The Federal Lawyer: September/October 2022

Environmental Justice: The Evolution of a New Federal Regulatory Program

Stay Connected

We want to thank you for being a member of the Federal Bar Association and remind you to update your profile to ensure that you continue to get the most value out of your membership. Looking for someone you met at an FBA function, a schoolmate, or a colleague with whom you lost touch – or maybe they’re trying to reach you? Without updated contact information you could be missing out on some of the best things the FBA has to offer: timely updates on federal law, networking, and our magazine The Federal Lawyer.

Your membership gives you access to:

ü More than 700 credit hours of free and discounted continuing legal education (CLE) at both the national and local level throughout the year

ü Local chapter membership that provides networking, programs, community outreach, and leadership opportunities

ü Representation on Capitol Hill on behalf of federal practitioners, and so much more!

Login at fedbar.org and confirm your Member Profile information today!

EDITORIAL BOARD

doyle_andrew@msn.com

W. Satola

jsatola@roadrunner.com

Lynne G. Agoston

(240) 404-6488

social@fedbar.org

Jon Jay

Soledad M.

Kristine

Melanie L. Alsworth

Anna Archer Tamar Birckhead

John Black

Luke P. Ihnen

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 Ar lington, 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.” ©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 asso ciated. 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.

28 Environmental Justice: The Evolution of a New Federal Regulatory Program

By Anthony B. Cavender and Anne Idsal Austin

34 Digitized Design: Navigating IP Rights in the Age of the Metaverse

By Rudyard W. Ceres and Kamanta C. Kettle

40 Practicing Law During a War: The Trials and Tribulations of Ukraine and Its Legal Professionals

An Interview With Oleksandra Syniakovska

By Ira Cohen

46 Pleading Stage Discovery: Charting a Roadmap for Jurisdictional Discovery by Grant D. King and Stephen L. Rossetti Jr.

3 President’s Message

The Clerk’s Committee

By Matthew Moschella

5 Beltway Bulletin

West Virginia v. EPA—Will Chevron Go the Way of the Dinosaurs?

By Cissy Jackson and David Loring

6 At Sidebar

The Online Public Forum: Do We Have Less Discourse or Just More Public Spaces for Opinions?

By Ellen Denum

8 Bench Brief

Ready to Inspire? Expanding Judicial Intern Opportunities

By Hon. Beth Bloom

10 Diversity & Inclusion

Can a Machine Really Discriminate?

By Hon. Dania Ayoubi

12 Litigation Brief

Three Evidence Rule Amendments Move Closer to Adoption

By John G. McCarthy

14 Commentary

It’s High Time for the Supreme Court to Scrap the “Wholly Insubstantial and Frivolous” Jurisdictional Standard Enunciated in Bell v. Hood

By Paul A. Avron

17 Commentary

Lessons From Ted Lasso on Mediation Strategy

By Harold Oehler

PROFILES

19 Hon. Gary A. Fenner

Senior U.S. District Judge, Western District of Missouri

By Katherine Bourk

24 Hon. J. Ronnie Greer

Senior U.S. District Court Judge, Eastern District of Tennessee

By LeAnna R. Wilson

BOOK REVIEWS

Business and Human Rights: Ethical, Legal, and Managerial Perspectives

Reviewed by Christopher Faille

Let the Lord Sort Them: The Rise and Fall of the Death Penalty

Reviewed by Jon M. Sands and Lauren K. Paxton

FBA MEMBER NEWS

Exchange

1220 N. Fillmore St., Ste. 444

(571) 481-9100

VA 22201

(571) 481-9090

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

The Clerk’s Committee

By Matthew Moschella

Matthew C. Moschella is chair of the Litigation Department at Sherin and Lodgen and a partner in the firm’s Litigation and Em ployment Departments. He represents companies and individuals in a wide variety of civil matters in state and federal courts across the country as well as in arbitration proceedings. Moschella also represents employers concerning complaints filed against them with state and federal administrative agencies. In addition to representing clients in various types of civil litigation, he counsels clients in a wide variety of industries on employ ment risk management issues. Moschella is also an adjunct professor at New England Law Boston, where he teaches contract drafting. Following law school, he was a law clerk to Hon. Judith Gail Dein, U.S. magistrate judge, U.S. District Court for the District of Massachusetts.

Like many FBA members, when I think of the federal courts, the first things that come to mind are the tan gible aspects I see when I am there—most notably, the impressive buildings, knowledgeable courtroom staff, and dedicated judges. Many additional parts of the federal court system, however, are not as visible or well known, and yet they play a critical role in the safe and efficient operation of the federal legal system. One such component is each district’s clerk of court and its respective clerk’s office staff. In recognition of the critical role clerks of court play, several years ago, the FBA created a Clerk’s Committee to operate within the Judiciary Division. I recently had a chance to learn more about the Clerk’s Committee from its current chair, Robert Farrell. Our discussion is summarized below.

What is your current position in the court system and what does that mean?

I am the clerk of court for the District of Massachu setts. Clerks of court are responsible for providing the services to the bench, bar, and public in support of the U.S. district judges and U.S. magistrate judges. The clerk manages the staff members who do not report directly to a judge or the whole court. We provide the operational expertise to support each case from filing through to conclusion of the appeals process, including case management, jury administration, and courtroom support. We provide the administrative systems needed to ensure that the court remains open, efficient, and secure, including HR, finance, procure ment, and IT functions. We work with our fellow agencies, coordinating with the U.S. Attorney’s Office, Federal Public Defender, CJA Board, U.S. Marshal’s Service, and U.S. Probation and Pretrial Service to en sure all parties are notified and prepared for hearings before the court. We oversee the official court report ers and contract interpreters to ensure that the record can be accurately captured and that every participant understands the proceedings. In addition, we maintain the courtroom systems to facilitate court hearings, the presentation of evidence, and the equitable treatment of all parties before the court.

The clerk’s office staff are your liaison to the judges of the court. The courtroom deputy is the vital link between you and the judge assigned to your case. They

can answer questions about how the judge operates the courtroom, assist with making sure your presen tation works with the courtroom equipment, and communicate questions to the judge regarding your case. They coordinate all other participants in the case—the U.S. Probation Office, the U.S. Marshal, jury staff, court reporters, and interpreters—to make sure your hearings and trials proceed efficiently.

How did you become interested in working in the court system and how long have you worked in the court system?

I started working in the U.S. Bankruptcy Court in the Southern District of Ohio as a records/reproduction clerk in 1989—basically opening the mail, making copies, and filing documents. Over the past 32 years, I have worked in operations, finance, and IT in four districts (OHS, ME, NYN, and MA) and within the bankruptcy court, probation office, and district court. My career in the judiciary has brought challenging and interesting work that supports a vital branch of our government. It has been a distinct honor as a public servant to assist the public in some of the most chal lenging moments of their lives and to contribute to the development and improvement of the judiciary.

What do you think is the current greatest challenge facing the court system?

As identified by Director Mauskopf, the greatest external threat to the judiciary is from a cyberattack on our digital infrastructure. The judiciary, as a separate branch of government, has made great strides in devel oping systems that provide an unprecedented level of public transparency and service for the stakeholders in both criminal and civil cases. Our outward facing appli cations are open 24/7 worldwide. However, with these advancements comes the responsibility to secure and maintain systems in an environment that presents an ever-increasing threat level. This daunting task is made even more challenging by the decentralized, commit tee-based management structure of the judiciary.

The greatest internal challenge for the judiciary is the management of the limited resources available through the current appropriations process. The cost of operating the courts has grown at a rate faster

than the resources appropriated by Congress. Shortfalls in funding directly affect our ability to retain and train staff, improve automated systems, and maintain or update courtroom evidence systems. All are necessary to maintain the level of service to the bench and bar. The pandemic has added to that challenge in two ways. The pandem ic brought a rapid drop in caseload numbers that are measured to provide resources to the individual districts. At the same time, many court functions have become more difficult and time consuming; jury management and selection, courthouse logistics, managing hy brid calendars, prisoner logistics, and supervision of probationers all have unique challenges that affect the court and our fellow agencies. It has been an exceptionally challenging two and a half years.

What is your current position in the FBA?

I am a member of the Massachusetts Chapter Board and the national Judiciary Division, and I am chair of the Judiciary Division Clerk’s Committee.

What is the Clerk’s Committee and who is on it?

The Clerk’s Committee is a subcommittee of the Judiciary Division and comprises a district court clerk from each of the circuits, thus representing small, medium, and large courts and courts from urban and rural areas. The committee meets to discuss the issues appro priate to raise in the context of our membership with the FBA. We also look for opportunities to expand the outreach of clerk’s offices to their local chapters, and to foster more interchapter involvement. The pandemic slowed the work of the committee, but we are refo cused on changes needed in the court community for the post-pan demic world.

The committee helps to raise the profile of issues that are needed to support the bench and bar and increase the accessibility of the courts for the public at large. The judiciary faces many challenges in the current budget climate: physical and cybersecurity, employee recruitment and retention, access to justice, and adapting to work load changes due to the pandemic. The Clerk’s Committee helps to ensure that issues critical to the back office get the attention needed to continue the work of the court.

The Clerk’s Committee can also facilitate the development of ro bust communication between FBA members and their local courts.

We have helped to expand the membership of the FBA to all judges and clerks of court, recognizing the unique collaborative relationship the FBA has with the federal judiciary.

The committee currently consists of the following members:

First Circuit – Robert Farrell, District of Massachusetts

Second Circuit – John Domurad, Northern District of New York

Third Circuit – John Cerino, District of Delaware

Fourth Circuit – Julie Dudley, Western District of Virginia

Fifth Circuit – Karen Mitchell, Northern District of Texas

Sixth Circuit – David Weaver, Eastern District of Michigan

Seventh Circuit – Tom Bruton, Northern District of Illinois

Eighth Circuit – Matt Thelen, District of South Dakota

Ninth Circuit – Mark Busby, Northern District of California

Tenth Circuit – Carmelita Shinn, Western District of Oklahoma

Eleventh Circuit – Chuck Diard, Southern District of Alabama

What are some of the tasks the Clerk’s Committee has undertaken since it was formed?

The Clerk’s Committee has developed a list of items to evaluate and consider for inclusion on the FBA topics agenda to address with Congress. The top three topics are the status of the judiciary budget, developing a case management system to replace Case Management/ Electronic Case Files, and the PACER fee issue.

The Clerk’s Committee and its members have actively engaged with the Administrative Office of the U.S. Courts (AO) and the FBA to highlight specific issues within the administration of the courts that can benefit from the nonpartisan lobbying efforts of the FBA. The Clerk’s Committee, the FBA, and the AO collaborated to change the way appropriations are determined for GSA supported court house maintenance.

As demonstrated by Robert’s insightful comments above, clerks of court and the clerk’s office staff play a critical role in the federal court system. Please check back in future editions of The Federal Lawyer for discussions with other courthouse leaders and person nel to hear more about their roles in ensuring the safe and efficient operation of the federal court system. 

West Virginia v. EPA— Will Chevron Go the Way of the Dinosaurs?

By Cissy Jackson and David M. Loring

Prior to joining ArentFox Schiff, LLP, 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, han dling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. She has rep resented multinational corpo rations, small businesses, and individuals in high-stakes civil and criminal litigation. Guest co-author David M. Loring is a partner at ArentFox, with more than 15 years of experience representing electric genera tion, biofuels, manufacturing, and large industrial clients on a variety of federal, state, and administrative litigation and regulatory matters, including carbon capture, utilization, and storage.

The U.S. Supreme Court’s end-of-term decision in West Virginia v. EPA1 offers something for almost everyone. While strictly speaking the case served as a repudiation of EPA’s storied attempt to regulate green house emissions from existing electric power plants, the impact of the Court’s decision will have far wider consequences in the administrative arena. For the gladiators whose legal practices involve daily combat in the federal regulatory arena, the Court’s decision could be a new sword or shield; for those of us who enjoy agency rulemaking strictly as a spectator sport, the decision promises years of suspense as its full im port is gradually revealed. Additionally, the history of the case shows the impact that changes in presidential administrations and the resultant policy shifts can have on the implementation of a regulatory scheme.

In 2015, the EPA finalized the Clean Power Plan (CPP) rule, which set federal standards of perfor mance for existing power plants under Section 111(d) of the Clean Air Act based on the “best system of emis sion reduction which … has been adequately demon strated.” The rule gave power plants three options for achieving the required reduction in CO2 emissions, all of which would result in shifting the electric energy sector away from coal toward natural gas and renew able sources (referred to as “generation shifting”). The rule was eventually stayed and never went into effect.

In 2019, under a new administration, the EPA changed course, repealing the CPP and replacing it with the Affordable Clean Energy (ACE) rule. The new rule did not take a generation-shifting approach to emissions reduction, as the agency had concluded that such a transformation was a “major question” of “vast econom ic and political significance,” which it could not address without a clear delegation of authority from Congress.

As before, the rule did not take effect because it was immediately challenged in the D.C. Circuit by states and other parties who opposed the repeal of the CPP and its replacement by ACE. West Virginia and other parties intervened to defend the EPA’s actions.

In January 2021, the D.C. Circuit agreed with the challengers, finding that the CPP did not implicate the major question doctrine, vacating the repeal of the

CPP and remanding the case to the EPA for further consideration. The parties supporting the repeal of the CPP filed petitions for certiorari, which the Supreme Court granted. The Court heard oral argument in the case on Feb. 28, 2022, and released its decision on June 30. Writing for the majority, Chief Justice John Roberts announced that, while Section 111(d) does allow the EPA to regulate greenhouse gas emissions, it does not grant the EPA plenary authority to effectively remake the energy market.

Central to the Court’s analysis (and to the analyses of the D.C. Circuit and the EPA) was the major question doctrine, under which administrative actions with transformative effects, such as actions with significant economic or political impact, actions that intrude in areas within the domain of state law, or actions that involve a mismatch between agency action and congressional mandate, require a close look at the authorizing legislation to confirm that Congress explicitly authorized the action. Chief Justice Roberts wrote that “clear congressional authorization” was required for a generation shifting EPA rule because of the transformative effect of such a rule on the power sector; however, no such authorization was provided in the language of Section 111(d).

The application of the Court’s use of the major question doctrine in West Virginia to usurp administra tive action is far-reaching, and the impact will become evident in the coming years. While the doctrine itself is not new, the Court’s blessing of the doctrine as a principal technique for statutory interpretation may change the paradigm for new, existing, and potential regulation. This is particularly true because the Court in West Virginia does not clearly identify the boundar ies of the doctrine. How transformative must a rule be and how significant the economic impact, for instance, for the viability of a rule to depend on a court’s scruti ny of the authorizing legislation?

For those seeking to challenge a new rule, the major question doctrine as applied in the West Virginia decision provides a new, strong, weapon to attack the proposed regulation based on the clarity of continued on page 27

The Online Public Forum: Do We Have Less Discourse or Just More Public Spaces for Opinions?

By Ellen Denum

In his concurring opinion in Villarreal v. City of Lare do,1 Judge James C. Ho wrote:

Ellen Denum is an attorney from Texas, where she focuses on criminal and immigration law. She went to undergrad at Texas A&M University and received her J.D. from Case Western Reserve School of Law in Cleveland, Ohio. Denum serves on the editorial board of The Federal Lawyer and is the national representative of the El Paso Chapter of the FBA. When she’s not at work, she enjoys hiking around the Southwest with her two rescue dogs.

It is the unfortunate reality of American life that more and more citizens are increasingly unable or unwilling to live amicably with those we disagree with. Rather than debate, we would destroy. Instead of engaging opponents in the political arena, we expel them from economic and social life, using every resource available to us. “Our society … once embraced the quintes sentially American maxim: ‘I disapprove of what you say, but I will defend to the death your right to say it.’ But our culture … increasingly send[s] citizens … the opposite message: I disapprove of what you say, and I will use every means at my disposal to stop you from saying it.”2

Now, I am not sure it is accurate to say that we live in a more adversarial society than we did in the past and that people are less willing to debate with others who have different viewpoints. I think perhaps it is more accurate to say that people have greater access to platforms that allow them to speak their opinions freely and openly, and most people, in speaking their opinions, are more free and less oppressed than they were in the past.

Based on my typical American-school-system history and my love of old movies and TV shows, it seems that even 30 years ago, you likely lived in a community of mostly like-minded individuals close to where you grew up. If you knew someone who had a different viewpoint on something important to your personal identity, you probably did not socialize much with that person, so you never had someone constant ly espousing an opposing viewpoint. In the modern era, we have Twitter—the so-called online town square—Facebook, Snapchat, and TikTok. These platforms offer unlimited ways to state your opinions as publicly, and loudly, and as often as you like. So, you are constantly getting notifications that that one

kid from high school now believes “X” and your weird second uncle thinks “Y.” Of course, you can unfriend or unfollow individuals whose opinions you do not want to be subjected to, but even that gets exhausting after a while.

I am not saying this to rail against social media; I think a great thing about social media is that it allows greater access to the world and to new ideas, and it fosters challenging your own ideas—if you want. I don’t know if people are less open to the idea of public discourse or diverging opinions than they were in the past, or if they never truly had to be confronted with it much in the past and it was easily ignored.

The Fifth Circuit took up the case to address whether the district court properly dismissed the § 1983 claims brought by Ms. Villarreal, namely, that her arrest violated her First, Fourth, and Fourteenth Amendment rights.3 The Fifth Circuit ultimately held that the district court incorrectly dismissed her First Amendment infringement claim on the grounds of qualified immunity and her Fourth Amendment claim of wrongful arrest. 4

Further, the Court held that Ms. Villarreal did not allege sufficient facts to support her First Amendment retaliation theory because her exercise of free speech was not curtailed, and that she sufficiently pled facts to support her Fourteenth Amendment selective en forcement claim.5 The Fifth Circuit remanded the case to the district court for further proceedings following its decision.6

The factual background giving rise to this case is important because it is something that could affect any citizen and involves regulating the content we post on social media. Ms. Villarreal is a citizen journalist who regularly posts about local news and issues to her more than 120,000 followers on Facebook. She regu larly livestreams videos and is often critical of local law enforcement.7 In 2017, she was arrested for violating § 39.06(c) of the Texas Penal Code, which criminalizes soliciting nonpublic information from a public official for the purpose of obtaining a benefit.8 Notably, offi

cials from the city of Laredo had never prosecuted anyone under this statute before.9 And in March 2018, a Webb County district court held that § 39.06(c) was unconstitutionally vague.10

While Ms. Villarreal was a prolific user of her Facebook page and often posted about local news, she was charged based on only two pieces of information she shared in connection with two separate events. Based on those facts, even a first time “citizen journalist” could be held accountable under § 39.06(c) of the Texas Penal Code. Ms. Villareal investigated stories and used a nontraditional platform to share those stories. Social media posting has been the subject of much political debate, with individuals from all sides of the politi cal spectrum asking for limits or raging about suppression of their voice—real or perceived.

This case is a perfect example of why open access to posting and reading social media and generally upholding the principals of free speech on social media platforms is so important. As the Fifth Circuit stated in its majority opinion:

It is not a crime to be a journalist … the position urged by the City of Laredo in this case is “dangerous to a free society,” for “[i]t assumes that the government can choose proper and improper channels for newsgathering—indeed, that the gov ernment can decide what is and is not newsworthy.”11

The Court makes clear that, at least in this case, there should be no distinction between those who are actively employed primar ily or exclusively as journalists and normal citizens who engage in journalistic behavior to educate themselves or others or seek to hold their government accountable through non-traditional media. And we too should be embracing every citizen’s right to report the news, to engage in investigation, and say when they think the government is overreaching. You may disagree with what someone else perceives to be news or what someone deems to be government overreach but diminishing their right to post these things diminishes your own and those of others that you do agree with. As Judge Ho states, we are rarely seeking to silence those we agree with even if we would view the same conduct as improper if it came from an opposing viewpoint, “make no mistake: There’s no way the police officers here would have ever enforced § 39.06(c) against a citizen whose views they agreed with, and whose questions they welcomed.”12

I do agree with Judge Ho that there seem to be more and more people publicly or loudly advocating for the repression of free speech against the “other”—the person whose opinion differs from your own, the individuals who disagree and tell you they disagree with you. This is obviously a bad thing. To see precisely why state-con trolled journalism and the repression of free speech are bad, we just need to look at Russia’s coverage of the war with Ukraine and how dissenters are treated.13

While the specific holdings of this case are very important to Ms. Villarreal, and all journalists exercising their First Amendment rights, there are many important lessons/warnings for the legal commu nity contained in this opinion, most importantly, the protection of free speech no matter who it is for or against. We, as attorneys, are uniquely placed and qualified to help address this issue because we have paid thousands of dollars to our respective law schools to give us a constitutional law primer and prepare us to be effective com municators and negotiators. First, we can educate people on their rights. Second, we can actually engage in the debate with our local

communities. Third, very simply, we can support journalists and journalistic endeavors.

As noted by the dissent, some may find that reasonable minds can differ as to whether the right outcome was achieved, or the right opinion was made by the Court in Villarreal v. City of Laredo.14 But, hopefully, we can all agree that protecting freedom of the press and freedom of expression is in everyone’s best interest, even for that one friend from high school and your weird uncle. 

Endnotes

1Villarreal v. City of Laredo, 44 F.4th 363 (5th Cir. 2022). 2

2Id. at 382 (Ho, J., concurring) (quoting Oliver v. Arnold, 19 F.4th 843, 854 (5th Cir. 2021)).

3Id. at 369.

4Id. at 371 (“[I]t is likewise obvious that Priscilla Villarreal has a constitutional right to ask questions of public officials. … If the freedom of speech secured by the First Amendment includes the right to curse at a public official, then it surely includes the right to politely ask that official a few questions as well. … If the freedom of the press guarantees the right to publish information from the government, then it surely guarantees the right to ask the government for that information in the first place.”) (internal citations omitted).

5Id. at 376 (“We have no difficulty observing that journalists commonly ask for nonpublic information from public officials, and that Villarreal was therefore entitled to make that same reasonable inference. Yet Defendants chose to arrest Villarreal–and only Villarreal – for violating § 39.06(c).”).

6Id. at 367. The Fifth Circuit further reversed and remanded the district court’s dismissal of her civil conspiracy claims and affirmed the dismissal of her municipal liability claim under Rule 12(b)(6). See id. at 377–78

7Id. at 368. 8Tex. Penal Code § 39.06(c).

9Villarreal at 368.

10Id. at 369.

11Id. at 378 (citing Amicus Brief by Institute for Justice).

12Id. at 382 (Ho, J., concurring)

13See, e.g., What do Russians see and hear about the war in Ukraine?, CBS News (March 19, 2022, 10:54 A.M.), https://www.cbsnews. com/news/russia-ukraine-war-what-do-russians-see-and-hearat-home/; The Associated Press, Russian reporter put under house arrest over war criticism, ABC News (August 11, 2022, 11:17 A.M.), https://abcnews.go.com/Politics/wireStory/russian-reporter-puthouse-arrest-war-criticism-88248494

14Villarreal, at 383 (Richman, J., concurring in part and dissenting in part).

Ready to Inspire? Expanding Judicial Intern Opportunities

By Hon. Beth Bloom

During the past two years, the judiciary has had to adapt to change—including new health and safety measures, remote proceedings, and addressing the many challeng es to keeping our legal system functional and accessible.

Hon. Beth Bloom is a U.S. district judge in the Southern District of Florida (SDFL). For information about the SDFL Remote Internship Program, the Judicial Intern Academy, or other Judiciary Division programs, please contact her at Beth_Bloom@flsd.uscourts. gov. ©2022 Hon. Beth Bloom. All rights reserved.

Law students, following the COVID-19 outbreak, have also been forced to adapt—sheltering at home, losing opportunities to connect, and relying on Zoom to learn from students and professors. Many judges had no choice but to make the decision to not invite law students to serve as judicial interns during the summer. Fortunately, for many students in South Florida, the invaluable opportunity to learn and grow remained an option.

The Southern District of Florida Remote Summer Internship Program

I serve in the Southern District of Florida (SDFL). Our district is large, and we have 18 active judges (two vacancies), eight senior judges, and 16 magistrate judges. Like many judges in larger districts, we receive hundreds of applications each year from law students vying for the small number of internships available. On average, our district selects 100 summer interns. I routinely select eight interns each summer. In March 2020, like other districts, many of our judges faced the decision of what to do with the law students who were already selected to intern in the upcoming summer. We found a solution, and it is one that has continued: the SDFL Remote Summer Internship Program. The program is for eight weeks and is a full-time 40-hours-per-week program. It includes the traditional components of the pre-pandemic structured intern ship programs. The program combines observational, educational, and social components via Zoom.

The program is packed with over 80 hours of pro gramming divided into a weekly schedule of activities.

It begins with a full-day Ethics and Orientation Ses sion, presented by judges, court family leaders (Clerk’s Office, Human Resources, Automation, Law Library, and U.S. Marshals Service) and an afternoon panel, Let’s Talk About Wellness, during which judges and lawyers address how to deal with stress and anxiety and discuss the strategies and resources available. The

students are provided a writing assignment through their assigned judge, and each week of the program provides different and exciting learning opportunities through our Conversations with the Court and Learn ing from the Legends series; courtroom observation through Zoom links in both federal and state courts; a writing seminar presented by an appellate judge; and a Brown Bag Lunch/Meet and Greet series that includ ed practical tips on interviewing, a session on tips to succeed in law school (including class selection), and on-campus interview strategies. A session is devoted to the FBA, its purpose and function, and ways to get involved in its signature program, Civil Discourse and Difficult Decisions (CD3). Peppered throughout the weeks are questions to answer from the Civics Test for Naturalized Citizens and meet and greets with immi gration attorneys and judges. The program culminates in the students’ attendance at a naturalization ceremo ny. Interns are encouraged to take notes during each session and ask follow-up questions. The students have the opportunity to observe a wide range of practice areas in different courtrooms in state and federal court through remote means.

As the pandemic continued in the summers of 2021-2022, we expanded the program to include interns from other districts by connecting with the leaders in the FBA’s Judiciary Division. We hosted over 150 interns remotely, including from the North ern District of Ohio (Judge Michael J. Newman), the Middle District of Pennsylvania (Judge Karoline Me halchick), and the Eastern District of New York (Judge Mimi Tsankov). This allowed us to include other judges who agreed to participate in our Conversations with the Court series and enabled students to observe other districts’ court proceedings.

The Judicial Intern Academy

The remote programming and ability to reach so many interns across the country led to the creation of the Ju dicial Intern Academy. The academy was developed to provide internship opportunities to those law students unable to devote their entire summer to a full-time, unpaid judicial internship. The academy is intended

to serve those who either applied for an in-chambers internship but were not selected or are unable to commit to a full-time internship because of other work or family commitments.

Summer 2022 was our pilot program, and we selected 19 students from two law schools. To diversify the group, we selected students from one private (University of Miami) and one public (Florida International University) law school. Applications were sent through the dean’s office of the respective law school. The academy differs from the traditional judicial internship, as the interns did not work in my chambers. Rather, the interns participated (either remotely or in person) in the scheduled programming for other interns through out the district, but the academy students were paired with former federal judicial law clerks, termed law clerk advisors. The law clerk advisors were recruited by a former federal judicial law clerk, Trevor Jones, who served as chair of the FBA Judiciary Division’s Federal Judicial Law Clerk Committee. The attorney volunteers are each tremendously talented and extremely committed to using their skills to help improve the paired student’s research, writing, and analytical skills. Each student was provided an actual case and directed to pre pare a bench memorandum advising me on what the correct result should be. We then assigned those who were interested a side of the argument and held mock hearings in court. We hope to expand the Judicial Intern Academy to other districts, judges, and participating law schools to provide more of these invaluable learning opportuni ties. Please join our efforts.

The FBA’s Judiciary Division

I have been a member and have been serving as part of the leader ship of the FBA’s Judiciary Division for several years. The leadership comprises outstanding jurists and dedicated public servants who continually work to improve the lives of others. The leadership includes the chair, Judge Robin Feder (Immigration Court, Boston); vice chair, Judge Karoline Mehalchick (magistrate judge, Middle District of Pennsylvania); and immediate past chair, Judge Michael J. Newman (Southern District of Ohio). It is the FBA’s home for all fed eral and state judges, clerks of court, and federal judicial law clerks. The Judiciary Division coordinates with other FBA divisions to give access to its members who are able to share their unique experiences and insights gained within the court systems.

Last year, the FBA voted to award honorary membership to fed eral judges to increase participation and provide leadership oppor tunities. The judge’s honorary membership is with the national orga nization as well as each judge’s local FBA chapter and the Judiciary Division. Honorary membership is available to all active, senior, and retired judges of the federal bench. Honorary members have full rights and privileges of membership but are exempt from payment of dues. You may accept your honorary membership by completing a quick form at www.fedbar.org/honorary.

The FBA, founded in 1920, unites the bench and bar to advance the rule of law through education, leadership, and nonpartisan advocacy. The FBA is dedicated to promoting the welfare, interests, education, and professional development of judges and attorneys involved in federal law, and it serves as the catalyst for communica tion between the bar and the bench as well as the private and public sectors. The association’s national voluntary membership of more than 15,000 individuals, including 1,800 federal judges, is bound in its commitment to the sound administration of justice and the indepen dence of the judiciary.

Pathways to the Bench

Consistent with the Judicial Division’s goal of demystifying the pro cess of becoming a judge, in September 2020, board member Judge Mimi Tsankov (New York Immigration Court) introduced an FBA podcast series to offer the engaging backstories of certain judges in a new audio format. The Pathways to the Bench series augments The Federal Lawyer’s judicial profiles and has welcomed judges from the U.S. District Court, the U.S. Circuit Court, and the International Court of Trade, with plans to continue presenting quarterly updates. Interviews with the following judges are available on the FBA website: U.S. Magistrate Judge Karoline Mehalchick, Middle District of Pennsylvania; U.S. District Judge Michael J. Newman, Southern District of Ohio; U.S. Circuit Judge Gustavo A. Gelpí, Court of Ap peals for the First Circuit; and Judge Delissa A. Ridgway, U.S. Court of International Trade. I had the privilege of being interviewed as well in October 2020 and enjoyed having a University of Miami law student ask the questions. Recordings are available on the Judiciary Division website at https://www.fedbar.org/judiciary-division/.

The Federal Judicial Law Clerk Committee

The Federal Judicial Law Clerk Committee continues to grow its network, providing networking and educational programs, including the creation of a National Federal Judicial Law Clerk Directory, a searchable database of current and former federal law clerks, easily filtered by name, jurisdiction, or judge. Co-chairs Trevor Jones and Constantine Economides, outstanding lawyers from the Broward County Chapter in South Florida, are heading the committee’s efforts, including recruiting former federal judicial law clerks to serve as law clerk advisors to the students selected as part of the Judicial Intern Academy.

Having served on the federal bench for eight years, I have found that the greatest reward lies in mentoring and teaching others. We have a unique opportunity to provide a greater number of intern ships to students and law schools through the Judicial Intern Acade my and our SDFL Judicial Remote Internship Program. I hope you will join our efforts, and I look forward to hearing from you.

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.

Can a Machine Really Discriminate?

By Hon. Dania Ayoubi

Hon. Dania Ayoubi serves as an administrative law judge at the Maryland Office of Adminis trative Hearings (OAH), where she presides over appeals from over 30 state agencies and serves as a certified mediator. Prior to joining the OAH, Judge Ayoubi served in federal government for nearly 10 years. She clerked for former Chief Judge Eric T. Washington at the District of Columbia Court of Appeals and is a graduate of Georgetown University and Georgetown University Law Center. She was recently selected as a recipient of the Montgomery County Commission for Women’s 2022 Women Making History Award. Judge Ayoubi is a member of the National Association of Women Judges and serves on the Advisory Council for Muslim Americans in Public Service. ©2022 Hon. Dania Ayoubi. All rights reserved.

The practice of redlining in housing emerged nearly a century ago. Regrettably, various forms of intentional discrimination or disparate treatment persist today. Although government-sanctioned redlining1 no longer exists, the systemic effects of discriminatory policies in housing and finance are still felt in many ways by people of color, as evidenced by disparities in rates of homeownership,2 for example. In the age of artificial intelligence and machine learning, the risk posed by a more subtle form of discrimination known as dispa rate impact has increased. Although one might assume that reducing reliance on human decision-makers and increasing reliance on artificial intelligence reduces bias, an outcomes-based approach tells us that this is not the full picture. The question we will explore here is—can a machine really discriminate?

We begin with some working definitions. “Arti ficial intelligence” generally means the ability of a computer, or a robot controlled by a computer, to do tasks that require discernment and are usually done by humans. “Machine learning” is a type of artificial intelligence and is the ability of that computer to learn and adapt by using algorithms and statistical models to analyze and draw inferences from patterns in data. “Disparate impact” is when a facially neutral policy is discriminatory in effect.

Artificial intelligence, including machine learning, is in widespread use today. As artificial intelligence becomes more ubiquitous, we often interact with it daily in some form, sometimes without even knowing it. Banks and other financial institutions use artificial intelligence to make credit and lending decisions. The benefits to such institutions include the increased speed of decision-making and resulting efficiencies, which often translate to cost savings and more bot tom-line revenue for the institution.

However, the last several years of data have shown that dependence on artificial intelligence has its drawbacks too. Relevant to our inquiry, in housing and finance, the use of artificial intelligence can result in unintended consequences that pose the risk of un lawful discrimination.3 Simply stated, a machine really can discriminate if it is taught to do so. The reason is that humans program computers to make decisions and include various inputs that are not free from bias, whether explicit or implicit. Therefore, relying on

potentially biased inputs, the “black box” of a machine can manifest these biases in its outputs or decisions. Furthermore, a machine can even learn to discrimi nate. Through machine learning, the bias of prior deci sions is perpetuated because the algorithms recognize patterns from historic data and big datasets and seek to replicate those outcomes. This is particularly perni cious in housing and finance, where we historically know that discriminatory policies were adopted to intentionally disadvantage African Americans.4

Detecting discrimination gets especially complicat ed when a computer program or algorithm considers potentially hundreds or thousands of data points. Depending on how the data interact and are weight ed, some inputs may be considered more important than others.5 And although race may not be explicitly relied upon, there are often other inputs that serve as a proxy for race, for example, zip code and last name.6 In highly regulated sectors such as housing and finance, the risk of unlawful discrimination is heightened when financial institutions come to rely on computer pro grams and algorithms to make credit decisions.

Also, the risk of discrimination potentially increases when we come to rely on artificial intel ligence without sufficient scrutiny of the mistaken belief that a machine is incapable of harboring biases. The development of machine learning itself makes it difficult to “pull back the curtain” and can result in a lack of “explainability” (i.e., determining how a model uses inputs to produce outputs). Although human developers initially design algorithms, the models often ultimately relied upon in decision-making are developed through the use of machine learning. Therefore, these models may be detecting correlations in the data that are problematic from a discrimination point of view that the human developer may not even see or know exist.7

One example in the employment realm showcases the limitations of machine learning and, if left un checked, the risk of unlawful discrimination. One large tech company used artificial intelligence and machine learning to evaluate job applicants. The computer program relied on the company’s hiring patterns from the prior 10 years. Although the use of an algorithm was intended to streamline and remove subjective elements from the hiring process, the company came

to learn that for software developer and other technical positions, the computer program was not rating candidates in a gender-neutral way. The computer model effectively taught itself to embed an irrational or discriminatory preference for male candidates over female candidates.8

Studies have quantified the impact of unlawful bias in mort gage lending, which increasingly relies on algorithms and artificial intelligence to predict the likelihood of borrower repayment and craft loan terms. A recent study from the University of California, Berkeley found that lenders charge otherwise-equivalent Hispanic and African American borrowers higher rates for mortgages, costing these consumers of color a whopping $765 million extra in interest per year. While recognizing that “fully automated underwriting may reduce the incidence of discrimination in loan rejections,”9 the study showed that from 2009 to 2015, up to 1.3 million applications by Hispanic and African American borrowers were rejected due to discrimination. Another study by a mortgage company also showed that African American borrowers have the highest mortgage denial rates, at 17.4 percent, while non-Hispanic whites have the lowest, at 7.9 percent.10

The risks posed by increased reliance on artificial intelligence and the related liabilities have caught the attention of regulators11 and contentious companies12 alike. Arguably, business interests (i.e., increased lending to a larger customer base with the aim of greater revenue) align with the legal requirement to pursue less discrimi natory alternatives and the moral imperative to root out discrim ination. As regulated entities move toward newer technologies, the government is forced to answer these important questions and develop novel applications of older laws to effectuate their antidis crimination mandates.

Rethinking the current approach is necessary, with some calling to rely on alternative sources of data, as it is clear that artificial intelligence as a technology has a lot to offer and is here to stay. The first step is to be aware of this potential for bias, and the second is to demand more transparency. Furthermore, this moment presents an opportunity to examine our own implicit biases as a society and as individuals. Reducing human bias in the design of artificial intel ligence will go a long way to promoting fairer outcomes by the other wise neutral machines that we have tasked with decision-making in many important sectors. The machines are watching—will we rise to meet the challenge? 

Endnotes

1“Throughout much of the 20th century, the Federal Government systematically supported discrimination and exclusion in housing and mortgage lending.” Memorandum on Redressing Our Nation’s and the Federal Government’s History of Discriminatory Housing Practices and Policies, The White House (Jan. 26, 2021), https://www. whitehouse.gov/briefing-room/presidential-actions/2021/01/26/ memorandum-on-redressing-our-nations-and-the-federalgovernments-history-of-discriminatory-housing-practices-andpolicies/; see Richard Rothstein, The Color of Law: A Forgotten History of How Our Government Segregated America (2017).

2Homeownership rates for African Americans are stagnant and declining over the last 20 years. See Reducing the Racial Homeownership Gap: The Data on Black Homeownership, Urb. Inst., https://www.urban.org/policy-centers/housing-financepolicy-center/projects/reducing-racial-homeownership-gap/data-

black-homeownership (last visited Aug. 11, 2022); Dedrick AsanteMuhammad et al., 60% Black Homeownership: A Radical Goal for Black Wealth Development, Nat’l Cmty. Reinvestment Coal. (Mar. 2, 2021), https://ncrc.org/60-black-homeownership-a-radicalgoal-for-black-wealth-development/

3The Equal Credit Opportunity Act prohibits discrimination on the basis of race, color, religion, national origin, sex, marital status, or age in credit transactions. 15 U.S.C. § 1691(a)(1) (2020). The Fair Housing Act prohibits discrimination on the basis of race, color, religion, sex, familial status, national origin, or disability. 42 U.S.C. § 3604 (2012). The Supreme Court recognized disparate impact liability under the Fair Housing Act in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519 (2015).

4See sources cited supra note 1.

5See Andrew Burt, How to Fight Discrimination in AI, Harv. Bus. Rev. (Aug. 28, 2020), https://hbr.org/2020/08/how-to-fightdiscrimination-in-ai (“In a society shaped by profound systemic inequities such as that of the United States, disparities can be so deeply embedded that it oftentimes requires painstaking work to fully separate what variables (if any) operate independently from protected attributes.”).

6See Consumer Fin. Prot. Bureau, Using Publicly Available Information to Proxy for Unidentified Race and Ethnicity: A Methodology and Assessment (Summer 2014), https://files.consumerfinance.gov/f/201409_cfpb_report_proxymethodology.pdf

7See Michael Kearns & Aaron Roth, The Ethical Algorithm: The Science of Socially Aware Algorithm Design (2019).

8Jeffrey Dastin, Amazon Scraps Secret AI Recruiting Tool That Showed Bias Against Women (Oct. 10, 2018), https://www.reuters. com/article/us-amazon-com-jobs-automation-insight/amazonscraps-secret-ai-recruiting-tool-that-showed-bias-against-womenidUSKCN1MK08G

9Robert Bartlett et al., Consumer-Lending Discrimination in the FinTech Era (Nov. 2019), https://faculty.haas.berkeley.edu/morse/ research/papers/discrim.pdf (emphasis added).

10Tendayi Kapfidze, LendingTree Analysis Reveals Mortgage Denials at Cycle Low, LendingTree (Oct. 7, 2019), https://www.lendingtree. com/mortgage-denials-at-cycle-low/.

11See Request for Information and Comment on Financial Institutions’ Use of Artificial Intelligence, Including Machine Learning, 86 Fed. Reg. 16837 (Mar. 31, 2021), https://www.govinfo. gov/content/pkg/FR-2021-03-31/pdf/2021-06607.pdf. At the time of this writing, the comment period was extended, but no final action has been taken. See Request for Information and Comment on Financial Institutions’ Use of Artificial Intelligence, Including Machine Learning, 86 Fed. Reg. 27960 (May 24, 2021), https://www. govinfo.gov/content/pkg/FR-2021-05-24/pdf/2021-10861.pdf.

12See Kate Berry, Fintechs Seek CFPB Guidance on Making AI-Based Lending Fair, Am. Banker (June 29, 2021, 4:39 PM), https:// www.americanbanker.com/news/fintechs-seek-cfpb-guidance-onmaking-ai-based-lending-fair

Three Evidence Rule Amendments Move Closer to Adoption

By John G. McCarthy

John G. McCarthy is a trial attorney and office managing partner of Smith, Gambrell & Russell, LLP in New York. He focuses primarily on litigation involving commercial issues, insolvency, and intellectual property. McCarthy is a past chair of the Federal Litigation Section, a former FBA circuit vice president, and past chap ter president of the S.D.N.Y. Chapter. He can be reached at jmccarthy@sgrlaw.com or (212) 907-9703.

In 2019, the FBA’s Federal Litigation Section (FLS) initiated an effort to become more involved in the rulemaking process. The project began by assigning a dedicated member of FLS to attend and report on the activities of the Judicial Conference Advisory Committee on Evidence Rules (“Evidence Commit tee”). The Evidence Committee, like the other Federal Judicial Conference advisory committees, meets twice per year to discuss potential amendments to the rules.1 FLS has attended each Evidence Committee meeting since October 2019, and updates of those meetings have been published periodically in SideBar, the section’s newsletter. The Evidence Rules apply in civil cases and proceedings (including bankruptcy, admiral ty, and maritime cases), criminal cases and proceed ings, and contempt proceedings (except when the court may act summarily).2 The Evidence Committee’s most recent meeting, on May 6, 2022, in Washington, D.C., was very productive, and a number of proposed amendments were approved. Given the breadth of proposed changes and their applicability to a wide array of federal practice areas, FLS has decided to share this partial report with the entire readership of The Federal Lawyer as to three proposed amendments that are near the end of the process.

As most readers know, the process to amend any federal rule of practice or procedure, including the Evidence Rules, generally takes years. The initial stage takes place at the advisory committee level and includes publishing the proposed rule change as a pre liminary draft to seek public comment. After the initial work in the advisory committee, the proposed change is considered by the Committee on Rules of Practice and Procedure (commonly known as the Standing Committee) and then the Judicial Conference. Finally, the proposed change is considered by the U.S. Su preme Court and Congress. The three proposed rule changes discussed in this Litigation Brief are close to the final stage of review and consideration.

Amendments to Take Effect Dec. 1, 2023

At its May 2022 meeting, the Evidence Committee voted to give final approval as to amendments to three

rules to be referred to the Judicial Conference and to become effective on Dec. 1, 2023. Final approval and referral of amendments to Rules 106, 615, and 702 were considered by the Standing Committee at its June 7, 2022 meeting.

Rule 106—Rule of Completeness

For five years, the Evidence Committee discussed whether Rule 106 should be amended. That consid eration focused on two things: (1) to provide that a completing statement is admissible over a hearsay objection, and (2) to expand the rule to cover unre corded statements. These issues have not been treat ed uniformly by courts. As to the first issue, some courts allowed a hearsay objection even where the objecting party’s introduction of the written or re corded statement was misleading. Other courts held that if a party introduces a portion of a statement in a manner that misleads the factfinder, that party for feits the right to object to the introduction of other portions of that statement when that is necessary to remedy the misimpression. As to the unrecorded oral statement, courts have relied on Rule 611(a) or the common law rule of completeness to admit the re mainder of the statement. The Evidence Committee astutely observed that a single rule on completeness would be best because completeness questions gen erally arise at trial, and it would be helpful to provide judges and practitioners with a single rule governing the question. The limited amount of public comment received on the preliminary draft of the proposed changes was generally favorable. The amended Rule 106 would provide:

Rule 106. Remainder of or Related Statements

If a party introduces all or part of a statement, an adverse party may require the introduction, at that time, of any other part—or any other statement—that in fairness ought to be consid ered at the same time. The adverse party may do so over a hearsay objection.

The changes are set forth as follows:

Rule 106. Remainder of or Related Writings or Recorded Statements

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. The adverse party may do so over a hearsay objection.

The Evidence Committee has also proposed a lengthy Committee Note to accompany the rule, in which the issues and law are discussed at length. In an excellent example of the wisdom of public comment, an earlier proposal to use “written and oral” to modify statements was deleted so as to include within the ambit of the rule statements that are neither written nor oral (such as ones made with sign language).

Rule 615—The Exclusionary Rule

It is probably safe to assume that every trial judge and trial lawyer reading this article is familiar with “invoking the rule” as a shorthand way to ask the judge to exclude witnesses from the courtroom during a trial or hearing. Sequestration can be an important tool to preserve the integrity of witness testimony. It might come as a surprise to most, however, that “invoking the rule” and excluding witnesses means dif ferent things in different parts of the United States. A conflict exists as to whether such an order goes beyond physical exclusion. Most courts have held that Rule 615 orders also prohibit witnesses from obtaining or being provided with a transcript of testimony. Of course, individuals can be held in contempt for violating a court’s exclusion order, so clar ity is important from a due process perspective. More than four years ago, when the Evidence Committee began consideration of this rule, technological advances over the prior decade or so had increased the need for clarity in this area. Since then, the implementation of remote hearings and trials during the pandemic has only increased that need. To address these concerns, the Evidence Committee has proposed a new subdivision to Rule 615 to cover what, if any, trial testimony can be shared with or accessed by an excluded witness. The new subdivi sion (if approved) will remind trial lawyers to articulate exactly what they want when they “invoke the rule” and will remind trial judges to issue exclusionary orders that are clear.

The Federal Judicial Conference has a policy for its rules commit tees: once a rule is under consideration for amendment, the advisory committee should scrutinize the entire rule to make all advisable changes at the same time. To that end, the Evidence Committee considered two other issues as it examined Rule 615. The first was whether an amendment should address orders that prohibit counsel from referring to trial testimony while preparing prospective witness es. That issue, of course, touches upon professional responsibility and the right to counsel, areas that are beyond the purview of the Evidence Rules and must be addressed on a case-by-case basis. As such, the Evidence Committee decided not to mention trial counsel in the rule’s text. Second, the committee considered an issue relating to individuals who cannot be excluded from the trial by a Rule 615 order. A dispute exists between some courts about whether an entity-party is limited to one exemption or is entitled to more than one. For example, some courts allow the United States to interchange its representative during lengthy trials. The exemption, however, is intended to put entities on a par with individual parties who cannot be excluded under Rule 615.

The committee concluded that allowing the entity more than one exemption would be inconsistent with the rationale. One reason not to automatically allow entity-parties more than one representative is the ability of an entity to make a showing under Rule 615(c) that another person’s presence is essential to presenting its claim or defense.

The public comments on the proposed changes to Rule 615 were limited in number and generally supportive of the amendment. The Evidence Committee made two minor changes to the proposed Committee Note in response to the public comment. If approved, Rule 615 would provide:

Rule 615. Excluding Witnesses from the Courtroom;

Preventing an Excluded Witness’s Access to Trial Testimony (a) Excluding Witnesses At a party’s request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding: (1) a party who is a natural person; (2) one officer or employee of a party that is not a natu ral person if that officer or employee has been designat ed as the party’s representative by its attorney; (3) any person whose presence a party shows to be essential to presenting the party’s claim or defense; or (4) a person authorized by statute to be present.

(b) Additional Orders to Prevent Disclosing and Accessing Testimony An order under (a) operates only to exclude wit nesses from the courtroom. But the court may also, by order: (1) prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom; and (2) prohibit excluded witnesses from accessing trial testimony.

The following shows the proposed changes to the Rule:

Rule 615. Excluding Witnesses from the Courtroom; Preventing an Excluded Witness’s Access to Trial Testimony (a) Excluding Witnesses. At a party’s request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding: (a)(1) a party who is a natural person; (b)(2) an one officer or employee of a party that is not a natural person, after being if that officer or employee has been designated as the party’s representative by its attorney; (c)(3) a any person whose presence a party shows to be essential to presenting the party’s claim or defense; or (d)(4) a person authorized by statute to be present.

(b) Additional Orders to Prevent Disclosing and Accessing Testimony. An order under (a) operates only to exclude wit nesses from the courtroom. But the court may also, by order: (1) prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom; and (2) prohibit excluded witnesses from accessing trial testimony.

It’s High Time for the Supreme Court to Scrap the “Wholly Insubstantial and Frivolous” Jurisdictional Standard Enunciated in Bell v. Hood

By Paul A. Avron

Paul A. Avron is a partner with Berger Singerman LLP in Fort Lauderdale, Fla., and his practice is focused on corporate restructuring and appellate litigation in state and federal courts.

In Bell v. Hood, 1 the U.S. Supreme Court enunciated a standard for dismissal of actions on lack of federal question jurisdiction where a claim based on the Consti tution or a federal statute is “immaterial and made solely for the purpose of obtaining jurisdiction” or “wholly in substantial and frivolous.”2 Several lower federal courts have questioned the viability of the “wholly insubstan tial and frivolous” standard as blurring the line between subject matter jurisdiction and claims that are subject to dismissal under Rule 12(b)(6). Indeed, in his dissent to the denial of certiorari in Yazoo Cnty. Indus. Dev. Corp. v. Suthoff, 3 then-Chief Justice William Rehnquist ref erenced the “legal landmine” arising from the “wholly insubstantial and frivolous” standard, characterizing the decision in Bell as “one of the most cryptic in the recent history of this Court’s jurisprudence” for which he expressed “nothing but sympathy for those who seek to divine its meaning.”4

“A claim is insubstantial and frivolous if it is ‘obvi ously without merit’ or clearly foreclosed by Supreme Court precedent.”5 “A claim is ‘insubstantial’ and may be dismissed if it has no plausible foundation, or if the court concludes that a prior Supreme Court decision clearly forecloses the claim.”6 A complaint is frivolous “where it lacks an arguable basis either in law or in fact.”7 The phrase “‘meritless’ is to be understood as meaning groundless or without foundation.”8

In Ricketts v. Midwest Nat’l Bank, 9 the Seventh Cir cuit stated that “[t]he substantiality doctrine has a long and rich history as a statement of principle affecting the original jurisdiction of the federal courts over con stitutional or federal statutory claims,” but noted that it “has evoked sharp criticism directed at its vitality as a jurisdictional first principle,” citing Justice Rehnquist’s dissent in Yazoo Cnty. and Rosado v. Wyman, 10 where the Supreme Court referred to the doctrine as “a max im more ancient than analytically sound.”11 Getting to the heart of the problem with the “wholly insubstantial

and frivolous” standard, the Seventh Circuit stated the following: “The upshot of this doctrine is that it places an obligation on the district court to determine its jurisdiction based on an assessment of the complaint that is confusingly similar to the analysis required by a motion under Fed. R. Civ. P. 12(b)(6).”12

As noted in a recent opinion from the Eleventh Circuit, “[t]he notion from Bell that we can distinguish ‘frivolous’ claims from those that simply fail on the merits has received its fair share of criticism.”13 In a concurring opinion in Resnick v. Krunchash, LLC, 14 Eleventh Circuit Judge Kevin Newsom invited the Su preme Court to revisit the standard enunciated in Bell:

The Supreme Court should bury the “wholly insubstantial and frivolous” gloss once and for all. Not only does it blur what should be a clear line between a court’s jurisdiction—i.e., its power—to entertain a plaintiff’s claim and the merits of that claim, it is analytically unsustainable. Under it, courts must draw razor-fine distinctions between claims that are really weak and those that are really, really weak—between those that are merit less, and thus sufficiently un-nonserious to invoke the court’s jurisdiction and to withstand a Rule 12(b)(1) motion (even if a Rule 12(b)(6) dismiss al is immediately around the corner), and those that are frivolous, and thus fail even to implicate the judicial power. Needless to say, that distinc tion is so slippery as to border on illusory. See, e.g., Frivolous, Black’s Law Dictionary (11th ed. 2019) (defining “frivolous” to mean “[l]acking a legal basis or legal merit”).

In my view, a plaintiff’s complaint either pleads a federal claim on its face—in which case § 1331 “arising under” jurisdiction exists— or it doesn't. Courts should get out of the business

of peering through a plaintiff’s allegations to test their bona fides as a means of assessing subject-matter jurisdiction. If it turns out, as it sometimes will, that a plaintiff’s contention is a loser—even an obvious loser—then the court should simply take jurisdiction and dismiss it on the merits for failure to state a claim.15

After reciting the “wholly insubstantial and frivolous” standard, the court in Banco de Ponce v. Hinsdale Supermarket Corp., 16 noted that “[i]t is not entirely clear when the courts will deem a complaint ‘friv olous’”17 under the “wholly insubstantial and frivolous” standard. This is the essence of the problem identified by many federal judges tasked with determining whether they possess subject matter jurisdiction under the “wholly insubstantial and frivolous” standard, most recently by Judge Newsom in his concurring opinion—joined by the other two members of the panel. He said that the distinction between meritless claims (due to be dismissed for failure to state a claim) and really mer itless claims (due to be dismissed for failure to invoke a federal court’s subject matter jurisdiction) “border[s] on illusory.”18 Judge Newsom’s criticism of the “wholly insubstantial and frivolous” standard enunci ated in Bell is not unique or new; it remains valid since at least Justice Rehnquist’s dissenting opinion in Yazoo Cnty.

It is unclear if the “wholly insubstantial and frivolous” standard is loosened in the context of pro se complaints, which are uniformly held “to less stringent standards than formal pleadings drafted by law yers….”19 In Gilberti v. Governor of Fla., 20 the Eleventh Circuit dismissed a pro se complaint alleging RICO violations for lack of jurisdiction under the “wholly insubstantial and frivolous” standard. The plaintiff sued the governor of Florida, private companies, county commissions, and state agencies alleging that the defendants-appellees purposely

hid[ ] Critical US underground Alkaline spring water rivers … to increase Cancer rates, home foreclosures, land foreclosures, selective funding to developers, infrastructure projects with unsafe designs, Medicaid fraud billings, higher utility bills and medicine sales through a pattern of racketeering activity.21

The Eleventh Circuit concluded that the claims asserted were “patently without merit” and had been rejected in a prior opinion.22 Gilberti suggests that there is no loosening of the “wholly insubstan tial and frivolous” standard when courts are faced with complaints filed by pro se litigants.23 On the other hand, some courts appear to give the benefit of the doubt to pro se litigants. In Karls v. Prudential Real Estate Affiliates, Inc., 24 the district court stated that, “while this may be a close case, considering Plaintiff’s pro se status, … Plain tiff has sufficiently alleged that his Fifth Amendment due process rights [in a real estate license] were violated at least for purposes of establishing subject matter jurisdiction” despite failing to name a government actor as a defendant.25

In short, the “wholly insubstantial and frivolous” standard is due to be retired, not unlike the “no-set-of-facts” standard enunciated in Conley v. Gibson 26 To paraphrase Eleventh Circuit Judge New som, either a federal court possesses subject matter jurisdiction, or it does not. If a claim is so lacking in merit, dismissal will assuredly be sought via a Rule 12(b)(6) motion to dismiss for failure to state a claim. It is unfair for a plaintiff, whether proceeding pro se or represented by counsel, to be deprived of the opportunity to have an Article III court adjudicate its claim on the merits because it is first determined that that claim is so lacking in merit that it fails to invoke

the federal court’s subject matter jurisdiction in the first instance. The Supreme Court should renounce the “wholly insubstantial and frivolous” standard and relieve lower federal courts of the obligation of discerning which claims are so lacking in merit that they fail to invoke their subject matter jurisdiction.

Endnotes

1327 U.S. 678 (1946).

2Bell, 327 U.S. at 682-83; Hagans v. Lavine, 415 U.S. 528, 536–37 (1974) (federal claims that are “essentially fictitious, wholly insubstantial, obviously frivolous, and obviously without merit” fail to invoke federal question jurisdiction) (internal quotation marks omitted). The “wholly insubstantial and frivolous” standard for determining the existence of federal question jurisdiction “generally applies to claims that have ‘no plausible foundation’ or are ‘clearly immaterial,’ ‘insubstantial,’ or ‘clearly foreclosed by a prior Supreme Court decision.’” Carmichael v. United Techs. Corp., 835 F.2d 109, 114 (5th Cir. 1988); see also Southpark Square Ltd. v. City of Jackson, Miss., 565 F.2d 338, 34243 (5th Cir. 1978) (a federal claim “must be more than frivolous to support federal question jurisdiction” and can satisfy this threshold only if “there is any foundation of plausibility to the claim”).

3454 U.S. 1157 (1982) (Rehnquist, J., dissenting) 4454 U.S. 1157, 1159 (1982)

5Rubinstein v. Yehuda, 38 F.4th 982, 993 (11th Cir. 2022) (quoting Hagans, 415 U.S. at 537).

6Mihalik v. ExpressJet Airlines, No. 3:10cv67/LAC/EMT, 2010 WL 1189345, at *1 (N.D. Fla. Mar. 4, 2010) (quotation omitted).

7Neitzke v. Williams, 490 U.S. 319, 325 (1989).

8Christianburg Garment Co. v. Equal Employment Opportunity Comm’n, 434 U.S. 412, 421 (1978) 9874 F.2d 1177 (7th Cir. 1988). 10397 U.S. 397 (1970).

11Id. at 404.

12Ricketts, 874 F.2d at 1180 (citing authorities, including Montana–Dakota Utilities Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 249 (1951) (jurisdiction based on subject matter is often confused with whether the complaint states a claim); Hagans, 415 U.S. at 538 (explaining that the substantiality doctrine as a statement of jurisdictional principles affecting a federal court’s authority to hear a case is more ancient than analytically sound, citing Rosado, supra)).

13The author discloses that he served as counsel to the appellees in the appeal before the Eleventh Circuit.

1434 F.4th 1028 (11th Cir. 2022).

15Id. at 1042 (Newsom, J., concurring).

16663 F. Supp. 813 (E.D.N.Y. 1983).

17Id. at 820.

18Banco de Ponce, 34 F.4th at 1042.

19Haines v. Kerner, 404 U.S. 519, 520 (1972) 20835 F. App’x 508 (11th Cir. 2020) (per curiam).

21Id. at 511.

22Id.

23See Linge v. Ga. Inc., 569 F. App’x 895, 896 (11th Cir. 2014) (per curiam) (denying leave to amend where pro se complaint was “wholly insubstantial and frivolous”); Bey v. Eemco, No: 8:21-cv926-TPB-TGW, 2021 WL 4819610, at *2 (M.D. Fla. Oct. 15, 2021) (“Given Plaintiff’s pro se status, the Court would ordinarily allow Plaintiff an opportunity to amend the complaint. However, because Plaintiff's complaint is ‘wholly insubstantial, unintelligible

and frivolous,’ leave to amend would be futile.”). 24No. 2:07cv325, 2008 WL 1953474 (D. Utah Jan. 10, 2008).

25Id. at *3. Cf. Chestnut v. Wells Fargo Bank, N.A., No. 11–CV–5369 (JS)(ARL), 2012 WL 6601785, at *3 (E.D.N.Y. Feb. 22, 2012),

Litigation Brief continued from page 13

Rule 702—Admissibility of Expert Testimony

The Evidence Committee’s final approval of proposed changes to Rule 702 was the culmination of five years of work that began with a symposium on forensic experts and Daubert, held at Boston College School of Law in October 2017.3 Similarly, the Evidence Committee’s October 2019 meeting at Vanderbilt Law School included a mini-confer ence on Best Practices for Managing Daubert Questions.4 The purpose of the mini-conference was to “further the Committee’s objective to provide education on proper management of expert testimony as an addition to (or an alternative to) and amendment to Rule 702.”5 The panel comprised six judges with extensive experience handling Daubert questions and a professor.6

The Evidence Committee sought to address a concern that experts sometimes overstate the results that could be reliably obtained from the method used. This issue arises when experts testify of a “zero error rate” or that something is a “practical impossibility.” While the focus was primarily as to the testimony of forensic experts, it applied to all experts. Another change the Evidence Committee considered was an amendment to clarify that the requirements for admissibility contained in Rule 702 (such as sufficiency of basis and reliability of application) must be decided by a preponderance of the evidence under Rule 104(a). Amazingly, the Evidence Committee received more than 500 comments on the proposed changes.

Interestingly, the overwhelming majority of the public comments focused on the reference to the preponderance of the evidence standard that was contained in the preliminary draft. That standard had been in cluded in the preliminary draft because, as the Supreme Court had held under Rule 104(a), it generally applies to admissibility rulings by trial courts under all the Evidence Rules. In fact, the Daubert decision in a footnote mentions the standard and, yet, trial courts have not uniformly utilized it. To address the public comments, the proposal was revised to provide that the proponent must establish that it is “more likely than not” that the reliability requirements are met. The Evidence Committee views this standard as substantively identical to “preponderance of the evidence,” but it avoids any reference to “evidence” and thus addresses a concern that the term “evidence” means only admissible evidence. Based on the public comments, the Evidence Committee also unani mously agreed with a change requiring that the proponent establish “to the court” that it is more likely than not that the reliability requirements have been met. After all, in the words of the Evidence Committee’s Report “when it comes to making preliminary determinations about admissibility, the judge is and always has been a factfinder.”7 Accordingly, the Evidence Committee unanimously gave final approval to the follow ing as the new language of Rule 702:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other special

(“[E]ven given a liberal construction, Plaintiff’s Complaint does not allege a federal claim such that the Court’s federal question subject matter jurisdiction may be invoked.”). 26355 U.S. 41 (1957).

ized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The proposed amendments are detailed as follows:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other special ized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

Conclusion

In addition to the three proposals discussed above, the Evidence Com mittee unanimously approved proposed amendments of five other rules to be released for public comment. The proposed amendments are to Rules 611, 613(b), 801(d)(2), 804(b)(3), and 1006. Those pro posals will be discussed in the next issue of Sidebar. 

Endnotes

1Federal Litigation Section and FBA Government Relations Committee Collaborate to Monitor Federal Rules Changes, Sidebar Newsletter (Fed. Bar Ass’n, Arlington, Va.), Winter 2020, at 4.

2Fed. R. Evid. 1101.

3Daniel J. Capra, Symposium on Forensic Expert Testimony, Daubert, and Rule 702, 86 Fordham L. Rev. 1463 (2018).

4Conference on Best Practices for Managing Daubert Questions, 88 Fordham L. Rev. 1215 (2020).

5Agenda for Committee Meeting, Advisory Committee on Evidence Rules at 1 (Oct. 25, 2019), https://www.uscourts.gov/ rules-policies/archives/agenda-books/advisory-committee-rulesevidence-october-2019.

6Conference on Best Practices, supra note 1218.

7Report of the Advisory Committee on Evidence Rules to Standing Committee on Rules of Practice and Procedure (May 15, 2022), https://www.uscourts.gov/rules-policies/archives/ committee-reports/advisory-committee-evidence-rules-may-2022 (emphasis in original).

Lessons From Ted Lasso on Mediation Strategy

By Harold Oehler

Harold Oehler, co-author of the Florida Mediation Best Practices Handbook, is a full-time mediator with over 30 years of experience in employment, personal injury, product liability, insurance, and commercial litigation claims. He is for mer chair of the Mediation Section of the Hillsborough County Bar Association and serves on the Executive Council of the Florida Bar’s ADR Section. He is a former trial lawyer and general counsel of a national public company where he oversaw litigation nationwide. For more information, visit www.oehlermediation.com. ©2022 Harold Oehler. All rights reserved.

Imagine walking into a mediation proceeding and discovering that your mediator is football coach Ted Lasso. At first you would be alarmed, but is there any doubt Ted Lasso would make an excellent mediator? Business consultants and coaches use this television program to teach teamwork and leadership. At its core, Ted Lasso is a show about resolving human conflict and it provides a master class in mediation strategy for trial lawyers and mediators.

It’s Not Just About Understanding the Law— It’s About Understanding People

A good mediator understands the law. A great media tor understands the people.

Ted doesn’t know his backside from an offside, but like a great mediator, he is adept at uncovering the needs of others and finding ways to make people with competing interests work together. Ted convinces Jamie Tartt, a self-absorbed prima donna concerned only with his own scoring, to pass to his teammates by showing him how that would ultimately lead him to greater personal success. By appealing to Tartt’s interests, rather than arguing with Tartt or threatening him, Ted was able to persuade Tartt to work more effectively with his teammates.

Mediation is a transactional event in the middle of an adversarial proceeding. The adversarial nature of litigation can sometimes cause litigators to default to “trial advocacy” during mediation and attempt to per suade the other side with argument and threats. Since there is no fact finder in mediation, using trial advoca cy during mediation is counterproductive and usually only alienates the other side. Instead, it is far more effective to use “mediation advocacy,” which has been defined as “the technique of presenting and arguing a client’s position, needs and interests in a non-adver sarial way to persuade the other party to enter into an agreement.”1 We should learn from our transactional colleagues who foster agreement between parties with competing agendas by understanding the other person’s interests2 and creating solutions that satisfy those needs. It’s never just about the money. Practic ing transactional law and litigation for three decades

before becoming a mediator taught me that mediation is more productive, and less expensive, when you ap proach the bargaining table as a transactional lawyer.

The most influential person at a mediation is usually not the toughest or loudest negotiator. Those types of negotiators are usually ignored and quickly relegated to spectator status. The most influential per son at a given mediation may not be the mediator or even one of the attorneys. The most influential person at any mediation is almost always the person who best understands the underlying interests of both parties and is adept at creating settlement proposals that meet both sides’ needs outside the money.

Kindness and Empathy Create Trust

Virtually everyone felt hostile toward Ted when he was named as the coach, due to his lack of experience. Ted won everyone over, not by showing how much he knew (this would have been hopeless), but by using his superpowers of kindness and empathy. To deeply connect with his new boss, Ted brought her cookies each morning and referred to their conversations as “Biscuits with the Boss.” He took Trent Crimm, his harshest critic in the press, to dinner and gave him full access to practices. He took every opportunity to con nect and find common ground with his adversaries, and he won their trust and respect.

Both the Harvard Negotiation Project and the FBI teach their negotiators the same primary negotiating skill: Empathy.3 Great mediators use their superpowers of empathy and emotional intelligence to uncover the unique needs of the parties and help guide the parties to mutually beneficial solutions. Whether you are a liti gator or a mediator, taking an interest in a party’s needs creates immediate trust and rapport, even with your ad versary. Focusing on areas of mutual interest rather than the points of disagreement is the fastest way to create agreement where those mutual interests meet.

Be a Goldfish

“You know what the happiest animal on earth is? It’s a goldfish. You know why? It’s got a 10-second memory.”4 -Ted Lasso

While litigation is an adversarial process, mediation is not. For instance, the Florida Rules for Certified and Court-Appointed Media tors defines mediation as “an informal and non-adversarial process intended to help disputing parties reach a mutually acceptable agreement.” (Emphasis added).5 Each party must enter the media tion forgetful of the past transgressions that caused the dispute, and the lawyers must set aside prior disagreements that occurred during the litigation. All past baggage must be left outside the door of the mediation room.

If the litigation has been hard fought, it is especially important for counsel to demonstrate in their opening presentation that past transgressions have been forgotten and that counsel and their client are there to set aside argument for another day and work with the parties to reach a mutually beneficial agreement. This does not mean that the lawyers should not share the strengths of his or her case or the weaknesses in the other side’s position. It means that the lawyers should do so effectively with thoughtfulness and with respect. A good transactional lawyer is highly skilled at raising his or her client’s conflicting interests and disagreements diplomatically with the other side and working with all concerned parties to find a mutually beneficial solution that keeps the parties on track to reach an agree ment. Trial lawyers and mediators should approach mediation not as a litigator or a judge but as a transactional lawyer who keeps the negotiation moving forward by focusing on mutual interests rather than points of contention or past transgressions.

Be Curious, Not Judgmental

Jason Sudeikis, the actor who plays Ted Lasso, describes the charac ter as “ignorant and curious.”6 Sudeikis explains: “Curiosity comes from a power of being able to ask questions and truly empathize (with) what someone is dealing with.”7 Ted asks questions of every one with a humble curiosity that shows that he cares and values the knowledge and experience of others. Similarly, one of the mediator’s most useful tools is curiosity. A mediator who asks questions to un derstand the case and the people involved gains respect both for tak ing an interest in the parties and for valuing the opinions of others. For example, when a party proposes making a counterproductive offer, a good mediator exercises curiosity, not judgment, and asks how the other side will likely respond to the offer. This usually leads to the enlightenment of either the mediator or the party making the proposal.

Treat Everyone as Important

Ted sees the best in people. He taps everyone for ideas, even the underappreciated equipment manager, Nathan, who shares game-changing ideas once he believes that Ted values his opinion. During the mediation, a skilled mediator will engage each person and encourage them to share their thoughts and solutions. This cre ates trust and makes the parties more willing to accept the mediator’s perspective.

“Believe”

Ted understands that hope is powerful, so he hangs a sign in the locker room with only one word: “Believe.” A mediator should display relentless optimism, from his or her opening statement through all the ups and downs of the mediation. The mediator should point out at the start of the mediation that cases often settle, even when the parties begin mediation with the belief that the case

has no chance of settling. When the negotiations get tough, the me diator should continually remind the parties about their objectives and the progress they have made towards achieving them during the mediation. If the mediator sincerely believes in the process, the parties will believe too.

Humor Is a Powerful Tool

Humor often makes the truth easier to digest. Ted responds to every insult with humor and diffuses those who attack him. He influenc es people’s opinions by sharing funny, personal stories where the punchline carries an important lesson. Humor, especially at your own expense, disarms difficult parties, prevents confrontation, and maintains a productive atmosphere for settlement. It makes both the mediator and the litigator more relatable to the decision-makers, and by making them laugh, it puts them at ease and in a much more conducive position to reaching an agreement. Humor is the WD-40 of mediation and should be used liberally by litigators and mediators to establish rapport during mediation.

Ted Lasso teaches us that approaching mediation with curiosity, humor, and the problem-solving approach of a transactional lawyer, rather than with argument and threats, is the most efficient and effective path to success in mediation. 

Endnotes

1Susan Blake, Julie Browne & Stuart Sime, A Practical Approach to Alternative Dispute Resolution, § 16.87 (2d ed. 2012).

2Roger Fisher and William Ury, Getting to Yes, 42 (3d ed. 2011).

3Christopher Voss, Never Split the Difference, 49 (1st ed. 2016).

4Ted Lasso: Biscuits (Apple TV 2020).

5Fl. Supreme Ct., Florida Rules For Certified And CourtAppointed Mediators Rule 10.210 (Aug. 2021), https:// www.floridasupremecourt.org/content/download/216759/file/ rules-certified-court-appointed-mediators.pdf (emphasis added).

6Josh P. Armstrong, Ph.D., Ted Lasso: The Servant-Leader We Need Right Now, Medium (Nov. 24, 2020), https://drjosharmstrong. medium.com/ted-lasso-the-servant-leader-we-need-right-now8a88b843e7f1.

7Id.

Hon. Gary A. Fenner

Senior U.S. District Judge, Western District of Missouri

by Katherine Bourk

Judge Gary A. Fenner is fair minded, empa thetic, and understanding,” says Michael Fenner, long-time professor and dean of Creighton Law School.

He is respectful of others. I’ve known him all his life—known him to be like that all of his life. Overarching all of that, he believes in the law, he understands his place in the law, and he is not in the position he now holds for the prestige of the federal bench. I know most of his law clerks—all but two were students of mine: Every one of them comes away from his chambers with the highest respect for “their” judge and count their time with their judge as a highlight of their education and their careers.1

Origins

In 1947, Judge Gary A. Fenner was born to George and Mary Ann Fenner in St. Joseph, Mo., about one hour north of Kansas City. The middle of three brothers, Judge Fenner was an active Boy Scout and explored St. Joseph freely on his bike throughout his childhood. Besides the influence of his parents, Judge Fenner credits this freedom to explore his community with his ability to be strong, independent, and confident in his decisions—characteristics he has embodied through out his life and career. In his words, Judge Fenner “had a wonderful childhood with loving and supportive parents and two great brothers.”

Judge Fenner’s parents felt he and his brothers had the opportunity to make meaningful contribu tions to their community and pushed them to do so. All three Fenner brothers attended parochial schools, including Christian Brothers High School, where they continually motivated each other to succeed academically.

In 1965, Judge Fenner began his higher educa tion at Kansas University in Lawrence, Kan., where he studied personal administration. During school breaks, Judge Fenner worked at his family’s whole sale dairy operation in St. Joseph to support himself financially through college. Working alongside the

assembly workers at the dairy, Judge Fenner gained a strong work ethic and an appreciation for doing a job right. He received his bachelor’s degree in 1970.

Legal Beginnings

After completing his undergraduate degree, Judge Fenner attended law school at the University of Mis souri at Kansas City, earning his J.D. in 1973.

His first job out of law school was working in pri vate practice for Daniel Czamanske in Platte County, a rural county just north of Kansas City. Although he established legal connections in the Kansas City area, Judge Fenner always knew he wanted to return to St. Joseph and make a meaningful contribution to the community, as his parents wished for him. So, when a position opened up at the St. Joseph City Attorney’s Office, he did not hesitate to apply.

In November 1973, Judge Fenner began as one of three attorneys acting as legal counsel for the city of St. Joseph. Though being a trial lawyer was not his primary interest during law school, Judge Fenner ended up loving trial work and was very successful. After only nine months, he moved from handling the cases in municipal court to handling all of the city’s civil litigation in the Missouri circuit courts.

Katherine Bourk is a judicial intern for Hon. Stephen R. Bough, U.S. District Court Judge for the Western District of Missouri.

St. Joseph Practice

As his work progressed in the St. Joseph City Attorney’s Office, Judge Fenner was charged with acting as the legal counsel to the St. Joseph City Council. He answered the council’s legal questions, helped draft ordinances, and attended city council meetings. This experience allowed him to meet everyone on the city council, and he be came influential in this sphere. When a city councilman’s election to the Missouri legislature created a midterm vacancy, Judge Fenner was the natural choice.

Working with the St. Joseph City Council as a city attorney sparked a passion for politics, so when he was approached about filling the council vacancy, Judge Fenner felt the position aligned with his career path. He decided to resign from the City Attorney’s Office and en ter private practice. After suc cessfully gaining the support of the majority of the council members, Judge Fenner was appointed to the city council in 1977 at the young age of 30. Reflecting on this experience, Judge Fenner notes that it was a “great honor to have the con fidence of the other members of the City Council in selecting [him] for the position.”

When his term on the city council expired, Judge Fenner had to decide whether to run for reelection. While he was excited by the idea of running for anoth er political position, he was also ready for a new challenge. Judge Fenner ran for and was elected to the Fifth Judicial Circuit of Missouri as a circuit judge in 1978, and again in 1982.

Judge Fenner presided over many notable cases during his time in the Fifth Judicial Circuit. One of the most significant cases was a case in which the state sought the death penalty against a mob boss from St. Louis.2 The case involved a retaliatory car bombing and was highly publicized, so the trial was Judge Fenner’s first experience with extremely heightened security. Pri or to trial, there had been death threats against several of the witnesses in the case who were in the federal witness protection program. During trial, the courthouse was searched every morning by bomb-sniffing dogs, metal detectors were used at the entrance to the courtroom, and, during the course of jury deliberations, two bomb threats were made against the jury. The jury returned a guilty verdict and recommended a penalty of life impris onment. The case was affirmed on appeal.

Another notable case during Judge Fenner’s time in Missouri’s Fifth Circuit involved a defendant threaten ing his life. Judge Fenner was presiding over a divorce proceeding when the defendant became upset with his decision. As the defendant left the courtroom, he pulled a revolver out of his boot and threatened to shoot Judge

Fenner. The deputies present in the courtroom were able to disarm the defendant before anyone was hurt. The state then brought criminal charges against the defendant for the attempted assault of Judge Fenner. The defendant was ultimately convicted and sentenced to serve a year in county jail.

Court of Appeals to Federal Bench

In 1988, Judge Fenner was appointed by Missouri Gov ernor John Ashcroft to the Missouri Court of Appeals in the Western District as part of the Missouri Nonpar tisan Court Plan. With this appointment, Judge Fenner became the first judge from Missouri’s Fifth Circuit to be appointed to the Missouri Court of Appeals. He served in that position until 1996, writing hundreds of opinions in both civil and criminal cases. During that time, Judge Fenner enjoyed the opportunity to solve complex legal problems and found satisfaction writing opinions that held precedential value.

After serving on the appellate bench for eight years, Judge Fenner was ready to return to trial work. In 1991, two judges for the U.S. District Court for the Western District of Missouri—Judge Scott O. Wright and Judge Howard F. Sachs—assumed senior status. This left two vacancies for President Clinton to fill once he took office in 1993.

Because there was no Democratic senator from Missouri, the three Democratic representatives from the state created a nominating commission to take applica tions and select six candidates for consideration. Once the six candidates were selected, the three representa tives were unable to agree on who to nominate, so all six names were submitted to the White House for President Clinton to make the final selection. Judge Fenner was one of the six submitted in June 1993, and after a long and difficult process, he was appointed to the federal district court on July 25, 1996.

Judge Fenner credits both his strong will to persevere and the support of his brothers and good friends for help ing him achieve his goal of being appointed to the federal district court. “When I was in law school,” Judge Fenner recalls, “I never imagined I would be a judge let alone a federal district judge appointed by the President of the United States. However, once I choose my path, I set goals and was very fortunate to have so many realized.” Judge Fenner has now spent over 40 years—the vast majority of his legal career—serving our nation’s courts.

While on the federal district court bench, Judge Fenner presided over many high-profile and notewor thy cases. He has presided over 11 death penalty cases during his tenure at the Western District of Missouri. Notably, he presided over the Lisa Montgomery capital case, which received extensive national attention.3 In that case, the defendant fatally strangled a pregnant woman, cut open her body, and kidnapped her unborn child. In October 2007, a jury found Montgomery guilty of federal kidnapping resulting in death and unanimously recommended a death sentence, which Judge Fenner

“When I was in law school,” Judge Fenner recalls, “I never imagined I would be a judge let alone a federal district judge appointed by the President of the United States. However, once I choose my path, I set goals and was very fortunate to have so many realized.”

imposed. Her conviction and sentence were affirmed on appeal, and her request for collateral relief was rejected by every court that considered it. Montgomery was executed on Jan. 13, 2021, and was the first woman executed by the federal government in 67 years.

On the civil side, Judge Fenner has handled at least one multidistrict litigation (MDL) case every year for the past 20 years. Recently, Judge Fenner presided over an MDL that involved allegations that Dollar General utilized deceptive tactics to market obsolete motor oil to unsuspecting and pri marily low-income customers. Judge Fenner approved the $28.5 million settlement in February 2021.4

In addition to the numerous MDL cases, Judge Fenner has handled many other complex and challenging civil cases. One significant case he handled through trial in volved a dispute between Cerner Corp. and one of its main competitors regarding the patent of a system for remote monitoring of patients in the ICU by a physician known as an intensivist.5 The document presentation in the case was so intensive that the walls in Judge Fenner’s courtroom were covered by Bankers Boxes stacked six boxes high, full of medical science and information technology documents. Judge Fenner saw the threeweek trial to verdict, and the patent was set aside. The case was later upheld on appeal.

Not only is Judge Fenner respected by those who appear in front of him, but he is also highly regarded among his judicial colleagues. Through all his cases, Judge Fenner’s goal was to always be honest, conscientious, and well prepared, and his focus has continuously been to do the right thing. Because of his commitment to these principles, Judge Fenner has gained respect and admiration from his peers. Judge Fenner has served on both the Missouri Court of Appeals and the U.S. District Court for the Western District of Missouri with Judge Fernando Gaitan, who remembers Judge Fenner as someone who always wanted to do the right thing for the betterment of the court. Judge Gaitan fondly remembers Judge Fenner as “a valued, fair-minded colleague who gives everyone in his courtroom the opportunity to make their case.”

U.S. District Court Judge David Gregory Kays recalls:

I knew about Gary Fenner’s reputa tion long before I knew him person

ally. He was the judge who always seemed to be presiding over the tough cases. I knew that while federal judges received their cases through a random draw, Judge Fenner always seemed to have the most complex or difficult. It seemed that he was always in trial. And the trial was a death penalty case or some complex civil matter. It is no wonder that when I arrived at the court in 2008, I spent many hours in his chambers asking him to help me develop the best practices, procedures, and protocols, for my own cases. I was fortunate that he was always gracious and patient with me in sharing the wealth of informa tion he had acquired over the years. During this time, we also became close friends. And over the years, my wife Julie and I have been fortunate to become close not only with Gary, but also his wonderful wife Peggy.

One thing Judge Fenner has appreciated as much as anything in the course of his ca reer has been working with his staff and law clerks. His judicial assistant, Lisa Mitchell, started with him at the Fifth Circuit in St. Joseph and has since worked with him for over 38 years. He has had 22 term clerks over the course of his time at federal court and describes working with them as the “most rewarding part of being a judge.”

Outside the Courtroom

In his free time, Judge Fenner enjoys spend ing time with his family, including his wife, Hon. Peggy Stevens (McGraw) Fenner, and his two brothers—all of whom are also lawyers. Peggy retired from the 16th Circuit Court in Missouri after serving on the bench for 18 years. She and Judge Fenner enjoy discussing their experiences on the bench: “Gary has served almost his entire legal career in the Missouri Judiciary. As a retired judge myself, we have had many years of sharing the rewards and challenges. I know that Gary has always thought it was an honor to serve.” In 2013, both judges jointly received the Kansas City Metro politan Bar Foundation Jack L. Campbell Legacy Award for their dedication to the principles of liberty and justice through exemplary professional, civic, and commu nity service.6

Judge Fenner’s older brother, profes sor Michael Fenner, recently retired from

Judicial Profile Writers Wanted

The Federal Lawyer is looking to recruit current law clerks, former law clerks, and other attorneys who would be interested in writing a judicial profile of a federal judicial officer in your jurisdiction. A judicial profile is approximately 1,500-2,000 words and is usually accompanied by a formal portrait and, when possible, personal photographs of the judge. Judicial profiles do not follow a standard formula, but each profile usually addresses personal topics such as the judge’s reasons for becoming a lawyer, his/her commitment to justice, how he/she has mentored lawyers and law clerks, etc. If you are interested in writing a judicial profile, we would like to hear from you. Please send an email to Lynne Agoston, managing editor, at social@fedbar.org.

Creighton University, where he was a law professor and dean for over 45 years. His younger brother, Robert Fen ner, worked for 37 years as an attorney for the National Credit Union Administration, the last 27 of those years as chief legal officer. According to Michael, the brothers’ success is rooted in having respect for those around them: “Our success is partly attributable to the fact that we are all hard workers and respectful to all whom we encounter. We got that from our father. I find that to explain in part how each of the three of us got to where we are.”

When he’s not in the courthouse or spending time with friends and family, Judge Fenner enjoys reading, exercising, and traveling.

Conclusion

Even after assuming senior status, Judge Fenner remains dedicated to his work of ensuring every litigant who ap pears in front of him is treated with respect and fairness. A public servant for over 45 years, Judge Fenner has touched the lives of many and continues to administer justice to all he encounters. 

Endnotes

1The source material for this article includes an interview between journalist Mark Morris and Judge Gary Fenner; personal interviews with Judge Fenner and his family, friends, and colleagues; and Hon. Gary A. Fenner, Robert Fenner & G. Michael Fenner, Three Perspectives of the Law: Advice to the Young Lawyer, 31 Creighton L. Rev. 665 (1998).

2State v. Leisure, 772 S.W.2d 674 (Mo. Ct. App. 1989). This case came to the Fifth Judicial Circuit on a change of venue.

3United States v. Montgomery, No. 05-6002-CV, 2007 WL 2711511 (W.D. Mo. Sept. 13, 2007), aff’d, 635 F.3d 1074 (8th Cir. 2011).

4In re: Dollar General Corp. Motor Oil Marketing and Sales Practices Litig., No. 16-02709-MD, 2021 WL 5546459 (W.D. Mo. Feb. 8, 2021).

5Cerner Corp. v. VISIVU, Inc., No. 04-1033-CV-W-GAF, 2005 WL 2346987 (W.D. Mo. Sept. 26, 2005), aff’d, 469 F. App'x. 903 (8th Cir. 2012).

6Liberty and Justice Campaign, Kansas City Metropolitan Bar Foundation, https://kcmbf.org/Foundation/ KCMBF_Website/Events/Liberty_and_Justice_Gala. aspx (last visited Apr. 22, 2022).

EVENT

WI-FI SPONSOR

WELCOME SPONSORS

LEADERSHIP

BREAKFAST + BREAK

SESSION SPONSORS

ONSITE EXHIBITORS

Hon. J. Ronnie Greer

U.S. District Judge, Eastern District of Tennessee

by LeAnna R. Wilson

LeAnna R. Wilson is the clerk of court for the U.S. District Court, Eastern District of Tennessee, where she has served since June 2021.

Prior to that, she served for three years as the court’s chief deputy clerk and for 11 years as career law clerk to Hon. J. Ronnie Greer, U.S. district judge.

There’s gold in them thar hills.” This was the lead in a local newspaper article about a tax evasion case over which Hon. J. Ronnie Greer, U.S. district judge, presided.1 While that article was referring to gold coins the defendant buried in the Cherokee National Forest, the phrase could also refer to the judge himself, raised in the hills of the Appalachian Mountains. Judge Greer’s emphasis on country, family, environment, and faith throughout his career makes his heart of gold apparent to all who meet him or appear in his court.

Country

Judge Greer has served (and continues to serve) his country with distinction throughout his career in politics, as a lawyer, and now as a federal judge. James Ronnie Greer was born in Mountain City, Tenn., to David and Mary Ellen Greer. Mountain City is the county seat of Johnson County, the northeasternmost county in the state. You can see mountains for miles in every direction, smell the fresh air, and feel the damp ness of the mountain streams. David Greer owned a small farm on which he grew tobacco and raised dairy cattle. Judge Greer and his sister, Sharon, attended the local public schools. Living in a rural mountain town, Judge Greer’s only exposure to the outside world was through books. He devoured every book that he could from the Watauga Regional Library’s traveling truck that drove through town every two to three weeks. Eventually, Johnson County established its own branch library that started in a local schoolteacher’s house, where Judge Greer was a frequent patron.

During high school, Judge Greer frequented the local courthouse, often during school hours, to watch a trial or hearing after combing the docket for interest ing matters. He knew from a young age that he wanted to be a lawyer. The vice principal at his high school knew it too and agreed to this school-hour courtroom arrangement—at least until the principal caught him sneaking back to class after one such outing. Then, it was back to only reading about the proceedings (at least during school hours).

It was at this same courthouse that Judge Greer developed his love for politics. Judge Greer’s father

took him to a congressional campaign event at the courthouse that piqued his interest. From that point on, he became progressively more involved in politics throughout high school, college, and beyond. Judge Greer attended East Tennessee State Univer sity, where he worked hard to overcome his fear of public speaking. He continued to feed his love of learning and reading by working in the acquisitions department of the university’s library, where he had the opportunity to read the new books coming into the collection. In 1974, he graduated with a B.S. in history and political science.

Judge Greer then attended the University of Ten nessee College of Law. Because of his strong interest in politics, he took time off from law school to work on a congressional campaign. Afterwards, he returned to law school but once again put law school on hold to work on Lamar Alexander’s 1978 gubernatorial campaign. Judge Greer was instrumental in planning Alexander’s walk-across-the-state campaign, a journey of 1,022 miles from Mountain City to Memphis, Tenn. Alexander won the governor’s race and later became a U.S. senator, serving from 2003 to 2021.

Alexander encouraged Judge Greer to finish law school, and he did so while working in Alexander’s

Knoxville office as his special assistant. He graduated in 1980 and passed the bar the same year.

Then, attorney Thomas Gray Hull, who later became a U.S. district judge, convinced Judge Greer to move to Greeneville, Tenn., to practice law. There, Judge Greer established a successful general practice. On the advice of another one of his mentors, attorney Charles R. Terry, Judge Greer accepted whatever case that came through the door and became skilled in many different practice areas.

Politics called him into service once again, and Judge Greer temporarily left his law practice to manage the U.S. Senate Campaign of Rep. Robin Beard, R-Tenn. He returned to practice in Greeneville during the latter part of 1982. He served as Greene County attorney from 1985 to 1986. Judge Greer then made the transition from man aging campaigns to running for office himself, and he served as a state senator from 1986 to 1994 while simulta neously continuing his law practice until June 2003.

On June 12, 2003, President George W. Bush appoint ed Judge Greer as a U.S. district court judge for the East ern District of Tennessee, to succeed Judge Hull, and he assumed his duties on June 25, 2003. Judge Greer served as an active district judge until 2018, and he continues to serve his country as a senior district judge to this day.

While on the bench, Judge Greer presided over many cases of first impression and difficult legal issues, from both a substantive standpoint and a human perspective. He presided over a large multidistrict antitrust litigation2 and an extremely heavy criminal docket. He has been successful as a judge because of his unrelenting work ethic. Judge Greer has said, “I decided many years ago that what I lacked in intellect I could make up with hard work.” His goal in any court appearance is to be the most prepared person in the courtroom, and it is obvious that he always is. You can observe that many out-of-town lawyers from large cities, who do not know his reputa tion, come to his court expecting easy hearings. They quickly realize it will be anything but easy, for the judge is better prepared than they are. While he has always said his work ethic compensates for any lack of intellect, no attorney who has ever had the pleasure of practicing before him would argue he lacks either.

There is not a single piece of paper or electronic com munication that comes into chambers that he does not read. Whether one sentence or hundreds of pages, not a single order gets filed without his having combed over every word. To his law clerks, he emphasizes that they must follow the law no matter the outcome and despite his personal opinions.

A sharp intellect, tireless work ethic, and dogged determination have enabled Judge Greer to serve his country with distinction and honor.

Family

Throughout his impressive career, Judge Greer has always put family first. Judge Greer met his wife, Bunny, while he was serving as a state senator, and they have been married for 27 years. Bunny’s smile is as infectious

as her fun personality. The dimmest room is brightened by her presence. Her personality is the perfect comple ment to Judge Greer’s somewhat gentle and unassuming demeanor. The love they share is mightily apparent when you see the two together.

Judge Greer and Bunny have one daughter, Hannah, who is 25 years old. Hannah was a frequent guest at the courthouse and Judge Greer’s chambers as a child. When she was in elementary school, she would walk around the courthouse gathering sponsors for her read-a-thon. She would also talk about her latest entrepreneurial or creative idea and spread smiles just like her mother. Han nah has grown into a lovely young woman and her grace and beauty shine from the inside out. It is no wonder she is now an emergency room nurse, helping those hurting and in need at the most stressful and scariest times of their lives.

Judge Greer’s dedication to his family is one of the things that makes him an understanding and caring judge. Anytime you mention one of his family members, especially Hannah, the pride in his eyes is unmistakable. He recognizes the importance of family and how his decisions on the bench affect the families of those who appear before him.

Environment

Judge Greer’s passion for environmental stewardship has been evident throughout his career. When he was elected to the state senate, his goal was to focus on a principal issue and effect as much change in that area as possible. Growing up in the Appalachian Mountains, surrounded by their beauty and majesty, it is little surprise that he chose to focus on the environment. Judge Greer became the chairperson of the Committee on Energy and Natural Re sources, which later became known as the Senate Standing Committee on Environment, Conservation, and Tourism. During his time as chairperson, no major piece of environ mental legislation was passed that he had not sponsored or co-sponsored. He authored and was the prime sponsor of the Tennessee Solid Waste Management Act, which is still the law today.3 Judge Greer was named Legislator of the Year by the Tennessee Conservation League in 1989 and by the Environmental Action Fund in 1994.

Judge Greer’s love for and focus on the environment continued in his law practice. Judge Greer accepted as many cases involving environmental issues as possible, and those cases became a large part of his private prac tice. In addition, Judge Greer has had the opportunity to preside over environmental cases while on the bench. Environmental issues will always be a top priority for Judge Greer.

Faith

Finally, Judge Greer’s life and career have reflected his great faith. Judge Greer and Bunny are members of Tow ering Oaks Baptist Church. He lives his faith every day by being humble, authentic, and kind—by listening and making sure those who speak with him or appear in his

Above: Judge Greer and his wife, Bunny, and daughter, Hannah, at his portrait unveiling ceremony. Right: Watercolors of Judge Greer’s core values painted by daughter, Hannah, when she was a child.

court know they have been heard. Moreover, he demands civility in his courtroom. Civility has become a buzz word as of late, but it has always been an expectation in Judge Greer’s courtroom. When lawyers get heated with each other, you often hear Judge Greer say, “Direct your comments at me counsel, not at each other.” He quickly diffuses tense situations by being respectful and even-tem pered. He demands that litigants and lawyers respect each other, and the result is respect for the judge as well.

Courthouse cultures tend to reflect the collective personalities of the presiding judges. The James H. Quillen U.S. Courthouse in Greeneville, where Judge Greer has presided as the only sitting district judge from his appointment in 2003 until 2018 when he took senior status, is no exception. When you walk into this court house, you feel like you are returning to your home after a long, hard day. You are entering a place where you are safe, where you are valued, where you have permission to be vulnerable to shoot for the stars, and where someone with a kind, encouraging word will catch you if you fall. Judge Greer has facilitated this culture by his open-door policy, which applies to all employees of the building, not just court personnel. Every problem that arises is calmly discussed while all stakeholders are present. He listens to everyone’s input and derives a reasonable solution with no fuss, insults, blame, or drama. This approach is successful

because of Judge Greer’s humility and kindness. When court personnel planned his portrait unveiling ceremony, his only request was that the ceremony “not be about him but about everyone else who had supported him.”

Judge Greer is not only respected by courthouse employees, litigants, and lawyers, but also by his fellow judges. Hard issues come before courts on a daily basis. During judges’ meetings, where judges resolve these hard issues, Judge Greer mostly remains silent. But when he speaks, you can see that even the other judges sit up straighter and listen.

U.S. District Judge Clifton L. Corker practiced before Judge Greer as a lawyer, served under Judge Greer as the Greeneville division’s magistrate judge, and now works alongside Judge Greer as a fellow district judge. He has helped sustain the courthouse culture Judge Greer fos tered. Judge Corker shares the following:

Judge Greer is the gold standard for the kind of person our justice system needs as a judge. He understands his role as a judge better than anyone else I ever appeared before or have worked with. He commands respect not because of the position he holds but for who he is in that position. He exercises with great virtue the power he has been given. He is kind and compassionate but does not shy away from seeing that justice is done. He is smart and witty and treats all who appear before him with the greatest respect and dignity they de serve. His legacy will be recounted for generations by the testimony of those whose lives he changed.

Judge Corker’s description of Judge Greer is accurate because Judge Greer lives his faith every day. Of course, Judge Greer will not lay claim to this legacy because he is just too humble for that.

How do you sum up a successful career? Abraham Lin coln, who Judge Greer admires, said, “In the end, it’s not the years in your life that count, it’s the life in your years.” While that is certainly true, and Judge Greer has done just that, Hannah’s summary of her father is even more on point. As a young child, she painted Judge Greer’s core values with watercolors, and it hangs in his chambers to this day. It was painted by family and is displayed with loving pride. It de picts an American flag to show his devotion to his country; a tree, what Hannah now calls a “floating tree,” to represent his love for the environment; and a church to represent his steadfast faith. Judge Greer lives by his values every day to achieve his success. And he is successful because of his focus on these values—well, and a lot of hard work!

Endnotes

1Jamie Satterfield, $200K in Gold, Silver Coins Linked to Tax Evader, Knoxville News Sentinel, Oct. 12, 2010.

2Amended Complaint, In re Se. Milk Antitrust Litig., No. 081000, MDL 1899 (E.D. Tenn. Mar. 28, 2008), ECF No. 34. 3Tennessee Solid Waste Management Act of 1991, Tenn. Code Ann. §§ 68-211-101–68-211-124.

the underlying statute and the significance of the regulation itself. For existing rules, the major question doctrine raises the likelihood of fresh challenges to existing regulations that are similar to the impact and cost of the CPP. And for forthcoming regulations, the threat of challenges under the major question doctrine may have diverging effects. That is, for agencies unwilling or unable to agree on a new rule, the decision could be deployed as a shield, justify ing inaction on issues that could be classified as major questions. Alternatively, agencies may delay future regulations to evaluate the susceptibility of the proposed rule under the construct of the authorizing statute. Although progressives are often seen as more supportive of agency regulation than conservatives, in reality, one’s view of agency action is often inextricably entwined with the policies of the administration in control of the agency at the time. In other words, we may see both progressives and conservatives deploying West Virginia as a sword and a shield, depending on the circumstances.

The elephant2—or perhaps dinosaur—in the room is the Chevron doctrine. Chevron deference, or the Chevron doctrine, is an adminis trative law principle whereby federal courts defer to a federal agen cy’s interpretation of an ambiguous or unclear statute that Congress delegated to the agency to administer. The principle derives its name from the Supreme Court’s decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.3

Writing for the majority in Chevron, Justice John Paul Stevens explained:

First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Con gress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously ex pressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute . . . Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible con struction of the statute.4

The major question doctrine, which was central to the Court’s decision in West Virginia, has been described as an exception to the Chevron doctrine, but neither Chevron nor the word “deference” was even mentioned in Chief Justice Roberts’ West Virginia opinion or Justice Neil Gorsuch’s concurrence. Only in the dissent, authored by Justice Elena Kagan and joined by Justices Stephen Breyer and Sonia Sotomayor, is Chevron mentioned, albeit briefly, in criticizing the majority’s analysis of its decision in FDA v. Brown & Williamson Tobacco Corp.5 Rather than “deference,” all three opinions focus on “delegation,” though Justice Roberts’ opinion does describe the language of Section 111(d) as “vague” and “ambiguous.”

Chevron deference has been criticized by a number of current justices on the Court, including Chief Justice Roberts, Justice Thomas, and Justice Gorsuch, the latter of whom has written that it is “a judge-made doctrine for the abdication of the judicial duty.”6 Whether the West Virginia decision presages its own generation-shift in administrative law away from the Chevron doctrine remains to be seen. But, the Court’s embracement of the major questions doctrine is a clear signal that it will likely not require that lower courts defer to federal agencies on novel or transformative issues absent explicit intent from Congress.

For those studying the applicability of the West Virginia decision from a government relations perspective, it will be important for advocates to consider whether the language of a proposed statute authorizing agency action implicates a major question and how clearly congressional intent regarding that issue is expressed. Part of the rationale for Chevron deference is a recognition that Congress leaves gaps in legislation because no agreement on how to fill the gaps could be reached. With its decision in West Virginia, the Court seems—at least with respect to major questions—to be insisting that it do so. 

Endnotes

1142 S.Ct. 2587 (2022).

2Gutierrez-Brizuela v. Lynch, 834 F.3d 1142, 1149 (10th Cir. 2016) (Gorsuch, J., concurring) (“There’s an elephant in the room with us today.”).

3467 U.S. 837 (1984).

4Id. at 842-43.

5529 U.S. 120 (2000).

6Gutierrez-Brizuela, 834 F.3d at 1152 (Gorsuch, J., concurring).

Environmental Justice: The Evolution of a New Federal Regulatory Program

ANTHONY B. CAVENDER AND ANNE IDSAL AUSTIN

*The views expressed herein are those of the authors.

Environmental justice, as a policy priority of the federal government, dates back to 1994 and President Clinton’s issuance of Executive Order (E.O.) 12898.1 This order directed federal agencies to identify and address, as appropriate, “the disproportionately high and adverse human health and environment effects of its many programs, policies, and procedures on minority populations and low-income populations.”2 E.O. 12898 supplemented E.O. 12250 (1980) whose primary legal basis was Title VI of the Civil Rights Act of 1964, in particular, §§ 601 and 602, which prohibit discrimination in programs and activities receiving federal financial aid and assistance.3 Now, two new E.O.s issued by President Biden have placed more emphasis on “environmental justice” and how to address its implications.

Background: Title VI and Environmental Justice

Over the years, the U.S. Supreme Court has reviewed the scope and impact of Title VI in many cases. Of special interest here, in Alexander v. Sandoval, decided in 2001, the Court concluded that, while private parties could sue to enforce § 601 or its implementing regulations, § 601 only prohibits intentional discrimination, which is very difficult to prove.4 In addition, the Court ruled in Sandoval that private parties cannot sue to enforce regulations implementing § 602. Consequently, the use of Title VI to achieve environmental justice has its limitations. At the same time, it should be noted that

the Environmental Protection Agency (EPA) has for many years operated an administrative system to process environmental justice complaints.5 The process is complex, and the results—usually wheth er a state agency has failed to uphold Title VI—have generally been unsatisfactory. To be successful, many proponents of environmental justice believe that a statutory foundation must be established, and significant efforts to this end have been made.

What Is Environmental Justice?

While the term “environmental justice” has not yet been defined by Congress or by EPA in its regulations, EPA and other federal agencies have often used the following definition in various policy statements:

Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national or igin, or income with respect to the development, implemen tation, and enforcement of environmental laws, regulations, and policies.6

It is, in short, a means to address and correct racial discrimination by environmental action. Nevertheless, the absence of a statutory or formal regulatory definition has been problematic.

Recent Legislative Initiatives

Legislation has been introduced to “restore, reaffirm, and reconcile environmental justice and civil rights, provide for the establishment of the Interagency Working Group on Environmental Justice Com pliance and Enforcement, and for other purposes.”7 The Environ mental Justice for All Act (H.R. 5986), which was introduced in the 116th Congress, included congressional findings that “communities of color, low-income communities, Tribal and indigenous communi ties, fossil fuel-dependent communities and other vulnerable popu lations are … disproportionately burdened by environmental hazards

that include exposure to polluted air, waterways and landscapes.” However, H.R. 5986 did not survive the end of the 116th Congress. In the current Congress, Rep. Raul Ruiz (D-Calif.) introduced a shorter bill, H.R. 2434, titled the Environmental Justice Act of 2021, and it has received at least one hearing.8 Both proposals share many common features, and one of the first actions taken by President Biden was to issue E.O. 13990, which included a mandate for federal agencies to advance and prioritize environmental justice.9 The new EPA administrator directed all EPA offices to integrate environmen tal justice efforts into their plans and actions, and to embed equity into their programs and services.10 President Biden then issued E.O. 14008, which principally concerned climate change but also outlined environmental justice procedures.11

The Environmental Justice Act of 2021 states that its goal is to require federal agencies to address environmental justice, especially in the agency’s permitting actions and that, to the extent permissible under applicable law, each agency will make achieving environmen tal justice a part of its mission. Both the Clean Water Act and the Clean Air Act would be amended to authorize the consideration of “cumulative impacts” in permitting decisions.12 H.R. 2434 provides that no existing laws will preclude the right to bring an action under 42 USC § 1983, which is often used in civil rights litigation. Also, the 1964 Civil Rights Act would be amended to allow private rights of action in the case of discriminatory governmental practices. Most notably, “environmental justice” as well as such terms as “fenceline community,” “indigenous community,” “low-income community,” and “population of color” would be defined in law.13

“Environmental justice” would be defined as the “fair treat ment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regu lations, and policies.”14 This definition would be supplemental by adding that no environmental justice “community” will be deprived of adequate access to public information and meaningful public participation relating to human health and the environment, and no environmental justice community shall be exposed to negative human health and environmental impacts of pollution or other environmental hazards. In addition, the “17 Principles of Environ mental Justice,” developed in October 1991 by the First National People of Color Environmental Leadership Summit, will be incor porated into this statutory definition.15

While it now seems unlikely that this bill will be enacted, several provisions of this proposed law have already become part of the Executive Department’s environmental justice policy.

The enactment of the Infrastructure Investment and Jobs Act, P.L. 117-58, should be noted here.16 This is basically a spending bill, but some of its many provisions are described as advancing envi ronmental justice goals. For instance, scattered throughout the bill are directives to executive departments and agencies to accelerate spending in low-income environmental justice communities.17

Regulatory Initiatives: Executive Order 14008

On Jan. 27, 2021, the president issued E.O. 14008, “Tackling the Climate Crisis,” a long and unusually detailed E.O. that has generated considerable discussion and commentary.18 E.O. 14008 describes the “climate crisis” in existential terms: “There is little time left to avoid setting the world on a dangerous, potentially catastrophic, climate trajectory.”19

Part I of E.O. 14008 states that climate considerations will be an es sential element of U.S. foreign policy and national security. The only ef fective response is to obtain short-term global reductions in greenhouse gas emissions and net-zero global emissions by mid-century. A Special Presidential Envoy for Climate has been established, and this office will work with the Secretary of Treasury and the Secretary of State on a climate finance plan that, among other things, will “promot[e] the flow of capital towards climate-aligned investments and away from high-car bon investments.”20 The Secretary of Homeland Security will consider the implications of climate change “along our Nation’s borders,” and the Secretary of Defense and the chairman of the Joint Chiefs of Staff will consider the national security implications of climate change.21

Part II of E.O. 14008 is devoted to the implications of climate change for domestic policy. Again, the policy is being driven by a climate crisis that threatens “our ability to live on Planet Earth.” The overarching goals are to:

• Strengthen our clean air and water protections.

• Hold polluters accountable.

• Deliver environmental justice in communities all across America.

• Drive the assessment, disclosure, and mitigation of climate pollu tion and climate-related risks in every sector of our economy.22

Accordingly, it is now the stated policy of this administration to organize and deploy the full capacities for federal agencies to combat the climate crisis to reduce climate pollution, increase resilience, and achieve environmental justice. The White House Office of Domestic Climate Policy and the National Climate Task Force were created by this E.O. to further the aforementioned goals.23 The federal gov ernment’s buying power and real property and asset management functions will be used to support “robust” climate action. Renewable energy on public lands and offshore waters will be emphasized, and the Secretary of the Interior was directed to “pause,” consistent with applicable law, new oil and gas leases on public lands and in offshore waters, pending the completion of a comprehensive review of existing permitting practices, which will include an assessment of potential climate change impacts.24

Regarding environmental justice, the E.O. notes the importance of “environmental and economic justice.”25 Federal agencies will make achieving environmental justice an important part of their missions. The White House Environmental Justice Interagency Council, to be chaired by the head of the Council of Environmental Quality, has been established.26 The council will develop “clear performance metrics” to measure the success of the new program. A White House Environ mental Justice Advisory Council has also been established and will be housed within EPA.27 Both EPA and the attorney general have speci fied roles in strengthening environmental enforcement in underserved communities; indeed, it is recommended that the Environmental and Natural Resources Division of the Department of Justice be renamed the Environmental Justice and Natural Resources Division.

E.O. 14008 also discusses the “Justice40 initiative,” the goal of which is to have 40 percent of federal “overall benefits” flowing to disadvantaged communities.28 Finally, an Environmental Justice Scorecard will be published on an annual basis.29

Federal Agency Responses to E.O. 14008

On April 7, 2021, the new EPA administrator ordered all EPA offices to strengthen the enforcement of the “cornerstone” environmental

statutes, particularly with respect to communities that are “overbur dened with pollution.”30 On April 30, 2021, EPA’s Office of Enforce ment and Compliance Assistance (OECA) issued a memorandum titled “Strengthening Enforcement in Communities with Environ mental Justice Concerns.”31 Accordingly, there will be more facility inspections, an increase in the use of “innovative” enforcement tools to resolve environmental noncompliance, and an emphasis on EPA engagement with local communities. The memorandum concludes by observing that if a “co-regulator” with the EPA (i.e., a state permitting agency) is not taking timely or appropriate actions, EPA will not hesitate to step in.32 On June 21, 2021, OECA released a memorandum titled “Strengthening Environmental Justice Through Criminal Enforcement.”33 The goals are to enhance the detection of environmental crimes; improve the agency’s outreach to crime victims; and enhance the remedies that can be used in environmental justice criminal matters, such as restitution, probation, or supervised release of defendants. Then, on July 1, 2021, EPA’s Enforcement Office distributed a memorandum that outlined additional actions that can be taken to advance environmental justice goals, such as ex pediting Superfund cleanups in environmental justice communities, increasing community engagement (one of the long-time goals of the process), and utilizing the courts to obtain injunctive relief when necessary.34 EPA cautioned, however, that the Superfund program is already subject to an extensive list of unique cleanup criteria found in EPA’s National Contingency Plan.35

Also, on July 20, 2021, the Office of Management and Budget distributed a memorandum to the heads of departments and agen cies addressing interim implementation guidelines for the admin istration’s “Justice40 Initiative” to secure environmental justice and spurring economic opportunity for disadvantaged communities.36 The guidelines outline administration policy on how certain federal investments can be made in these communities, which is described as a component of the administration’s “whole-of-government” approach to environmental justice.37

Then, in mid-August 2021, the acting Assistant Secretary of the Army announced that the U.S. Army Corps of Engineers will conduct an enhanced environmental review of a proposed plastics facility to be located in Saint James Parish, La.38 The facility had earlier received a standard permit, but a local group opposed to the permit argued that a thorough environmental impact statement that addresses environmental justice issues must be prepared. The project has been suspended while the Corps conducts a new review.39

On Oct. 1, 2021, EPA released its draft “FY 2022-2026 EPA Stra tegic Plan to Protect Human Health and the Environment.”40 This plan reflects a new “foundational principle” for EPA to advance jus tice and equity.41 This strategic plan will guide the agency as it tackles climate change and advances environmental justice and civil rights consistent with E.O.s 13985 and 14008. The strategic goals (and their deadlines) identified in this strategic plan are to (1) tackle the climate crisis; (2) take decisive action to advance environmental justice and civil rights; (3) enforce environmental laws and ensure compliance; (4) ensure clean and healthy air for all communities; (5) ensure clean and safe water for all communities; (6) safeguard and revitalize communities; and (7) ensure safety of chemicals for people and the environment. In addition, the plan includes “cross-agency strate gies”; ensures scientific integrity and science-based decision-making in accordance with the requirements of the 2018 Evidence-Based Policy Making Act; considers the health of children at all life stages

and other vulnerable populations; advances EPA’s organizational excellence and workforce equity; and strengthens tribal, state, and local partnerships and enhances engagement.42 This is a very signifi cant commitment the EPA has made.

In late May 2022, EPA’s Office of General Counsel released a 200-page document titled, EPA’s Legal Tools to Advance Environmen tal Justice. 43 This is a very careful and valuable review of EPA’s legal authorities. In nine chapters, the Office of General Counsel describes in considerable detail the provisions of the many EPA programs that could be used to advance environmental justice in the areas of Clean Air Act and Clean Water Act permitting and enforcement activities, solid waste and CERCLA regulations, civil rights issues that are a component of federally financed state administrative programs, and even the Freedom of Information Act. The lack of explicit statutory and regulatory authority is noted, as is the opportunity to advance environmental justice by rulemaking and other means.44 This is a valuable resource.

The Department of Justice Responds Forcefully

Most executive agencies and departments have publicized their in tentions to address environmental justice as core responsibility of the agency. However, perhaps the most significant regulatory initiative has been the attorney general’s release of a Comprehensive Environ mental Justice Enforcement Strategy on May 5, 2022.45

This new strategy, based on the president’s E.O. 14008, provides a roadmap for using the Department’s of Justice’s manifold civil and criminal enforcement authorities, working in conjunction with EPA and other federal agencies to advance environmental justice through timely and effective remedies for “systemic” environmental violations and “contaminations” and for injury to natural resources in “underserved communities” that have been historically marginalized and overburdened, including low-income communities, communi ties of color, and tribal and indigenous communities. While neither this policy nor the E.O. on which it is based defines “environmental justice,” “systemic environmental violations,” or “historically margin alized and overburdened communities,” it appears that these goals and policies will be determined and decided on a case-by-case basis as the Department of Justice deploys its many resources to advance environmental justice remedies in appropriate communities.46

The new policy also sets forth the principles by which this strategy will be implemented: (a) prioritizing cases that will reduce public health and environmental harms present in overburdened and underserved communities; (b) making strategic use of all available legal tools to address environmental justice concerns; (c) ensuring “meaningful” engagement with impacted communities; and (d) ensuring that environmental justice enforcement efforts are both understandable and transparent to the affected community. And it should be noted that each of the 93 U.S. attorneys’ offices will have an environmental justice coordinator.47

The Courts and Environmental Justice Ironically, one of the first judicial determinations of the scope of environmental justice was made by a federal administrative law tribunal. In 1995, in the case of In re Chemical Waste Management, EPA’s Environmental Appeals Board reviewed a number of environ mental justice objections filed against a pending RCRA application to operate a solid waste landfill facility.48 The board held that “if a permit applicant meets the requirements of RCRA and its imple

menting regulations, the Agency must issue the permit regardless of the racial or socio-economic composition of the surrounding community.”49 However, the board took notice of the implications of the then recently issued E.O. 12898. Accordingly, the board also held that a federal RCRA permitting authority could implement the public participation mandate of the E.O. as well as the impact of RCRA Section 3005 (3), which allows the permitting authority to add terms and conditions to the permit if the operation of the facility could have an adverse impact on the health or environment of the surrounding community.50

The courts have placed some limits on the use of the Civil Rights Act in environmental litigation. As noted above, in 2001, the Supreme Court decided the case of Alexander v. Sandoval, which concerned Alabama’s implementation of an “English-only” state driver’s license program, and a civil rights challenge to that practice.51 The Court held that, while private parties have a right to enforce Section 601 through litigation, the statute applies only to “intentional discrimination,” and that Congress did not provide a private right of action to enforce Section 602. Moreover, the Court majority in Sandoval was very skeptical of the assertion that Section 602 encompassed lawsuits alleging disparate impact discrimination.52 Accordingly, in 2002, the U.S. Court of Appeals for the Third Circuit held in South Camden Citizens in Action v. New Jersey Department of Environmental Protection, that the Sandoval ruling doomed a federal lawsuit alleging that an air quality permit action of the New Jersey Department of Environmental Protection violated Title VI and created an environmental justice issue.53

Other courts have come to different conclusions, based on the regulatory context in which an environmental permitting action was taken. In January 2020, the U.S. Court of Appeals for the Fourth Circuit vacated an air quality permit issued by the Virginia State Air Pollution Control Board because the agency failed to satisfactorily address state-law-based environmental justice objections to the permit. The case is Friends of Buckingham, et al. v. State Air Pollution Control Board.54 According to the court, “environmental justice is not merely a box to be checked, and the Board’s failure to consider, under state law, the disproportionate impact on those closest to the Compressor Station resulted in a flawed analysis.”

On the other hand, in late July 2021, the U.S. Court of Appeals for the Fifth Circuit, in Rollerson v. Brazos River Harbor Navigation Dis trict, dismissed a Section 601 lawsuit challenging the federally financed land acquisition in the Port Freeport, Tex., navigation district because the complaint failed to adequately allege intentional discrimination.55 Interestingly, two of the judges on the panel seemed to be somewhat skeptical of any claim based on “environmental justice.”

Only a few days later, in Vecinos Para Bienstar v. Federal Agency Regulatory Commission,56 the U.S. Court of Appeals for the D.C. Circuit rejected a Federal Energy Regulatory Commission (FERC) liquified natural gas construction permit because the required National Environmental Policy Act review conducted by FERC inad equately addressed the parameters and scope of the impact of these facilities on local, low-income neighborhoods.

Where Do We Go From Here?

Obviously, the law in many ways is in a state of flux. Under these new policies, controversial projects located in environmental justice neighborhoods will be subject to indirect challenges, primarily through the federal administrative processes whose decisions are

usually reviewable in the federal courts. The imposition of environ mental justice conditions in federal and state permitting and cleanup actions could make the regulatory processes even more difficult to navigate. Coping with new policies would be easier for everyone, however, if the federal government were to develop specific environ mental justice criteria and “performance metrics” that are proposed, debated, and promulgated as the law requires. For its part, the regu latory community must stay informed and involved.

Finally, it should be noted that the Inflation Reduction Act, Pub lic Law 117-169, enacted on Aug. 16, 2022, amended the Clean Air Act to authorize the administrator of EPA to make “environmental and climate justice” block grants to disadvantaged communities, as defined by the administrator to reduce greenhouse gas emissions; mitigate climate and health risks; and facilitate engagement of these communities in state and federal advisory groups, workshops, rulemakings, and other public processes.57

Anthony B. Cavender is senior counsel at Pillsbury in Houston. He provides guidance and counseling relating to enforcement and compliance. He has represented clients in Superfund matters and in RCRA and Clean Water Act enforcement proceedings. Anne Idsal Austin is a partner in Pillsbury’s Washington, D.C., and Austin, Tex., offices. She is a nationally recognized environmental lawyer who has held several high-profile federal and state regulatory roles. ©2022 Anthony B. Cavender and Anne Idsal Austin. All rights reserved.

Endnotes

1Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (E.O. 12898), 59 Fed. Reg. 7629 (Feb. 11, 1994).

Id.

3Compare id., with Leadership and Coordination of Nondiscrimination Laws (E.O. 12,550), 45 Fed. Reg. 72,995 (Nov. 2, 1980).

4See Alexander v. Sandoval, 532 U.S. 275 (2001).

5See generally 40 C.F.R. pt. 7.

6Env’t Prot. Agency, Environmental Justice, https://www. epa.gov/environmentaljustice (last visited July 18, 2022).

7See Environmental Justice for All Act, H.R. 5986, 116th Cong. (2020).

8See Environmental Justice Act of 2021, H.R. 2434, 117th Cong. (2021).

9Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis (E.O. 13990), 86 Fed. Reg. 7037 (Jan. 20, 2021).

10See Env’t Prot. Agency, EPA Administrator Announces Agency Actions to Advance Environmental Justice (Apr. 7, 2021), https:// www.epa.gov/newsreleases/epa-administrator-announces-agencyactions-advance-environmental-justice.

11Tackling the Climate Crisis at Home and Abroad (E.O. 14008), 86 Fed. Reg 7619 (Feb. 1, 2021).

See Environmental Justice Act of 2021, supra note 8.

See id.

Id.

Id.

Investment and Jobs Act, H.R. 3684, 117th Cong. (2021).

Id.

See Tackling the Climate Crisis at Home and Abroad (E.O. 14008),

Fed. Reg 7619 (Feb. 1, 2021).

Id.

Id.

Id.

Id. pt. II.

Id. § 202.

Id. pt. II.

Id. § 219.

Id. § 220.

Id. § 221.

Id. § 223.

Id. §§ 220(d), 223(d).

Prot. Agency, EPA Administrator Announces Agency Actions to Advance Environmental Justice (Apr. 7, 2021), https:// www.epa.gov/newsreleases/epa-administrator-announces-agencyactions-advance-environmental-justice.

31Env’t Prot. Agency, Strengthening Enforcement in Communities with Environmental Justice Concerns (Apr. 30, 2021), https:// www.epa.gov/sites/default/files/2021-04/documents/ strengtheningenforcementincommunitieswithejconcerns.pdf.

Id.

33Env’t Prot. Agency, Strengthening Environmental Justice Through Criminal Enforcement (June 21, 2021), https://www.epa.gov/system/files/documents/2021-07/ strengtheningejthroughcriminal062121.pdf.

34Env’t Prot. Agency, Strengthening Environmental Justice Through Cleanup Enforcement Actions (July 1, 2021), https://www.epa. gov/system/files/documents/2021-07/strengtheningenvirjusticecleanupenfaction070121.pdf.

35See 40 C.F.R. pt. 300.

36Off. of Mgmt. and Budget, Interim Implementation Guidance for the Justice40 Initiative (July 20, 2021), https://www.whitehouse.gov/ wp-content/uploads/2021/07/M-21-28.pdf.

37Id.

38Janet McConnaughey, Army: Full Envirnomental Review of $9.4B Plastics Complex, U.S. News & World Rep. (Aug. 18, 2021, 6:26 PM), https://www.usnews.com/news/business/ articles/2021-08-18/army-full-environmental-review-of-94bplastics-complex.

39Id.

40Env’t Prot. Agency, EPA Strategic Plan, https://www.epa. gov/planandbudget/strategicplan (last visited July 18, 2022).

Id.

Id.

See Env’t Prot. Agency, EPA Legal Tools to Advance Environmental Justice (May 2022), https://www.epa.gov/ogc/ epa-legal-tools-advance-environmental-justice

Id.

45U.S. Dep’t of Just., Justice Department Launches Comprehensive Environmental Justice Strategy (May 5, 2022), https://www. justice.gov/opa/pr/justice-department-launches-comprehensiveenvironmental-justice-strategy.

Dep’t of Just., Comprehensive Environmental Justice Enforcement Strategy (May 5, 2022), https://www.justice.gov/asg/ page/file/1499286/download.

Id.

In re Chem. Waste Mgmt., 6 E.A.D. 66 (EAB 1995)

Id. at 73.

Id. at 69-74, 76, 83.

Alexander v. Sandoval, 532 U.S. 275 (2001).

Id.

S. Camden Citizens in Action v. N.J. Dep’t of Env’t Prot., 274 F.3d 771 (3d Cir. 2001).

Friends of Buckingham Cnty. v. State Air Pollution Bd., 947 F.3d. 68 (4th Cir. 2020).

Rollerson v. Brazos River Harbor Navigation Dist., 6 F.4th 633 (5th Cir. 2021).

Vecinos Para El Bienstar v. Fed. Energy Regul. Comm’n, 6 F.4th 1321 (D.C. Cir. 2021).

See Inflation Reduction Act of 2022, Pub. L. No. 117-169, § 60201, 136 Stat. 1818, 2078-2079 (2022).

Digitized Design: Navigating IP Rights in the Age of the Metaverse

RUDYARD W. CERES AND KAMANTA C. KETTLE

Over the past several months, we have heard more and more about the metaverse, a burgeoning online digital universe1 designed to mimic the real world. Combining elements of twenty-firstcentury technology—virtual reality, augmented reality, 3D holographic avatars, video, and other means of digital communication—the metaverse is being positioned as a next-generation internet, providing an immersive, hyper-real alternative reality in which users can perpetually exist, buying digital real estate,2 attending virtual concerts,3 and connecting with co-workers in virtual workspaces.4

Building out the metaverse to resemble the physical world has created a number of opportunities for brand owners, several of whom have accepted invitations to forge commercial partnerships with key players in the virtual environment. Recent examples include Balenciaga’s partnership with Fortnite to provide the game’s characters with “looks” from the brand’s recent collections, and Roblox’s partnerships with several brands to provide gamers with limited-release virtual fashion accessories, including Gucci, Nike, and Vans. At the same time, we have seen how excluding brand owners from lucrative opportunities to participate in the digitization of their assets can lead to conflict, raising questions about the right of intellectual property owners to control trade in the digital represen tations of their property. The tension between intellectual property rights in the physical and digital world has been felt most acutely with nonfungible tokens, or NFTs.

What Is an NFT?

NFTs are digital certificates, or tokens, which are created, or “mint ed,” and then recorded on decentralized digital ledgers popularly referred to as the “blockchain.” While NFTs have been around since 2014, the proliferation of NFT sales within the last few years has created a pivotal moment in the age of cryptocurrency.

Like cryptocurrency, NFTs can be sold and traded and use self-executing software programs, known as “smart contracts,” to transfer ownership by means of a digital certificate. Whereas cryp tocurrency creates interchangeable (or “fungible”) tokens, howev er, NFTs create unique, noninterchangeable tokens with distinct, immutable identifiers, enabling users to verify their authenticity and trace their provenance.

Each NFT is associated with an underlying asset. The asset can be pretty much anything that exists, such as a physical object, a music file, a tweet, or a digital image, and may contain a license to use the asset for a specified purpose. That asset is identified through meta data embedded in the NFT that describes the asset and its particular features. In the example of digital artwork linked to an NFT, the metadata may describe the name of the work, its creator, its price, and even the scarcity of the artwork in question.

Understanding what is conveyed through the purchase of an NFT is especially important given the propensity of NFT transfers to implicate intellectual property rights. Much like the purchaser of an artwork does not inherently own the copyright in the art depicted, the purchaser of an NFT should not assume that it is purchasing intellectual property rights in the underlying content associated with the NFT, unless such rights are explicitly transferred through a signed writing, as required by 17 U.S.C. § 204. Owning an NFT has at times been compared to owning a rare or one-of-a-kind collectible card—the NFT is a token that represents an item. The token or card may have value in and of itself, but ownership of a card confers no ownership or rights in the image represented on the card.

As the following examples illustrate, attempting to transfer an NFT in violation of another’s copyright, trademark, or other intellectual property right can lead to liability. To avoid such liability, purchasers and sellers of NFTs alike should be aware of the intellec tual property implications of NFT transfers.

NFTs and Trademark Law

Hermès v. MetaBirkin

On Dec. 2, 2021, the online marketplace platform Basic.Space launched “MetaBirkins,”—a collection of 100 unique, individual Birkin Bag NFTs designed by NFT series artist Mason Rothschild in collaboration with artist Eric Ramirez—on the Ethereum blockchain. In the five days following the launch, sales of MetaBirkins topped $600,000, with the very first MetaBirkin selling for more than $40,000. Rothschild described the market for MetaBirkins as comparable to the prices charged by Hermès for physical renditions of the Birkin, with the cheapest MetaBirkin priced at around $13,500 per bag.5

Despite reportedly receiving a cease and desist letter from Her mès a mere two weeks later, Rothschild defended his creation of Me taBirkins as fair use, which he likened to selling physical art prints, stating, “the First Amendment gives me every right to create art based on my interpretations of the world around me.” By contrast, OpenSea, the NFT platform on which the MetaBirkins were sold, agreed to remove the MetaBirkins from its platform.6

On Jan. 14, 2022, Hermès sued Rothschild in a New York federal court, asserting claims for, among other things, trademark in fringement, trademark dilution, and cybersquatting. The lawsuit accuses Rothschild of being a “digital spectator” and appropriating the MetaBirkins brand “for use in creating, marketing, selling, and facilitating the exchange of [NFTs],” which Hermès argues “simply rip off Hermès’ famous BIRKIN trademark by adding the generic prefix ‘meta,’ which refers to virtual worlds and economies where digital assets such as NFTs can be sold and traded.” On Jan. 17, 2022, Rothschild posted a message on his Instagram account in which he described Hermès’ suit as “groundless,” adding, “we look forward to defeating those claims in court and helping to set a precedent.”

From Rothschild’s perspective, MetaBirkins are protected speech, and he goes to great lengths to explain the message behind the collection, describing it as follows:

MetaBirkins is a playful abstraction of an existing fashion-cul ture landmark. I re-interpreted the form, materiality and name of a known cultural touchpoint. MetaBirkins are also a commentary on fashion’s history of animal cruelty and its current embrace of fur-free initiatives and alternative textiles.7

The ongoing dispute between Hermès and Rothschild raises several issues around the right to introduce copies (or near-copies) of protected designs into the digital realm without the consent (or, at minimum, the acquiescence) of the design’s owner. On the one hand, MetaBirkins arguably usurp the market for digital versions of Her mès’ famous Birkin bag in the metaverse. For example, Basic.Space marketed MetaBirkins as “digital versions of French luxury brand Hermès’ well-known Birkin bags.” On the other hand, Rothschild has asserted that MetaBirkins are artistic representations, likening them to Andy Warhol’s paintings of Campbell’s soup cans.

Whether Rothschild will succeed in convincing a court that Met aBirkins are examples of fair use and are sufficiently transformative to

merit First Amendment protection remains to be seen, but for now, it appears unlikely. Most people will agree that Rothschild could not sell physical versions of its MetaBirkins in the tangible world without facing fierce opposition from Hermès, which, as discussed above, perceives the threat from digital imitators of its famous bag as equal to that of physical imitators. Add to that the commercial success of MetaBirkins and Rothschild’s attempt to police imitators of the MetaBirkins NFTs, and we can predict that Rothschild will have a difficult time demonstrating his entitlement to a fair-use defense.

While the Hermès-Rothschild battle is one of the latest disputes over the unauthorized inclusion of physical property in the metaverse, similar fights date back years. For example, in April 2009, Taser International, Inc. sued the owners of the online virtual platform Second Life for trademark infringement, trademark dilution, and unfair competition stemming from their alleged sales of virtual weaponry bearing Taser’s registered trademarks within the Second Life virtual platform, alongside images of virtual drug paraphernalia and pornographic content.8 Less than a month later, Second Life removed the allegedly infringing marks from its platform, prompting Taser to dismiss its complaint.

Taser’s trademark dilution claim asserted that defendants tarnished the goodwill of its trademarks by associating them with sexually explicit virtual content. Trademark dilution claims may prove to be one of the most common claims asserted by trademark owners against digital versions of their works, as dilution claims do not require the trademark owner to demonstrate that its mark is being used on similar goods. Instead, dilution claims exclusively ap ply to “famous” marks, which are defined as marks that are “widely recognized by the general consuming public of the United States.”9

NFTs and Copyright

Making unauthorized digital copies of another’s protected work may also violate copyright laws, which, in the United States, protect original works of authorship.10 Depending on the nature of the work, copyrights provide the exclusive rights to reproduce the work, prepare derivative works, distribute copies of the work, and publicly perform and transmit the work. To transfer a copyright, the owner usually must sign a writing.11

The broad scope of rights described above can create multitudi nous opportunities to control the exploitation of a copyrighted work, particularly as new technologies emerge with the potential to attract new subscribers, customers, and the like. NFTs offer particularly efficient ways to exploit copyrighted content, as the smart contracts embedded within NFTs allow creators to program them with royalty provisions, allowing them to receive a predetermined cut of sales whenever the work sells to a new owner.

The buzz and allure of NFTs have tempted many content owners to explore ways to further monetize their copyrighted content through NFT smart contracts. As several high-profile copyright law suits involving NFTs demonstrate, however, attempting to monetize content one does not legally own—or fully own—can lead to serious legal problems. Before selling an NFT of copyrighted content, it is imperative that the proposed seller check the scope of their copy right to avoid situations like the two discussed below.

Roc-A-Fella Records, Inc. v. Dash

On June 18, 2021, Roc-A-Fella Records (“RAF”) sued one of its co-founders, Damon Dash, in a New York federal court to prevent Dash from auctioning his purported share of the copyright in Jay-Z’s

debut album, Reasonable Doubt, on the NFT platform SuperFarm.12

As alleged in the suit, RAF, not Dash, owns the copyright to Rea sonable Doubt; while Dash owns a one-third interest in RAF, he has no ownership rights in RAF’s property, including the album. RAF’s complaint seeks, among other things, a declaration from the court with respect to RAF’s ownership of the album’s copyright as well as an order granting RAF immediate possession of the NFT at issue.

RAF’s complaint recites the old adage, “you can’t sell what you don’t own.” Dash seems to agree; he denies ever minting an NFT or attempting to grant ownership rights in or to Reasonable Doubt. Rath er, Dash claims RAF’s lawsuit is simply a ploy to prevent Dash from selling his interest in RAF to anyone other than Jay-Z for a low price.

Unfortunately, Dash’s stance is undermined by the initial announce ment of the auction, which reads, “SuperFarm is proud to announce, in collaboration with Damon Dash, the auction of Damon‘s owner ship of the copyright to Jay-Z’s first album

Reasonable Doubt.”13 The RAF NFT dispute is one of the earliest copyright lawsuits involving NFT rights and, if fully litigated, will set important precedents on issues such as corporate fiduciary duties and the rights of co-owners.

Miramax, LLC v. Tarantino

Several months after RAF filed its suit against Dash, a similar NFT dispute reared its head on the West Coast, this time between Mira max LLC and director Quentin Tarantino. In November 2021, Mira max filed suit against Tarantino in a California district court, alleging that Tarantino’s planned auction of seven “exclusive scenes” from the 1994 motion picture Pulp Fiction as “Secret NFTs” threatened to breach an agreement whereby Tarantino assigned to Miramax “all rights (including all copyrights and trademarks) in and to the Film.”14

The auction, announced on the OpenSea NFT platform, promised bidders “secret” and “one-of-a-kind” content that “has never been seen or heard before,” including “the uncut first handwritten scripts of ‘Pulp Fiction’ and exclusive custom commentary from Tarantino, revealing secrets about the film and its creator.” Tarantino responded to Miramax’s allegations by pointing out that his agreement with the company reserved to him certain rights in the movie, and that the planned Secret NFTs fall within those reserved rights—in particular, the right to screenplay publication.

The merits of Miramax’s dispute with Tarantino may have to be resolved by a court, but one thing is clear: the parties disagree on the scope of rights transferred to Miramax. While Miramax has very broad rights in Pulp Fiction, they are not absolute. Tarantino has reserved the right to exploit certain assets related to the movie, which may or may not cover the Secret NFTs at issue. With the fervor surrounding NFTs and their skyrocketing popularity among content owners looking for new sources of revenue generation, this case illustrates how important it is that any document intending to transfer intellectual property rights to another clearly state the scope and nature of the rights to be conveyed.

NFTs and Licensing

The ability to embed a programmable, executable smart contract into an NFT has vastly widened the potential utility of NFTs for content licensors, who can use them to facilitate royalty payments, standardize license terms and conditions, monitor contract perfor mance, and even enforce quality control provisions.

One of the most recognized NFT projects is the Bored Ape Yacht Club (BAYC). The company behind BAYC, Yuga Labs, distinguished

itself as one of the few projects that licenses NFTs for commercial use, allowing purchasers to create derivative works based on their bored apes, including film, music, television, and other media projects. As reported in a recent article by writer and producer KC Ifeanyi, BAYC’s model has caught the attention of many real-world players in media and entertainment, including “mega-producer Timbaland [who] an nounced his metaverse entertainment company, Ape-In Productions, that will discover and amplify artists who are Bored Ape owners.”15

Other players in the crypto and blockchain space have an nounced licensing initiatives as well, signaling the current and future popularity of NFT licensing, particularly as the metaverse grows and expands. On Dec. 9, 2021, Dequency, a music synchronization mar ketplace, launched the first-ever synchronization license on a public blockchain, licensing the song “Late Night People” by Goldfish featuring Soweto for use in Algorand’s decipher conference.

There are still hurdles to fully incorporating smart contracts into the current legal framework, given issues like the pseudonymous identities that are typical for blockchain smart contracts16 and the greater susceptibility of such contracts to security issues such as hacks and data breaches, which, in turn, could impact performance. Smart contracts also follow programmed algorithms and, thus, are incom patible with legal concepts like subjective judgment, discretion, or reasonableness in performance. Because NFT smart contracts are self-executing, however, they are ideal for the management of large licensing programs and micropayments by a large number of nonex clusive licensees, as are typical in the music licensing realm. Arizona, California, Nevada, and Tennessee have all passed legislation recog nizing signatures secured through blockchain technology as electronic signatures,17 while New York is considering similar legislation.18

Conclusion

The metaverse and NFTs both represent exciting technological developments with tremendous potential to revolutionize how we conduct business, market goods to consumers, and protect valuable information. Navigating this space can be complicated, both from a technological and a legal standpoint, and it is recommended that anyone interested in navigating this area exercise care and consult with an attorney on the legal implications of any contemplated trans action or project before venturing into this ever-changing area. 

Rudyard W. Ceres is a partner with Freeborn & Peters LLP, based in the New York office. He is also an adjunct professor, teaching an International Business Transactions course at Fordham Law School. Kamanta C. Kettle is a senior attorney at ArentFox Schiff LLP and regularly advises clients on how best to protect and leverage their trademarks and other intellectual property assets. As an advisor to clients in the media, technology, fashion, beauty, and consumer packaged goods industries, Kettle uses her skill and experience in the areas of trademark law, copyright law, and complex litigation to assist clients in establishing, protecting, defending, and broadening their rights in various brand assets.

Endnotes

1While sometimes referred to as a singular entity, the metaverse is not actually a monolith, and it is made up of parallel digital universes that offer distinct services to their users.

2Emma Reynolds, ONE Sotheby’s Is Selling The First RealWorld Home Through The Metaverse Using NFT Technology, Forbes (Jan. 5, 2022, 4:36 PM), https://www.forbes.com/ sites/emmareynolds/2022/01/05/one-sothebys-is-sellingthe-first-real-world-home-through-the-metaverse-using-nfttechnology/?sh=4017fd4a3471; see also Metaverse Property, https://metaverse.properties (last visited May 11, 2022).

3Back Stage at a Metaverse Concert, WSJ Podcasts, at 4:00:00 PM (Dec. 10, 2021), https://www.wsj.com/podcasts/the-journal/ back-stage-at-a-metaverse-concert/6e2b1b5f-4d03-4e31-b2bb9b9c321ad942

4Lila MacLellan, For some workers, there’s a whole life unfolding in the metaverse, Quartz: Quartz at Work (Feb. 21, 2022), https:// qz.com/work/2126161/three-ways-the-metaverse-could-changefuture-of-work/ (last updated July 20, 2022).

5NFT artist: ‘MetaBirkins’ project aims to create ‘same kind of illusion that it has in real life’, Yahoo!news (Dec. 6, 2021), https://news. yahoo.com/nft-artist-metabirkins-project-aims-200930209.html

6Even if an NFT is delisted or removed from an NFT platform, a record of the transaction remains on the blockchain. Thus, while a trademark owner may wish to have an NFT divested of infringing content, it is not that simple to accomplish. An NFT will continue to reference infringing content unless and until the content is removed from its source.

7Metabirkins (@metabirkins), Open Letter to Hermès, OpenSea and Community, Instagram (Dec. 22, 2021), https://www.instagram. com/p/CXy5GdHPS-i/?igshid=YzA2ZDJiZGQ=.

8Taser Int’l, Inc. v. Linden Research, Inc. et al., No. 2:09-CV-00811-

ROS (D. Ariz. 2009).

915 U.S.C. § 1125(c).

1017 U.S.C. §§ 101-122.

11Id. § 106.

12Roc-A-Fella alleges that while SuperFarm canceled the planned auction, Dash still has plans to hold the auction on an alternative platform.

13Complaint, Roc-A Fella Records, Inc. v. Damon Dash, No. 1:21-cv5411-HPC (S.D.N.Y. 2021), ECF No. 1 (https://assets.bwbx.io/ documents/users/iqjWHBFdfxIU/r.Ti8T5FjbeE/v0).

14Miramax, LLC v. Quentin Tarantino, et al., No. 2:21-cv-08979FMO-JC (C.D. Cal. 2021).

15KC Ifeanyi, The Bored Ape Yacht Club apes into Hollywood, Fast Company (Jan. 18, 2022), https://www.fastcompany. com/90706534/the-bored-ape-yacht-club-apes-into-hollywood

16Balázs Bodó, Daniel Gervais & João Pedro Quintais, Blockchain and smart contracts: the missing link in copyright licensing? 21 Int. J. L. & Info. Tech. 311 (2018), https://academic.oup.com/ijlit/ article/26/4/311/5106727.

17A. J. Bosco, Blockchain and the Uniform Electronic Transactions Act, 74 The Bus. Law. (Issue 1) 243 (Winter 2018/2019), https:// www.americanbar.org/content/dam/aba/publications/business_ lawyer/2019/74_1/survey-cyberspace-blockchain-201902.pdf;); see e.g., Assemb. B. 2658, 2017-2018 Reg. Sess. (Cal. Sept. 28, 2018), https://legiscan.com/CA/text/AB2658/2017.

18See S.B. 1801, 2021-2022 Reg. Sess. (N.Y. Jan. 15, 2021), https:// www.nysenate.gov/legislation/bills/2021/s1801

PRACTICING LAW DURING A WAR: The Trials and Tribulations of Ukraine and Its Legal Professionals

An Interview With Oleksandra Syniakovska

INTERVIEWED BY IRA COHEN

Even in peacetime, the practice of law decidedly is no cakewalk. Even under the most optimal conditions, legal practice is not for the weak of heart or soft of spine. Stated otherwise, it is a given that, at the lawyers’ job fair, shrinking violets and wallflowers need not apply.

Indeed, attorneys worth their salt must be focused, diligent, stu dious, comprehensive, organized, prepared, literate, and eloquent, just to name a few of the mandatory personal attributes. Indeed, can there be any doubt that, in order to maintain the requisite high stan dards of our ancient and honored profession, a high toll personally is exacted on the practitioner?

I am reminded of the joke about the old lawyer in the cardiolo gist’s office for a nuclear stress test. When asked by the medical assis tant if he “has ever had a stress test before,” the quick and matter-offact reply from the seasoned counselor was: “Yes. Daily. The medical term is ‘law practice syndrome.’”

Nevertheless, our garden-variety struggles in this regard must pale in comparison to the trials and tribulations of the Ukrainian people and their legal professionals at this exceedingly difficult and transformative time in their history. What is it like to practice law … during a war? Is it even comprehensible to us and our way of thinking? How can we envision and relate to such an appalling and life-changing experience?

We have been given here a very unique opportunity to glimpse into the current state of affairs of the law and legal practice in

Ukraine during this war of aggression amidst the concomitant atroc ities and war crimes perpetrated by Russia and its maniacal dictator, Vladimir Putin.1

Oleksandra Syniakovska, a patent agent in war-torn Kharkiv, Ukraine, graciously agreed to an interview and provided us with her striking commentary, in effect, giving us a ringside seat as the Ukrainian people, including their lawyers and judges (patriots and fighters that they are), struggle against overwhelming odds. We must admire, respect, and marvel at these lovers of liberty and defenders of democracy as they engage in a death-defying balancing act to keep their professional heads held high enough for their clients while, at the same time, keeping them low enough to dodge Russian bombs and bullets.

IRA COHEN (“COHEN”): What type of law do you practice?

OLEKSANDRA SYNIAKOVSKA (“SYNIAKOVSKA”): I am a professional in intellectual property and particularly specialize in patent law. I practice conducting patent searches in patent databases; handling patent prosecution, including preparing responses to office actions; preparing and filing appeals and oppositions to patent authorities; and advising clients nationally, regionally, and globally.

COHEN: How long have you been practicing patent law in Ukraine?

SYNIAKOVSKA: I have a master`s degree in intellectual property management and gained more than eight years of extensive experience and comprehensive knowledge in patent prosecution nationally, region ally, and worldwide, five years of which was spent working at one of the biggest IP law firms in the Eurasian region.

COHEN: In what city in Ukraine do you practice law?

SYNIAKOVSKA: I had to practice law in the city of Kharkiv before the war started. Kharkiv is located in the northeastern part of Ukraine, close to the border with Russia, and is the second-largest city in the country.

COHEN: Where were you when you first learned the news of the Russian invasion of Ukraine, and what were your initial thoughts and reactions?

SYNIAKOVSKA: On Feb. 24, 2022, when the Russian invasion actually started, I was in Kharkiv. Early in the morning, I woke up in my apartment around 5 a.m. to a distant sound of a cannonade of explosions, and a moment later I understood that the war had started. My body trembled and I woke up my husband. We looked out of the window and saw some glow and smoke on the horizon, the window glasses were shaking from the explosions. It took us less than an hour to put documents and necessities into our car, take our cat, and move to another district of the city where my husband’s parents live, just to stay all together. Starting from that evening, we spent nine days and nights in the local school basement, and then we left the city and headed to a central region of Ukraine. From that time, we have lived in Cherkassy, at good people`s houses.

COHEN: Has martial law been declared in Ukraine because of the Russian invasion?

SYNIAKOVSKA: Yes, martial law was declared in Ukraine starting from 5:30 a.m. on Feb. 24, 2022, and it is still in force.

COHEN: Have you had to deal with curfews and, if so, what are they?

SYNIAKOVSKA: Yes, we have had curfews all over the country from the beginning of the war, but the time period is specified by each region’s government locally. In Cherkassy, where I am based now, civilians are prohibited to go out of their homes and move around from 11 p.m. until 5 a.m.

COHEN: Are lawyers exempt from compulsory military service?

SYNIAKOVSKA: All men in Ukraine are liable for military service in wartime except for exclusive categories of them. Lawyers are not exempt from compulsory military service. And, as I know, there are lawyers in intellectual property who are now defending Ukraine.

COHEN: What about judges? Are they exempt from military service?

SYNIAKOVSKA: The Ukrainian law does not stipulate that judges shall be exempt from compulsory military service.

COHEN: What is the official language of Ukraine?

SYNIAKOVSKA: The official language of Ukraine is the Ukrainian language.

COHEN: The legal system is based on the civil code (Roman law), yes?

SYNIAKOVSKA: The legal system of Ukraine belongs to the Roma no-Germanic legal tradition, which was originally based on the princi ples of Roman law.

COHEN: Are there any elements of the law in your country that involve precedential case law?

SYNIAKOVSKA: The Ukrainian legal system cannot be related to the completely precedential case law system yet. The only case-law-based decisions in Ukraine are recognized to be the decisions of the Constitu

tional Court of Ukraine and the Supreme Court of Ukraine. However, case law is the main direction for the development of the Ukrainian legal system by now.

COHEN: Are legal documents drafted in Ukrainian or Russian or both?

SYNIAKOVSKA: Since the Ukrainian language is the only official lan guage in Ukraine, all legal documents within Ukraine shall be drafted in Ukrainian. However, the documents to be sent to foreign addressees may be compiled in Ukrainian, the language of the addressee, or one of the languages of international communication.

COHEN: What language is utilized for court cases and/or tribunal proceedings?

SYNIAKOVSKA: The courts in Ukraine use the official language (Ukrainian) in court proceedings and guarantee the right of the citizens to use their native language or the language they speak during court proceedings.

COHEN: Are there many women judges in Ukraine, generally? Are women jurists well-represented in the appellate courts and in the Supreme Court of Ukraine?

SYNIAKOVSKA: There are equal rights for men and women in Ukraine. Thus, any Ukrainian has the right to choose a profession he or she would like to practice. There are an approximately equal number of women and men amongst the judges in Ukraine. There are about 40% of women in the Supreme Court of Ukraine and about 55% of women in the appellate courts.

COHEN: Walk us through a typical day of legal practice now since the war started? How have things changed for lawyers in Ukraine?

SYNIAKOVSKA: Since most of the big Ukrainian intellectual property law firms were based in the biggest cities of Ukraine, such as Kyiv and Kharkiv, which have been under bombardment from the very first days of the war, many Ukrainian intellectual property lawyers have had to hide in shelters and basements or flee the dangerous cities and work remotely. IP Trend Eurasia, the intellectual property law firm I work for, has an office in Kharkiv. However, after the beginning of the war, the whole team had to move to more peaceful regions of Ukraine and even abroad, but we never stopped working.

COHEN: Has the Ukrainian Constitution been suspended or amend ed as a result of the war?

SYNIAKOVSKA: The Ukrainian Constitution cannot be suspended or amended during wartime. However, due to the imposition of martial law in Ukraine, temporarily, for the period of martial law being in force, the constitutional rights and freedoms of a human and a citizen, which are stipulated in Articles 30–34, 38, 39, 41–44, and 53 of the Consti tution of Ukraine, can be restricted. As well, the rights and legitimate interests of legal entities can be restricted, within the limits and to the extent necessary to ensure the possibility of introducing and implement ing measures of martial law.

COHEN: Where does the Ukrainian Supreme Court sit and hold its hearings?

SYNIAKOVSKA: The Ukrainian Supreme Court sits and holds its hearings in Klov Palace in Kyiv.

COHEN: Have any new civil courts or tribunals been established in Ukraine as a result of the war with Russia?

SYNIAKOVSKA: No, there are no new civil courts or tribunals estab lished in Ukraine yet.

COHEN: Have any new criminal courts or tribunals been established in Ukraine as a result of the war with Russia?

SYNIAKOVSKA: No, there are no new criminal courts or tribunals established in Ukraine yet.

COHEN: Are plans now being made to deal with all the post-war civil and criminal claims that are likely to arise?

SYNIAKOVSKA: The Ukrainian courts continue working in more or less safe regions, and both civil and criminal claims that arise due to war are dealt with now and will continue to be dealt with in the future as new cases arise and new evidence appears.

COHEN: Are war crimes trials gearing up in Ukraine? Tell us about that.

SYNIAKOVSKA: Yes, they are. Some specific criminals, the Russian soldiers who participated in the rape, abuse, and massacres of civilians in the territory of Ukraine (in particular, in such cities as Bucha, Irpin, and Gostomel), have already been judged and imprisoned.

COHEN: Have any special laws, rules, or regulations been adopted to deal with Russian nationals and/or Russian entities in Ukraine? Have existing contracts with Russian nationals and/or entities been declared a nullity and void? How are they being handled by the lawyers and by the courts?

SYNIAKOVSKA: The Criminal Code of Ukraine has been adopted to include criminal liability for assistance to the aggressor state and collab orative activities. Agreements concluded with individual citizens of the Russian Federation or legal entities from the Russian Federation before the beginning of the invasion of the Russian Federation into Ukraine are currently suspended or terminated unilaterally. New agreements are not concluded for many reasons, and primarily, due to the fact that any interaction with a counterparty related to the Russian Federation is considered as a support for the military aggression of the Russian Federation and a betrayal of the people of Ukraine. By now, we believe that the only possible agreement so far is an agreement on the surrender of the Russian Federation.

COHEN: Is the Ukraine IP Office accepting any new Applications from Russian nationals and/or entities? Are there any penalties or sanctions being levied against Russian nationals and/or entities by or at the Ukrainian IP Office?

SYNIAKOVSKA: Since the beginning of the war in Ukraine, the Ukrainian patent office has been monitoring all filed applications for registration of intellectual property rights (trademarks, inventions, utility models, industrial designs, etc.) and requests for extension and maintenance of such objects, as well as the transfer of rights and license agreements, which contain applicants or owners from the Russian Fed eration, and blocks them until the issue is resolved at the legislative level.

COHEN: Is the Ukrainian IP Office currently operational? What about the Patent Board of Appeals?

SYNIAKOVSKA: The Ukrainian patent office is located in Kyiv but never stopped operating. However, the communication with the Ukrainian Patent Office is now held electronically only. The Board of

Appeals of the National Authority of Intellectual Property has suspend ed conducting hearings on appeals on the merits, including by video conference, due to the war. However, appeals can still be examined and filed electronically in written form.

COHEN: Are the law schools in Ukraine functioning? Have there been any changes or modifications to the law school curriculum as a result of the war?

SYNIAKOVSKA: The system of education in Ukraine, including law schools, continues to function in regular mode, and the Ukrainian government does its best to support educational institutions. Even the educational institutions from the territories of Ukraine that were occu pied during the war have been moved to safer parts of Ukraine. Those educational institutions that can ensure the more or less safe educational process in place are open for the physical presence of students, while the others (such as those located in Kharkiv or other cities being under regular or periodical bombardment) set up a remote educational process via video conference.

COHEN: Is there anything that you would like the lawyers and judges in the United States of America to know about the war and its effects on Ukrainian law and justice?

SYNIAKOVSKA: The Russian invasion affected all spheres of life and activity in Ukraine, including the intellectual property field. As is the case with many other Ukrainians, the Ukrainian IP professionals have to live far from their homes, at strangers’ houses both in Ukraine (as I do now, for example) and abroad, without their usual comfort, and being under the continuous stress of uncertainty and being separated from relatives (my parents stay in a Ukrainian town that was occupied by Russian soldiers in March, and I have not seen them for a long time). Those of us who are still in Ukraine always feel unsafe, even when staying in more or less peaceful parts of the country, since, in fact, there is no safe place in Ukraine now.

Moreover, the number of patent and trademark applications filed by foreigners has decreased from the beginning of the war since applicants are uncertain as to the Ukrainian economical post-war future.

Therefore, it is very important to convince foreign applicants that in spite of the current situation, Ukraine is strong enough to build an even more developed economy than it was before the Russian invasion.

COHEN: Have you heard, publicly or privately, from any of your prewar Russian friends or colleagues?

SYNIAKOVSKA: None of my pre-war colleagues from Russia has said or wrote a word to me since the war started.

COHEN: What are they saying privately about Putin, the war, and related subjects that is different than what one might read in the international press or on social media?

SYNIAKOVSKA: I know that one of my colleague`s Russian IP friends left Russia because of his disagreement with the situation in Ukraine.

COHEN: Is there anything you would like to say to your counter parts, the lawyers, in Russia?

SYNIAKOVSKA: I would like to call the Russian lawyers who are aware of the truth about the situation in Ukraine not to keep silent and not to be afraid of saying the truth out loud.

COHEN: What do the majority of Ukrainians feel about the ultimate outcome of this war?

SYNIAKOVSKA: I would like to let anyone know about the Ukraini ans that we are the people who never give up on fighting for our homes, for our freedom, and peace on our land, even if we should pay the ultimate price for this. All Ukrainians strongly believe that we must and will win this war.

COHEN: Is there anything that the American lawyers can do for your country, now, during this war, or looking ahead to the post-war era?

SYNIAKOVSKA: Your clients should know that Ukraine remains a viable jurisdiction with promising long-term prospects and significant world market share.

The American IP professionals can support the Ukrainian IP community by continuing to include Ukraine in their clients’ IP filing strategy, offering shelter, internships, or jobs to Ukrainian IP profes sionals temporarily evacuated in your area, providing a remote job to Ukrainian IP professionals displaced within Ukraine, and making your preferred Ukrainian IP agent your IP hub for former CIS countries.

Also, Americans can make donations to support the Ukrainian army or become volunteers and provide any possible support they can.

END OF INTERVIEW

In January 1943, American lawyer (and then-attorney general of the United States) Francis Biddle sagaciously wrote:

In time of war the lawyer has important duties as one of the intellectual leaders of his community. He must help sustain the morale of the people under the burdens of war; he must help them to avoid the fears and doubts which are bred by false rumors; and he must keep ever before them our American traditions of democracy and liberty. Thus may be continued the historic function of the American lawyer in time of crisis.

It is today the destiny of the American people to fight for liberty and democracy not on a national, but on a world-wide scale. American lawyers will serve in many ways as this great enterprise unfolds, but none of the services they render will prove more important in the end than their historic function of maintaining the best in our tradition and translating the desire for freedom into positive programs consistent with national ideals.2

The torch now must be passed on to the legal professionals in Ukraine. Having met many of them recently in Washington, D.C.,

at a special event held in May 2022 during the time of the Annual Meeting of the International Trademark Association, I harbor no doubt of their resolve and that they are up to the great tasks, trials, and tribulations that lie ahead.

As the battles rage on, and as the brave and determined citizens of Ukraine fight mightily to be free of Russian aggression, injustice, and tyranny, we wish the Ukrainian people, lawyers, and judges much good luck and Godspeed, as they fight to triumph over evil and ensure a lasting peace. In the stirring and apposite words of His Holiness, Pope John Paul II:

Enlighten our rulers that they may guarantee and defend the great gift of peace. May all peoples on the earth become as brothers and sisters.

longed for peace blossom forth

over us

Oleksandra Syniakovska is a Ukrainian intellectual property legal professional and a patent agent working for IP Trend Eurasia in Kharkiv, Ukraine. 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

1Many Ukrainians have bestowed a derogatory neologism on Putin which consists of his name mashed up with the name of the universally reviled Adolf Hitler, the infamous Fuhrer of Nazi Germany; thus, Russia’s leader for life now has become known, in many Ukrainian quarters and circles, as “Vladoff Putler” or “Putler.” 2Francis Biddle, The Lawyer in Wartime, 20 Denver Law Review (Dicta) 152, 154-155 (1943).

3Pope John Paul II, Prayer for Peace, in Xavier University Prayers for Peace 13 https://www.xavier.edu/jesuitresource/ online-resources/documents/PrayersforPeaceforSyriaandtheMiddle East-WithBookmarks.pdf (last visited June 9, 2022).

Pleading Stage Discovery: Charting a Roadmap for Jurisdictional Discovery

GRANT D. KING AND STEPHEN L. ROSSETTI JR.

The Federal Rules of Civil Procedure are an indispensable lifeline for litigators in federal court. The rules provide a helpful roadmap to navigate the various issues of civil procedure, from initially filing a case to receiving a final judgment. Followers of this roadmap may hit a dead end, however, if questions of a court’s jurisdiction become relevant when deciding where to file a case or how to defend it. While jurisdictional discovery is the term of art used by the courts to describe the action of forcing a party to answer jurisdiction-based questions before the discovery stage of a case even commences, the term appears nowhere in the rules themselves. For over 50 years, the federal courts have attempted to chart their own roadmap when it comes to jurisdictional discovery, imparting the same standards-controlling depositions, interrogatories, and other methods of conducting discovery at a juncture in the case when the matter has just begun.

Some practitioners may go their entire careers without encoun tering jurisdictional discovery, while others may experience it in many cases, but the confusion and relative lack of guidance around this crucial procedural tool remains constant. Especially after the Su preme Court’s recent rulings about jurisdiction, courts can expect to see an increase in jurisdictional challenges.1 This article attempts to set out the standards of jurisdictional discovery while also highlight ing some of the unique consequences from a procedure not codified by the Federal Rules of Civil Procedure.

What Is Jurisdictional Discovery Anyway?

Jurisdictional discovery, or as one defines it, “the preliminary discovery to establish whether a federal court has jurisdiction over the person, the res, or the subject matter of the dispute,”2 has been a vexing topic for some time. There is very little scholarly work on the subject nor are there many Supreme Court decisions discussing jurisdictional discovery.3 Therefore, it can often feel like unchartered waters when wading into the prospect of jurisdictional discovery, especially on top of the ever-changing standards of personal jurisdic tion analysis in the federal courts.

Jurisdictional discovery at its simplest form is a procedural device used most often by plaintiffs where a defendant is asked— in the form of interrogatories, requests for production, and depo sitions—a series of fact-finding questions to determine whether a specific court has personal jurisdiction over the party.4 A party traditionally moves a court in order to perform jurisdictional dis covery, but there have been occasions where the court instructs a party to conduct the discovery to facilitate a court’s decision on jurisdiction (most often at the motion to dismiss level).5 Jurisdic tions differ on the quantity and quality of questions allowed to be posed to the answering party, but as long as they are in any way relevant to jurisdiction, they will usually be allowed. Jurisdic tional discovery has become very prominent in transnational litigation and multidistrict litigation, as questions on a court’s jurisdiction to adjudicate the matter are often prevalent.6

A Very Brief History of Jurisdictional Discovery

S.I. Strong, the preeminent scholar on jurisdictional discovery, surmised that jurisdictional discovery as we know it did not exist in the federal court system prior to 1938.7 In practice, the first use of the

term “jurisdictional discovery” in a court opinion did not occur until 1961.8 It wasn’t until 1973 in Oppenheimer Fund, Inc. v. Sanders that the Supreme Court legitimized the practice by writing, “where issues arise as to jurisdiction or venue, discovery is available to ascertain the facts bearing on such issues.”9 The Oppenheimer decision became the leading precedent for both courts and parties alike in conducting fact-finding discovery at the pleading stage.

Some argue that this precedent is dubious, as the Oppenheimer decision was not based on any legitimate legal standard.10 Others believe that Oppenheimer is not even needed if you rely on Federal Rule of Civil Procedure 26(b)(1), which states, “parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense.”11 Still others argue that federal courts have “inherent” power to determine jurisdiction, a theory that grew out of the 20th century jurisprudence in cases such as United States v. Shipp and United States v. United Mine Workers. 12

Federal courts today tend to liberally grant a party’s request for discovery at the pleading stage, determining that it is an efficient way to weed out a party’s suit brought in the wrong jurisdiction.13 However, this wasn’t the case in 1938, where courts had seemingly great disdain for imparting jurisdictional discovery on parties, as it was believed to be a burdensome task.14 Many litigators remain today who argue that jurisdictional discovery is too burdensome, citing a lack of bright line rules on the subject that led to both costly and timely forays into a company’s or individual’s contacts within a given jurisdiction.15 Based on the rise of complex, national, and even international litigation, courts have determined that jurisdictional discovery is a vital tool to help analyze the vexing questions of venue and jurisdiction that only become more vexing by the day.

An Established Standard for Jurisdictional Discovery

Many are left wondering what the true standard for jurisdictional discovery even is, mainly because it isn’t officially codified by the Federal Rules of Civil Procedure. The Federal Rules surrounding general discovery have substantially changed over time, and each court also has its own interpretations of the rules. At a basic level, and across most jurisdictions, a party will be granted jurisdictional discovery if they can “show there is a colorable basis for the existence of jurisdiction.”16 In other words, a plaintiff must establish a prima facie case of personal jurisdiction to even begin to request jurisdic tional discovery.17 Therefore, the party seeking discovery bears the burden of showing there is a necessity for it.18

Recent decisions implement the generally accepted standard in various forms. For example, in 2008, the First Circuit wrote, “where a plaintiff can demonstrate the existence of a plausible factual disagreement or ambiguity, our jurisprudence favors permitting the litigants the opportunity to flesh out the record.”19 Similarly, in 2009, the Fifth Circuit decided that, “a plaintiff must have at least a good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant.”20 In 2017, the Eleventh Circuit offered a different wording to the same standard: “When facts that go to the merits and court’s jurisdiction are intertwined and genuinely in dispute, parties have a qualified right to jurisdictional discovery.”21 As such, while there is no national consensus on the proper test for allowing jurisdictional discovery, if a party can display that there is more than a chance of the court having jurisdiction over the party, then the court will routinely allow jurisdictional discovery in some form.

The Scope of Jurisdictional Discovery

There is even less conformity regarding the scope of jurisdictional discovery than there is about whether it’s allowed at all. The general rule seems to fall under some form of the discovery being “narrowly tailored and limited in nature” in order to “produce the facts needed to survive a 12(b)(1) motion to dismiss.”22 Cases also tell us that “vague discovery requests will be denied.”23 So, “amorphous” discov ery requests are also not allowed.24 But beyond that, it truly is up to the court’s discretion on where to draw the line.

Questions of fairness relating to cost and time are often factors weighed by the court if a party objects to a particular discovery request. Depositions, both costly and time consuming, seem to be especially scrutinized by some courts. For example, in 2022, the Sev enth Circuit decided that “[i]f the court is satisfied that perpetuating the sought-after testimony may prevent the failure or delay of justice, the court must issue an order allowing the deposition.”25 While in the minority, other courts may attempt to reform discovery requests to help meet requirements, especially when the parties can’t agree on the scope of the requests.26 The party requesting the jurisdictional discovery, almost always the plaintiff, has the upper hand in defining the scope of jurisdictional discovery.27 This is because the court has already agreed that discoverable facts could exist that would give the court jurisdiction over the party, and thus, the court has a mutual interest in elucidating every possible fact through discovery.

What About Defendants?

Plaintiffs don’t get to have all the fun when it comes to jurisdictional discovery. Courts have determined that defendants can also request jurisdictional discovery based on multiple grounds, including that defendants have an equal right in discovery28 as well as no procedural basis existing against defendants using jurisdictional discovery.29 One court aptly stated that “when evidence may exist to refute Plaintiff’s jurisdictional allegations, and the Defendant may not be in possession of such evidence, it is appropriate to permit Defendant the opportunity to discover and present such evidence.”30 In unique situations, defendants have even been successful in seeking sanc tions against plaintiffs who refused to respond to their jurisdictional discovery.31

While there is only a handful of examples of defendant-led juris dictional discovery, many examples exist of defendants successfully objecting to the jurisdictional discovery propounded by a plaintiff. Objections based on the burdensomeness of a particular line of questioning, along with filing motions for protective orders, can be fruitful. Defendants can also attempt to put limits on the timeframe of jurisdictional discovery by not objecting to the jurisdictional discovery in the first place. This type of compromise can reign in extensive document production and multiple corporate representa tive depositions and limit plaintiffs to a one- or two-month window to provide and respond to discovery.

Changes to Jurisdictional Discovery

Federal practitioners were all challenged by the recent Bristol-Myers Squibb decision in 2017. The Supreme Court’s decision as it relates to specific jurisdiction and a defendant’s contacts with the forum may be top of mind for federal practitioners; however, what the Bris tol-Myers Squibb decision means for jurisdictional discovery is just as important. Many surmise that the Bristol-Myers Squibb decision will lead to courts allowing less jurisdictional discovery, mainly because

the scope of specific jurisdiction has been narrowed.32 Some argue that courts are requiring greater specificity from plaintiffs before allowing jurisdictional discovery in the post Bristol-Myers Squibb world, which, in turn, has led to fewer plaintiff’s being able to meet their burden.33

Inversely, because the Bristol-Myers Squibb Court made incred ibly clear the importance of contacts with the forum state, a party seeking jurisdictional discovery can benefit by pushing for con tact-specific questions to be answered by defendants. By narrow ing the scope of jurisdictional questions, a plaintiff may be more successful in surpassing opposing arguments based on undue burden and lack of discoverable information, thus giving the plaintiff a better chance of overall success.

Others perpendicularly argue that the courts are now even less aligned on the standards for granting jurisdiction discovery.34 There fore, parties will have even less clarity on what types of facts a court considers vital when determining if a plaintiff has met their burden of proof for jurisdictional discovery, as well as what defenses defen dants can faithfully rely on to rebut jurisdictional discovery. Whatev er camp a party finds itself in, the Federal Rules’ lack of clarity on the standards for jurisdictional discovery was surely made more evident by the Bristol-Myers Squibb decision.

Conclusion

Jurisdictional discovery has yet to be codified in the Federal Rules of Civil Procedure, which has led to great division among the courts. This fact, coupled with the lack of scholarship on the matter, only contributes to the uneasiness felt by practitioners when confronted with pleading stage discovery. The history of jurisdictional discovery, however, tells us that relevancy and possibility of discoverable facts are the two most important factors when deciding whether jurisdic tional discovery is the right move. As litigation grows more complex and international in the United States, jurisdictional discovery will become an even more important tool for attorneys to use and under stand at the federal level.

Grant King is an associate in Cetrulo LLP’s Boston office. His practice focuses on complex civil litigation, products liability, and toxic tort litigation. King received his J.D. from Northeastern University School of Law with a concentration in business and commercial law. While in law school, King was a clerk for a federal judge at the U.S. District Court of Massachusetts as well as an intern at the Massachusetts Securities Division and a law clerk at two Boston law firms. He received his B.A. in history from the College of the Holy Cross. Stephen Rossetti is a partner in Cetrulo LLP’s Boston office, where he focuses on civil litigation. He has extensive experience advising corporations regarding litigation risk. Rossetti has also served as senior counsel in the litigation group for National Grid and oversaw National Grid’s toxic tort and asbestos litigation and handled commercial litigation, construction litigation, tort litigation, and internal investigations.

Endnotes

1See decisions relating to questions of general and specific jurisdiction, including, Daimler AG v. Bauman, 571 U.S. 117 (2014); BNSF Ry. Co. v. Tyrrell, 137 S. Ct. 1549 (2017); and Bristol-Myers Squibb Co. v. Super. Ct. (BMS), 137 S. Ct. 1773 (2017).

2S.I. Strong, Jurisdictional Discovery in United States Federal Courts,

67 Wash. & Lee L. Rev. 489 (2010)

3Id. at 498.

4See generally, Sarah K. Thompson & Natassia Kwan, Jurisdictional Discovery: Changing Standards and Burdens, ABA (Apr. 24, 2019), https://www.americanbar.org/groups/litigation/committees/masstorts/articles/2019/summer2019-jurisdictional-discovery-changingstandards-and-burdens/.

5Strong, supra note 2, at 535.

6See generally, S.I. Strong, Jurisdictional Discovery in Transnational Litigation, 7 J. of Priv. Int. L. 1 (2011); James M. Beck, Jurisdictional Discovery for Defendants, ABA (Feb. 4, 2021), https:// www.americanbar.org/groups/litigation/committees/mass-torts/ articles/2021/spring2021-jurisdictional-discovery-for-defendants/ (jurisdictional discovery an important piece for pleading stage MDL cases).

7Strong, supra note 2, at 497.

8Id. at 497-501.

9Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 342 (1978).

10Strong, supra note 2, at 502.

11Id. at 504.

12Id. at 506.

13See generally Jamin S. Soderstrom, The Shrinking Scope of Jurisdictional Discovery, 78 Tex. Bar J. 20 (2015).

14Strong, supra note 2, at 498.

158 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 2008.3 (3d ed. April 2022 update).

16Richard Tabura, You Can’t Have All That!: Jurisdictional Discovery

After Bristol-Myers Squibb, ABA (Jan. 30, 2018), https://www. americanbar.org/groups/litigation/committees/mass-torts/ practice/2018/jurisdictional-discovery-post-bristol-myers-squibb/.

17Frontera Res. Aserbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 397 (2d Cir. 2009).

184 Federal Practice and Procedure § 1067.6.

19Blair v. City of Worcester, 922 F.3d 105, 111 (1st Cir. 2008).

20Freeman v. United States, 556 F.3d 326 (5th Cir. 2009).

21ACLU of Fla., Inc. v. City of Sarasota, 859 F.3d 1337, 1341 (11th Cir. 2017).

22Thompson & Kwan, supra note 4, at 5.

23Freeman, 556 F.3d at 343.

24Strong, supra note 2, at 532 (citing to Boschetto v. Hansing, 539 F.3d 1011, 1020 (9th Cir. 2008)).

25Qin v. Deslongchamps, No. 21-1873 (7th Cir. Apr. 14, 2022)

(discussed in greater detail in Paul Mollica, Fed. R. Civ. P. 27

Pre-Filing Deposition Is Not a Vehicle for Jurisdictional Discovery, Holds Seventh Circuit, Fed. Cts. Blog (Apr. 14, 2022), https:// paulmollicafederalcourtsblog.com/2022/04/14/fed-r-civ-p-27-prefiling-deposition-is-not-a-vehicle-for-jurisdictional-discovery-holdsseventh-circuit/).

26Autogenomics, Inc. v. Oxford Gene Tech, LTD., 566 F.3d 1012, 1022 (Fed. Cir. 2009) (the Court here deliberately reached out to Plaintiff in order to help draft permissible discovery requests).

27See generally 8 Federal Practice and Procedure § 2008.3; Strong, supra note 2, at 490-495.

28James M. Beck, Are Defendants Entitled to Jurisdictional Discovery? Drug & Device L. (Dec. 14, 2020), https://www. druganddevicelawblog.com/2020/12/are-defendants-entitled-tojurisdictional-discovery.html.

30Young v. Bridgestone Ams. Tire Operations, LLC, No. 19-99, 2021

WL 50478 at *2 (D. Utah Jan. 6, 2021).

31Peter S. Lubin & Patrick Austermuehle, Plaintiff Sanctioned for Refusing to Answer Jurisdictional Discovery in Court Order Granting Motion to Compel Responses, LUBIN AUSTERMUEHLE (Apr. 27. 2021), https://www.chicagobusinesslitigationlawyerblog.com/ plaintiff-sanctioned-for-refusing-to-answer-jurisdictional-discoveryin-court-order-granting-motion-to-compel-responses/.

32Beck, supra note 28; Asbestos Case Tracker, Court Grants

Jurisdictional Discovery from Foreign Defendant Following Personal Jurisdiction Motion, Goldberg Segalla (Dec. 27, 2022), https:// asbestoscasetracker.com/personal-jurisdiction/court-grantsjurisdictional-discovery-from-foreign-defendant-following-personaljurisdiction-motion/.

33See generally, Capel v. Capel, 272 F. Supp. 3d 33, 41 (D.D.C.

2017) (Plaintiff fails to allege specific contacts); Bigelow v. Garret,

299 F. Supp. 3d 34, 47 (D.D.C. 2018) (Court not swayed by the opportunities that jurisdictional discovery could glean).

34Thompson & Kwan, supra note 4.

Reviews

Business and Human Rights: Ethical, Legal, and Managerial Perspectives

By Florian Wettstein Cambridge University Press, 2022

450 pp., $44.99

Reviewed by Christopher C. Faille

Florian Wettstein, professor of business eth ics at the University of St. Gallen in Switzer land, has written a new textbook designed to advance a relatively new interdisciplinary field of academic study—Business and Hu man Rights (BHR).

One recurring question in BHR: when businesses cooperate with, and perhaps even incentivize, the human rights violations of a state run by a military dictatorship, can those businesses be held responsible for those violations in the courts of other states?

I will focus on that aspect of BHR scholar ship here.

By Wettstein’s account, BHR as a coordi nated international discussion independent of the contributions from legal, philosophical, and business-management silos began in the mid-1990s, with the death of Ken Saro-Wiwa.

Saro-Wiwa, ethnically an Ogoni, a group that has been marginalized at least since the independence of Nigeria, died at the hands of the military dictatorship of General Sani Abacha, in circumstances in which the multinational corporation Royal Dutch Petroleum (aka Shell) was at least complicit.

A Summary Execution

The government of Nigeria summarily exe cuted Saro-Wiwa, a Nigerian environmen tal activist, on Nov. 10, 1995. It is generally understood that the charges were trumped up, and that Saro-Wiwa was killed because his activities publicized the government’s subservience to the Royal Dutch Shell Co. in the face of the constant spillage of oil into the Niger delta.

Subsequent to the execution, in Wett stein’s words, “Prominent human rights [nongovernmental organizations], such as Human Rights Watch and Amnesty Interna tional, started to engage more systematically with BHR issues and published high-profile reports on the complicity of Western compa nies with rights-violating regimes ….”

Wettstein’s book has a global reach, but let us follow the U.S. specific thread for a bit now. After the publicity given the Saro-Wi wa case, lawyers in the United States started rediscovering the long-dormant Alien Tort Claims Act (ATCA).

Enacted in 1789, the ATCA says simply, “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The first time this original jurisdiction was applied at the expense of a U.S.-based private corporation operating in a foreign country, in favor of an alien plaintiff, was in Doe v. Unocal in 1997.

In Doe, a Burmese villager sued over actions of the California energy company Unocal, and the French company Total. These companies were behind a pipeline project in Burma and were complicit in the government’s policies of forced labor and forced relocation in advancing that pipeline.

This case survived defendants’ motions to dismiss, but it never went to trial: it was

settled out of court. Nonetheless, it estab lished that corporations can be held respon sible in U.S. district courts for violations of international law, and it became the go-to for activist litigation thereafter.

In 2013, a dispute arising out of Saro-Wi wa came before the U.S. Supreme Court. Sadly, the Court used this case to limit the developments that the initial burst of public ity over that case had stimulated. The case is Kiobel v. Royal Dutch Petroleum. The named plaintiff was Esther Kiobel, the widow of Dr. Barinem Kiobel, who was tortured and executed along with Saro-Wiwa in 1995.

The U.S. Supreme Court Retreats From the Field

Kiobel filed the lawsuit in New York in 2002. In 2006, Shell filed an interlocutory appeal. In a surprising move, the Second Circuit Court of Appeals found that the ATCA is not applicable to corporations after all. Plaintiffs filed a writ of certiorari, and the Supreme Court heard oral arguments in February 2012. But the Court was dissatisfied with the arguments and ordered a re-argument at the beginning of the next session in October 2012. The Court wanted to focus not on the distinction between natural people and corporations, but on the issue of extraterri toriality.

The following April came the decision: the ATCA should be construed with a presumption against extraterritoriality. This means that cases brought by aliens against foreign companies (and Royal Dutch Shell bears its home sovereign in its name) are presumed to be outside of the scope of the ATCA unless they “touch and concern the territory of the United States … with sufficient force to displace” the presumption. That presumption was held, in the majority opinion by Chief Justice Roberts, to apply to the facts at hand.

Wettstein sees Shell’s whole legal strategy as culpable. “[R]ather than defending itself based on the facts of its particular case, Shell successfully aimed at undercutting the underlying statute and thus weakening the basis for countless victims of human rights abuses to bring lawsuits ….”

Five years later, our Supreme Court’s position became yet more restrictive. After Jesner v. Arab Bank, as Wettstein explains, human rights plaintiffs hoping to bring a case in the United States under the “law of nations” must show “not only that the violation at stake occurred through the activities of a U.S. company, but likely also that there was suffi cient conduct in the United States to satisfy the ‘touch and concern’ requirement ….”

Looking for the Next Breakthrough

Unsurprisingly, then, attention has turned of late to the question of whether foreign direct liability can be assessed against multina tional corporations in jurisdictions outside the United States. Some of the NGOs active on this issue have turned to the courts of Canada.

Wettstein highlights, in this context, a case of violence in Guatemala and the liti gation of responsibility in Canada. Hudbay Minerals, a Toronto headquartered multina tional, had operations in Guatemala in the period 2009-2011. In that period, too, private guards employed by Hudbay Minerals allegedly murdered an indigenous activist, Adolofa Ich Chaman; shot and severely injured another, German Chub Choc; and gang-raped 11 women during the forcible eviction of their village.

While criminal proceedings were pend ing for these offenses in Guatemala, a court in Ontario ruled (2013) that Hudbay could be held civilly liable in Canada for alleged common-law torts for the same actions. Litigation on the subject continues.

Intriguingly, though, our story is not yet done with Saro-Wiwa. Could not Shell be held liable for its part in the wrongful death of Saro-Wiwa, Kiobel, and other Ogoni en vironmentalists in the courts of the corpora tion’s home country, the Netherlands?

Water Pressure

Esther Kiobel refiled her lawsuit against Shell in the Netherlands in 2017. A Dutch court found that it had jurisdiction over the allegations with regard to the Dutch corpo ration, and also over those regarding its Ni gerian subsidiary, SPDC. As a choice-of-law matter, the parties agreed on the application of Nigerian law.

The claimants alleged that (in Wettstein’s summary) “Shell maintained informal con tact with the prosecutor, bribed witnesses, and failed to use its influence for the benefit of ‘the Ogoni 9.’ among other things.” The

court found some of the claims factually unsubstantiated, and it dismissed as a matter of law the claim of passive complicity—the failure of Shell to act where it could have.

But it did find that there was enough factual support on the alleged bribing of witnesses for the litigation to proceed on that point.

That is where the matter stood when Wettstein completed his work on this book. A reviewer has to observe, though, that in March 2022, the court found that the facts aren’t sufficient on the bribery allegations either. Appeal may be available.

One is reminded of a water-pressure anal ogy. When the pressure is great enough, the water will find or create a leak and make its way past through the container, sometimes explosively. Human rights abuses such as those inherent in Kiobel, and the complicity of their corporate cronies, effectively pump water into the inadequately sized container. The shift from the United States to Canada and/or the Netherlands reflects the search for the leak.

What one can know is that leaks (or explosions) will come. In time.

I would like to give Wettstein the last word on his material. Near the end of this book, with its thoughtful and fact-stuffed discussions of the many issues suggested by the wide title and subtitle, he raises the issue of “frivolous litigation.” Should courts close themselves off to human rights litigation against corporations because otherwise there might be too much of it?

Wettstein notes the frequency of such contentions and offers this reply:

[Any] law that provides avenues to hold companies accountable for their human rights impacts ought to do so not only on paper but must also lead to actual legal action in practice. It is the very purpose of such laws that corporations will be sued in case of human rights abuses. Thus, the mere argument that corporations will likely be sued a lot more is not an argument against but in favor of such laws, since this seems to show the very need for them. 

Christopher C. Faille has written on a variety of legal, regulatory, and financial issues for decades. He was an early reporter with Lipper HedgeWorld and has contributed to Forbes, Hedge Fund Law Report, and Alternatives Watch. ©2022 Christopher C. Faille. All rights reserved.

Let the Lord Sort Them: The Rise and Fall of the Death Penalty

By Maurice Chammah

Crown, New York, 2021

368 pages, $28

Reviewed by Jon M. Sands and Lauren K. Paxton Texas has long considered the death penalty a form of justice and retribution. However, the stalled execution of Melissa Lucio, a woman on Texas death row who is likely innocent, has forced the state to pause, and possibly reimagine, its use of capital punish ment. In Let the Lord Sort Them: The Rise and Fall of the Death Penalty, Maurice Cham mah follows how Texas rose to become by far the nation’s leading user of the ultimate penalty, and how the state’s enthusiasm for imposing it has begun to wane. Chammah undertakes a history of the death penalty in the state, traces how its modern form came to be, and tells the stories of those involved at every stage, from prosecution through execution. It is a compelling read.

Chammah begins with the modern death penalty and what makes Texas’s different. Capital punishment always has been political and racial. Although permitted by the Con stitution, the U.S. Supreme Court in Furman v. Georgia,1 held that capital punishment, as it was then applied, was unconstitution al. The Court invalidated death penalty schemes as arbitrary and discriminatory, with one justice observing, “these death

sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual.” Because Furman did not hold the death penalty itself unconstitutional, but only as applied, capital punishment became even more politicized. States rushed to pass new laws and enact sentencing schemes that would satisfy the Eighth Amendment. Some states abolished capital punishment, while others enshrined the necessity of the jury in weighing aggravating and mitigating factors before doling out death; some even settled on mandatory death sentences for certain crimes. How this post-Furman environment played out in Texas serves as Chammah’s launching point.

Texas, in its rush to legislate the death penalty, chose a route unlike any other state’s: “future dangerousness.” Chammah describes how the Texas legislature met to write a constitutional death penalty law. Facing the legislative session’s end, legisla tors agreed that they had to pass something, but they were unable to agree on any one approach. Most favored making capital pun ishment mandatory for certain offenses, but legislative leaders and prosecution lobbyists were concerned that this would not pass constitutional muster. Others favored using factors. A significant minority opposed cap ital punishment altogether, raising race and the connections between the death penalty and lynching.

In the impasse, a special committee, with help from prosecutors, proposed a last-minute compromise: making certain offenses, such as killing a police officer or a young child or during a robbery, eligible for the death penalty, but allowing “exceptions” if certain conditions were met. These were the three infamous questions that had to be answered in the affirmative before a jury could impose a death sentence: Was the murder unprovoked? Was it deliberate? Was there a probability that the defendant could pose a continuing threat to society? The last is “future dangerousness.”

Chammah notes that no one consid ered the implications of these questions. Some thought the first two questions were redundant (they are); some thought “future dangerousness” favored the defense; others thought the dangerousness question would be answered “no” only rarely and came close to making the death penalty mandatory. Some simply did not care and just wanted to pass anything. On the final day of the session, the bill was overwhelmingly voted

through and signed by the governor. Cham mah quotes one legislator who was present as admitting, decades later, “I’m not sure we did such a great job.” As a spoiler alert to the rest of the book and this review, they didn’t. Jurors had to predict the future with “future dangerousness.” This factor played too easily into fears and prejudices and offered scant guidance.

As expected, the new capital punishment schemes of Texas and other states were challenged as unconstitutional. In 1976, the Supreme Court consolidated cases from Georgia, Florida, Louisiana, North Caro lina, and Texas. The Texas case involved Jerry Jurek, convicted of capital murder of a 10-year-old girl in a small rural town. Jurek had confessed twice, but the first confession came after spending a night “virtually naked in [a] cold jail cell.” Jurek scored a 66 on the verbal portion of an IQ test, indicating an intellectual disability. The confessions were both oddly phrased (who uses “herein”?) and inconsistent with the evidence. The pathologist found evidence of strangulation but not of the alleged rape. Experienced counsel refused to take the case, and Jurek was represented by two lawyers—one who worked part time and would shortly there after be disbarred on an unrelated ethics matter, and one who had graduated from law school just three months before. During sen tencing, the prosecutor portrayed Jurek as a sociopath with a bad reputation, who was accused of other assaults. The defense said he worked hard and gave his paycheck to his family. The jury sentenced him to death. As the case proceeded to appeals, it was taken over by the NAACP’s Legal Defense Fund (LDF), whose cause was the death penalty.

Attorneys at the LDF strategized how to approach the new legal landscape. The lead counsel was the renowned Anthony Amster dam, who had argued and won Furman for LDF. LDF faced a dilemma because the state schemes all varied. It decided that, rather than focus on the facts of the Jurek case, it would attack the constitutionality of all death penalty schemes.

This high-risk, all-or-nothing strategy argued that all schemes were unconstitu tional because of the arbitrary nature of the decision-making. The strategy was con troversial. Some thought a better strategy would have been to concede the possible appropriateness of those death penalty schemes where aggravating and mitigating factors were weighed and balanced, and

to contrast those with mandatory death penalty schemes. They would have argued that some statutes were more arbitrary than others and failed to appropriately distinguish among defendants or allow for discretion. However, this argument meant choosing among defendants. If a concession were made for those states with a scheme of listing aggravating and mitigating factors, known as guided discretion, it would make matters worse for death row defendants in those states. With its three questions and its focus on “future dangerousness,” Texas stood apart from Georgia and Florida, with their guided discretion, and the mandatory schemes of North Carolina and Louisiana. Jurek’s facts took a backseat.

At argument, Amsterdam argued that all the schemes allowed too much discretion. He refused to concede that any scheme was constitutional. He refused to make a distinction between mandatory laws and guided discretion. He refused to argue that Texas was closer to mandatory, with its “exceptions,” and was not guiding discretion with its too broad “future dangerousness.” It was too broad and too strident an argument for the Court, especially for swing Justices Powell, Stewart, and Stevens.

In describing the arguments and the justices’ reactions, Chammah uncovers no new nuggets. He does tell it engagingly, em phasizing the Texas statute and how it differs from others. Chammah thus underscores the high stakes involved. The upholding or striking down of the Texas scheme was in play. Chammah feels a different argument possibly could have persuaded the Court to find it more akin to a mandatory scheme. Amsterdam, in hindsight, ruefully concurs.

The Court, on July 2, 1976, concluded that the Texas scheme had sufficient discre tion to guide a jury and upheld it in Jurek v. Texas 2 It found that the three questions satisfied the guided discretion required to avoid arbitrary decision-making. The jus tices who upheld the Texas law believed the scheme sufficiently allowed jurors to weigh individual guilt and human frailties. As Chammah ironically notes, it was Rehnquist, who approved of all the laws, who thought his brethren were deluding themselves. He considered the Texas law to be as close to mandatory as the schemes struck down. Rehnquist was right.

What ensued was a flurry of executions across the Lonestar State. Since Jurek, Texas has over a third of all executions (574 out

of 1546).3 The statutory scheme provided prosecutors an easier way to convince jurors to impose death. Chammah advances other reasons as well—aggressive prosecution, fear of rising crime, the election of judges, and the lack of effective representation for indi gent defendants. Critically, the Fifth Circuit is conservative and has been deferential to the state in upholding death sentences on habeas. These factors plus Texas culture and prejudice, as Chammah emphasizes, turned Texas into ground zero for the death penalty.

And yet recently, the pace has slowed. Fewer capital prosecutions are being brought, and fewer defendants are being sentenced to death. Chammah regards this as a paradox: In a state seemingly so pro-capital punishment, how is this decline to be explained? Part of the answer is changing demographics; anoth er is the changing politics of crime and crimi nal justice, as well as greater racial awareness. In addition, the statute has been interpreted to allow more mitigation.

In tracing the rise and fall of the death penalty, Chammah uses several key charac ters whose personal triumphs and tribula tions he weaves throughout the narrative. Chammah presents his argument with personal stories as well as citing statistics and trends. Readers quickly come to see the moral dilemmas of capital punishment through Amsterdam and other dedicated capital defense counsel, such as Danalynn Recer, an investigator-turned-attorney who tracks down mitigation at any cost; Elsa Al cala, a conflicted prosecutor working under an overzealous DA; and Chaplain Pickett, a spiritual advisor to men in their last mo ments alive on the gurney. Chammah not only brings these characters to life but shows the tensions in their opposing views.

Recer starts as a fervent advocate able to quickly build rapport with clients but finds herself in controversy over profiting from a client’s artwork, while Alcala is initially presented as a prosecutor who sends several men to death row, but, after she becomes a judge, channels her qualms with her former work into scalding opinions against capital punishment. Institutions are mentioned throughout as well—the NAACP, the Texas Resource Center, and GRACE come to life not as law offices but as places of advocacy, change, and “bake sale justice.” Some of Chammah’s stories about such people, get lost, being introduced early in the narrative, to be revisited only several chapters (and chronologically, several years) later.

Chammah shows that capital punishment is disproportionality inflicted on those who are poor and Black. The statistics are given a face through the stories of those involved in the system, including both those awaiting execution and murder victims. But Cham mah does not stray from the emotional as pects of the death penalty. He describes how Karla Faye Tucker, a born-again Christian facing execution, had her clemency petition rejected by then-Governor George W. Bush despite strong support in the evangelical community. Chammah is also sympathet ic to Allison Vickers, whose brother was murdered and who, in her quest for justice, befriended prosecutor Alcala. The many people involved in the process, including guards, wardens, and chaplains, are also affected by the brutality of the system. And we see, time and again, that those who committed capital murder had their own his tory of adversity and injustice—mitigation reports almost always turning up histories of intellectual disabilities, childhood abuse, and severe mental illness.

Let the Lord Sort Them invites its readers to question the need for retribution that has long propelled capital punishment. Chammah is not to be faulted for writing a passionate account. It is hard to be dispas sionate about the death penalty. His singular focus on Texas makes his account especially valuable. As death is different as a punish ment, Texas is different in its implementa tion of this punishment. Given the present Supreme Court and recent death penalty jurisprudence, it is probable that any change in capital punishment will be on the state and local level, and it is likely to be case by case. Chammah shows how that can be possible, even in Texas.

Whatever happened to Jurek? His con viction was upheld, but in habeas, the federal courts found that his confession had in fact been involuntary. At the retrial, his mental capacity became a key theme. In 1982, with the assent of the victim’s family, Jurek pled guilty in exchange for a life sentence. He has lived peacefully in prison.

Jon M. Sands is the federal public defender for the District of Arizona. Lauren K. Paxton externed in the capital habeas unit of the federal defender office of the District of Arizona. She will be a fellowship investiga tor at the Orleans Public Defenders.

Endnotes

1408 U.S. 238 (1972).

2428 U.S. 262 (1976). In Jurek, along with

Gregg v. Georgia, 428 U.S. 153 (1976), and Proffitt v. Florida, 428 U.S. 242 (1976) (collectively known as the Gregg decision), the Supreme Court upheld guided discretion under the state schemes. The Court struck down the mandatory schemes in Woodson v. North Carolina, 428 U.S. 280 (1976), and Roberts v. Louisiana, 428 U.S. 325 (1976).

3Death Penalty Info. Ctr., Executions by State and Year, https://deathpenaltyinfo. org/executions/executions-overview/ executions-by-state-and-year (last visited May 30, 2022).

in

of the Federal Bar Association

Support the advancement of justice

ASSOCIATION

Chapter

Panelists for Southern District of Texas Chapter Summer Program Event: Quentin Smith (Vinson & Elkins), Krisina Zuñiga (Susman Godfrey), Carina Antweil (Baker Botts), and Ted Imperato (Southern District of Texas AUSA).

FIFTH CIRCUIT

Southern District of Texas

The Southern District of Texas Chapter hosted an event for law students titled “Succeeding in Your Summer Program” at the Bob Casey Courthouse in Houston on May 25, 2022. The speakers were Carina An tweil, hiring partner for Baker Botts, L.L.P.; Ted Imperato, first assistant U.S. attorney and chief of the Criminal Division in the Southern District of Texas; Quentin Smith, partner at Vinson & Elkins L.L.P.; and Kri sina Zuñiga, an associate at Susman Godfrey L.L.P. After a very informative presenta tion by these outstanding speakers, several judges and law clerks who have offices in the Houston courthouse joined the law students for a reception.

Top: Andrew Gould (Southern District of Texas FBA vice president), Zain Imam (Baker Botts summer associate), Mohmed Patel (judicial intern), and Josh Hasler (Vinson & Elkins summer associate). Bottom: Ashlee Grant (Southern District of Texas FBA president), Peter Curran (Baker Botts summer associate), Rebekah Guajardo (Baker Hostetler summer associate), and Krisina Zuñiga (panelist).

CIVIL RIGHTS LAW SECTION

The U.S. Supreme Court’s October 2021 term will go down in history as one of the most consequential terms this century, impacting the civil rights of millions of Americans. In a webinar CLE held on July 13, 2022, and spon sored by the FBA’s Civil Rights Law Section, the panelists surveyed the Court’s term on cases “ripped from the headlines,” decisions “beyond the headlines,” and debates “not the headlines” (i.e., humorous commentary from satire websites).

The CLE featured as panelists Tulane as sistant clinical professor of law Sam Brandao and MacArthur Justice Center’s Supreme Court and Appellate Program deputy director Devi Rao. Assistant Utah attorney general and FBA Civil Rights Section chairelect Kyle Kaiser moderated.

The CLE began with a discussion of the Court’s statistics. Kaiser noted that this term was especially important for civil rights prac titioners, as the Court dealt with constitu tional issues 22 times within the 66 opinions issued by the Court (and 68 cases in which cert was granted). Kaiser also pointed out the Court’s increasingly fractured decisions, noting that this term featured the fewest number of cases unanimously decided in recent memory.

Rao analyzed a number of the Court’s important cases through the lens of the right-remedy gap. In cases like Vega v. Tekoh, Egbert v. Boule, and Cummings v. Premier Rehabilitation Keller, the Court has shown a willingness to foreclose expansive remedies, or any remedies at all, even if an individual’s civil rights may have been violated.

Rao next recognized the Court’s reduced adherence to stare decisis and increasing willingness to overrule precedent, even in the face of substantial reliance. Rao discussed Dobbs v. Jackson, which overruled Roe v. Wade, as the prime example of the trend away from stare decisis. Rao also pointed to Andrus v. Texas, in which the Court denied certiorari in subsequent review of the Texas Criminal Court of Appeals’ decision that a condemned prisoner had not shown preju dice on his ineffective assistance of counsel claim to warrant habeas relief. Rao highlight ed Justice Sotomayor’s dissent, which noted that the Texas court’s decision likely violated “vertical stare decisis” by reaching a conclu sion contrary to the Supreme Court’s when it previously took the case. She also noted four other cases with holdings “just short” of over ruling precedent, potentially foreshadowing other reversals in future terms.

Kaiser discussed the “Changing First Amendment,” which included clear victories

for religious liberty in cases like Kennedy v. Bremerton School District, Carson ex rel. O.C. v. Makin and Shurtleff v. City of Boston. Kaiser also discussed the “beyond the headlines” cases, giving governments more license to regulate billboards without satisfying strict scrutiny and denying a board member’s First Amendment retaliation claim based on a purely verbal censure by the board on which he sat.

Brandao recounted the “shake-up in In dian Law,” including the Court’s decisions in Denezpi v. United States, rejecting a double jeopardy challenge to a subsequent federal prosecution when a similar offense had already been prosecuted in a tribe’s Court of Indian Offenses; Ysleta del Sur Pueblo v. Texas, prohibiting Texas from banning on-reservation bingo when it was otherwise permitted off-reservation; and Oklahoma v. Castro-Huerta, permitting a state court to prosecute offenses committed by nontribal members in Indian Country. Brandao also discussed other important civil rights cases addressing issues ranging from malicious prosecution to gun rights.

The webinar concluded with a brief ques tion and answer session and comments from the panelists.

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.

Advocacy

The opportunity to make a change and improve the federal legal system through grassroots work in over 100 FBA chapters and a strong national advocacy.

The FBA

Leadership

Help shape the FBA’s future and make an impact on the growth of the federal legal community by serving in FBA governance positions

Learning

Learn from the experts at our many Continuing Legal Education programs offered throughout the year - at both the national and chapter levels.

Networking

Connect with a vast network of federal practitioners and judges extending across all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.

for your career; for a lifetime

THREE WAYS TO APPLY TODAY: Online at www.fedbar.org; by fax (571) 481-9090; or by mail: FBA, PO Box 79395, Baltimore, MD 21279-0395. Questions? Contact the membership department at (571) 481-9100 or membership@fedbar.org.

Applicant Information

been

address?

business

U.S.

Bar

*Court of Record: State/District: Original Admission: / /U.S.

*Court of Record: State: Original Admission: / /Tribal

C

Students

Law School: State/District: Expected Graduation: / /

By signing this application, I hereby apply for membership in the Federal Bar Association and agree to conform to

Jo Belasco

Brandon Brown

Eunkyong Choi

Marcus Clinkscales

SangYeob Kim Lindsey Laielli

Kathleen Mahan

Melissa Matthews

Kristy Miamen

Joseph Moss

Brooke Noble

Steven Nunez

Jose Nunez

Peter Paulsen

Robert Quigley

Jordan Rice

Rodolfo Ruiz

Alan Silverstein Michael Olson* Eve Ormerod* Courtney Stirrat* Donald Verfurth*

FIRST CIRCUIT

First Circuit At Large

Carl Hurvich Gustavo Chico-Barris*

Hon. Raymond L.

Acosta Puerto Rico

Gerardo Cruz

Grecia Diaz Sanchez Saul Suarez-Flores Veronica Torres-Torres MarÌa Trelles-Hern·ndez Pedro Vazquez-Pesquera Giuliano Vilanova Feliberti Alberto Estrella* Mauricio Muniz*

Massachusetts Stephen Armato Jean Budrow

Mabel Covarrubias-Doucette Angel Kelley Grant King Andrew O’Connor Nicholas Ramacher Glenn F. Russell, Jr John Wilusz

Rhode Island

Stacy Hurley

SECOND CIRCUIT

Second Circuit At Large

Agatha Cole

District of Connecticut Sarata Nagala

Eastern District of New York

Leila Bijan

Oriana Kiley

Brenna Mahoney

Southern District of New York Philip Halpern

Alexander Lloyd Karen Ortiz

Thien An Truong

Robyn Williams H. Fasano*

THIRD CIRCUIT

Eastern District of Pennsylvania

Jennifer Jordan Alison Kehner Andrew Stutzman

Joseph Lento*

New Jersey

Christine O’Hearn

Zahid Quraishi Stephen Marietta*

Western District of Pennsylvania

Cathy Bisson Mark Hornak

FOURTH CIRCUIT

Fourth Circuit At Large Jason Zuckerman

Eastern District of North Carolina Derrick Arrowood*

Hampton Roads Brian Latuga Emily Munn Diane Toscano

Maryland Robert Hockenbury Kayleigh Keilty Sarah Lashley Melissa Martinez Gary Morgan John Quinn Julie Reamy*

Middle District of North Carolina Deborrah Newton

Northern Virginia Christopher Carter Toby Heytens D. Margeaux Thomas Tara Lynn Zurawski Lindsey Vaala*

Richmond Timothy Baird Rowland Hill Matthew Howells Laura Anne Kuykendall Sarah Robb

South Carolina Marshall (Matt) Austin Helen Burris Kevin McDonald David Norton

Western District of North Carolina

Norman Acker

Paul Capua

Abbey Krysak John Tagert

Jonathon Townsend Caitlin VanHoy

Western District of Virginia David Corry Daniel Eggleston Kevin Holt Joseph Shipman Mary Sirmans Phyllis Spence

FIFTH CIRCUIT

Fifth Circuit At Large

Alexa Lang Angela Moore

Austin Michelle Arishita

Rafic Bittar Leslie Mason William Stripling Danielle Gilbert* Baton Rouge Ellen Kinney Dallas Jared Hoggan Maka Hutson Sydney Royer Michael UHL

El Paso

Carla Canales

Fort Worth Hal Roberts Ray Christopher Collins*

Lafayette/Acadiana

Scherri Guidry Melissa Theriot

Mississippi

Clarence Webster Brandon Riches*

New Orleans

Nicholas Berg Brandon Davis Vanassa Douglas Michael Gahagan Nicole Katz Roma Kent Mia Lewis Corey Moll Kevin Naccari Emily Ross Charles Strauss M Tamporello Joseph Larre*

Member Spotlight

* Denotes Sustaining Member

North Louisiana

Jerry Edwards

Whitney Howell Reid Jones

San Antonio Danya Blair

John Bustamante

Lorena Garza

Claudia Guerrero Katherine Mallon George Parker Jeffrey Rohrbach

Southern District of Texas

Andrew Edelman John Friesell

Brad Gray Brian Humphrey Janis Jack

Carla Lassabe Tina Nguyen Diana Saldana Sean Timmons

SIXTH CIRCUIT

Sixth Circuit At Large Alexandra Page Clayton Smith Joseph Vesper Chattanooga Harry F Burnette Catherine Dorvil Luke Neder Dan Ripper

Cincinnati-Northern Kentucky, John W. Peck

Margo Brandenburg Cathy Geyer

Jacqueline Greene Kevin Koller Zenaida Lockard Kelly Myers

Elizabeth Asbury Newman George Reul Niroshan Wijesooriya Ross Wilson Emily Woerner Phillip Smith*

Columbus Kristina Aiad-Toss Rickelle Davis Aaron Keller Stacey MacDonald Aaron McHenry

Dayton Joseph Barton Zoe Curry Finley Newman-James Lindsey Posey Jennifer Rulon Brooke Schleben

Eastern District of Michigan

Cori Barkman

Chelsea Hemgude Zuzindlak Sarah Yore-VanOosterhout

El Paso

Bernadette Segura

Kentucky Colin Lindsay

Knoxville Gregory Brown*

Memphis Mid-South Jeremiah Hill

Nashville

Waverly Crenshaw, Jr. Aleta Trauger

Northern District of Ohio David Cupar Marisa Darden Bradley Dennis Alejandro Gonzalez Mercado Nichole Hamsher Edmond Jaber Joseph Nelson Akshita Patel Sarah Sears Darin Thompson Coleen Wening

Western District of Michigan John Morseau Chloe Neely

SEVENTH CIRCUIT Seventh Circuit At Large

Vernita Cockrell Amy Commean Melinda Power Gary Shapiro Jerome Weitzel

Central District of Illinois Athena Herman

Chicago

Shamoyita DasGupta Danielle Hamilton Alex Hemmer Nan Nolan Kruti Patel Anna Perocchi Jodi Silberman Chad Skarpiak Sean Sullivan Karen Villagomez Scott Pollock*

Southern District of Illinois John Craig Benjamin Wilson

EIGHTH CIRCUIT

Eighth Circuit At Large

Patricia Beety

Iowa

Stephanie Rose

Thomas Shields

Kansas and Western District of Missouri

Monica A Bennett

Amelia Brown

Kip Randall

Minnesota

Stephanie Beckman

John Bisanz

W. Joseph Bruckner

Anna Finstrom

Eleanor Frisch

Zoe Graham

Jason Johnson

Tara Kennedy Carrie Lambert

Lindsey Larson Ian McFarland Stephanie Morales Janet Olawsky

Maggie Owen Catherine Peterson Laura Provinzino Perry Sekus

J Matthew Thornton Eric Tostrud

Olga Tymouch

Karla Vehrs

Greta Wiessner Raina Borrelli*

Nebraska

Jessica KallstromSchreckengost

St. Louis

Stephen Clark Jeannette Graviss Alex Johnson

NINETH CIRCUIT

Nineth Circuit At Large

Lisa Jennis

Catherine McBain

Douglas Miller

Alaska

Seth Brickey-Smith

Hawaii

Mateo Caballero

Pamela Hartman Beyer Diana Sumarna

Los Angeles

Joanna Curtis Dordaneh Ghaemi

Mack Jenkins

Mark Kleiman

William Lisa Marina Samson Eric Sefton

Ann-Kathryn Tria Otis Wright, II

Nevada Lindsay Ager Craig Denney Leslie Nino Piro

Elody Tignor Homero Gonzalez*

Northern District of California

Virginia Grace Davis Hanni Fakhoury Robert Goodman Jonathan Lee Sarah McGrath

Shaffy Moeel Julia Peng Clayton Robertson

Peter Kleinbrodt* Alexandra Mojado* Tyson Redenbarger*

Orange County

Christy Markos

Manoah Marton David McPhie Michael Olson*

Oregon

James Aaron Tony Kullen

Ursula Lalovic Eric Mills Nathan Sramek

Phoenix Jennifer Axel Ryan Bailey Katie Derrig Sargina Desargones Steven Heeley Kami Hoskins Anne Nelson Kortney Otten Kyle Shelton Lindsay Short Molly Weinstein Lauren Whittaker Ryan Pont*

Sacramento

Meghan Baker David Fox Kyle Owen Elliot Wong Christopher Bakes*

San Diego Charles Adair Lonnie Browne John Burns Ryan Caplan Richard Falls Jami Ferrara Drew Hillier Deborah La Touche Judith McConnell Michael Morphew Katherine Parker Kara Siegel Joan Weber Paul Fraidenburgh*

San Joaquin Valley James Arendt

Washington State

Noelle Chung

Charlene Koski Marsha Pechman Amit Ranade Gregory Watts*

William D. Browning

Tucson Melvin Cohen

TENTH CIRCUIT

Northern/Eastern Oklahoma

Sarah Cravens

Andie Netherland Thomas Wright D.H. Dilbeck Stephen Harry Lindsay Kistler Traci Rhone Shawnae Robey Utah Todd Bouton Stephen Dent Adrienne Moss Kathyn Nester Elaine Young Perry Clegg*

ELEVENTH CIRCUIT

Eleventh Circuit

At Large

Ahmad Yakzan

Atlanta

Timothy Badden, Sr. J P Boulee Jacob Edwards Leslie Gardner Steven Grimberg Payum Hamraie Frank Podesta Tillman Self, III Brian Sutherland Deana Timberlake-Wiley David Carpenter* Emily Schifter*

Birmingham Staci Cornelius Joseph Lento

Broward County

Jennifer Bullock

Milor Laya-Perdomo Raag Singhal Robert Stickney

Jacksonville Julianna Favale Madison Mahaffy

North Alabama Michael Kraycinovich Christopher Lockwood Lauren Smith

Orlando Augustus Invictus Yameel Mercado Robles

Palm Beach

Aisha Nash Christopher Prusaski William Wright

South Florida

Scott Allbright

Abigail Becker Lauren Cabeza Jackie Gadea Jaime Garcia Montes Nicole McLemore Richard Serafini Zoe Stein

Tania Cruz-Gimenez* Adam Fels* Caitlin Saladrigas*

Southern District of Georgia

John Clarkson

Tallahassee

LaShawn Riggans

Tampa Bay Callan Albritton Landis Atkinson John Badalamenti Christopher Frey Melanie Kalmanson Marena Ramirez Dawn Tiffin Neil Ognibene*

D.C. CIRCUIT

Capitol Hill Bruce Kasold Clayton LaForge

District of Columbia Andrea Antonelli Francine Applewhite Tamara Ashford Max Bonici Alexander Canizares Sean Conaway Richard Featheringham Eric Froman Richard Hertling Claire Hillan Sosa Ryan Holte Armen Kharazian Kitty Lees Carolyn Lerner Shakira Mack Susan Mitchell Bradley Richardson Jessica Rodgers Kara Rollins

Katherine Roman Otero Preston Rutledge Thomas Viles Mary Ellen Williams Christopher DiPompeo* Theresa Kraft* Miguel Serrano* Kel McClanahan

Federal Bar Association

of

REINVEST RECONNECT RENEW