed … for consistency with Federal law.”61 And it “may modify or abrogate any such rule so reviewed found inconsistent in the course of such a review.”62
Federal Judiciary Policy on Disability and Access The Judicial Conference is on record for supporting equal employment and access.63 As an example, the Sept. 19, 1995, “Report of the Proceedings of the Judicial Conference of the United States” notes that The judiciary has long been on record as supporting full access to judicial proceedings by all segments of the disabled community …. In an effort to improve access by individuals who are deaf or hearing-impaired and individuals with other communications disabilities, the Judicial Conference, modifying a recommendation of the Court Administration and Case Management Committee, adopted a policy that all federal courts should provide reasonable accommodations to individuals with communications disabilities. The Conference further agreed to require courts to provide, at judiciary expense, sign language interpreters or other appropriate auxiliary aids to deaf and hearing-impaired participants in federal court proceedings in accordance with guidelines prepared by the Administrative Office.64 The report further notes, however, that “[t]his requirement does not apply to spectators, nor does it apply to jurors, whose qualifications for service are determined under other provisions of law.”65 Importantly, it may be recalled that the Court Interpreters Act (28 U.S.C. §§ 1827 and 1828) was initially limited to “Judicial proceedings instituted by the United States.”66 The September 1994 report of the Judicial Conference reported that The Judicial Conference approved a Committee recommendation that it seek an amendment to the Court Interpreters Act, 28 U.S.C. § 1827, to remove the prohibition on the use of appropriated funds to provide sign language interpreters to hearing-impaired parties and witnesses in proceedings not initiated by the United States. Such an amendment would provide judicial officers the discretion to decide what services to provide to hearing-impaired parties and witnesses, subject to the availability of funds.67 This authority is now set forth expressly in 28 U.S.C. § 1827(l), which reads Notwithstanding any other provision of this section or section 1828, the presiding judicial officer may appoint a certified or July/August 2022 • THE FEDERAL LAWYER • 61
otherwise qualified sign language interpreter to provide services to a party, witness, or other participant in a judicial proceeding, whether or not the proceeding is instituted by the United States, if the presiding judicial officer determines, on such officer’s own motion or on the motion of a party or other participant in the proceeding, that such individual suffers from a hearing impairment. The presiding judicial officer shall, subject to the availability of appropriated funds, approve the compensation and expenses payable to sign language interpreters appointed under this section in accordance with the schedule of fees prescribed by the Director under subsection (b)(3) of this section. With respect to employment, the March 1998 report of the Judicial Conference notes that In keeping with its commitment to the principles of the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990, the judiciary has sought to provide reasonable accommodations for its judicial officers and employees with disabilities, including providing equipment and devices that will allow members of the court family to perform job tasks, as well as funds to provide personal assistants for those involved in training, when necessary.68 That report further notes, however, that “the judiciary lacks explicit authority to use appropriated funds to hire personal assistants for judicial officers and employees with disabilities (e.g., readers for the blind and interpreters for the deaf ) to assist in day-to-day work.”69 As a consequence, [t]he Judicial Conference approved a Judicial Resources Committee recommendation that it seek legislation to include the judiciary in 5 U.S.C. § 3102 so as to give the judiciary explicit authority, comparable to the executive branch, to hire personal assistants for employees with disabilities.”70 Such explicit authority is now part of 5 U.S.C. § 3102.71 Upon enactment of the Federal Courts Improvement Act of 2000, the March 2001 Report of the Proceedings of the Judicial Conference of the United States conveys that on recommendation of the Committee on Judicial Resources, the Judicial Conference took the following actions to implement this new law with respect to judicial officers and court employees: (a) Approved creation of a personal assistant position under the Judiciary Salary Plan and the Court Personnel System to provide appropriate work assistance, as needed, to judges and judiciary employees with disabilities; (b) Endorsed the Administrative Office’s use of classification flexibility currently existing under the Judiciary Salary Plan to classify personal assistant positions appropriately; (c) Designated each chief judge, or the chief judge’s designee, as the “agency head” for judges and chambers staff, and each court unit executive as the “agency head” for employees of 62 • THE FEDERAL LAWYER • July/August 2022
that unit, for purposes of appointing personal assistants for individuals with disabilities; (d) Authorized use of central funding for personal assistant positions, as necessary, under the Judiciary Salary Plan for support of eligible judges and chambers staff; (e) Authorized provision of an allotment to a court after receipt of a request for a personal assistant position under the Court Personnel System and an Administrative Office determination that AO guidelines were met; and (f )Authorized the Administrative Office to develop guidelines for designated agency heads to use in determining when and in what circumstances the creation of a personal assistant position is appropriate.”72 The Guide to Judicial Policy provides the official guidelines of the Judicial Conference of the United States for the administration and operation of the federal judiciary. And rules and policies adopted by the Judicial Conference effectively have the force of positive law and are binding on federal courts and court personnel. Importantly, the most specific policy statements of the conference on disability and the federal judiciary are delimited to the two areas of “communication disabilities” and employment. Thus, following 28 U.S.C. § 1827, the Guide to Judiciary Policy, Vol. 5, Ch. 2, § 255, “Services to the Hearing Impaired and Others with Communication Disabilities,” provides, in part: (a) Under Judicial Conference policy, a court must provide sign language interpreters or other auxiliary aids and services to participants in federal court proceedings who are deaf, hearing impaired or have communication disabilities, and may provide these services to spectators when the court deems appropriate ( JCUS-SEP 95, p. 75). This policy provides for services in addition to those required by the Court Interpreters Act (28 U.S.C. § 1827). (b) The court should honor a participant’s choice of auxiliary aid or service, unless it can show that another equally effective means of communication is available, or that use of the means chosen would result in a fundamental change in the nature of the court proceeding or an undue financial or administrative burden. Similarly, following 5 U.S.C. § 3102, the Guide to Judiciary Policy, Vol. 12, Ch. 2, § 260, “Personal Assistants for Individuals with a Disability,” provides, in part:73 The Judicial Conference has adopted policy to implement reasonable accommodation for its judicial officers and employees with a disability, including, where appropriate, personal assistants, such as a reader to accommodate the needs of a blind individual or an interpreter for a person who is hearing impaired and uses sign language. JCUS-MAR 98, p. 23; JCUS-MAR 01, pp. 18-19, 25-26. This authority is now set forth expressly in 5 U.S.C. § 3102.
It follows that a key limitation is that the Conference’s specific policy statements on disability and accommodation are in the two areas of “communication disabilities” and employment. The specific scope of applicability of the former is in the area of accommodations to individuals with hearing and/or speech impairment. Whereas that of the latter is in the area of employment accommodations.
Conclusion Two implications from this review of federal law and policy on disability access are directly apparent. First, state and local courts are mandated by law to provide access to individuals with disabilities. By contrast, a more limited number of statutes directly applies to federal courts. Instead, federal courts are guided by internal judiciary policy. And, a review of these policies revealed that they are limited to two specific areas (i.e., communication disabilities and accommodations in employment settings). Mamadi K. Corra is professor of sociology at East Carolina University (ECU), where he serves as graduate program director and chair of the Graduate Studies Committee for the sociology master’s program. Corra is also affiliate faculty with the ECU African and African American Studies Program; an associate editor of Immigration and Society, a specialty section of Frontiers in Sociology; and co-guest editor of the 2021 special issue “The Status of Black Sociologists in the 21st Century,” published in the Journal of Economics, Race, and Policy. Corra was the 2018-2019 American Association for the Advancement of Science Judicial Branch Science and Technology Policy Fellow in Residence at the Federal Judicial Center in Washington, D.C. ©2022 Mamadi K. Corra. All rights reserved.
Endnotes See Breita Linnell & Colleen Wieck, Access to Justice: The Impact of Federal Courts on Disability Rights, Fed. Law., Dec. 2012, at 48. 2 Linnell & Wieck, supra note 1, cite at least ten federal lawsuits filed in the late 1960s and early 1970s against states that forced people with developmental disabilities to work while they were confined to a state institution. Key decisions providing injunctive relief include Souder v. Brennan, 367 F. Supp. 808 (D.D.C. 1973) and Jortberg v. Maine Dep’t of Mental Health, Civil No. 13-113 (D. Me. June 18, 1974), consent decree. 3 Linnell & Wieck, supra note 1, cite two early court cases as foundational: Pa. Ass’n for Retarded Children et al. v. Commonwealth of Pa., 334 F. Supp. 279 (E.D. Pa. 1972) and Mills v. Bd. of Educ., 348 F. Supp. 866 (D.D.C 1972). In these two cases, the courts interpreted the Fourteenth Amendment’s due process clause to provide parents specific rights that included prior notice, the right to discuss changes in children’s education plan prior to being implemented, and the right to appeal decisions made by school districts. 4 See Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), 334 F. Supp. 1341 (M.D. Ala. 1971), 344 F. Supp. 373 (M.D. Ala. 1972), aff ’d, 503 F.2d 1305 (5th Cir. 1974); Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974); New York State Ass’n for Retarded Children v. Rockefeller, 357 F. Supp. 752 (E.D.N.Y. 1973). 5 See Halderman v. Pennhurst, 446 F. Supp. 1295 (E.D. Pa. 1977), aff ’d, 612 F.2d 84 (3d Cir. 1979), rev’d, 451 U.S. 1 (1981). 6 See Olmstead v. L.C., 527 U.S. 581 (1999). 7 Linnell & Wiech, supra note 1. 8 Tennessee v. Lane, 541 U.S. 509, 531 (2004). 9 Id. at 522. 1
Id. at 532-34. As the foregoing discussion suggests, in the context of courts, the word “access” can have a variety of meanings, including that of the general public’s access to court facilities and material. Moreover, for individuals with disabilities, it “involves more than hiring a lawyer, filing a complaint, or proceeding through the numerous stages of the litigation process … [it] means finding an accessible parking place, getting up the steps, opening courthouse doors, finding the courtroom, sitting at counsel tables, entering the jury box, sitting on the bench, and communicating effectively with judges, lawyers, courtroom personnel, and the jury.” Marc Charmatz & Antionette McRae, Access to the Courts: A Blueprint for Successful Litigation Under the Americans With Disabilities Act and the Rehabilitation Act, 3 Md. L.J. Race, Religion, Gender & Class 333 (2003). The current article, however, focuses on legal and policy issues related with disability and access to courts. 12 The issue of court access potentially has meaning to a large part of the population with a disability. A 2012 report released by the U.S. Census Bureau to coincide with the 22nd anniversary of the ADA indicated that nearly one in five people (about 56.7 million people or 19 percent of the population) in the United States had a disability in 2010. This number included 8.1 million who had difficulty seeing, including 2.0 million who were blind or unable to see; 7.6 million who experienced difficulty hearing, including 1.1 million whose difficulty was severe and 5.6 million who used a hearing aid; and 30.6 million who reported difficulty walking or climbing stairs, or used a wheelchair, cane, crutches, or walker. Notably, people in the oldest age group—80 and older—were about eight times more likely to have a disability as those in the youngest group—younger than 15 (71 percent compared with eight percent). The probability of having a severe disability is only one in 20 for those 15 to 24 while it is one in four for those 65 to 69. This suggests that the proportion of the population with a disability will continue to grow, as the babyboom generation continues to age. In fact, the 2012 census report noted that the total number of people with a disability increased by 2.2 million from 2005, when a similar report was released. Worldwide, well over 500 million have a disability, according to estimates. See generally Gary L. Albrecht & Lois M. Verbrugge, The Global Emergence of Disability, in Handbook of Social Studies in Health and Medicine 293–307 (2000); Matthew W. Brault, U.S. Census Bureau, Americans With Disabilities: 2010 ( July 2012), https://www.census.gov/data/tables/2010/demo/disability/ p70-131.html; Robert L. Metts, The World Bank, Disability Issues, Trends, and Recommendations for the World Bank (February 2000), http://www.census.gov/prod/2008pubs/p70-117. pdf; Brian Wentz, et al., First Monday, Retrofitting Accessibility (Oct. 19, 2011), https://journals.uic.edu/ojs/index.php/fm/article/ view/3666/3077. 13 42 U.S.C. §§ 12101-12213. 14 29 U.S.C. § 794. 15 29 U.S.C. § 794(a) 16 Pub. L. 101-336, 104 Stat. 327 (1990). 17 29 U.S.C. § 794(a). 18 29 U.S.C. § 794(b)(1)(A). 19 29 U.S.C. § 794(b)(2)(A). 20 29 U.S.C. § 794(b)(2)(B). 21 29 U.S.C. § 794(b)(3)(A). 22 29 U.S.C. § 794(b)(3)(A)(ii). 10 11
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29 U.S.C. § 794 (b)(4). Pub. L. 100-259, 102 Stat. 28 (1988). 25 29 U.S.C. § 794(b)(1)(a). 26 Title I, 42 U.S.C. §§ 12111-12117. 27 Title II, 42 U.S.C. §§ 12131-12165. 28 Title III, 42 U.S.C. §§ 12181-12189. 29 Title IV, 47 U.S.C. § 225. 30 Title V, 42 U.S.C. §§ 12201-12213. 31 42 U.S.C. § 12132. 32 “Auxiliary aids and services” include “qualified interpreters ... qualified readers, taped texts ... acquisition or modification of equipment or devices; and ... other similar services and actions.” 42 U.S.C. § 12102(1). 33 42 U.S.C. § 12131(2). A similar definition is found in the ADA regulation. See 28 C.F.R. § 35.104. 34 Pub. L. 101-336, Title II, § 201, July 26, 1990, 104 Stat. 337. 35 29 U.S.C. § 794(b)(1)(A). 36 28 C.F.R. § 42.505; see generally 28 C.F.R. §§ 42.501–540. 37 42 U.S.C. § 12102(1). 38 Pub. L. 95-539, 92 Stat. 2040 (1978), classified principally to 28 U.S.C. §§ 1827-1828. 39 28 U.S.C. § 1827(b)(1). 40 The Administrative Office of the U.S. Courts (AO) is the administrative wing of the Federal Judiciary and is overseen by the Judicial Conference of the United States. By statute, the AO is supervised by a director and a deputy director appointed and subject to removal by the chief justice of the United States. See 28 U.S.C. § 601. 41 28 U.S.C. § 1827(a). 42 Id. at § 1827(b)(1). 43 Id. at § 1827(a). 44 Other issues may be noted here. For example, issues outside of the courtroom, including mediation/settlement situations; programs mandated by courts, e.g., court-mandated alcohol rehabilitation classes; and issues related with payments, i.e., 28 U.S.C. § 1920(6) (interpreters as a cost to assess to a losing party). 45 8 U.S.C. § 1827(j). 46 See Charmatz & McRae, supra note 11. 47 Id. 48 28 U.S.C. § 1827(j). 49 See Admin. Office of the U.S. Courts, Guide to Judiciary Policy, vol. 5 (Court Interpreting), §§ 255, 370 (2017), https://www.uscourts.gov/sites/default/files/guide_vol05_0.pdf. 50 Pub. L. 90-480, 82 Stat. 718 (1968), classified to 42 U.S.C. §§ 41514157. 51 Pub. L. 106-518, § 311, 114 Stat. 2410, 2421 (2000) 52 Id. at § 311(b)(1). 53 5 U.S.C. § 3102(a)(1)(A)-(C). 54 Id. at § 3102(a)(2). 55 5 U.S.C. § 3102(a)(1). 56 The current composition of the Judicial Conference includes the chief justice as chair, the 13 chief judges of the circuits, 12 district judges elected by the Article III judges of each circuit, and the chief judge of the Court of International Trade. 57 The statute, 28 U.S.C. § 332, is based on an earlier statute that established the Circuit Judicial Council in 1939 as a parallel body at the circuit level. It comprises the chief circuit judge and equal numbers of circuit and district judges. 23 24
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28 U.S.C. § 331. Id. 60 28 U.S.C. § 2071(a). 61 Id. 62 Id. 63 See, e.g., Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 50 (Sept. 20, 1994), https://www.uscourts.gov/ sites/default/files/1994-09_0.pdf (use of appropriated funds for sign language interpreters); id. at 68 (accessibility of courtrooms and related judiciary facilities); Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 58 (Sept. 19-20, 1979), https://www.uscourts.gov/ sites/default/files/1979-09.pdf; Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 75 (Sept. 19, 1995), https:// www.uscourts.gov/sites/default/files/1995-09.pdf (services to persons with communication disabilities); Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 23 (Mar. 10, 1998), https://www.uscourts.gov/sites/default/files/1998-03_0. pdf (personal assistance for individuals with disabilities); Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 18-29 & 25-26 (Mar. 14, 2001), https://www.uscourts.gov/ sites/default/files/2001-03.pdf (reasonable accommodation for employees with disabilities). 64 Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 75 (Sept. 19, 1995), https://www.uscourts.gov/sites/ default/files/1995-09.pdf. 65 Id. 66 See supra note 38 and accompanying text. 67 Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 50 (Sept. 19, 1994), https://www.uscourts.gov/sites/ default/files/1994-09_0.pdf. 68 Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 23 (Sept. 15, 1998), https://www.uscourts.gov/sites/ default/files/1998-09_0.pdf (Personal Assistance for Individuals with Disabilities). 69 Id. 70 Id. 71 See Pub. L. No. 106-518, 114 Stat. 2421. 72 Judicial Conference of the United States, Report of the Proceedings of the Judicial Conference of the United States 25-26 (March 14, 2001), https://www.uscourts.gov/sites/ default/files/2001-03.pdf. 73 Yet § 210.10 of this same policy, “Applicability,” reads, in part: “(a)The policies in this chapter apply to all court units within the judiciary other than the U.S. Supreme Court. (b)The policies in this chapter do not apply to: •The Federal Judicial Center, •The United States Sentencing Commission, •The Judicial Panel for Multidistrict Litigation, or continued on page 70 58 59
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South Carolina Is a Leading Domicile for Companies to Form Their Own Captive Insurer JOE MCDONALD AND JOHN P. (JAY) SEIBELS JR.
S
outh Carolina is home to 182 active captive insurance companies. What is a captive insurer? Generally, it is an insurance company formed, owned, and controlled by its insureds. A captive’s owner places its own capital at risk and then shares in the underwriting profits and losses associated with its corporate and operational risks. It is best understood as an alternative way for a company to finance its risks that are insured by the traditional market, and captives are often described as alternative risk transfer vehicles. A Brief History
Captives are not new. According to the National Association of Insurance Commissioners, captive insurance companies have been in existence for over 100 years. The last 30 years have seen tremendous growth. Some of that growth was fueled by Congress’ enactment of the Federal Liability Risk Retention Act of 1986, 15 U.S.C. § 3901-3906 (LRRA). The LRRA amended and expanded the Product Liability Risk Retention Act of 1981. The LRRA was signed by President Reagan in response to the insurance market crisis of the mid 1980s. At that time, access to commercial liability insurance for a variety of industries and professions was severely restricted. The crisis was best summed up by the March 24, 1986, cover of Time magazine, which announced “Sorry, America, Your Insurance Has Been Canceled.”
The LRRA preempts many of the insurance regulatory requirements of state law. It permits businesses engaged in the same or similar commercial activities that expose them to the same or similar liability risks to band together as a “group.” Healthcare systems are an excellent example. The group may form a corporation and obtain an insurance license from a given state, commonly referred to as its domicile, which becomes its sole regulator. Once licensed, the corporation can assume and spread all or any portion of the liability exposure of its group members via the issuance of insurance policies to its members/owners. Liabilities under these policies may be reinsured via the worldwide reinsurance market. The members may be conducting business in multiple states. The regulators in those states must defer to the regulators of the domiciliary state, which is a deviation from how regulators monitor traditional insurance companies. Importantly, the shares of the corporation are exempt from the registration and reporting requirements of federal and state securities laws. The exemption simplifies formation and capitalization of the entity and eliminates costs that would otherwise arise from securities law compliance. Since 1986, hundreds of captive insurers known as risk retention groups (RRGs) have been formed under the authority of the LRRA. According to statistics compiled by the Risk Retention Reporter, in 2022, South Carolina is second only to Vermont as home to the most RRGs. South Carolina’s position relative to Vermont is noteworthy because Vermont had a 19-year head start in captive insurance regulation. Early on, South Carolina regulators at the Department of Insurance committed to grow the domicile. They committed to become experts in RRG regulation, in particular, and adopted reasonable July/August 2022 • THE FEDERAL LAWYER • 67
statutory interpretations and enforcement practices. Industry practitioners responded by bringing their clients to the state. The business of RRGs is quite diverse. Healthcare risks, including professional, medical, and nursing home liability, make up the largest lines of insurance offered by RRGs nationally when measured by premium. These RRGs are formed by hospital systems, medical practices, and long-term care organizations. There are a number of legal malpractice and other professional negligence liability RRGs operating today, making up the second largest lines of insurance by premium. RRGs are particularly useful to associations because association members are already aligned in many respects, including by business sectors. We are seeing significant growth in commercial transportation RRGs, primarily due to the increasingly hard market for commercial trucking insurance. The RRG structure permitted by Congress is uniquely suited to respond to changing insurance market conditions in a given insurance line like transportation. RRGs choose to domicile in one of only a few states (e.g., South Carolina) that have a committed regulatory framework to monitor solvency and consumer protection. Even so, RRGs write most of their business in other states. Some nondomiciliary states have their own interpretation of the LRRA’s preemption provisions and seek to impose state specific regulatory requirements in the form of registration standards, fees, taxes, and coverage provisions. RRGs are specifically exempt from any state law or rule that would discriminate against a RRG or any of its members, but not from laws that are generally applicable to persons or corporations.1 Nondomiciliary state requirements have been challenged on the basis that they are either preempted or violate the LRRA’s nondiscrimination provisions. In National Risk Retention Ass’n v. Brown, an industry trade group successfully challenged a state law that mandated nondomiciliary RRGs to maintain certain amounts in capital and surplus and to post either funds or a bond with the state’s commissioner of insurance. The court found that to allow a state to require a risk-retention group “chartered in another state to comply with a second state’s financial responsibility requirements before it can do business in the second state would frustrate the goals of the federal Act and would allow the second state to avoid the federal exemption from state regulation carefully set out in § 3902(a)(1).”2 The U.S. Government Accountability Office (GAO) issued a report in 2012 that highlighted conflicting interpretations by various state regulators and among district courts that have resulted in the inability of some RRGs to provide coverage in some states. Among other observations, the GAO stated that differences among the courts “on issues such as permissible coverage types and what constitutes discrimination under LRRA can further contribute to an uncertain regulatory environment for RRGs and state insurance regulators.”3 The GAO recommended that Congress consider the merits of clarifying provisions on registration requirements, fees, and coverage.4 Nevertheless, Congress has not enacted any amendments to the LRRA. RRGs are just one type of captive insurer. While an RRG is permitted to insure only liability risks, other types of captives are not so restricted. Many captives are formed by a single parent company whose goal is to establish a stable alternative to the offerings of traditional insurance coverages that the prospective captive owner has been purchasing for years. The owner will have observed that its insurance costs do not appear to be connected to the owner’s actual loss experience. Any entity of sufficient scale that already manages its risks prudently, 68 • THE FEDERAL LAWYER • July/August 2022
and sees no reward from the traditional market, should consider forming a captive. The same is true of members of any industry where the cost of insurance is volatile and its availability uncertain. One of the simplest captive structures, and one that is quite common, is a captive that insures its parent’s high deductible on their traditional policies. In this way, the parent is financing the deductible risk they are willing to take, or were already taking, but doing so in a more tax-efficient way while also allowing for some reduction in premium paid to the traditional insurance companies. As the captive matures, building capital and surplus over time, it can be utilized by its owner for other risks. A captive also affords its owner direct access to the reinsurance market. Many practitioners consider this benefit to be the best reason to form a captive. Reinsurers are utilized as a backstop when an insurance company, including a captive, sustains losses. Reinsurers also can serve as a valuable partner to the captive owner, allowing the owner/insured the opportunity to design a risk profile unique to the owner’s goals.
South Carolina Captives A South Carolina captive insurance company, including any South Carolina RRG, is simply a legal entity (usually a stock corporation or limited liability company) formed pursuant to the South Carolina corporate code. It is recognized as a separate tax-paying entity from its owner for federal tax purposes. The first step when designing a captive structure is to engage a captive insurance professional to perform a feasibility study that analyzes the owner’s historic insurance costs and loss experience. The feasibility study will include proforma financial statements for the proposed insuring entity. It will also illustrate the tax benefits that may inure to the owner of a well-structured captive. If the owner decides to proceed, the proposed captive must go through a rigorous, detailed licensing application process with the South Carolina Department of Insurance (SCDOI). It may not commence business until it obtains a certificate of authority from SCDOI. Once licensed, the captive looks and functions just like any other insurance company. It has a board of directors and officers, at least some of whom possess knowledge of the business of insurance in general and the parent’s insurance risks in particular. These individuals owe duties of good faith and loyalty according to the South Carolina corporate code. South Carolina insurance regulations also require conflict of interest disclosures to the company, its owner, and regulators. The captive operates independently of its owner, to whom it will issue policies of insurance to cover a wide variety of risks. Premiums are set by an independent actuary, who also periodically opines on the adequacy of the captive’s insurance reserves. A captive’s financial statements are subject to annual audits. These efforts go to ensure both good governance and solvency. Often, the captive, the owner, and the underlying risks to be insured will have no particular connection to South Carolina. The owner is drawn to South Carolina because of its business-friendly environment and extensive network of top service providers and the expertise of the regulatory team at SCDOI.
Regulation in South Carolina When South Carolina entered the captive industry, passing its enabling legislation in 2000, SCDOI recognized three essentials for South Carolina to become a successful domicile:
1 . Industry-friendly legislation and a stable regulatory framework, supported by a qualified, forward-thinking insurance regulatory team focused on alternative risk financing. 2. An emphasis that South Carolina is a place where business is conducted in a pleasurable atmosphere. 3. A sound infrastructure of necessary service providers and professionals in the state. The individuals who collectively make up the captive insurance industry in South Carolina excel in each of these areas and maintain a high standard. South Carolina is set apart from other captive domiciles. Its continued success is a result of almost 22 years of partnerships; the mutual and collective effort between the public and private sectors; and the determination to pursue excellence, ingenuity, and always quality over quantity. South Carolina has become a mature captive domicile with a world-class network of service providers who have a significant physical presence and investment in the state. These industry experts are complemented by a group of highly experienced regulators who have acquired in-depth knowledge of the risk characteristics of a wide range of industries and business segments. SCDOI has an autonomous captive division that is charged to grow the industry with high-quality businesses. The current portfolio of captive companies in South Carolina is representative of several industries led by healthcare, energy, transportation, financial services, and manufacturing. The economic impact of the captive industry in South Carolina is significant. An academic analysis by the University of South Carolina’s Moore School of Business found that South Carolina captives have a $56.8-million annual economic impact on the state. The tax revenue generated from the $3.1 billion annual premium volume is substantial. While a small percentage of this revenue is retained by SCDOI and goes to fund its captive division, the rest is deposited into the general fund and supports the state’s annual budget. The overall economic impact is not limited to taxes charged on premiums or licensing and renewal fees. The University of South Carolina study determined that the captive industry creates roughly 400 high-wage professional jobs and over $22 million in labor income for the state. South Carolina attracts knowledgeable captive practitioners from law, accounting, actuarial, and investment management firms. These professionals offer captive owners the full range of services required to efficiently form and effectively manage even the most complex captive insurance companies. Nine of the 10 largest worldwide captive management firms have permanent offices and staff in Charleston, which is the nerve center of the captive industry in South Carolina. With its rich history, charm, beaches, world-renowned golf courses, shopping, and restaurants, Charleston has seen extensive growth in recent years. All of these features make for an appealing destination for board meetings and a desirable location in which to live and work. State law requires each captive owner to appoint a South Carolina resident to the captive’s board of directors. Each company is required to conduct at least one board meeting in the state. Having licensed well over 300 captives in the past 22 years, these requirements have a significant cumulative effect on the state’s economy. Since 2000, it is estimated that the industry has generated total economic activity in excess of $539 million for South Carolina. Captive regulation is unique in the world of insurance regulation. It strikes a balance between the forward-thinking creativity of the private sector and the formulaic, systematic patterns and rules that
must be applied by the public sector. The industry is particularly rewarding for legal practitioners because there are very few limits to the creativity that can be applied in risk finance. Jeff Kehler, a longtime South Carolina regulator, would often quip, “If you have seen one captive, you have seen one captive.” In South Carolina, reputation is of the utmost importance. The captive insurance division of SCDOI has a reputation of being friendly, flexible, and fair. The captive team appreciates innovation and creativity, and is open to novel approaches and ideas, which are a few of the many reasons so many great companies choose South Carolina as their captive domicile. Regulators are charged with solvency-monitoring and consumer protection. The captive space is unique in that the insurance “consumer” is also the owner of the captive where risks are transferred and financed. South Carolina regulators recognize these circumstances and apply a thoughtful, measured approach to captive regulation. They know captive regulators ought to focus on an appropriate application of regulatory standards based on the “principle of proportionality.” They remain conscious of the nature, scale, and complexity of the entities being regulated as well as the level of insurance sophistication of the people and companies involved in any program. Capital and surplus requirements vary by type of captive. In South Carolina, the minimum capital and surplus requirement for a parent captive is $250,000. The minimum for RRGs is $500,000, and the minimum for association captives is $750,000. Owners willing to commit the capital required to form and operate a captive responsibly, in compliance with a domicile’s regulations and statutory standards, should be applauded. They are often rewarded for their success through increased risk awareness and control within their core businesses, underwriting, and investment profits, and with power to leverage the captive to support parent company operations through the myriad of options that a captive can provide. An owner’s increased attention on risk will further enhance understanding and management, which will ultimately drive down the total cost of risk and commercial insurance expenditures while creating efficiencies that may have previously been overlooked, unknown, or thought to be unattainable. For RRGs, South Carolina regulators look for quality membership in license applications and like to see that the members of the RRG possess the financial wherewithal to stand behind and support the risk-taking entity. Initially, the members must be able to capitalize the RRG properly. As the program matures, if there is an adverse experience, members should have the foresight and willingness to step in and further support the vehicle. Single parent captives comprised over 40 percent of South Carolina’s captives last year. A total of 46 RRGs and dozens of special-purpose captives call South Carolina home. Other captive classifications based in the state include protected and segregated cells and branch, association, and special purpose financial captives.
Looking Ahead The same conditions that brought about the need for the LRRA in 1986 have returned. It may not make the cover of Time magazine again, but we are in a hard insurance market internationally. A hard market is characterized by an increase in costs and a decrease in capacity. Commercial auto liability coverage, especially, has seen extreme tightening and a lack of appetite from the commercial market. July/August 2022 • THE FEDERAL LAWYER • 69
Social inflation in the form of rising litigation costs and their impact on insurers’ claim payouts, loss ratios, and, ultimately, how much policyholders pay for coverage is a huge driver of the hardening market. According to a recent Joint Industry Forum conducted by the Insurance Information Institute, excessive verdicts are driving up the cost of commercial insurance and limiting capacity for certain lines of coverage. Increased costs and a lack of capacity have historically been the catalysts for companies to turn their attention to the alternative market and, specifically, captives. There has been record growth worldwide in the number of captive licenses issued and renewed attention by existing owners looking to expand their captives and use them in new ways to support the operations of parent companies. Captive owners know they can provide for themselves that which the traditional market will not provide on terms or prices that are acceptable. We expect South Carolina to capture its share of the growth coming as a result of market forces. Regulators in South Carolina are available and want to add value to those they serve and take pride in their responsiveness and communication. The service provider network is engaged with the regulators to constantly improve the domicile. South Carolina regulators maintain an open dialogue that benefits the domicile and all stakeholders in the captive space—a dialogue that is based on trust. There is always room to improve. Both regulators and service providers need to know what they’re missing and how they can do things better together. Captive insurance companies, given the value they offer owners, have become mainstream in the world of risk management. Many practitioners suggest that what was once an “alternative” risk financing tool should be given serious consideration by any company’s
Disability and Access to the Courts continued from page 64
•The Administrative Office of the U.S. Courts (AO). Note: Each of the above organizations is responsible for identifying and implementing its own fair employment policies and practices.” United States Courts, Workplace Conduct and Protections Policy, Vol. 12, Ch. 2 (Sept. 17, 2019), https://www. uscourts.gov/sites/default/files/guide-vol12-ch02_oji-2019-09-17post-workplaceconduct_protections.pdf.
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risk manager as it considers risk costs, financing, and transfer. Legal professionals in the field can be better advisors once they understand these sophisticated insurance entities. Joe McDonald is the director of captives for the South Carolina Department of Insurance. He leads the team that is responsible for the licensing and regulation of captive companies and risk retention groups, while also marketing South Carolina as a premiere captive domicile. He serves on the Captive Insurance Companies Association NEXTGen Committee and is actively involved in various efforts to promote the captive insurance industry. John P. (Jay) Seibels Jr. is the founder of the Seibels Law Firm, PA of Charleston, S.C. He formed the firm in 2001 at the same time South Carolina’s captive insurance industry began. He represented South Carolina’s first licensed risk retention group from concept to license and has been engaged in the industry ever since.
Endnotes 15 U.S.C. § 3902(a)(1) and (4). 927 F. Supp. 195, 199–200 (M.D. La. 1996). 3 U.S. Gov’t Accountability Off., GAO-12-16, Risk Retention Groups: Clarifications Could Facilitate State’s Implementation of the Liability Risk Retention Act 33 (2012). 4 Id. 1 2
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The Critical Role That Men Play in Thwarting Bias and Hostility Toward Women RACHEL V. ROSE AND MARK KLEIMAN
P
reviously, The Federal Lawyer published “The Subtle and Not-So-Subtle Impact of Bias on Women and Minorities,” which received several positive comments regarding raising awareness of the important issue of bias and the related notion of mansplaining.1 The most significant question received from men was “what can I do to change things?” This inquiry prompted us to write this article as a follow-up.
Men play a crucial role in thwarting bias and hostility towards women, especially in the legal profession. First, consider the statistics that were published by the American Bar Foundation and the American Bar Association’s (ABA’s) Commission on Women in the Profession:2 • G ender differences among lead counsel from private firms follow a 1:3 female:male gender ratio—or worse.3 • Among all women who are lead counsel in civil cases, 40 percent represent plaintiffs and 60 percent represent defendants.4 • Among all attorneys appearing in criminal cases, 67 percent are men.5 As professor and former trial lawyer Lara Bazelon notes, “[i]n more than a decade of arguing cases in court, I’ve witnessed the stubborn cultural biases female attorneys must navigate to simply do their jobs.”6 This notion is not limited to the courtroom, and if
women are appropriately “assertive” or heaven forbid “aggressive” just like men, they are not perceived in the same way. Simply stated, “women have to act like it [unprofessional attacks based on sexism with the intent to humiliate] doesn’t bother [them].”7 Deborah Rhode aptly stated how women attorneys are supposed to behave among the “double standard and double bind”—not being perceived as “too ‘soft’ or too ‘strident,’ too ‘aggressive’ or ‘not aggressive enough.’”8 Lawyers have an obligation—both ethically and legally—to represent their clients;9 however, what seems to be absent is a counterbalancing obligation to manifest respect for and professionalism toward female opposing counsel. The term gaslighting is “used informally to describe someone who persistently puts forth [a] false narrative” in an effort to cause “another person to doubt [her] own perceptions.”10 To be clear, although this article is about gaslighting and bias encountered by women, members of marginalized races, sexual orientations, and religions, as well as men, also experience these phenomena. And, many men and women have healthy interactions. So, what can men do, and why don’t they do it more often? First, advocacy is painful. It calls on men to leave their comfort zones and invite conflict with peers and sometimes superiors by “calling out” another male. Second, it is critical for men who choose to take on this role to find sources of motivation and support. This article will (1) delve into the practice of mansplaining11 and gaslighting and the psychology behind these behaviors; (2) shift perspective and behavior; and (3) conclude with examples. Men can and do play a critical role in changing the tide in the legal profession; for those men who have already taken up the torch, we both applaud and appreciate the positive impact you are making. July/August 2022 • THE FEDERAL LAWYER • 73
The Art of Mansplaining and Gaslighting “The worst criticism seeks to have the last word and leave the rest of us in silence; the best opens up an exchange that need never end.”12 In essence, there is a spectrum of individuals and situations. This spectrum enables us to group men into three categories: (1) men who automatically advocate for women, even during negotiations (Winter Soldiers); (2) decent men who advocate for women in some situations but “freeze” when placed in a herd (Sunshine Feminists); and (3) men who are flagrantly biased and discriminate against women (Frightened Resisters).13
Category 1—Winter Soldiers Winter Soldiers are the ideal male allies and can be counted on to speak up for equality and fair treatment even when the going gets rough. They will immediately and without hesitation call out men who denigrate women or deny their expertise, even in difficult professional situations. Winter Soldiers will not shy away from opposing sexism or racism publicly and will continue to have the difficult conversations in one-on-one settings “behind the scenes,” even when at risk of being ostracized. Winter Soldiers, including many gay men, embody the concept of being good allies. There have always been some men like this—it is just that the legal profession, and indeed the world, needs more of them.
Category 2—Sunshine Feminists Sunshine Feminists are genuinely decent and promote women and marginalized groups or individuals when they are safely among like-minded colleagues. But, they lose their voices when placed in a herd of males or white people. These are the summer soldiers or sunshine patriots, as Thomas Paine called them in his pamphlet The Crisis, published in the bitter winter of Valley Forge. The Sunshine Feminist, or anti-racist, knows what is right, and will do it when it is safe, but will freeze and lose his voice when things get tough. Transitioning from a Sunshine Feminist into a Winter Solider requires, as Virginia Woolf espouses, going beyond the familiar, the safe, the known, and into the broader world, as well as confronting unconscious bias. Lasana Harris, a male neuroscientist and experimental psychologist at University College London, along with his female colleague at Princeton University, Susan Fiske, researched “how we think about other people’s minds, known as social cognition, and more specifically on how we perceive others.”14 Their research on unconscious bias revealed a disconcerting notion: “the surprising ease with which we can stop ourselves from having empathy for the plights of others.”15 This is distinguishable from a person who has encountered trauma, such as rape, which causes the brain to trigger. Both situations can, in most cases, either be mitigated or overcome; however, for the latter situation, therapy, training, and reframing are critical components. In both situations, the amygdala region of the brain, which responds to threats and processes fear, springs into action. The key for a Sunshine Feminist male is to appreciate why he “freezes” when placed in a herd instead of actively speaking up like a Winter Soldier.
Category 3—Frightened Resisters Frightened Resisters were well described in a series of articles in The Atlantic from 2012 and were called out in another magazine, n+1, the following year.16 The underlying message: “Listen up ladies,” these articles say. “We’re here to talk to you in a way that’s limited and den74 • THE FEDERAL LAWYER • July/August 2022
igrating.”17 These men fit neatly—and sadly—into Judith Herman’s perspective, which simultaneously addresses different traumatic situations—rape, child molestation, and war: Secrecy and silence are the perpetrator’s first line of defense. If secrecy fails, the perpetrator attacks the credibility of his victim. If he cannot silence her absolutely, he tries to make sure that no one listens …. After every atrocity, one can expect to hear the same predictable apologies: it never happened; the victim lies; the victim exaggerates; the victim brought it on herself; and in any case it is time to forget the past and move on. The more powerful the perpetrator, the greater his prerogative to name and define reality, and the more completely his arguments prevail.18 Thankfully, very few Frightened Resisters, who aptly can be described as bullies, have actual instead of perceived (i.e., legend in their own minds) power or standing. In law, not every male trial lawyer, despite successes, has the gravitas of a Clarence Darrow. Ironically, those male trial lawyers with the most gravitas tend to be secure and confident (not arrogant) and have ample financial means, so they don’t need to exploit and bully women professionally to get ahead. Not every trial lawyer with gravitas is a true Winter Soldier, either. It is telling how differently Winter Soldiers and Frightened Resisters (and Sunshine Feminists if they are trapped in the herd) perceive a woman’s responses. Recently, one of the authors of this article reviewed a series of different texts and emails with various male counsel. Male allies saw the woman as persistent and professionally assertive. The Frightened Resisters whined that she was “aggressive” and a “bitch.” The irony of the Frightened Resisters is that if a male colleague had finally struck back after prolonged abuse, this would have been respected—highlighting again why we need an army of Winter Soldiers. Some men eventually reflect on their actions and change. David Brock, a journalist who authored articles and books disparaging Anita Hill, a woman who testified about her experience before a Senate Committee during the confirmation proceedings of Justice Clarence Thomas, repented a decade later. “[D]oing everything I could to ruin Hill’s credibility, I took a scattershot approach, dumping virtually every derogatory—and often contradictory—allegation I had collected on Hill from the Thomas camp into the mix …. She was, in my words, ‘a little bit nutty and a little bit slutty.’”19 For women, standing up and being a pioneer takes extraordinary courage. Hill is often credited with bringing awareness to workplace sexual harassment, which led to Congress passing the Civil Rights Act of 1991.20
Learning From Other Men—Shifting Perspective and Behavior “The loveliest trick of the devil is to persuade you he doesn’t exist.”21 Men who gaslight know what they are doing. Far more challenging is the man who genuinely believes his disrespect for female colleagues is not really because they are women, but because they are unworthy and happen to be women. The problem of implicit sexism is a common one and must be described and understood to correct it. The evidence shows that, just like disguised attitudes of racism toward Black job applicants, men construct evaluation criteria that allow them to genuinely feel they are fair and objective while discriminating against women.22 Yale researchers showed that when evaluating candidates for jobs that (then) were traditionally
male or female, the evaluators did not simply define merit in a way that favored a specific gender. Rather, they tailored their weighting of the job criteria to favor whatever qualities were possessed by the individual applicant of the desired gender.23 Thus, if a female candidate for police chief was described as “streetwise” and wellliked by patrol officers, male evaluators placed greater emphasis on academic and administrative qualifications. But, when faced with a female candidate with a management degree and experience, such qualifications would be rated lower to favor male candidates who were “streetwise.” Importantly, the more bias male evaluators had, the more they perceived their judgments as objective and nondiscriminatory.24 This defines one of the biggest problems women encounter—overcoming discrimination from men who don’t recognize they are discriminating. It also highlights the areas where male allies can and should intervene to support women and minorities by working to change institutional norms, visibly advocating and modeling supportive behavior in group settings, and providing honest and thoughtful interpersonal support. Decades of corporate diversity training has made it painfully clear that traditional training models do not work.25 Although some of this reflects white and male resistance to mandatory training, there is also evidence that the emphasis on implicit bias as something that is reflexive and involuntarily lets people off the hook and leads to more discrimination. (Although newer, more empowering and interactive training models have so far shown more positive results.26) Formal and well supported mentorship programs have shown modest improvements in discriminatory employment practices, as have deliberately structured network opportunities. But the most consistent and effective improvements have come from transparency in pay, promotion, and evaluation practices; making managers strictly accountable for improving diversity and inclusiveness; and aggressive recruiting by managers from diverse candidate pools, which affords those managers with direct, personal contact with qualified women and ethnically diverse job entrants.27 Interpersonal support may be valued, but it is certainly the weakest and most performative version of allyship. Nearly every woman and every person of color has binders full of stories of receiving “I’m so sorry they said that” calls after horrible meetings or problematic encounters. Although bystanders must be excused for not intervening against armed police to save George Floyd’s life, the stakes are much lower in conference rooms, break rooms, and committee meetings. Being an ally means being visible. It means speaking up when the contributions of women or people of color are ignored, or when their observations are credited to white males in the room. It means supporting people when they are attacked or belittled, and it means promoting their ideas and aspirations—and publicizing and cheering their accomplishments.28 A recent Harvard Business Review article shrewdly accepts that, while “bias itself is devilishly hard to eliminate, it is not as difficult to interrupt.”29 The authors also identify the notion that becoming a bias disrupter is critical to a great manager, as well as ways to address the bias.30 The following action items are helpful in transitioning from Sunshine Feminists to Winter Soldiers. 1. Fairness in hiring: (1) insist on a diverse pool of candidates; (2) establish objective criteria, define “culture fit,” and demand accountability; (3) limit referral hiring; and (4) structure interviews with skills-based questions.31
2 . Day-to-day management: “[w]omen report doing about 20% more ‘office housework’ on average than their white male counterparts, whether it’s literal housework (arranging for lunch or cleaning up after a meeting), administrative tasks (finding a place to meet or prepping a PowerPoint), emotional labor (‘He’s upset—can you fix it?’), or undervalued work (mentoring summer interns).” A suggested fix includes setting up a rotation for “office housework.”32 3. Meetings: “Our study of lawyers found that half of women report being interrupted in meetings at higher rates than their male peers. Another study found that in meetings involving more men than women (a common scenario), women typically participated about 25% less often than their male coworkers did. … Is a woman ‘emotional,’ or a black man ‘angry,’ while a white male is ‘passionate’?” Tracking assignments and airtime in meetings can change it. Suggested fixes include (a) creating and enforcing interruption policies; and (b) calling out instances of “bropriating” or “whipeating”—“that is, majority-group members taking or being given credit for ideas that women and people of color originally offered.”33 In sum, visible advocacy also requires doing the hardest work— having those difficult conversations with other men or confronting and derailing racist and sexist narratives in real time. In other words, being or becoming a Winter Soldier by disrupting bias. Reaching that point, and staying “on the job,” requires motivation, persistence, support, and practice. Motivation is subjective. One of the authors of this article is reminded of the experience of his female colleagues and female clients in health professions, and the daily slights, indignities, and offenses they encounter. The experiences of female professionals or people of color are a daily reminder that the Winter Soldier’s job is always the easier one, and one to be accepted as an opportunity. It is also important to recognize that this is a team sport. There is ample reason that second wave feminism (the 20-year period between 1960 and 1980 to increase equality for women)34 did not grow in isolation but sprang from group discussions and shared effort. Remaining a male ally requires swimming against powerful currents … continually. No one can or should have to do this alone. Allyship means having allies, getting their support, and letting them hold you accountable when things are the most difficult. It is always easier to look away or step away, and support and accountability are essential. The key is to strategize with women, not about them or for them. Finally, as set forth in the Art of the Difficult Conversation: Reducing Conflict And Stress In Seven Steps, there are some key take-aways.35 First, listen to the Frightened Resister, even (and especially) when he is angry. Ask questions about what he believes and what he fears. Search for a way to acknowledge those feelings without agreeing with them. Second, frame the issues using shared values. A Frightened Resister may identify with past religious or regional persecution, which could be a way to establish a toehold of agreement. Third, try to avoid labels. The Frightened Resister is already frightened, and calling behavior sexist or racist will just trigger them. Focus on a firm’s policies or past practices, and give examples of the human cost of those practices in a way that individualizes the harm done.
Conclusion It has been said that “[a] good man will want you to shine. He wants you to be your amazing self.” Many men are good men, and they want women to shine to better the outcome of the task at hand. For some men, it’s easier and natural to use their voice, regardless of whether July/August 2022 • THE FEDERAL LAWYER • 75
they are in a small group. Others simply cannot be changed, but they can be silenced—at least temporarily. As this article suggests, it unfortunately takes a male to combat another male’s actions. Rachel V. Rose effectively advocates and advises clients on compliance, transactions, government administrative actions, and litigation involving healthcare, cybersecurity, and corporate and securities law as well as False Claims Act and Dodd-Frank whistleblower cases. She also teaches bioethics at Baylor College of Medicine in Houston. Rose is the chair of the FBA’s Government Relations Committee and an executive board member of the FBA’s Qui Tam Section. See www.rvrose. com. Mark Kleiman is managing partner of Kleiman Rajaram in Santa Monica, Calif. The firm focuses on representing whistleblowers in False Claims Act cases. He and his partner have a robust pro bono practice representing immigrants and victims of domestic violence and institutional sexism or racism in healthcare, as well as trying to free elephants from the Los Angeles Zoo. See http://kleimanrajaram.com. ©2022 Rachel V. Rose and Mark Kleiman. All rights reserved.
Endnotes Rachel V. Rose, The Subtle and Not-So-Subtle Impact of Bias on Women and Minorities, Fed. Law., Sept./Oct. 2021, at 66, (indicating that the term “‘-splaining’ is parsed into three factors: (1) is the explanation wanted or occurring in a situation such as an educational setting; (2) are assumptions about competence or intelligence being made; and (3) is bias affecting the interpretation.”). 2 Stephanie A. Scharf and Roberta D. Liebenberg, First Chairs at Trial: More Women Need Seats at the Table, ABA Comm’n on Women in the Profession (2015), https://www.americanbar.org/ content/dam/aba/administrative/women/first_chairs_final.pdf. 3 Id. at 11 (stating that the size of law firms affects women appearing as lead counsel: AmLaw 100 firms (25 percent), AmLaw 200 firms (16 percent), small private firms (20 percent), and solo practice (25 percent)). 4 Id. 5 Id. 6 L. Bazelon, What It Takes to Be a Trial Lawyer If You’re Not a Man, The Atlantic (Sept. 2018), https://www.theatlantic. com/magazine/archive/2018/09/female-lawyers-sexismcourtroom/565778/ (detailing a scenario where a female trial attorney repeatedly received motions from male trial lawyers seeking to “preclude emotional displays” despite their having no basis for the motion’s content.). 7 Id. 8 Deborah L. Rhode, The Unfinished Agenda – Women and the Legal Profession, ABA Comm’n on women in the Legal Profession 6, (2001), http://womenlaw.law.stanford.edu/pdf/aba.unfinished. agenda.pdf. 9 Jordan Rothman, Lawyers Should Stop Gaslighting Each Other, Above the Law (May 12, 2021), https://abovethelaw. com/2021/05/lawyers-should-stop-gaslighting-each-other/. 10 Martinez-Gonzalez v. Elkhorn Packing Co., LLC, 25 F.4th 613, 635 (9th Cir. 2022), (Rawlinson, J. dissenting). See also Jackson Women’s Health Org. v. Currier, 349 F.Supp. 3d 536, 540-541, n.22 (S.D. Miss. 1
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2018), aff ’d, 945 F.3d 265 (5th Cir. 2019). (“[T]his Court concludes that the Mississippi Legislature’s professed interest in ‘women’s health’ is pure gaslighting.”) 11 “[A] woman’s ideas, suggestions, or observations may be ignored until a man explains (or more frequently, simply repeats) her thoughts …. Mansplaining occurs at ‘the intersection between overconfidence and cluelessness.’” Meera E. Deo, The Ugly Truth About Legal Academia, 80 Brook. L. Rev. 943, 976-977 (2015). 12 Rebecca Solnit, Men Explain Things to Me 94 (2014). 13 One observation about men that fall into the third category is that some of them may marry intelligent and accomplished women because it provides them with a certain cover or outward perception of being “pro women” when their actions towards other women, whether in court, negotiations, or a work environment, are misogynistic. 14 Lasana Harris, Lasana Harris interview: How your brain is conditioned for prejudice, New Scientist (Aug. 26, 2020), https:// www.newscientist.com/article/mg24732973-500-lasana-harrisinterview-how-your-brain-is-conditioned-for-prejudice/. 15 Id. 16 See Listen Up, Ladies, N+1, https://www.nplusonemag.com/ issue-15/the-intellectual-situation/listen-up-ladies/ (last visited May 23, 2022). 17 Id. 18 Judith Herman, M.D., Trauma and Recovery: The Aftermath of Violence—From Domestic to Political Terror (1R ed. 2015). 19 Todd Gitlin, The Liar’s Tale, Los Angeles Times (Mar. 17, 2002), https://www.latimes.com/archives/la-xpm-2002-mar-17-bkgitlin17-story.html. 20 Id. 21 Deacon Michael Quinlan, The Devil’s Greatest Trick, Crisis Magazine (Dec. 28, 2015), https://www.crisismagazine.com/2015/ the-devils-greatest-trick. 22 Patrick M. Kline, et al., Systemic Discrimination Among Large U.S. Employers, National Bureau of Economic Research (Feb. 2022), https://www.nber.org/papers/w29053. 23 Eric Luis Uhlmann and Geoffrey L. Cohen, Constructed Criteria: Redefining Merit to Justify Discrimination 474-80, Psychological Science (2005), https://pubmed.ncbi.nlm.nih.gov/15943674/. 24 Id.; see also Emil Pronin, et al., The Bias Blind Spot: Perceptions of Bias in Self versus Others 369-381, Personality and Social Psychology Bulletin (2002), https://journals.sagepub.com/doi/ abs/10.1177/0146167202286008. 25 Alexandra Kalev, et al., Best Practices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies 589617, American Sociological Review (2006), https://journals. sagepub.com/doi/10.1177/000312240607100404. 26 Francesca Gino and Katherine Coffman, Unconscious Bias Training That Works, Harvard Business Review (Sept.-Oct. 2021), https:// www.hbs.edu/faculty/Pages/item.aspx?num=61119. 27 Frank Dobbin and Alexandra Kalev, Why Diversity Programs Fail 52-60, Harvard Business Review (2016). 28 Meg A. Warren and Samit D. Bordoloi, Going Beyond Good Colleagues, Journal of Diversity in Higher Education (Dec. 2021), https://www.researchgate.net/publication/356937574_ Going_beyond_good_colleagues_Men’s_and_women’s_ perspectives_on_allyship_behaviors_toward_women_faculty_in_
male-dominated_disciplines_in_academia. 29 Joan Williams and Sky Mihaylo, How the Best Bosses Interrupt Bias on Their Teams, Harvard Business Review (Nov./Dec. 2019), https://hbr.org/2019/11/how-the-best-bosses-interrupt-bias-ontheir-teams?utm_medium=social&utm_campaign=hbr&utm_ source=LinkedIn&tpcc=orgsocial_edit. 30 Id. 31 Id. 32 Id. 33 Id.
Feminism: The Second Wave, Nat’l Women’s History Museum ( June 18, 2020), https://www.womenshistory.org/exhibits/ feminism-second-wave. 35 David Galowich, The Art of Difficult Conversations: Reducing Conflict And Stress In Seven Steps, Forbes (Apr. 6, 2018), https:// www.forbes.com/sites/forbescoachescouncil/2018/04/06/the-artof-difficult-conversations-reducing-conflict-and-stress-in-sevensteps/?sh=1e23ac0f5d81. 34
Get Published in The Federal Lawyer The Federal Lawyer strives for diverse coverage of the federal legal profession, and your contribution is encouraged to
maintain this diversity. Writer’s guidelines are available online at www.fedbar.org/tflwritersguidelines. Contact Lynne Agoston, managing editor, at social@fedbar.org or (240) 404-6488 with topic suggestions or questions.
July/August 2022 • THE FEDERAL LAWYER • 77
Book Reviews
One Damn Thing After Another: Memoirs of an Attorney General By William P. Barr William Morrow/HarperCollins Publishers, 2022 595 pages, $28
Reviewed by Louis Fisher
Drawing from his experiences as attorney general under Presidents George H. W. Bush and Donald Trump, William Barr analyzes the mix of law and politics at the national level. He borrows the title of his book from Ed Levi, who served as attorney general under President Gerald Ford. When asked to describe the job of attorney general, Levi did not seek guidance from the Founding Fathers, the rule of law, and the principles of democracy. Instead, he said: “It’s just one damn thing after another.” Are some of the bad things the fault of the office holder? Are there are also good things worth recalling? In the Prologue, Barr discusses Trump’s claim that he had actually won reelection in 2020, only to be denied victory because of various accusations of voter fraud. Barr learned from Republican members of Congress that if Trump believed he actually won 78 • THE FEDERAL LAWYER • July/August 2022
the election without citing reliable evidence, “the country could be headed for a constitutional crisis.” That is what happened on Jan. 6, 2021, with the violent attack on the U.S. Capitol. Toward the end of the book, Barr analyzes and dismisses the claim that Trump won reelection. The first chapter covers Barr’s birth in New York City and his education in the Upper West Side of Manhattan. After marriage, he decided to relocate to Washington, D.C., to attend law school at night at the George Washington University and work during the day at the CIA. All of that is covered in the first 35 pages. One of his early experiences with the federal government is working with the Office of Legal Counsel in the Justice Department. Later, he served as acting attorney general under President George H. W. Bush before being confirmed as attorney general on Nov. 26, 1991. Barr left the federal government in January 1993 and devoted the next 26 years to the private sector. Initially he returned to his old law firm, Shaw, Pittman, but soon accepted a number of invitations to serve as general counsel in several corporations. He argued many cases, including several before the Supreme Court. After 156 pages, he begins to describe his experience working with President Trump. Among the many Republican contenders for the presidency in 2016, he preferred Jeb Bush. Barr states that Jeb Bush “failed this time around with Republican voters and dropped out in February.” Once Trump won the nomination at the Republican convention, Barr supported him and “wrote a check the next day.” He considered Trump “capable of charm and humor” but along with others found him “frequently crass, bombastic, and petulant.” Especially grating to Barr was Trump’s “ready resort to pettiness and personal name-calling.” Notwithstanding what Barr considered to be Trump’s shortcomings, he liked “the clear and direct way he staked out a position” and his willingness to state “unpleasant truths that many were thinking but afraid to say.” To Barr, Trump’s “pugnacious style worked.” Barr “had no hesitancy” in backing Trump
over Hillary Clinton. As to that choice, Barr said he “would crawl over broken glass to the polls to vote for Trump.” To Barr, the claim that Trump “governed as an autocrat” and his administration “was lawless and anti-democratic” was “another false narrative.” Entirely false? What about Trump as president taking Department of Defense funds and shifting them to build the wall against the border with Mexico? Nothing lawless and anti-democratic about that? Presidents are at liberty to take funds appropriated by Congress for specific purposes and shift them to purposes desired by the president but not authorized by Congress? Is it acceptable to shift the power of the purse from Congress to the president? Chapter 9 begins with Barr saying he “had no desire at all to go into the Trump administration.” A very curious statement. Most people who follow politics are aware that on June 8, 2018, Barr, as a private citizen, submitted a 19-page letter to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steven Engel. The letter sharply criticized the report issued by Special Counsel Robert Mueller, offering this point on page 10 of that letter: “The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct.” No limits? What Nixon did with the Watergate tapes was entirely his business and it was wrong to force him from office? Left unsaid in Barr’s letter was a clear implied message: “Mr. President, if you are unhappy with Attorney General Sessions and need a trusted replacement, keep me in mind.” When Barr appeared before the Senate Judiciary Committee as nominee to be attorney general in the Trump administration, Senator Dianne Feinstein, D-Calif., criticized his letter to the Justice Department the previous year (https://www.wsj.com/public/ resources/documents/BarrMueller.pdf?mod=article_inline): “Under his theory, the president is above the law in most respects. That’s stunning. To argue that the president has no check on his authority flies in the face of our constitutional system of checks and balances.”
There are many places in the book where it was necessary to provide evidence to support a statement. Barr claims on page 196 that Mueller had “strong personal disdain” for Trump. Facts are needed to substantiate that statement, but they are not included. Page 238 states that leaks had “spilled out about Mueller’s investigation.” Those leaks need to be identified. On page 249, Barr writes that in 2016, Trump “won the election fair and square.” Fair and square? Throughout the book there are many quotes from authors or other sources but no endnotes or citations. Readers would have benefited by knowing the source. For example, on page 397, Barr writes that in one of the first cases abolishing school prayer, the Supreme Court acknowledged “the State may not establish a ‘religion of secularism’ in the sense of affirmatively opposing or showing hostility to religion, thus ‘preferring those who believed in no religion over those who do believe.’” It would have been appropriate to at least provide the name of the case and its year. In the final chapter, Barr shares his concern that a disputed presidential election in 2020 could do great harm to the country. Some states “used the pandemic to justify substantial, last-minute changes to voting rules.” Heavy emphasis on mail-in voting would add to charges about fraud. Although there were “isolated instance of alleged fraud,” he did not see “credible evidence of widespread fraud that could change the outcome of any state.” Breaking with Trump on that issue, there was some risk of being fired. Barr chose to leave office just before the Christmas holidays. Louis Fisher worked for the Library of Congress from 1970 to 2010, first as a senior specialist in separation of powers with the Congressional Research Service and later as a specialist in constitutional law for the Law Library of Congress. Fisher is the author of 32 books and over 600 articles. On more than 60 occasions, he has testified before congressional committees on a range of constitutional issues.
Reginald Rose and the Journey of 12 Angry Men By Phil Rosenzweig Empire State Editions, 2021 314 pages $27.95
Reviewed by Jon M. Sands
Across the nation, juries are chosen, they deliberate, and they render verdicts. Despite the best efforts of lawyers, jury consultants, and social scientists, what happens in the jury room is pretty much a mystery. Sure, we get a glimpse in high-profile cases, when some jurors enjoy the limelight by talking to the media about their deliberations. But most jurors file out and are forgotten, except by the parties and the courts who confront the consequences of their verdicts. Legally, we may delude ourselves with the fiction that jurors actually follow the law, which judges explain to them through instructions, droned to them orally or written in legalistic obfuscating language. We assume that no prejudices and biases are at play, even though that is fallacious. For the most part, courts are wary of knowing what occurs in the jury room, saying “what happens in the jury room stays in the jury room,” except in a few cases when what happened was so egregious that even the Supreme Court stepped in and said “no.” And yet we embrace the jury and extol its role. For, in most cases, justice is indeed done. How then does a half-century-old script, written by a little-known writer for live television, warrant a critical work? Rather
than disappearing into oblivion after one broadcast, as almost all television scripts did, public demand led to its being rewritten as a play, which became a workhorse of a play. The story grabbed the attention of Hollywood and of Henry Fonda, who was looking for a meaningful project to produce. A firsttime director and a collection of theater and television character actors (some of whom you would still recognize) shot an admired film, which was enshrined in the National Film Registry. The story has been reimagined in various versions, domestic and international. Phil Rosenzweig’s Reginald Rose and the Journey of 12 Angry Men combines the biography of the playwright with a chronicle of the drama’s development, and it provides as background the relevant cultural and media history. For the book about a drama that occurs entirely in a jury room, it covers a lot. You probably know the plot, which is simple and runs 96 minutes. A jury deliberates the fate of a young man accused of murdering his father. The judge, bored and seemingly already assuming the man’s guilt, tells the jury that the charge is premeditated murder. The defense is an alibi. Entering a drab room, the jurors—identified only by number—talk, argue, scream, enact, extol, convince, and reach a verdict. The vote starts (spoiler alert) with 11 votes for conviction and swings finally to acquittal. How they get there is the crux. Each juror is male (that has changed in more recent productions); each is white (that too has changed); and each is a type. Juror #8 is the protagonist, the lone holdout. He is opposed by the other jurors, some driven simply by emotion or unfeeling logic. As the day turns to twilight and then to night, and the lights come on, through a series of reveals, a decision is reached. The verdict is not doubt-free, but it is the right one. The story—the teleplay written in 1954 and filmed in 1957—becomes a hallmark of midcentury American liberal education, along with To Kill a Mockingbird and The Crucible. Playwright Reginald Rose was the son of New York immigrants and always wanted to be a writer. After World War II, he worked in advertising but sold short stories, though not very successfully. He had more luck with television scripts. Centered in New York, television dramas were in demand, and a stable of writers churned them out. In this book, Rosenzweig corrects some misconceptions. Rose said that 12 Angry
July/August 2022 • THE FEDERAL LAWYER • 79
Men resulted from his service on a jury in 1954. Rosenzweig’s research reveals that Rose never sat on a jury, and that his exposure to one may have been just remaining in court after he was not chosen. The making of the film was not a virtuous civic act, but a business decision by a studio. The director, Sidney Lumet, was not the cheapest but was selected because he knew the right people. All revelatory, but it does not affect one’s appreciation of the work. More interesting is the media culture of the time, with television’s need for content, Hollywood’s concern with the new medium and its business model, and television’s format—48-minute dramas, for example. Swirling at the time was social and cultural ferment, with the rise of civil rights, McCarthyism, the Cold War, and the specter of Communism. Rose responded to this milieu with works in addition to 12 Angry Men. His prior and concurrent scripts dealt with prejudice, mass hysteria, and the rights of minorities and women. Rose created and oversaw the making of The Defenders, an acclaimed courtroom drama with a father and son defense team, running from 1961 to 1965. Rose later wrote successful miniseries and Hollywood scripts. This book is also about the craft of scriptwriting and filming. With respect to each creative mode for which 12 Angry Men was adapted—television, theater, and film—Rosenzweig describes the many drafts, the revisions, who made them, and why. He traces the development of each juror’s character. When it comes to filming, Rose the writer gives way to Lumet the director. Rosenzweig, using Lumet’s notes and recollections, explains the cinematography in detail. The film’s first third is shot from on high, looking down on the jurors; the next third is shot at eye level; and the last third is shot from below, looking up. In this way, the room gets smaller and the jurors larger. The actions of the jurors correspond: As they move physically, they move to the verdict. The types of lenses are explained, from wide to tight. Costume and lighting help to reveal character, set a mood, and stir the actors from just static talk. Yes, these chapters are for the film aficionados. They require a familiarity with the film, and a recent viewing of it is almost necessary to catch the nuances. The film received acclaim. It was nominated for the 1957 Academy Award for best picture but lost out to the blockbuster, The
Bridge Over the River Kwai. The domestic box office was disappointing, but international profits rescued it. Over the years, the film had a second life. It played out in culture as it was playing on late-night television. The story’s premise—jurors deliberating after a trial—proved adaptable to foreign legal systems, and notable foreign films have been influenced by it. As for the play, one of the most acclaimed versions was directed by British playwright Harold Pinter, and the adjective “pinteresque” (enclosed space and unpredictable dialogue) fit his version of 12 Angry Men. Rosenzweig does more than just discuss the work. He also traces how the film has been used in legal scholarship on juries, in justice, and in studies of behavior and decision-making. He wrote this book from deep affection. This is shown by the fact that he donated all royalties to a social justice institute. I recall this work. But have you seen the play or film recently? I doubt that many of you have or will. The play falls outside the classic repertory—too much of a musty whodunit, with casting and relevancy issues. The film has the same issues, along with being in black and white, with no special effects, but with just words … and a knife. It also has legal flaws. Putting aside those that are flaws only today, such as the all-male, all-white jury, there is also bringing in outside evidence (try getting the knife past the security in today’s courtrooms) and doing one’s own investigation. In addition, the jurors are not so much people as types assembled for a civics lesson, and they might be compared to the platoon character types in World War II films. (Speaking of civics lessons, the book itself at times reads like a civics pamphlet: informative, dutiful, and earnest.) Reginald Rose and the Journey of 12 Angry Men tries to explain the power and popularity of this work as a teleplay, play, and film. It shows how it helped change cultural attitudes. But it makes too much of analyzing the drama. The book works best as an insight into how a work of art and a writer exemplified their time and place. Yet the issues the drama raises transcend that time and place. This drama is an artifact of a time when we hoped that a television broadcast, play, or film could portray a civic-minded jury that represented the best of us in reaching a verdict. How naïve. This was not the reality then or now. Civics lessons costumed and
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scripted, however high-minded, cannot change what actually occurs when 12 strangers deliberate. We need to accept this. And as trial lawyers, we cannot really script, as much as we might want, what happens when the jurors leave the courtroom and the door closes on their deliberations. Their role and their drama begin. Jon Sands is the federal public defender for the District of Arizona.
Federal Bar Association Application for Membership The Federal Bar Association offers unmatched opportunities and services to enhance your connections to the judiciary, the legal profession, and your local legal community. Our mission is to strengthen the federal legal system and administration of justice by serving the interests and the needs of public and private federal practitioners, the federal judiciary, and the public they serve.
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Broward County Chapter of the FBA Judicial Reception (left to right): Judge Darrin P. Gayles, Judge Laurel M. Isicoff, Magistrate Judge Jared M. Strauss, Magistrate Judge Patrick M. Hunt, Magistrate Judge Lurana S. Snow (Ret.), Judge William P. Dimitrouleas, Judge Raj Singhal, Magistrate Judge Edwin G. Torres, Judge Rodney Smith, and Circuit Court Judge Keathan B. Frink.
ELEVENTH CIRCUIT
Broward County and Palm Beach Chapters On April 28, the Broward, South Florida, and Palm Beach Chapters of the FBA hosted the annual Federal Judicial Clerk Recruiting Reception. The reception provides a great opportunity for public and private legal organizations located in the Southern District of Florida to connect with job-seeking federal law clerks. The reception was a success, with current and former judicial clerks, employers, and members of FBA leadership in attendance. On May 11, the Broward County Chapter hosted its annual Judicial Reception at the Tower Club in Fort Lauderdale. This event was attended by over 100 attorneys, an Eleventh Circuit judge, district court judges, magistrate judges, bankruptcy judges, and Florida State Court judges.
Federal Judicial Law Clerk Recruiting Reception (left to right): Tamara Malvin, Vanessa Tussey, Law Clerk Committee Co-chair Constantine Economides, Alaina Fotiu Wojtowicz, and Law Clerk Committee Member Phil Rothschild.
84 • THE FEDERAL LAWYER • July/August 2022
The Broward County Chapter hosted a successful Summer Associates Day at the Fort Lauderdale federal courthouse. There were about 45 participants, including two speakers from the USAO and two speakers from the FPD office. They spoke to the participants and answered questions about their jobs and career paths. The participants then observed a hearing on cross motions for summary judgment before Judge William P. Dimitrouleas in a copyright infringement case. The participants also observed criminal duty court before Magistrate Judge Patrick M. Hunt, with one of the cases regarding a Hobbs Act robbery. An FBI agent told participants about how he investigated the case and eventually located the defendant using sophisticated cell site technology. Finally, everyone had lunch while board members Brian Lerner and Jonathan Osbourne talked about their career paths and answered more questions. The participants were very engaged and all the speakers gave great advice.
Broward County Chapter: Top right: The Broward County Chapter of the FBA hosted a successful Summer Associates Day with about 45 participants. Above: Two speakers from the USAO and two speakers from the FPD discussed their career paths with participants. Right: FBA Broward Board Members Brian Lerner and Jonathan Osbourne answered questions and spoke with with Summer Associates Day attendees about their career paths.
July/August 2022 • THE FEDERAL LAWYER • 85
Above left: Senior District Judge Timothy S. Black and Magistrate Judge Stephanie K. Bowman pose with the 2022 PLEDGE honorees. Pictured from left to right: Judge Black, Ryan Ragland, Meagan W. Myers, Melissa S. Mathews, Stephanie Franxman Kessler, Cristina Frankian, Sandra Eismann-Harpen, Amanda Stubblefield Burton, Katherine C. Baron, Judge Bowman. Above right: 2021 PLEDGE honorees Tessa L. Castner, Ana Perez Crawford, Sarah Vonderbrink Geiger, and Alison M. Huenefeld. Not pictured: Kellie Ann Kulka.
SIXTH CIRCUIT
Cincinnati/Northern Kentucky– John W. Peck Chapter The Cincinnati/Northern Kentucky–John W. Peck Chapter’s Gender Equity Committee held its third annual PLEDGE event on May 19 on the rooftop of the A/C Hotel in downtown Cincinnati. The Gender Equity Committee, which was created in 2017 by then-president Dan Donnellon, recognized the national problem of women lawyers leaving law firms, and often the practice of law, in high numbers. In an effort to encourage women lawyers to continue in litigation, the Gender Equity Committee created an event, “Promoting Lawyer Excellence & Driving Gender Equity” also known as PLEDGE, to honor women four to seven years out of law school who are succeeding in their practice. Honorees are nominated by other lawyers and then selected by a committee. This year’s PLEDGE event honored eight women, in addition to five women who were recognized in a virtual event in 2021. The 2022 honorees are Ryan Ragland, Hamilton County Public Defenders’ Office; Meagan W. Myers, special assistant U.S. attorney; Melissa S. Mathews, Keating, Muething & Klekamp PLL; Stephanie Franxman Kessler, Pinales, Stachler, Young & Burrell Co., LPA; Cristina Frankian, career law clerk to Hon. Timothy S. Black; Sandra Eismann-Harpen, Frost Brown Todd LLC; Amanda Stubblefield Burton, Keating, Muething & Klekamp PLL; and Katherine C. Baron, City of Cincinnati Solicitor’s Office. Those honored in 2021 are Tessa L. Castner, Frost Brown Todd LLC; Ana Perez Crawford, Porter Wright Morris & Arthur LLP; Sarah Vonderbrink
The family of Dan Donnellon, who passed away on Feb. 17, 2022, receives a Resolution from FBA National and the Cincinnati/Northern Kentucky–John W. Peck Chapter honoring Dan and his service to the FBA.
Geiger, Keating, Muething & Klekamp PLL; Alison M. Huenefeld, Cors & Bassett; and Kellie Ann Kulka, Graydon.
FIFTH CIRCUIT
Southern District of Texas Chapter In March 2021, the Southern District of Texas Chapter initiated a new series of CLEs fo-
86 • THE FEDERAL LAWYER • July/August 2022
cusing on practical litigation skills. Programs in the “Federal Practice Series” have ranged from “Depositions” to “Mediation” to “Using the Rules of Evidence for Effective Advocacy.” The latest program in the series, “What Trial Lawyers Need to Know About Appellate Litigation,” was held on April 26, 2022, at Baker Botts, LLP, and featured Hon. Lee H. Rosenthal (chief judge of the Southern District of Texas), Hon. April L. Farris (justice of the Texas First Court of Appeals), and Philip G. Gallagher (supervisory assistant federal public defender). Andrew R. Gould of Arnold & Itkin LLP was the moderator. The panelists addressed a variety of appellate topics relevant to trial practice. Southern District of Texas Chapter Federal Practice Series (left to right): Andrew Gould (moderator), Hon. Lee Rosenthal, Hon. April Farris, and Philip Gallagher.
Sections & Divisions
The FBA’s 2022 Annual Immigration Conference in Detroit addressed visas, asylum, naturalization, and other topics over a two-day period from May 13-14 and featured 40 educational programs.
SECTION ON IMMIGRATION LAW On May 13 and 14, 2022, the FBA’s Immigration Law Section (ILS) held its Annual Immigration Law Conference in Detroit. Over 40 educational sessions were offered during the multitrack program. This year’s ILS conference, the first in-person annual conference after a threeyear hiatus, provided a variety of panels designed to explore a wide range of immigration topics—from asylum and detention to consular processing and employment-based immigration law. FBA President Anh Le Kremer warmly welcomed conference attendees at the commencement of the conference. Unique plenary sessions on Friday and Saturday included the following: • M ichele Oberholtzer Zimmerman, chief policy advisor, mayor’s office of the city of Detroit.
• A conversation with David Gersten, immigration detention ombudsman (acting), U.S. Department of Homeland Security. • A discussion with members of Building Respect in Diverse Groups to Enhance Sensitivity (BRIDGES) with Hon. Dawn Ison, U.S. attorney, Eastern District of Michigan; Valentina Seeley, OPE northern region director, ICE; Osama Siblani, editor, Arab American News; Andrew Douglas, assistant director of field operations, U.S. Customs and Border Patrol; and Mayor Amer Ghalib. The Department of Labor’s Office of Foreign Labor Certification (OFLC) provided an update with Brandt Carter, director, Atlanta Processing Center, OFLC, U.S. Department of Labor; Bennett Savitz, Savitz Law Offices, P.C.; Brian Testa, director, Division of Policy and Regulation, OFLC, U.S. Department of Labor;
and Bob White, Masuda, Funai, Eifert & Mitchell, Ltd. Detroit-Windsor Tunnel Tours were conducted by CBP on Thursday, and a wonderful pre-conference dinner at Pegasus Taverna in Detroit’s Greektown was enjoyed by conference attendees. The ILS awards reception was held in the beautiful Top of the Pontch rooftop restaurant on Friday evening. Attendees also enjoyed taking in a Detroit Tigers baseball game at Comerica Park and a sunset dinner cruise on the Detroit Princess Riverboat and took advantage of the many attractions Detroit offers. A special thanks goes to conference cochairs Kelli Duehning, ILS programs chair, and Amiena Khan, ILS chair, as well as to all track co-chairs, speakers, and attendees. A note of thanks and appreciation to FBA national staff members Caitlin Rider, Ariel White, Mike McCarthy, and Deputy Director Yvonne Cockram for seamlessly administering the successful program.
July/August 2022 • THE FEDERAL LAWYER • 87
Member Spotlight * Denotes Sustaining Member John Arnold Angela Atoyan Gary Austin Catherine Bell Michael Besser Hunter Bishop Rebecca Brown Chanan Brown Kristen Carpenter Aja Carr Favors David Chee Lillian Chu Eric Cinotti Charles Connelly Abhijit Das Kelley Farrell Amy Fehr Wendy Feinstein Hannah Fitzgerald Emmitt Ford Martin Gleason Kevin Gould Remy Green Andrew Haller Ali Haque Glenn Harris Stephen Hatos Neil Henrichsen Andy Hirth Leah Housler George Hyde John Jordan Murray Kamionski Susan & Kennedy Thomas Kroeger Ilene Lashinsky Stuart Leijon Doron Levin Ya Li Ian Liston Sarah Lockwood Maria Lopez Giselle Lopez-Soler John Lord Bradley Maze Joseph McMahon Mary Ann Medler Suzanne Meehle Cristina Moreno Dennis Morgan David Paavola Teresa Pupillo Scott Racop Michael Rader Nancy Ribaudo Vanessa Rivas-Bernardy Anna Russell Emily Scott Catherine Shames Vani Singhal Daniel Steppick Debra Strauss Kestine Thiele Artemis Vamianakis Jason Wixom Jace Yarbrough Brian Buchanan* Jonathan Childers* Yves Laventure* Frederick Morgan* Guy Perrier*
Maxine Streeter* Leslie Wheelock*
FIRST CIRCUIT
First Circuit At Large Jennifer Doherty Laura Gonz·lez-Bothwell Michael Tracy
Hon. Raymond L. Acosta Puerto Rico Jorge Blasini Gonzalez Jose Feliciano Manuel Fern·ndez-Bared Mayra Gonz·lez-Reyes Christian Torres Carolina Velaz Rivero*
Massachusetts Jeffrey Baker Eugenia Carris Laurel Gilbert John Hitt Harrison Kaplan Page Kelley Jared Madison David Michel Robert Naumes Eve Piemonte Linda Ricci Dylan Sanders Sara Silva Judy White J. W. Carney, Jr.* Kevin Corridan*
New Hampshire
Desiree Goldfinger Roger Kobert Hanna Martin Aliya Nelson Kadeen Wong Laurie Rubinow* Clementina Udeogalanya*
Western District of New York Jonathan Feldman Michael Roemer
THIRD CIRCUIT Delaware
Emily DiBenedetto Pilar Kraman
Eastern District of Pennsylvania Yuliya Khromyak John Roberts*
Middle District of Pennsylvania Sean Camoni Yael Dadoun Joseph Saporito Tessa Shurr Anthony Cox*
New Jersey
Ronald Coleman*
Virgin Islands George Cannon
Dominick Alcid Dominick Alcid Sandhya Iyer*
Western District of Pennsylvania
Rhode Island
FOURTH CIRCUIT
David Martin
SECOND CIRCUIT Second Circuit At Large Brian Feldman Melissa Patzelt-Russo Daniel Stewart
Eastern District of New York James Cho Luigi De Ghenghi Pablo Fernandez Shannon Fillmore Joan Foy Justina Geraci Tricia Lindsay Orlando Lopez John Quinn
Southern District of New York David J. Baker Jan Brown Martin Casey Shane Cooper Madeleine Erwin Kimberly Friedman
88 • THE FEDERAL LAWYER • July/August 2022
Patricia Dodge
Fourth Circuit At Large Lindsay M Vick
Eastern District of North Carolina
Sarah Maryam Al-Zoubi Michael Lord Heather Sivaraman Helen Smith Callie Thomas Clay Wheeler Lynn Calder*
Hampton Roads Andrew Bosse Ryan Gibson Laura Grimes Sylvia Kastens Tommy Miller James Shoemaker Mark Warmbier Jamilah Lecruise*
Maryland
Sarah Adkisson Tamal Banton Eric Bielitz Isabella Demougeot Raenetta Ellison
Alana Glover Chaitra Gowda Stacey Grigsby Joshua Kahn Paul Kramer Sonia Kumar Pierce Murphy Katherine Newberger David Prater Donald Quinn Lee Rauch Gina Smith DeNisha Watson Samuel Wolf Hon. April T. Ademiluyi*
Hannah Wallace Robert Harrington* Jonathan Krisko*
Middle District of North Carolina
FIFTH CIRCUIT
Kearns Davis Joi Peake Jacob Wharton
Northern District of West Virginia Omar Aboulhosn Stephanie Ojeda
Northern Virginia Joshua Carrigan Christopher Conrad Rena Cutlip-Mason Sharon Hall Aleksey House Michael Kinney David Ludwig Mikaela Phillips Marc Eisenstein*
Richmond
John Erbach Theresa Goulde Carla Jordan-Detamore David Lowe Virginia Bruner*
South Carolina James Bradley Molly Cherry Brittany Clark Edgar Pinilla Edward Pritchard Kenneth Shaw Robert Varnado Melissa Yates Scott Anderson*
Western District of North Carolina Gavin Bell Mark Burts II Jason Cowley John Davis John Durnovich L Gessner Elizabeth Greene Gerald King Lydia Locklear Edward Nogay Joseph Nogay Teresa Norris Alice Richey
Western District of Virginia Mark Frye Andrea Harris David Heilberg Jessiah Hulle Powell Leitch, III Kenneth Ries Nathan Schnetzler John Weber III Jasmine Yoon
Fifth Circuit At Large Mary Pietrazek Michael Victorian
Austin
Dustin Howell Sherri Wilson
Baton Rouge
Jamie Flowers, Jr. Colt Fore Ryan Johnson Anthony Lascaro Roy Mista Thomas Naquin Jeremiah Sams Jessica Weimer Amy Lambert*
Central Louisiana Louie Henry
Dallas
Katherine Anand Kamran Anwar John Atkins Ann Badmus Christopher Clayton Brian Copper Ryan Dean Melanie Finch Gary Fowler Matthew Furse Ryan Gaddis Gregg Gallian Richard Guiltinan Stephen Jones Elizabeth Kiernan William Knisley James Martin Brian McKay K Mitchell Charles North John Shipp Michael Stockham Ross Stoddard Benjamin Stool Zachary Tobolowsky Russell Turkel Gerardo Villegas Michael Woodrum Ashley Wright John Horany* William Toles*
El Paso
Sergio Estrada Estrada Kathleen Campbell Walker* Corey Haugland*
Fort Worth
Mitchell Abeita D. Brissette Randall Nunn Peter Smythe
Lafayette/Acadiana Patrick Duncan
Mississippi
Pelicia Hall Maxine Lawson-Conway Conner Whitten
New Orleans
Laurent Demosthenidy Casey DeReus Kristian Dobard William Dodd Meaghan Jeansonne William Kelly Adam McNeil Mildred Methvin Kim Milone Kerry Murphy Hope Phelps Olivia Philipp William Pratt Leah Spivey Cherrell S. Taplin Colleen Templeton Mark Tufts Erin Wheeler Steven Witman Sean Brady*
San Antonio
Christina Falkiewicz Norbert Hart Huiju Jeon Brian Nowinski James Deegear* Brandon Grable*
Southern District of Texas Arielle Anderson Marjan Batchelor Adrianna Culbreth Paige Dusthimer Michelle Gray David Isaak Blake Jenkins Randall Kallinen Dana lipp Edward Maddox Nadia Medrano Stephani Michel Dena Palermo Anuj Shah Lisa Virgen Hicks Thomas Hudson
SIXTH CIRCUIT
Sixth Circuit At Large Jonathan Entin Jane Lee Jennifer Verkamp
Central Louisiana Kelly Mitchell
Chattanooga
Alexis Crutchfield Gianna Maio Katherine Rogers Travis Thompson
CincinnatiNorthern Kentucky, John W. Peck Edward Babbitt Ana Crawford Jonathan Lischak Matthew McFarland Ellen Phillips Ebun Taiwo
Columbus
Kathryn Brown David Carey Emily Czerniejewski James Hartke Heather Hill John Hoffman Mina Khorrami Sarah Morrison Vipal Patel C. Preston Chad Readler Samuel Shimeall Janay Stevens David Twombly Chelsey Vascura Leah Wolfe
Dayton
Alyson Reed Elizabeth Rogers Tiffany Schwartz Peter Silvain James Smerbeck
Eastern District of Michigan Charles Binder Regina McCullough Nneka Nnubia
Kentucky
Edward Atkins Brent Brennenstuhl Neil Riley
Knoxville
Christopher McCarty*
Memphis Mid-South Annie Christoff Sean Haynes Nathan Tilly Teresa Luna*
Nashville
Joe Brown Scott Gallisdorfer Brian Roark
Northern District of Ohio Darrell Clay Molly Davis Scott Friedman Alex Frondorf Richard Hamilton Carmen Henderson Amanda Knapp Matthew Mahoney Ryan McNeil
Dean Rooney Demetri Sintsirmas Stephanie Starek
Western District of Michigan Jane Beckering Phillip Green Melissa Pope Wenona Singel Adam Sturdivant Kate Vaughan
SEVENTH CIRCUIT Seventh Circuit At Large Nancy Lee Carlson Gregory Mitchell Robert Schwaba Jamie Franklin*
Chicago
Spelios Bacoyanis Allie Burnet Sarah Catalano Christina Coleman Megan Goldish Stephanie Gonzalez Sarah Grady Jonathan Kim Jeffrey Klang Shannon McNulty Jessica Petrovski Colleen Shannon Lauren Sharkey Joseph Stewart Kristin Suchy Cindy Wilson Pamela Yaacoub
Indianapolis Sandra Blevins Doris Pryor Peter Snow Jane Wilson
Northern District of Indiana Michael Gotsch
Southern District of Illinois Alex Boykin Adam Hanna Jennifer Maloney Andy Martone Kristen Spina
Wisconsin
Dyllan Linehan Robert Lundberg Crystal Banse
EIGHTH CIRCUIT
Eighth Circuit At Large Molly Littman
Iowa
Helen James
Kansas and Western District of Missouri Lanna Allen Brenda G Hamilton Vanessa Kamberis Casey Tourtillott
Minnesota
Abou Amara Court Anderson Kari Beaudry Nathan Boone Lisa Brabbit Brianna Chamberlin Karin Ciano Rory Collins Amy Conway Nicholas DeMaris John Docherty Erin Emory Matthew Enriquez Laura Farley Caitlinrose Fisher Michael Florey Karla Gluek Lorenzo Gudino Cianna Halloran Aaron Harkins June Hoidal Jason Kilene Laura Kvasnicka Kelly Laudon Brian Linnerooth Anne Lockner Frances Mahoney Mosedale Donald Mark Flossie Neale Abby Oakland Vance Opperman Danielle Ottaviani Shantal Pai Jessica Palmer-Denig Trevor Parkes Joshua Peterson Bradley Prowant Denise Rahne Elizabeth Reutter Sarah Ripa William Roberts Katherine Rollins Matthew Rubenstein J Gordon Rudd Ashley Schoenborn Peter Schwingler Connor Shaull Valerie Stacey Tim Sullivan Kesha Tanabe Brian Toder Lola Velazquez-Aguilu Julie Vernon David Wallace-Jackson Derek Waller Davida Williams Kristin Zinsmaster Bruce Rivers*
South Dakota Veronica Duffy
St. Louis
John Bodenhausen James Emanuel Herbert Giorgio Nauman Wadalawala
NINTH CIRCUIT
Ninth Circuit At Large Garrett Brown E. Louise McCavana Lisa Serebin Jolene Villalva
Alaska
Alex Cleghorn Kristen Dikeman Lloyd Miller Matthew Scoble
Hawaii
Kalikoonalani Fernandes Douglas Moore Georgette Yaindl
Los Angeles
Paul Abrams Ann Chang Jessica Cheh Justin Cronin Norry Harn Bret Hembd Michael Jaeger Sandhya Kogge Michael McCarthy Mica Moore Rita Morales Adam Olin Agustin Orozco Andrew Pongracz Pooja Rajaram Amy Rotman Alka Sagar Raymond Sakai Paul Salvaty Claire Simonich Karen Stevenson Heather Torres Kevin McBride*
Montana
Timothy Bechtold Summer Carmack Natasha Hammack Dion Killsback
Nevada
Benes Aldana Cam Ferenbach Laronda Martin Steven McDonald Anton Vialtsin
Northern District of California Galia Amram Jessica Cook Alanna Coopersmith Elizabeth Dinh Eric Fastiff Angel Garrett Jo Gbujama Scott Joiner William Kimball Prerna Lal Ellen Leonida Monica Lienke Sonal Mehta Nazune Menka Sharanya Mohan United Office Spencer Pahlke Matthew Pritchard Patrick Robbins Justina Sessions Nathan Shaffer Kristin Snyder Steven Tidrick Susan van Keulen Anne Voigts Qiaojing Zheng
July/August 2022 • THE FEDERAL LAWYER • 89
Peggy Bristol* Nicomedes Herrera* Bambo Obaro* Gail Shifman* Steven Williams
Orange County Kainoa Asuega Ryan Ball Robert Block Michael De Vries Douglas Dixon Lawrence Kole Elizabeth McKeen Tess Messiha David Miller Cheryl O’Connor Daniel Sasse Chahira Solh Sarper Unal Jordan Cook* Jeff Reeves*
Oregon
Samantha Ratcliffe Christopher Riley Justin Rusk Jarrett Wheeler
Phoenix
Diandra Benally Kristen Brook Howard Cabot Jessica Gale Meaghan Kramer Kathryn Almond* Diandra Benally* Holly Gieszl*
Sacramento
Adam Bailey Judith Cregan Emily Doringer Stephen Duvernay Lynn Trinka Ernce Amanda Hebesha Kristen Koo Laura Neacato Monica Quinlan Malcolm Segal Catherine Straight Rebecca Ferguson*
San Diego
Alivia Abreu Andrea Alberico Gabriella Alvarez Arax Aslanyan Livia Beaudin Samantha Begovich Whitney Bernstein Brooke Beros Adam Braverman Valerie Burch Michelle Burton Kelly Butler Sandor Callahan Corey Chambers Bria Chappell Fanny Cherng Jodi Cleesattle Courtney Cole James Crosby John Dineen James J. Durbin III Christopher Engelmann Maria Fernanda Ezquerro
Mark Funkhouser Cortney Harrington Andrew Herold Patricia Hollenbeck Quentin Johnson Zohaile Kakavand Dean Keshavarz Diana Khoury Hubert Kim Canaan Knapp Amanda Lesowitz Devon Lomayesva Kathleen Mayer Jennifer McCollough Katherine McCray Angela Medrano Matthew Minnick Daniel Mogin Jeffrey Munoz Armando Murillo Mark Myers Michael Olinik Shelby Poteet Loren Rene Matthew Riley COLIN RUDOLPH Linda Sager Dana Schaal Daniel Smith Bianca Smoker Amanda Sorvig Renee Stackhouse Madison Standon Edward Swan Jr Julia Torres Ariel Valerio-Meek S Christian Platt* Patrick Swan* Katharine Tremblay*
San Joaquin Valley Christopher Baker Darren Bogie Craig Houghton Jessica Massey Michael McKneely
Washington State Carrie Bashaw Heather Costanzo Erika Evans Kristine Foerster Meredith Harris Charles Hurt Jonas Lerman Jessica Manca Brian McClatchey Tommy Miller Julie Van Winkle Thomas Vertetis*
William D. Browning Tucson
Debra Edmondson Michael Kaufmann John Partridge Lisa Wendt Beth Wright
New Mexico
Naomi Barnes Frances Bassett James Burson Buchalter a Corporation Lorenzo Garcia Noelle Graney Sean Kinniry Tierra Marks Josett Monette Josette Monette Mia Montoya Hammersley Lydia Paukei John Robbenhaar April Wilkinson Dustin Jansen*
Northern/Eastern Oklahoma Greg Buzzard Brian Deer Bonnie Hackler Jo Lynn Jeter Justin Lollman Stephen Lopp John Russell Colton Scott Hayley Stephens Chris Warzecha Emily Wilson Marvin Stepson*
Oklahoma City Carolina Attaway Dixie Coffey Kymberly Cravatt Julie Ezell Tim Gallegly Marci Gracey Kristin Greenhaw Douglas McBee Jacob Oliphant Erin O’Roke Emma Payne Zachary Stuart Laura Waddill Wilda Wahpepah William Wells Phillip Whaley Evan Talley*
Utah
Joel Ferre Richard Hamilton Joshua Rupp Annette Campbell*
Caleb Brown Jorge Costales Sonia Fleury Melissa Kroeger Alexander Valentine
Wyoming
TENTH CIRCUIT
Jerald Bagley Pablo Gonzalez Zepeda Zaharah Markoe Brian Gilchrist*
Tenth Circuit At Large Courtney Jordan
Colorado
Matthew Campbell Linda Cooper S. Crews
90 • THE FEDERAL LAWYER • July/August 2022
Kelly Rankin
ELEVENTH CIRCUIT Eleventh Circuit At Large
Atlanta
David Bain Lynsey Barron
Zoe Ben-Oren Gerrilyn Brill Brittany Cambre Holly Cole Kevin Doyle Alejandro Jaca-Mendez John Jett Steven Koval Erin Munger Andrew Navratil Eileen Scofield Rita Sheffey Elijah Staggers Eliza Taylor Amanda Waide Lucas Westby Samuel White James Brigman* Vincent Davis*
Birmingham
Abigail van Alstyne
Broward County Scott Cagan Adam Hapner Robert Reynolds Philip Rothschild Peter Russin Scott Strauss Detra Shaw-Wilder*
Jacksonville
Justo Arenas Patricia Barksdale
Montgomery James DuBois Larry Golston Wilson Miles Bert Milling Rachel Minder
North Alabama Pamela Bourque Harwell Davis
North Central Florida Hope Cannon Gary Jones Dorothy Maier Meagan Martin Leah McClanahan Emma Steel
Northeast Tennessee
Benjamin Sadler Katie Sadlo Darcie Thompson Ann Vitunac Joseph Bain*
South Florida
Roy Altman Rossana Arteaga-Gomez Chanelle Artiles Jacqueline Becerra Bruce Brown Bryan Capdevila Patty Cohen Paige Comparato Melissa Damian William Daniel David DeMaio Jeffrey Devore Ariella Ederi Brittany Finnegan Ezra Greenberg Julie Kane Cristina Laramee Souto Zachary Lipshultz Roberto Martinez Patrick Montoya Edward O’Donnell MICHAEL PARK Aaron Resnick Adam Schachter Lelia Schleier Tom Schulte Paul Schwiep Stuart Singer Maggie Snyder Jay Yagoda Barry Kamar* Eric Kay* Barbara Llanes*
Southern District of Georgia Christopher Ray
Southwest Florida Edward Caden
Tallahassee
Raymond Denecke
Tampa Bay Clark Bolton James Burns Derek Usman
Megan Bittakis Nailah Bowen
South Florida
Orlando
D.C. CIRCUIT
Daniel Irick Lindy Keown Robert Norway Reed Arroyo*
Palm Beach
Gary Betensky Havan Clark Paul Hyman Jesse Isom Lauren Johnson Erik Kimball Patricia Leonard Daniella Margetic Shaniek Maynard Coleman Press Kendall Ryant
Patricia Redmond*
District of Columbia Circuit At Large Roger Mahon
Capitol Hill
Tremayne Bunaugh Aditya McDuffy
District of Columbia Jarryd Anderson Sarah Bazzi Margo Chernysheva Kyle Colonna Jennifer DeMaster Wendy Helgemo Rochelle Hodes
continued on page 92
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Member Spotlight continued from page 90 Cissy Jackson Chris Jannace Robert Kaplan Jenny Kim Logan Kincheloe Herman Levy
Linchi Liang Marvin Lunde Michael Martinez Sarah McIntosh Scott Memmott Daniel Stuart Phelan
Thomas Pinder Emily Reeder-Ricchetti Shaun Rosenthal Anthony Scerbo Jenn Schlumpf Rachel Stuckey
Adam Tarosky John Tolleris Leah Vasarhelyi Ruth Vernet Frank Xu Amadou Diaw*
1st Circuit This index contains profiles as they were published in The Federal Lawyer magazine. The index is organized by circuit and district, which can be accessed via the tabs at right. If you would like to search for a specific judge, it is recommended that you use the search function above and type in the judge’s last name. This index will be updated with both new profiles and historical profiles on a regular basis. If the judge you are looking for does not appear, this either means that they have not yet been added to the index or have not been profiled. The Federal Lawyer encourages submissions of judicial profiles; contact Managing Editor Sarah Perlman at sperlman@fedbar.org for more information.
92 • THE FEDERAL LAWYER • July/August 2022
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J U LY
AU G U ST
Webinar: Words of Wisdom from the Senior Lawyers and Federal Career Service Divisions
Webinar: Careers in Tax Law
J U LY 8
J U LY 1 2
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Los Angeles Chapter: The Legal Community’s Efforts to Assist Ukraine J U LY 1 3
Maryland Chapter: Supreme Court Update J U LY 1 3
Webinar: Beyond the Headlines: Key SCOTUS Civil Rights Decisions from the 2021–22 Term J U LY 1 4
Summer Law Clerk Program: Library of Congress Career Panel J U LY 1 9
Oklahoma City Chapter: Brown Bag Lunch with Judge David L. Russell J U LY 2 2
Webinar: Insights into the Two Most Popular Types of PTAB Proceedings: Appeals and Inter Partes Reviews J U LY 2 6
Webinar: Nuts and Bolts of Admiralty Law J U LY 2 7
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AU G U S T 5
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Webinar: Implicit Bias & Diversity AU G U S T 2 4
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Tampa Bay Chapter: 31st Annual Federal Sentencing Guidelines Seminar
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2022 FBA Annual Meeting & Convention – Charleston, SC SEPTEMBER 15
National Board of Directors Meeting
O CTO B E R O CTO B E R 7
Eastern District of Michigan Chapter: Anatomy of a Trial
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