Florida Undergraduate Law Review | Volume 1 | Spring 2024

1405 W University Ave, Gainesville, FL 32611 | fulr.org All opinions expressed herein are those of individual authors and are not endorsed by the Florida Undergraduate Law Review. The FULR is a student-run organization and does not reflect the views of the University of Florida.

Florida Undergraduate Law Review Vol. 1 ————————– Spring 2024

Our Mission Founded in 2024, the Florida Undergraduate Law Review is a student-run publication at the University of Florida, dedicated to fostering a dynamic and inclusive publication for undergraduate students passionate about law.

Recognizing the imperative to develop legal acumen for the aspiring undergraduate, FULR strives to reshape the future of legal scholarship by providing a unique space to challenge conventions, develop legal writing skills, and publish work. By extending an opportunity denied to the vast majority of undergrads, FULR hopes to nurture a community of forward-thinking individuals committed to making a positive impact in the legal field and beyond.

Table of Contents Letter from the Editors-in-Chief ...........................................................................vii Faculty Foreword ...................................................................................................ix What It Means to Engage in Insurrection: A Synthesis of the Debate Over Definition Nadaroopa Saraswathi Mohan ’26 ..................................................................1 Disney, DeSantis, and the Future of Free Speech Carlos Alemany ’25 ......................................................................................13 West Virginia v. EPA: The “Major Questions Doctrine” and its Effects on Environmental Legal Protections Jess Chisholm ’27 ..........................................................................................25 Regional Climate Refugee Policies: Expanding Legal Frameworks Ana Ferreira ’26 ...........................................................................................33 Lost in a Divide: The Relationship Between Politics and Precedent Amelia Garvey ’26 ........................................................................................41 Lawrithms; Predictive Regression Models in Judicial Systems Lily Haak ’25 ................................................................................................49 Dystopian America and the Overgrown Tree of Monopoly: A Legal Study on the Causes of and Solutions to Insulin Inaccessibility Eric Han Ruilong ’27 ....................................................................................61 The Essential Function of the Supreme Court: A Dialogue Wesley Holston ’26 ........................................................................................75 Livestock Slaughter in the United States: Ethical Implications of the Humane Methods of Slaughter Act of 1958 Kristina Kianovski ’27 ..................................................................................85 Regulating Tech Titans — Why Section 230(c) Needs Revision Anneka Lupinek ’27 ......................................................................................97 Knowing and Culpability in Criminal Law Nicholas Randazzo ’26 .................................................................................109 The COMPAS Conundrum: Navigating Transparency and Fairness in AI-Assisted Criminal Justice Paolina Salas ’26 ........................................................................................119 Primed for Psychology: How Legal Reform Requires Social Science Kemarah Thermidor ’27 .............................................................................129

MASTHEAD President

Editor-in-Chief

SEBASTIAN SMITH

JONATHAN HUFFINE

Managing Editor IAN ZHOU

Director of Formatting LILY HAAK

Graphic Designer HANNAH FISHER

Editors JEFFREY DREW MADISON DURAND BRANDON LEPINE

ANDRES TEIXEIRA TIFFANY YU ABRAHAM HILU

Dear Reader, It is my utmost honor to present the inaugural edition of the Florida Undergraduate Law Review. FULR was created to fill a void in the University of Florida’s campus, seeking to construct a channel for undergraduates to engage in rigorous legal analysis and discussion. In the ever-evolving landscape of law, curating such a venue is imperative. This is FULR’s mission, and this first edition represents the year-long collective effort to fulfill this ambition.

This publication serves as a platform for undergraduate students to offer fresh and innovative ideas on a wide range of legal issues. Within these pages, you will find articles spanning different legal disciplines and you can trust that each piece represents a unique probe into intricate legal concepts. The meticulous research done by each author demonstrates the unwavering fervor that encapsulates students here at UF. This edition could not have been possible without the eager assistance of countless individuals. As mere students, we united to create something far beyond our individual capacities. Every individual listed in this journal has made indispensable contributions to this issue. While I wish I could thank everyone individually, there are two names in particular that I would like to highlight. The first is Sebastian Smith, our President. He came to me with the plan for FULR one summer ago, and it is in his vision that I tirelessly followed. I am delighted with the growth of the organization so far, and this semester has been more rewarding than I ever could have imagined. Next, I would like to thank Ian Zhou, our Managing Editor, for being the best right-hand man I could have ever asked for. I am profoundly thankful for his insight and efforts during this journey.

Unfortunately, this issue of FULR will be my last as Editor-in-Chief, as I am graduating at semester’s end. Seeing this group materialize from dreams to reality has been the opportunity of a lifetime, and it has been an absolute honor to serve in this role. I will never forget the countless hours of collaboration and perseverance that have made FULR possible. I wish my time here was not so short; however, I am confident in Ian’s ability to uphold and advance the academic scholarship of this organization. I know that FULR is in good hands.

Jonathan Huffine Editor-in-Chief, Florida Undergraduate Law Review

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Dear Reader, I am honored to present the inaugural edition of the Florida Undergraduate Law Review.

In accordance with our commitment to diversity in legal scholarship, our collection of articles stems from writers of varied perspectives and backgrounds.

In this issue, our authors explore a wide breadth of topics, ranging from philosophical arguments of criminal culpability to pressing issues of artificial intelligence usage in court.

Beyond civil rights and liberties, our exploration extends to the legally applied ethics of animal rights and psychological insights behind legal prejudice. Through their research and scholarship, our authors extract critical insights from the interwoven problems of society.

This semester’s issue would not have been possible without the diligent enthusiasm of our executive board, editing staff, and journal authors. Their tireless contributions and passions for law have culminated in the creation of an invaluable resource for undergraduate legal scholarship, here at Florida and elsewhere. But, beyond the research conducted and sections drafted, our most important accomplishment has been the very dream of this organization: the experience and opportunity to develop legal thinking at an undergraduate level. In addition, I would like to thank the editor-in-chief, Jonathan Huffine, for his unwavering support and dedication to the vision of this journal. Together, we have and will continue to transform ideas into reality.

Lastly—but most importantly—I urge you, dear reader, to think deeply and critically regarding the issues you encounter in your perusal. In late 1787, Thomas Jefferson once wrote to American statesman Uriah Forrest, “Educate and inform the whole mass of the people. . . they are the only sure reliance for the preservation of our liberty.” Understanding the legal world edifies us to ruminate beyond the academic world, on the small issues and events we encounter and read every day. To us, this is the true spirit of the law review.

Ian Zhou Managing Editor, Florida Undergraduate Law Review

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Faculty Foreword: A Message for the University of Florida’s Future Lawyers of America 2024 marks the inaugural publication of the Florida Undergraduate Law Review (FULR). To contribute to the occasion, I was asked to prepare a message for you, the ‘Future Lawyers of America,’ who make up the organization. Given how much reading you will be required to do in law school, it seems to me that this occasion provides an opportunity to reflect on what I hope you will remember about reading and, more importantly, about engaging with texts generally. These skills, amongst others you’ve acquired, will help you navigate life after your University of Florida education.

I’d like to begin, however, with an anecdote about the background of FULR. In 2023 I was teaching American Political Thought when a student approached me with an idea to form a journal. He reached out to existing publications in Florida about contributing to their projects, but they were unresponsive. Not to be dismayed, he decided he would start his own journal. And he did. Sebastian Smith, now president of FULR, recruited a team equally enthusiastic about law, and together they created a journal by undergraduates, for undergraduates.

While some of you may be familiar with FULR’s origin story, you may not know that the week Sebastian approached me about starting a journal, we were studying Benjamin Franklin. I gesture that Franklin’s spirit of independence and hard work is embodied in this journal. The members of the executive board and editing staff took an idea and developed it into a respectable printing venture. Although Franklin never practiced law, he cultivated his intellect, and his friendships, through voracious reading. In his autobiography, he describes transformative conversations with avid readers and the manifold benefits of surrounding oneself with ‘lovers of reading.’

With the formation of this journal, the FULR team has fashioned a space that allows for the cultivation of self through reading and writing with others. Read a lot. Read widely. And read with a pen in your hand. As Franklin notes, and as I will discuss in the conclusion, this can greatly influence your ability to contribute to society. In what follows, I add that approaching reading descriptively, reflexively, and analytically will be helpful for school, but more deeply, for developing key skills required for the world you are inheriting.

As you read, take descriptive notes about the authors’ arguments. When you find ix

an especially good passage of writing, jot it down. Through descriptive notes, the goal is to understand what an author is trying to say on their own terms. This is no easy task. It requires you to use good judgment to determine which parts of the text are important to describe and to capture good textual evidence that conveys the author in their own voice. Describing too much will be tedious and extremely time-consuming. Describing too little will make it difficult to understand the whole of the text and to learn from your notes later. Finding the right balance is crucial.

When done right, learning how to describe an author’s argument will be beneficial for your pursuits in law and, hopefully, beyond it.

Second, through reflexive notes, be cognizant about how a text hits you on a personal level and how what you read relates to other things you’ve learned or experiences you’ve had. Basically, be aware of your reflexes. Notes of this category are best when they explain what an example, tone, or idea made you feel and why, or what something in the reading reminded you of from a movie, book poem, historical event, another class, etc. Innovation often stems from the cross-pollination of ideas between different contexts. The most important part of reflexivity in this context is that you are alert and conscious of the reflexes a text brings out. When done right, cultivating reflexivity brings the texts you read to life in ways that a cursory or distracted reading never could.

Third, noting points of analysis, think about how you might deconstruct specific arguments. By asking good questions about an author’s arguments while you read, you are setting yourself up for the critical thinking required to judge the merit of what you are reading. This can be done in several ways, but asking whether assumptions of an argument are warranted, whether the reasoning is relevant and sufficient, and/or whether relevant information has been omitted from an author’s argument are good places to start. When done well, thinking about analysis and documenting ideas in your notes enhances your argumentative abilities. Doing so gets you in the habit of recognizing fallacies to avoid or good argumentative structures to mimic in your own writing.

This inaugural edition contains reflections on a diverse array of well-described issues, many of which showcase analytical strength and reflexive creativity. From Amelia Garvey’s exploration of the nexus between politics and legal precedent to Eric Han’s examination of insulin accessibility, each contribution offers fresh commentary on legal issues. Ana Ferreira expands our understanding of climate refugee policies, while Kemarah Thermidor highlights the role of social science in legal rex

form. Nicholas Randazzo navigates the complexities of culpability in criminal law, and Kristina Kianovski scrutinizes the ethical implications of livestock slaughter practices. Paolina Salas sheds light on the challenges of fairness and transparency in AI-assisted criminal justice, while Anneka Lupinek advocates for the revision of Section 230(c) to regulate tech giants. Nadaroopa Saraswathi discusses the discourse of insurrection, and Jess Chisholm examines the ramifications of the ‘Major Questions Doctrine’ on environmental protections. Lily Haak explores the implications of predictive models in judicial systems, and Carlos Alemany discusses the future of free speech. Clearly, there is no shortage of challenges and disruptions in our world.

Yet, after witnessing your grit and determination in putting this journal together, I am filled with confidence that should you choose to, you can harness your skills to address our many challenges.

I want to conclude with a well-deserved congratulations to the Florida Undergraduate Law Review team. The founding ethos of FULR is a testament to initiative, diligence, and the transformative power of engaging thoughtfully with texts and taking what you learn to make the world a better place. As you transition to your careers, I encourage you to take time for self-reflection without technological distractions. And to continue to approach what you read descriptively, reflexively, and analytically. As Benjamin Franklin described, the journey of nurturing your intellect and character through reading isn’t just about professional success—it’s about finding personal fulfillment and making a meaningful difference in the tumultuous world you are inheriting.

All my best wishes,

Glen M. Billesbach II Ph.D. Candidate

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What It Means to Engage in Insurrection: A Synthesis of the Debate Over Definition Nadaroopa Saraswathi Mohan ’26 Spring 2024

FLORIDA UNDERGRADUATE LAW REVIEW

Abstract Section 3 of the Fourteenth Amendment to the Constitution is an immensely important provision; however, it had not been considered thoroughly in legal discourse until the events of January 6, 2021. Former president Donald Trump’s alleged involvement in the January 6th Insurrection raises important questions about what the phrase “engaging in insurrection” in Section 3 of the Fourteenth Amendment means. This paper delves into the historical background of Section 3, examines some purported definitions for “engaging in insurrection,” and applies such definitions to Donald Trump’s actions on and leading up to January 6th. While this paper synthesizes a portion of the debate surrounding Section 3, it is by no means a complete analysis of every issue present in the text. Further consideration of the matter is beyond the bounds of this paper but should factor in whether the president is an officer of the United States and whether Section 3 is self-enacting. The determination of whether or not Donald Trump engaged in insurrection is more complicated than it seems, but careful analysis of Section 3 is necessary to ensure that all candidates seeking office in the 2024 presidential election are eligible for office.

I

Introduction

In light of the imminent 2024 presidential election’s rematch between President Joseph Biden and former President Donald Trump, the question of eligibility for office based on Section 3 of the Fourteenth Amendment has greater weight than ever.

On January 6th, 2020, Trump addressed a crowd of supporters at the Ellipse, where he repeated earlier claims that the election had been “stolen” from him. He also urged his supporters to march to the Capitol to prevent a joint session of the United States Congress from affirming the Electoral Ballot count, saying, “If you don’t fight like hell, you’re not going to have a country anymore.” In the same speech, he said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”1 Trump’s supporters then marched to the Capitol and broke into the building, causing members of Congress to shelter in a safe place.2 Since the January 6th Riot, the former president has been heavily criticized for his role. His political opponents have argued that his words incited the actions of the rioters who breached the Capitol and threatened members of Congress. His political supporters have argued that Trump has no responsibility for the attack. Since 1 2

Brian Naylor, Read Trump’s Jan. 6 Speech, a Key Part of Impeachment Trial, NPR, 2021.

Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW the beginning of the 2024 election cycle, the word “insurrection” has been thrown around frequently. Trump’s political opponents have argued that the January 6th Riot was an insurrection, that Trump engaged in insurrection, and that he is thereby disqualified from office according to Section 3 of the Fourteenth Amendment, which is as follows: No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.3 The question of whether or not Donald Trump engaged in insurrection is complicated for several reasons. Historical context makes the meaning of certain phrases within Section 3 of the Fourteenth Amendment unclear, and there are several unresolved issues with regard to the text’s applicability to the events that transpired on January 6th. These include whether the president is considered an officer of the United States, whether January 6th was an insurrection, and what actions constitute “engaging in insurrection.” To answer any of these questions, however, it is crucial to first understand what sort of behavior is “engaging” in insurrection. Section II of this paper will provide a historical background for Section 3 of the Fourteenth Amendment. Section III will examine some proposed definitions for insurrection.

Section IV will apply the best definition to Donald Trump’s actions on January 6th to determine whether he engaged in insurrection. Section V will identify some further areas for research.

II

Historical Background for Section 3 of the Fourteenth Amendment

The ratification of the Fourteenth Amendment took place under a unique historical context that clarifies the spirit of Section 3. The 39th Congress—which drafted, 3

U.S. Const., amend. XIV, § 3.

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FLORIDA UNDERGRADUATE LAW REVIEW proposed, and approved the Fourteenth Amendment before turning the amendment over to the states for ratification—convened before the Civil War ended.4 The 38th Congress had a Republican majority, but it was not sizable; there were 32 Republicans and 18 Democrats in the Senate and 104 Republicans and 81 Democrats in the House of Representatives.5 Thus, Republicans constituted 64% of the Senate and 56% of the House of Representatives. While the Republicans held a majority in Congress, they did not have the two-thirds majority necessary to propose an amendment to the Constitution until the 39th Congress. When the 39th Congress convened, there were 44 Republicans and 12 Democrats in the Senate and 155 Republicans and 46 Democrats in the House of Representatives.6 Percentage-wise, Republicans constituted 79% of the Senate and 77% of the House of Representatives.

Thus, they had finally amassed enough party support in Congress to begin the urgent process of ending the Civil War and starting Reconstruction.

Moreover, the 39th Congress convened well before the Civil War was truly over.

Robert E. Lee surrendered to Ulysses S. Grant in April of 1865, a month after the 39th Congress had already convened. However, fighting continued. By the time Confederate President Jefferson Davis was captured on May 10, 1865, the Civil War was virtually over, but small skirmishes continued until December of that year.

President Andrew Johnson did not declare the end of the insurrection in all states except Texas until April 1866, and he did not declare the end of the insurrection in Texas until August 1866.7 Therefore, the 39th Congress was operating under incredible uncertainty about the future of the Union. In addition to the charge of ending the Civil War, the 39th Congress had the tremendous task of legislating to ensure peace. Understanding the uncertainty that the 39th Congress was facing helps to elucidate the intent of the framers of the Fourteenth Amendment in drafting Section 3. It was not merely to end the Civil War and create peace and ensure equal rights for all; it was to create peace and ensure equal rights for all for posterity.

Essentially, their task was to prevent the Civil War from reoccurring.

To do so, the 39th Congress had to ensure that the legislation they passed during their session would not be repealed after they left office. The biggest threat to this goal was the ability of former Confederate soldiers and commanders to run for Congress. If former Confederates were able to offset the constitutional majority that Republicans had gained (or if they gained a majority themselves), there was a strong possibility that contestation of the Thirteenth Amendment and Fourteenth 4

Richard L. Aynes, ”The 39th Congress (1865-1867) and the 14th Amendment: Some Preliminary Perspectives,” Akron Law Review: Vol. 42 (2009): Iss. 4, Article 2.

5 Ibid.

6 Ibid.

7 Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW Amendment by future sessions of Congress would ruin the peace that the 39th Congress had carefully created. As John A. Bingham (R-OH), who drafted the Fourteenth Amendment, said: . . . in order to show the danger to the peace of the country, I beg leave to say further. . . among these returning prodigal rebels for whom we are invited. . . to take possession of the legislative power of this country, and accomplish by corrupt legislation what they failed to accomplish by arms.8 Thus, the framers of the Fourteenth Amendment sought to secure peace for the future by restricting former Confederate soldiers—specifically, those former Confederates who broke their oaths by aiding the insurrection—from holding office and reigniting the discord of the Civil War. However, the 39th Congress also stated that this disqualification from office could be lifted by a two-thirds vote by Congress, which enabled the Amnesty Act of 1872 to lift bars to office six years after they were initiated.9 This provision of the Fourteenth Amendment implies that the framers of the Fourteenth Amendment wanted to moderate the impact of Section 3. If the framers sought a broad and strict disqualification of officers who broke their oath by engaging in insurrection, they would not have included this provision, which enables Congress to pardon insurrections. In giving Congress this power, rather than the President, they ensured that the disqualification could be lifted but only with a supermajority in Congress.

Thus, the framers of the Fourteenth Amendment balanced the public interest in ensuring peace for future generations against recognizing the severity of barring someone from holding public office. The charge of insurrection, and the subsequent consequences, are not to be taken lightly.

Any definition of “engaging in insurrection,” then, must be broad enough to convey the 39th Congress’s purpose in creating Section 3 of the Fourteenth Amendment while also being limited enough to prevent undue disqualification of citizens for merely expressing a viewpoint critical of the government. The next section of this paper will examine definitions of “engaging in insurrection” to determine which interpretation best aligns with the historical context surrounding Section 3 of the Fourteenth Amendment.

8

John Armor Bingham and Miscellaneous Pamphlet Collection, One country, one Constitution, and one people.

9 U.S. Const., Amend. XIV, § 3.

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III

Examining Definitions of “Engaging in Insurrection”

This article will consider three definitions of the phrase engaging in insurrection: the definitions used by Reconstruction Era courts in Worthy v. Barrett and United States v. Powell and the definition proposed by the authors of “The Sweep and Force of Section Three” from the University of Pennsylvania Law Review.

In Worthy v. Barrett, the North Carolina Supreme Court defined “engaging in insurrection” as follows: Voluntarily aiding the rebellion, by personal service or by contributions, other than charitable, of anything that was useful or necessary in the Confederate service.10 The issue with this definition is that it is also vague. “Personal service” and “useful or necessary” actions are undefined, leading to the same problems of interpretation that the original text of Section 3 creates. By this definition, any sort of personal action that was even minimally helpful to an insurrection would be considered “engaging in insurrection.” The following hypothetical scenario illustrates the problematic scope of this definition. Imagine that Joe the Grocer is arranging his fruit stand in the morning. A group approaches Joe the Grocer and tells him that they plan on staging an insurrection, but they have not eaten in days and require food to perform. Joe the Grocer prepares fruits for the group and feeds them for free. Did Joe the Grocer engage in insurrection?

Joe the Grocer’s actions were instrumentally valuable to the group—after all, the group would not have been strong enough to stage an insurrection without sustenance from Joe the Grocer—but there is no indication that Joe the Grocer intended to participate in an insurrection merely by giving the group food. Yet the definition in Worthy v. Barrett would classify Joe the Grocer as having engaged in an insurrection. Joe the Grocer’s action was a contribution (of food) that was useful and necessary for the insurrection, but any reasonable person would hesitate to claim that Joe the Grocer engaged in insurrection because he indirectly aided it.

That is, he helped the people committing insurrection, but it is not clear that he intended to rebel against the government himself.

A definition for a charge as weighty as insurrection should not implicate people whose contributions were nonviolent. Granted, Joe the Grocer is not a public officer who took an oath to uphold the laws of the United States, but the case demonstrates 10

Worthy v. Barrett and Others, 63 N.C. 199 (N.C. 1869).

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FLORIDA UNDERGRADUATE LAW REVIEW the danger inherent in an overly broad interpretation of engaging in insurrection.

Another Reconstruction Era court defined “engaging in insurrection” in a similarly vague manner. The district court in United States v. Powell defined “engaging in insurrection” as a “voluntary effort to assist the Insurrection.”11 This definition is even more unclear; the scope of the term “effort” could encompass a wide range of actions. If litigated, the question of how useful an action must be to be considered engaging in insurrection would likely come down to the judge’s discretion. But this yields too much opportunity for confusion and partisan bias; a definition for “engaging in insurrection” ought to avoid such confusion.

In “The Sweep and Force of Section 3,” William Baude and Michael Stokes Paulsen propose the following definition: We believe one has “engaged” in insurrection or rebellion when one has been actively involved in the planning or execution of intentional acts of insurrection or rebellion, or when one has knowingly provided active, meaningful, voluntary, direct support for, material assistance to, or specific encouragement of such actions. Such planning, participation, support, assistance, or encouragement may be in the form of either words or deeds, as long as the person who has “engaged in” such activities embraced the objectives of the insurrection or rebellion in question and did things that contributed in a meaningful way to advancing those objectives.12 This definition is much more precise. In contrast to the definitions used in Worthy v. Barrett and United States v. Powell, the definition that Baude and Paulsen propose adequately incorporates the spirit of Section 3 while clearly defining the sorts of actions that qualify as “engaging in insurrection.” Baude and Paulsen’s definition is broad enough to encompass a range of activities, as indicated by the use of the conjunction “or” in lines 2, 3, and 4 of the definition.13 The United States has an interest in keeping a broad definition of “engaging” in insurrection to encapsulate the vast range of activities that could materially support an insurrection. A broad definition ensures that anyone who broke their oath by meaningfully aiding in planning or executing an insurrection cannot hold office again. The voluntary violation of their constitutional duties demonstrates an opposition to the authority of the government and demonstrates that they cannot be trusted to hold office. At the same time, Blaude and Paulsen’s definition only implicates people who meaningfully 11

United States v. Powell, 27 F. Cas. 605, 607 (C.C.D. N.C 1871.

William Baude and Michael Stokes Paulsen, The Sweep and Force of Section Three.

13 Ibid.

12

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FLORIDA UNDERGRADUATE LAW REVIEW contribute to the objectives of insurrection and perform actions that demonstrate the intent to do so.14 This distinction separates genuine insurrectionists from people who did things that were useful to the insurrection, but who did not embrace its objectives or seek to further those objectives—like Joe the Grocer. Having established the merits of the definition proposed by Blaude and Paulsen, the next section of this paper will apply this definition to Donald Trump’s actions on January 6, 2021, to determine if he engaged in insurrection.

IV

Examining the Events of January 6, 2021 with a New Definition

In analyzing whether former President Donald Trump engaged in insurrection, this paper will evaluate whether Trump’s actions met both conditions of this definition. The first condition is that one “has been actively involved in the planning or execution of intentional acts of insurrection or rebellion, or when one has knowingly provided active, meaningful, voluntary, direct support for, material assistance to, or specific encouragement of such actions.”15 The second condition is that one’s actions “embraced the objectives of the insurrection or rebellion in question and did things that contributed in a meaningful way to advancing those objectives.”16 Donald Trump’s actions on January 6th meet the first condition. His words and rhetoric on January 6th constitute active, meaningful, and voluntary encouragement of the insurrection. There are multiple instances where Trump’s words stoked the mob and encouraged their actions, but one sticks out: his speech on January 6th.

In his speech, Trump said, “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”17 Some have argued that this statement was simply rhetorical, which absolves Trump of responsibility for inciting an insurrection.18 However, this statement was not merely rhetorical. According to testimony by a former White House aide, Cassidy Hutchinson, Trump knew that his crowd of supporters on January 6th was armed.19 With this knowledge, using inflammatory rhetoric with the specific phrase “fight like hell” amounts to a clear 14

Ibid.

Ibid.

16 Ibid.

17 Brian Naylor, “Read Trump’s Jan. 6 Speech, a Key Part of Impeachment Trial,” NPR, 2021.

18 Gavin M. Wax and National Constitutional Law Union Inc., Brief for SCOTUS as Amicus Curiae.

19 Jonathan Allen, ”’They’re Not Here to Hurt Me’: Former Aide Says Trump Knew Jan. 6 Crowd Was Armed,” NBC News, 2022.

15

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FLORIDA UNDERGRADUATE LAW REVIEW instruction to a sycophantic crowd to march to the Capitol and use their weapons and mass to “stop the steal.” This instruction demonstrates specific encouragement of the mob’s violent, reactionary behavior. Moreover, the speech was riddled with claims that the 2020 election was fraudulent and that Trump and his supporters must work to overturn the “fraudulent” election. At one point, Trump said, “When you catch somebody in a fraud, you’re allowed to go by very different rules.”20 This statement, with the knowledge that Trump had of the crowd’s vitriol and weaponry, essentially validates their plans. It is a statement that legitimized the mob’s goal of forcibly overtaking the Capitol, as it acted as a signal to Trump’s supporters that they were allowed to unlawfully attack the Capitol because they could play by different rules. Thus, Donald Trump’s words on January 6th qualify as active, meaningful, and voluntary encouragement of the insurrection.

Donald Trump’s words embraced the objectives of the insurrection and contributed in a meaningful way to advancing those objectives. The objective of the insurrection was to prevent the election results from being certified by Congress. In his speech to the crowd, Trump used the phrase “stop the steal” twice, the phrase “take back our country” twice, the words “fraudulent” or “fraud” twenty-two times, and the word “illegal” in reference to the election twenty-three times.21 The diction in Trump’s speech is aimed at a clear objective: establishing that the election was stolen to motivate the mob into attacking the Capitol because he believed that Republicans in Congress and Mike Pence would not follow his instructions to decertify the election results. Thus, Trump’s words embraced the objectives of the insurrection. His words—in the speech and before January 6th—also contributed meaningfully to the advancement of that objective. Ed Badalian, a January 6th insurrectionist who was found guilty of conspiracy to commit an offense against the United States, wrote in a chat named “Patriots 45 MAGA Gang” that “Our duly elected leader has called his marching orders, we gotta show up,” on December 21st.22 Ed Badalian used a stun gun on the neck of a Washington, D.C., police officer.23 The chatroom message indicates that—at least for Badalian—Trump’s words encouraged unlawful and violent behavior towards officials of the government on January 6th. Another defendant, Deborah Sandoval, wrote in her group chat, “Hey, we’re going back to Washington January 6. Trump has called all patriots. If the electors don’t elect, we will be forced into civil war.”24 An analysis by Citizen 20

Brian Naylor, “Read Trump’s Jan. 6 Speech, a Key Part of Impeachment Trial,” NPR, 2021.

Ibid.

22 Ryan J. Reilly, ”Jan. 6 Rioter Who Said He Was Following Trump’s ’Marching Orders’ and Wanted to Arrest Biden and Pelosi Is Found Guilty,” NBC News, April 4, 2023.

23 Ibid.

24 Clark Kauffman, ”Mother-and-son Duo Who Rioted at U.S. Capitol to Be Sentenced in April,” 21

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FLORIDA UNDERGRADUATE LAW REVIEW for Responsibility in Washington (CREW) indicates that of the 210 people charged for crimes committed on January 6th who claimed to be answering Trump’s call to action, 120 cited Trump’s remarks as their reason for storming the Capitol.25 The fact that the crowd dispersed after Donald Trump tweeted at them to go home is the most damning indication that Trump’s words spurred the mob.26 If Trump had not used inflammatory language before and during January 6th to goad the crowd into attacking the Capitol, the January 6th insurrection would not have happened.

Undeniably, Donald Trump’s words embraced the objectives of the insurrection and contributed in a meaningful way to advancing those objectives.

V

Conclusion

This article has focused on the phrase “engaging in insurrection” to determine whether Donald Trump is barred from office by Section 3 of the Fourteenth Amendment. To answer this question, it has analyzed the historical context of Section 3 to glean its purpose, examined some definitions of “engaging in insurrection,” and analyzed the words that Donald Trump used with his supporters on and leading up to January 6th. However, this synthesis is by no means a complete overview of Trump’s eligibility for office according to Section 3. Several questions—such as what definition of “engaging in insurrection” should be used legally, who should create this definition, how Section 3 should be enforced, and whether the office of the President is implicated by Section 3—remain unanswered. In the interest of brevity, there are definitions for insurrection used in case law and textbooks that this paper could not address, tweets and statements that the former president made that could not be analyzed, and alternative perspectives on whether Trump should be excluded from the ballot for only his words. A complete, informed perspective on the issue requires a nuanced understanding of all of these topics, and the author of this paper encourages all readers to conduct further research.

NBC News, December 22, 2022.

25 Citizens for Responsibility and Ethics in Washington, “Trump Has Called All Patriots”: 210 Jan. 6th Criminal Defendants Say Trump Incited Them,” Citizens for Responsibility and Ethics in Washington (CREW), 2024.

26 Ibid.

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Works Cited Allen, Jonathan. ”’They’re Not Here to Hurt Me’: Former Aide Says Trump Knew Jan. 6 Crowd Was Armed.” NBC News, 2022. Source.

Aynes, Richard L. The 39th Congress (1865-1867) and the 14th Amendment: Some Preliminary Perspectives, Akron Law Review: Vol. 42 (2009): Iss. 4, Article 2. Source.

Baude, William, and Michael Stokes Paulsen. The Sweep and Force of Section Three. University of Pennsylvania Law Review, Vol. 172, p. 605, 2024. Source.

Bingham, John Armor, and Miscellaneous Pamphlet Collection. One Country, One Constitution, and One People. Speech of Hon. John A. Bingham, of Ohio, in the House of Representatives, In Support of the Proposed Amendment to Enforce the Bill of Rights. [Washington, Printed at the Congressional Globe office, 1866] Pdf. Source.

Citizens for Responsibility and Ethics in Washington. ”’Trump Has Called All Patriots’: 210 Jan. 6th Criminal Defendants Say Trump Incited Them.” Citizens for Responsibility and Ethics in Washington (CREW), 2024. Source.

Kauffman, Clark. ”Mother-and-son Duo Who Rioted at U.S. Capitol to Be Sentenced in April.”

NBC News, 2022. Source.

Naylor, Brian. “Read Trump’s Jan. 6 Speech, a Key Part of Impeachment Trial.” NPR, 2021.

Source.

Reilly, Ryan J. ”Jan. 6 Rioter Who Said He Was following Trump’s ’marching Orders’ and Wanted to Arrest Biden and Pelosi Is Found Guilty.” NBC News, 2023. Source.

United States v. Powell, 27 F. Cas. 605, 607 (C.C.D. N.C 1871).

U.S. Constitution, Amend. XIV, § 3.

Wax, Gavin M. and National Constitutional Law Union Inc. Brief for SCOTUS as Amicus Curiae, p. 9, Trump v. Anderson, 601 U.S. (2024). Source.

Worthy v. Barrett and Others, 63 N.C. 199 (N.C. 1869).

11

Disney, DeSantis, and the Future of Free Speech Carlos Alemany ’25 Spring 2024

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Abstract When a law is challenged on First Amendment grounds, courts are expected to weigh the constitutional legitimacy of the law upon its explicit terms and the effect of its application on First Amendment freedoms.1 A facially constitutional statute cannot face free speech challenges on the basis of illicit or otherwise malicious legislative intent.2 Be that as it may, in this particular case, what ought to be relied upon is a simple application of the basic principle of causation. A company had publicly expressed its opinion on a law, which, in turn, caused the government to retaliate against said company for expressing an opinion it did not like. Notwithstanding the prevailing contentious debate surrounding the personhood and conscious capacity of corporate entities, the fact remains that The Walt Disney Company is entitled to political speech protections under the First Amendment, and is thus positioned to challenge the state for any tangible infringements made against said protections.3 More importantly, the broader implications of this case necessitate a series of objective constitutional tests to serve as instruments for courts to directly inquire about the motive and intent behind legislation affecting First Amendment freedoms.

Through a series of evidence revealing explicit retaliatory intent, the first section of this article challenges the state’s insistence on operating on a rational basis in removing Disney’s special district status. The second section briefly outlines the doctrines of the existing First Amendment safeguards in place. Finally, the third and fourth sections explore the extent to which a series of objective constitutional tests, doctrines, and definitions safeguarding against retaliatory legislation can be reasonably explored and constructed within the wider context of American jurisprudence.

I

Introduction

In 1967, four years before The Walt Disney Company had opened its first theme park in Orlando, the Reedy Creek Improvement District, encompassing 38.5 square miles and the municipalities of Reedy Creek and Bay Lake was established. Until 2023, The Walt Disney Company had enjoyed voting rights that had amounted to 1

Kagan, Elena. “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” The University of Chicago Law Review 63, no. 2 (1996): 413.

2 United States v. O’Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672, 1968 U.S. LEXIS 2910 (Supreme Court of the United States May 27, 1968, Decided).

3 Citizens United v. FEC, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753, 2010 U.S. LEXIS 766, 78 U.S.L.W. 4078, 159 Lab. Cas. (CCH) P10,166, 187 L.R.R.M. 2961, 22 Fla. L. Weekly Fed. S 73 (Supreme Court of the United States January 21, 2010, Decided).

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FLORIDA UNDERGRADUATE LAW REVIEW complete land use control of the district’s board, where the company was left responsible for providing all respective power, water, roads, police, and fire protection within the district, with residents of the surrounding Orange and Osceola counties remaining tax-exempt towards those services. The dissolution of the Reedy Creek Improvement District has left The Walt Disney Company subject to land use decisions by a board that is selected by the Governor and approved by the Senate, in what is now known as the Central Florida Tourism Oversight District, over which the company has no control. The Walt Disney Company asserts that such a loss of control amounts to a constitutional injury that is directly tied to the state-appointed board that is empowered to make critical land use decisions that could impede any future projects or developments the company seeks to pursue.4 The Walt Disney Company claims that evidence of legislative animus invalidates the constitutional validity of legislation stripping the company of its special district status. The source of such animus, The Walt Disney Company alleges, originates from the company’s public opposition to the Parental Rights in Education Act (otherwise known as the “Don’t Say Gay” law). In its pursuit of declaratory and injunctive relief following the dissolution of its special district status, The Walt Disney Company had filed a complaint against Governor Ron Desantis, the Secretary of Florida’s Department of Commerce, and all members of the CFTOD board to the United States District Court for the Northern District of Florida. The District Court had granted the Governor and the Secretary’s motion to dismiss, holding that Disney had lacked proper standing to sue and citing Eleventh Amendment immunity protections. In its review of the merits of Disney’s claims against the CFTOD board, the District Court had concluded that a facially constitutional statute invalidates any free speech challenges that call into question the intention of lawmakers.5

II

Trouble in the Magic Kingdom

On March 28, 2022, the Florida Legislature passed the Parental Rights in Education Act (HB 1577), garnering notoriety among critics as the ”Don’t Say Gay Bill.”6 On March 9, the then parent CEO of The Walt Disney Company, Bob Chapek, had personally called Governor Ron DeSantis to outline his concerns with HB 1577.

4

Walt Disney Parks & Resorts United States, Inc. v. DeSantis, 2024 U.S. Dist. LEXIS 23022, F.Supp.3d (United States District Court for the Northern District of Florida, Tallahassee Division January 31, 2024, Filed).

5 Ibid.

6 WALT DISNEY PARKS AND RESORTS US INC v. DESANTIS, 4:23-cv-00163, (N.D. Fla. Apr 26, 2023) ECF No. 1

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FLORIDA UNDERGRADUATE LAW REVIEW Mr. Chapek was warned by the Governor that ”it was a mistake for Disney to get involved,” and that ”it’s not going to work out well for you.”7 Upon receiving notice that The Walt Disney Company would be pausing further campaign donations to the state, Governor DeSantis would proceed to inform prominent donors that ”[w]oke Disney is now echoing the Democrat propaganda and falling for the corporate media’s phony hysteria over a Florida bill that sensibly prohibits K-3rd graders from being indoctrinated with transgenderism and R-rated lessons about sexuality.”8 Not long thereafter, Walt Disney World would release the following statement in response: “To ALL who come to this happy place, welcome. Disney Parks, Experiences and Products is committed to creating experiences that support family values for every family, and will not stand for discrimination in any form. We oppose any legislation that infringes on basic human rights, and stand in solidarity and support our LGBTQIA+ Cast, Crew, Imagineers, and fans who make their voices heard today and every day.”9 On March 28, Governor Desantis officially signed the Parental Rights in Education Act into law. That same day, The Walt Disney Company issued a public statement expressing its opposition to legislation that it believed “never should have been signed into law,” and further reiterating that the company “remain[ed] committed to supporting the national and state organizations” working to repeal the law.10 The very next day, Governor Desantis had made clear that Disney’s statement had “crossed the line,” and pledged to “make sure we’re fighting back.”11 The Governor elaborates in his memoir that “[t]hings got worse for Disney.” “In promising to work to repeal the bill,” he asserted, “the company was pledging a frontal assault on a duly enacted law of the State of Florida.”12 On April 19, Governor DeSantis called upon the Legislature to expand a special session that had been scheduled to address redistricting the more than one thousand independent special districts that were created before the passage of the 1968 Florida Constitution, including the Reedy Creek Improvement District.13 That same day, 7

Kimberly Leonard, ”Florida Gov. Ron DeSantis Said He Warned Disney Not to Get Involved in Schools Debate: ‘It’s Not Going to Work Out Well for You,’” BUSINESS INSIDER (June 8, 2022).

8 Cortney Drakeford, ”‘Woke Disney’ Trends After Gov. Ron DeSantis Attacks Company for Freezing Campaign Donations,” INT’L BUS. TIMES (Mar. 12, 2022).

9 Andrew Krietz, ”Disney Releases Statement As DeSantis Prepares To Sign Bill Limiting Teachings About Sexual Orientation,” Gender, WTSP (Mar. 22, 2022).

10 Press Release, The Walt Disney Company, Statement From The Walt Disney Company on Signing of Florida Legislation (Mar. 11, 2022).

11 David Kihara, ”DeSantis Says Disney ‘Crossed the Line’ in Calling for ‘Don’t Say Gay’ Repeal,” POLITICO (Mar. 29, 2022).

12 Ron DeSantis, THE COURAGE TO BE FREE, ch. 12 (2023).

13 Florida Government, flgov.com/wp-content/uploads/2022/04/Proclamation.pdf. See Procla-

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FLORIDA UNDERGRADUATE LAW REVIEW the sponsor of House Bill 3C, Randy Fine, made explicitly clear to the Florida House State Affairs Committee: “You kick the hornet’s nest, things come up. And I will say this: You got me on one thing, this bill does target one company. It targets The Walt Disney Company.”14 The circumstances surrounding the passage of Florida House Bill 3C and Florida Senate Bill 4C were indisputably arbitrary and irregular. Despite the Governor’s insistence that the legislation’s rationale stood upon an analysis of independent special districts appropriately “serving the public interest,” no serious analysis could have been conducted under the circumstances.15 Under the bill, districts created before 1968 were preemptively scheduled for dissolution before the Legislature could quantifiably deduce which districts were and weren’t eligible to have been subject to the special law requirements of the Florida Constitution of 1968 which prohibit special laws extending privileges to private corporations.16 Instead, with no concrete plan outlining the Reedy Creek Improvement District’s management of its assets or debt obligations, the Florida Legislature proceeded to ignore expert opinion and usher in the dissolution of the district. In fact, the very same day the bill was signed, credit-rating agencies like Fitch Ratings, had placed Reedy Creek’s nearly $1 billion in outstanding bond debt on a negative watch designation almost entirely based on “the lack of clarity regarding the allocation” of the district’s assets and liabilities.17 Further, a near twenty-five percent property tax increase was predicted by Orange County Tax Collector, Scott Randolph, “the minute that Reedy Creek [was] dissolved.”18 Again, these circumstances do not illustrate the actions of a legislative body acting on a disinterested, rational basis, but with intentional and painful persistence. Though the District Court may have concluded the legislation to have been facially constitutional—that is, lacking the implication of any constitutionally protected conduct—the wider circumstances surrounding it convey a malicious attempt to punish a company that had exercised its constitutional rights. mation, Governor Ron DeSantis (Apr. 19, 2022).

14 Hearing on HB 3C Before the Fla. H.R. State Affairs Comm., Special Session 2022C (Apr. 19, 2022) (remarks by Representative Randy Fine, sponsor of HB 3C, a companion bill to SB 4C, starting at 1:13:00).

15 WALT DISNEY PARKS AND RESORTS US INC v. DESANTIS, 4:23-cv-00163, (N.D. Fla. Apr 26, 2023) ECF No. 1.

16 “The Florida Senate.” The Florida Constitution - The Florida Senate. Accessed April 13, 2024.

17 Dara Kim, Credit Agency Places ‘Rating Watch Negative’ On Disney Debt, MIAMI HERALD (Apr. 23, 2022).

18 Eric Levenson & Steve Contorno, Ron DeSantis Says Ending Disney’s Self-Governing Status Will be a ‘Process.’ Here’s What Might Happen Next, CNN (Apr. 27, 2022).

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III

The First Amendment

Despite all evidence suggesting that The Walt Disney Company was deliberately targeted for expressing an opinion that merely ran afoul of the state’s ideological purview, how can it be that standard American jurisprudence would prevent the district court from reaching such an obvious conclusion? If we are to challenge the state of Florida for infringing upon the First Amendment, we must first define our terms. First Amendment challenges compel the state to articulate a justifiable, compelling interest in the smooth application of any law that regulates or impedes upon certain means of expression.19 Strict scrutiny, the highest standard of review, is applied when a law is challenged on the basis of infringing upon fundamental rights or involves any and “all legal restrictions which curtail the civil rights of a single racial group,”20 including religion, nationality, and alienage.21 Again, such regulations are presumptively unconstitutional and may be justified only if the government proves that the regulations in question are narrowly tailored to serve compelling state interests.22 Strict scrutiny can be equally applied to the restriction of content-based speech, which is to be interpreted distinctly from the classification of speech that compels the prevention of illegality or violence. A content-based regulation of speech under the First Amendment “target[s] speech based on its communicative content,” insofar that it “applies to particular speech because of the topic discussed or the idea or message expressed.”23 The government may not restrict speech for any reason having to do with either the specific messages conveyed within the speech or the consequences subsequent to them. The government may only impose restrictions for reasons relating only to aspects of the speech independent of the message conveyed, such as the speech’s decibel level.24 Beyond the confines of suspect classifications or fundamental rights, the Supreme Court applies a standard of minimal scrutiny. The rational basis standard of review is applied with the presumption that legislation is constitutional, and will remain upheld insofar as any classifications drawn within the statute in question are ratio19 Gayle Lynn Pettinga, ”Rational Basis With Bite: Intermediate Scrutiny by Any Other Name,” Indiana Law Journal: Vol. 62 (1987): Iss. 3, Article 10.

20 Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194, 1944 U.S. LEXIS 1341 (Supreme Court of the United States December 18, 1944, Decided.)

21 Fallon, Richard H, “Strict Judicial Scrutiny,” UCLA Law Review, 1 Jan. 2007.

22 Reed v. Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 192 L. Ed. 2d 236, 2015 U.S. LEXIS 4061, 83 U.S.L.W. 4444, 25 Fla. L. Weekly Fed. S 383 (Supreme Court of the United States June 18, 2015, Decided).

23 Ibid.

24 Kagan, Elena. “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” The University of Chicago Law Review 63, no. 2 (1996): 413.

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FLORIDA UNDERGRADUATE LAW REVIEW nally tied to an articulable state interest.25 Within this standard of judicial review, the Court almost invariably defers to the judgment of the legislative body and allows the mere plausible presence of facts to serve as sufficient justifications to support a challenged statute. Assuming that the state was to fail to present an articulable justification for a challenged statute, the Court will supplant its own justification.

A legislature may achieve its aims “one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind.”26 That being said, the dissolution of the Reedy Creek District is not a legislative action that regulates speech in any distinct way. Because The Walt Disney Company is not a suspect class, was not explicitly mentioned by name, and the legitimacy of the statute was challenged based on an injury upon a breach of contract, the true focus is to be directed towards the constitutionality of the act of government retaliation in and of itself.

IV

Interpreting Intent

The Walt Disney Company’s case ultimately rests upon an inviolable, central promise of the First Amendment: the government cannot retaliate against individuals or associations that exercise their First Amendment rights “by imposing sanctions for the expression of particular views it opposes.”27 Indeed, in Perry v.

Sindermann, the opinion of the Court: ”[f]or at least a quarter-century, [the United States Supreme] Court has made clear that even though a person has no ’right’ to a valuable government benefit, and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes [their] constitutionally protected interests – especially [their] interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized 25 Gayle Lynn Pettinga, ”Rational Basis With Bite: Intermediate Scrutiny by Any Other Name,” Indiana Law Journal: Vol. 62 (1987): Iss. 3, Article 10.

26 McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393, 1961 U.S. LEXIS 2008, 42 Lab. Cas. (CCH) P50,258, 17 Ohio Op. 2d 151 (Supreme Court of the United States May 29, 1961, Decided).

27 Smith v. Arkansas State Highway Employees, 441 U.S. 463, 99 S. Ct. 1826, 60 L. Ed. 2d 360, 1979 U.S. LEXIS 95, 101 L.R.R.M. 2091 (Supreme Court of the United States April 30, 1979, Decided).

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FLORIDA UNDERGRADUATE LAW REVIEW and inhibited.”28 The leeway afforded to The Walt Disney Company, which had translated into prominent control over critical land use decisions concerning Disney’s development of its property, was an intentional effect of the contractual establishment of the Reedy Creek Improvement District at the onset.29 Any law that significantly impairs a governmental entity’s contracts with a private actor is especially suspect and hence subject to heightened judicial scrutiny.30 The intent of the Florida Legislature is conspicuously evident, but for Disney, the District Court had lacked the doctrinal precedent necessary to directly inquire the improper motive of the Legislature enacting a facially constitutional statute allegedly issued in retaliation to the exercise of a fundamental right. The central aim of this doctrine must first identify a clear standard of characteristics amounting to an improper legislative motive.31 By inquiring into the motive of the legislative body, emphasis is directed both towards the consequence of the law on public discourse and traceable constitutional injury. As Disney’s case has shown, facially constitutional statutes can be issued in retaliation against those who do not fall under the designation of suspect classification. As the District Court elaborated: “Disney argues that. . . courts frequently inquire into legislative motive to determine whether a facially constitutional statute was enacted for an impermissible purpose.

But it relies on race and religion cases, as well as cases involving statutes designed to regulate speech.”32 Because facially constitutional statutes implicate no constitutional rights, the burden of proof lies in the tangible, traceable injury inflicted upon the petitioner.

V

Cause and Effect Doctrine

The establishment of a safeguard against facially constitutional, retaliatory legislation must be tacitly designed to allow courts to detect a pattern of cause and effect. More specifically, in this instance, a clear display of government retaliation 28

Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570, 1972 U.S. LEXIS 20, 1 I.E.R. Cas. (BNA) 33 (Supreme Court of the United States June 29, 1972, Decided).

29 WALT DISNEY PARKS AND RESORTS US INC v. DESANTIS, 4:23-cv-00163, (N.D. Fla. Apr 26, 2023) ECF No. 1.

30 United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S. Ct. 1505, 52 L. Ed. 2d 92, 1977 U.S. LEXIS 1 (Supreme Court of the United States April 27, 1977).

31 Kagan, Elena. “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” The University of Chicago Law Review 63, no. 2 (1996): 413.

32 Walt Disney Parks & Resorts United States, Inc. v. DeSantis, 2024 U.S. Dist. LEXIS 23022, F .Supp.3d( U nitedStatesDistrictCourtf ortheN orthernDistrictof F lorida,T allahasseeDivisionJanuary31,2024,F iled).

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FLORIDA UNDERGRADUATE LAW REVIEW against speech. This doctrine consists of two core prongs. One that speaks to the intent of a law and another that speaks to its effect. The inclusion of legislative intent within a court’s analysis remains a daunting task. But as Justice Elena Kagan elaborates, “the prohibition of certain motives again serves as a way to delineate the proper sphere of authority, hereby preventing a democratic state from contravening key principles of self-government and thereby undermining its foundation.”33 Such an evaluation into intent is not to be construed to merely scrutinize the prudence or moral character of lawmakers but rather to allow thorough inquiry towards the constitutional implications tethered to the laws they enact. The maintenance of comity between departments of state and the wider political process remains paramount.34 The fact remains that the disinterested pursuit of policy is not a constitutional requirement, as “[p]olitics is not merely, or even primarily, the disinterested pursuit of the public interest. [But] a power struggle.”35 This power struggle inevitably carries the consequence of legislation that is aimed to favor supporters and disfavor political opponents. A Cause and Effect doctrine is thus predicated on the identification of a threshold distinguishing politics from nefarious constitutional abridgment. To accomplish this, judicial inquiry towards legislative intent would have to be applicable beyond invidious grounds, such as race, sex, and religion, and instead applicable to distinct claims of constitutional injury.

The effect of the challenged legislation is evaluated to determine the extent of injury inflicted, and the level of tangible infringement on speech. Courts must be able to reasonably infer that the challenged legislation had effectively placed a barrier between the petitioner and their free exercise of speech. This “chilling effect” on the free exercise of speech is understood to occur “when individuals seeking to engage in activity protected by the First Amendment are deterred from doing so by governmental regulation not specifically directed at that protected activity.”36 In Disney’s case, the dissolution of the Reedy Creek Improvement District and the subsequent abrogation of state contracts had placed the company in a position to weigh the risk of maintaining their public disapproval with the state in fear of further punishment. Ultimately, to support a retaliation claim, the impact of the law must carry both the inferrable and articulable effect of deterring the further exercise of speech. Here, the burden of proof rests upon the petitioner in their articulation of 33

Kagan, Elena, “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” The University of Chicago Law Review 63, no. 2 (1996): 413.

34 Ibid.

35 Fraternal Order of Police Hobart Lodge 121, Inc. v. Hobart, 864 F.2d 551, 1988 U.S. App. LEXIS 18015 (United States Court of Appeals for the Seventh Circuit December 29, 1988, Decided).

36 Schauer, Frederick. “Fear, Risk and the First Amendment: Unraveling the Chilling Effect.”

William & Mary Law School Scholarship Repository. Accessed April 19, 2024.

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FLORIDA UNDERGRADUATE LAW REVIEW the extent of said impact.

VI

Conclusion

To conclude, to prove that a constitutionally impermissible infliction of punishment was enacted, the injured party must be able to articulate the existence of an inflicted injury; that the injury contains clear traceability to the challenged statute; and that the infliction of injury can be quantifiably detected within the content of said statute. While the burden of proof may fall on the petitioner in this instance, in the matters of the First Amendment, the ultimate burden falls on our institutions and elected officials. A government attack on a fundamental freedom can only be interpreted as an official dereliction of duty to the collective vision of democracy that lives within the hearts of all Americans. Indeed, ”[t]he First Amendment serves not only the needs of the polity but also those of the human spirit—a spirit that demands self-expression.”37

37

Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224, 1974 U.S. LEXIS 132, 71 Ohio Op. 2d 139 (Supreme Court of the United States April 29, 1974, Decided).

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Works Cited Drakeford, Cortney. ‘Woke Disney’ Trends After Gov. Ron DeSantis Attacks Company for Freezing Campaign Donations. INT’L BUS. TIMES, 2022. Source.

Fallon, Richard H. “Strict Judicial Scrutiny.” UCLA Law Review, 1 Jan. 2007.

Fraternal Order of Police Hobart Lodge 121, Inc. v. Hobart, 864 F.2d 551, 1988 U.S. App. LEXIS 18015 (United States Court of Appeals for the Seventh Circuit December 29, 1988, Decided).

Hearing on HB 3C Before the Fla. H.R. State Affairs Comm., Special Session 2022C (Apr. 19, 2022) (remarks by Representative Randy Fine, sponsor of HB 3C, companion bill to SB 4C, starting at 1:13:00). Source.

Kagan, Elena. “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine.” The University of Chicago Law Review 63, no. 2 (1996): 413. Source.

Kihara, David. DeSantis Says Disney ‘Crossed the Line’ in Calling for ‘Don’t Say Gay’ Repeal.

POLITICO, 2022. Source.

Kim, Dara. Credit Agency Places ‘Rating Watch Negative’ On Disney Debt. MIAMI HERALD (Apr. 23, 2022). Source.

Korematsu v. United States, 323 U.S. 214, 65 S. Ct. 193, 89 L. Ed. 194, 1944 U.S. LEXIS 1341 (Supreme Court of the United States December 18, 1944, Decided). Source.

Krietz, Andrew. Disney Releases Statement As DeSantis Prepares To Sign Bill Limiting Teachings About Sexual Orientation. Gender, WTSP, 2022. Source.

Leonard, Kimberly. Florida Gov. Ron DeSantis Said He Warned Disney Not to Get Involved in Schools Debate: ’It’s Not Going to Work Out Well for You.’ BUSINESS INSIDER, 2022. Source.

Levenson, Eric, and Steve Contorno. Ron DeSantis Says Ending Disney’s Self-Governing Status Will Be a ‘Process.’ Here’s What Might Happen Next. CNN, 2022. Source.

McGowan v. Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393, 1961 U.S. LEXIS 2008, 42 Lab. Cas. (CCH) P50,258, 17 Ohio Op. 2d 151 (Supreme Court of the United States May 29, 1961, Decided). Source.

Perry v. Sindermann, 408 U.S. 593, 92 S. Ct. 2694, 33 L. Ed. 2d 570, 1972 U.S. LEXIS 20, 1 I.E.R. Cas. (BNA) 33 (Supreme Court of the United States June 29, 1972, Decided). Source.

Pettinga, Gayle Lynn. ”Rational Basis With Bite: Intermediate Scrutiny by Any Other Name.”

Indiana Law Journal: Vol. 62 (1987): Iss. 3, Article 10. Source.

23

FLORIDA UNDERGRADUATE LAW REVIEW Press Release, The Walt Disney Company. Statement From The Walt Disney Company on Signing of Florida Legislation. 2022. Source.

Procunier v. Martinez, 416 U.S. 396, 94 S. Ct. 1800, 40 L. Ed. 2d 224, 1974 U.S. LEXIS 132, 71 Ohio Op. 2d 139 (Supreme Court of the United States April 29, 1974, Decided).

Reed v. Town of Gilbert, 576 U.S. 155, 135 S. Ct. 2218, 192 L. Ed. 2d 236, 2015 U.S. LEXIS 4061, 83 U.S.L.W. 4444, 25 Fla. L. Weekly Fed. S 383 (Supreme Court of the United States June 18, 2015, Decided). Source.

Ron DeSantis. THE COURAGE TO BE FREE. ch. 12 (2023). Source. See Proclamation, Governor Ron DeSantis (Apr. 19, 2022).

Schauer, Frederick. “Fear, Risk and the First Amendment: Unraveling the Chilling Effect.”

William & Mary Law School Scholarship Repository. Accessed April 19, 2024. Source.

Smith v. Arkansas State Highway Employees, 441 U.S. 463, 99 S. Ct. 1826, 60 L. Ed. 2d 360, 1979 U.S. LEXIS 95, 101 L.R.R.M. 2091 (Supreme Court of the United States April 30, 1979, Decided).

Source.

“The Florida Senate.” The Florida Constitution—The Florida Senate. Accessed April 13, 2024.

Source.

United States Trust Co. v. New Jersey, 431 U.S. 1, 97 S. Ct. 1505, 52 L. Ed. 2d 92, 1977 U.S. LEXIS 1 (Supreme Court of the United States April 27, 1977). Source.

Walt Disney Parks & Resorts United States, Inc. v. DeSantis. 2024 U.S. Dist. LEXIS 23022, F.Supp.3d (United States District Court for the Northern District of Florida, Tallahassee Division, January 31, 2024, Filed).

Walt Disney Parks And Resorts US Inc v. Desantis. 4:23cv-00163, 2023 ECF No. 1.

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West Virginia v. EPA: The “Major Questions Doctrine” and its Effects on Environmental Legal Protections Jess Chisholm ’27 Spring 2024

FLORIDA UNDERGRADUATE LAW REVIEW

Abstract In the 2022 Supreme Court case West Virginia v. Environmental Protection Agency, the United States Supreme Court ruled that the EPA had overstepped its authority in greenhouse gas regulation through the Clean Power Plan. The case is potent both in its legal implications and environmental effects, serving as a major showcase of the “major questions doctrine,” the idea that Congress must specifically legislate significant federal agency policy decisions. Despite existing as a theory for over twenty years, this was the most substantial use of the doctrine in terms of its effect on federal environmental policy. The impact of the legal precedence provided by the case will be perhaps the most important effect of the decision, as it implements a substantial limitation on environmental regulation. This journal is intended to analyze the case, its application of the major questions doctrine, and its social and political implications. While the use of the major questions doctrine had some basis in precedence, the dismantling of the EPA’s ability to regulate emissions was an overstepping of the court’s power, went against both previous Supreme Court decisions and congressional authorization, and was highly detrimental to the United States’ fight against climate change and to future environmental litigation.

I

Introduction

Environmental protection, specifically regarding controlling climate change, has become increasingly litigated. As climate litigation increases in frequency worldwide, the reservoir of legal precedent grows, forming a well-defined field of law. “The total number of climate change cases worldwide has more than doubled since the first report on the issue, from 884 in 2017 to 2,180 in 2022.”1 As the effects of climate change become more prominent, environmental regulation cases increase in importance. The United States has exemplified this trend; a strong understanding of U.S. environmental legal standards has become key to a well-rounded comprehension of the American legal system itself. In recent years, no case has impacted national climate policy and litigation more than the Supreme Court’s 2022 West Virginia v. Environmental Protection Agency. The journal will consist of four following subsections. The next will examine the case’s background. The third section will discuss the majority decision, the dissenting opinion, and relevant past cases. I will analyze the case and its implications in the fourth section, followed by a brief fifth concluding section.

1

“Climate Litigation More than Doubles in Five Years, Now a Key Tool in Delivering Climate Justice,” UN Environment, 2023.

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II

Background

Before discussing the case, context dating back fifty years is necessary. Codified in 1970, the Clean Air Act passed by Congress continues to be “the comprehensive federal law that regulates air emissions from stationary and mobile sources.”2 In 2015, the Obama Administration established the Clean Power Plan, an EPA policy that regulated carbon dioxide emissions.3 The EPA used Section 111 of the Clean Air Act as the basis for this plan, which “directs EPA to regulate stationary sources of any substance that ‘causes, or contributes significantly to, air pollution.’”4 This section allowed the EPA to determine emission limits for states from the federal level.5 The Clean Power Plan “was projected to lower greenhouse gas (GHG) emissions from existing power plants 32% from 2005 levels by 2030.”6 The largest channel through which the Clean Power Plan would reduce emissions is generational shifting, which is an EPA policy that requires “a shift in electricity production from certain fossil fuel power generation sources, primarily fired by coal and natural gas, to other sources that emit less carbon dioxide.”7 The “generational shifting” form of regulation would be perhaps the most controversial aspect of the plan.

The Trump administration repealed the Clean Power Plan, replacing it with the significantly less strict Affordable Clean Energy Rule. This rule was projected to reduce carbon emissions by just 0.7% by 2030.8 However, in 2021, the U.S. Court of Appeals for the District of Columbia Circuit decided unanimously to ”toss the Environmental Protection Agency’s Affordable Clean Energy rule,” rendering it unable to be enforced.9 The appeals court “held that EPA’s ‘repeal of the Clean Power Plan rested critically on a mistaken reading of the Clean Air Act’—namely, that generation shifting cannot be a ‘system of emission reduction.’”10 After the 2

“Summary of the Clean Air Act,” EPA. West Virginia v. Environmental Protection Agency, 597 U.S. 1 (2022).

4 Ibid.

5 “Summary of the Clean Air Act.” EPA. 6 “Regulating Greenhouse Gases from Existing Power Plants-the Clean Power Plan, Affordable Clean Energy Rule, & 2023 Power Plant Rules,” Harvard Law School - Environmental & Energy Law Program, 2024.

7 Seth Kerschner, Taylor Pullins, and Laura Mulry, “Supreme Court Rules EPA Cannot Require Existing Fossil Fuel Power Facilities to Shift to Lower CO2 Emitting Sources of Electricity,” White & Case LLP, 2022.

8 Regulating Greenhouse Gases from Existing Power Plants-the Clean Power Plan, Affordable Clean Energy Rule, & 2023 Power Plant Rules - Harvard Law School.” Harvard Law School Environmental & Energy Law Program, March 4, 2024.

9 Valerie Volcovici, “U.S. Court Deals Final Blow to Trump Epa’s Clean Power Rule Replacement,” Reuters, January 19, 2021.

10 West Virginia v. EPA, 597 U.S. 3 (2022).

3

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FLORIDA UNDERGRADUATE LAW REVIEW Court of Appeals decision, “States and private entities— including petitioners here West Virginia, North Dakota, Westmoreland Mining Holdings LLC, and The North American Coal Corporation (NACC)” filed petitions to defend the Affordable Clean Energy rule and repeal the Clean Power Plan.11 When the Supreme Court accepted the petitions, the case officially began.

III

Rulings

The question presented in the writ of certiorari that the court needed to decide on was as follows: “In 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, did Congress constitutionally authorize the Environmental Protection Agency to issue significant rules—including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy—without any limits on what the agency can require so long as it considers cost, non-air impacts, and energy requirements?”12 The case focused on the extent to which the Clean Air Act can be used to regulate emissions, including through generational shifting. In the 6-3 decision, the justices held that “Congress did not grant EPA in Section 111(d) of the Clean Air Act the authority to devise emissions caps based on the generation shifting approach the agency took in the Clean Power Plan.”13 Essentially, the justices ruled that the EPA’s regulation exceeded the authorization given in the Clean Air Act. They sustained that “administrative agencies must point to clear congressional authorization when they issue economically or politically significant regulations.”14 This legal perspective is known as the ”major questions doctrine.” In the United States, the federal bureaucracy’s power exists through congressional authorization; typically, congress “delegates authority to agencies to regulate particular aspects of society, in general, or broad terms.”15 This broad delegation has allowed federal agencies to make internal decisions regarding major policy issues they oversee. In this example, the EPA used this broad authority that it claimed was given by the Clean Air Act to regulate emissions. This is where the Supreme Court’s major questions doctrine comes in; through this doctrine, the six Supreme Court judges making up the majority argued that specific, not broad, authorization from Congress is needed for major policy decisions made by federal 11

Ibid., 12.

Ibid.

13 Ibid., 4.

14 Louis J. Capozzi III, ”ARTICLE: The Past and Future of the Major Questions Doctrine,” Ohio State Law Journal, 84, 191 (2023).

15 “The Major Questions Doctrine,” 2022.

12

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FLORIDA UNDERGRADUATE LAW REVIEW agencies.

The major questions doctrine has been used in several recent Supreme Court cases, many unrelated to environmental issues. For example, it has been used in cases ranging from tariffs to tobacco regulation to eviction moratoriums.16 The premise dates back to the 1994 MCI Telecommunications Corp. v. AT&T case, whose opinion “laid the groundwork for what has become known as the major questions doctrine.”17 The implication of this legal doctrine is perhaps the most important repercussion of this case; it severely restricts the ability of federal agencies to enact major policy decisions without specific congressional approval. Furthermore, the decision impacts all areas where federal agencies hold power, not just environmental law. The case shows the current Roberts court as supportive of the doctrine, heralding that future cases regarding agency power will likely have similar conclusions with the current court.

Despite the previous application of the major questions doctrine, the majority decision reversed previous decisions, limited congressional authorization, and rolled back important environmental protections. The Supreme Court’s decision showcased a significant departure from the court’s 2008 Massachusetts v. EPA decision: the court ruled 5-4 that “the Clean Air Act allows the Environmental Protection Agency to regulate greenhouse gasses because they qualify as air pollutants.”18 In his majority opinion in Massachusetts, John Paul Stevens stated that “there is nothing counterintuitive to the notion that the EPA can curtail the emission of substances that are putting the global climate out of kilter.”19 In West Virginia, the court found the opposite. Also important to note is that John Roberts, the current chief justice, wrote the dissenting opinion for Massachusetts and the majority opinion for West Virginia. Today’s more conservative court reversed the previous decision and restricted, rather than expanded, federal environmental protections.

Justice Elena Kagan provides a rather scathing dissent in West Virginia v. EPA. She writes that “the limits the majority now puts on EPA’s authority fly in the face of the statute Congress wrote.”20 Kagan argues that Congressional authorization for generational shifting was given “when it broadly authorized EPA in Section 111 to select the “best system of emission reduction” for power plants.”21 Kagan also criticizes the majority’s use of the major questions doctrine, arguing that it “replaces 16

Ibid.

Thomas Griffith and Haley Proctor, “Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine,” www.yalelawjournal.org., 2021.

18 Massachusetts v. EPA, 549 U.S. 497 (2007).

19 Ibid.

20 West Virginia v. EPA, 597 U.S. 4 (2022).

21 Ibid.

17

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FLORIDA UNDERGRADUATE LAW REVIEW normal text-in-context statutory interpretation with some tougher-to-satisfy set of rules.”22 She argues that the majority was not following precedent in its decision, as the cases they cited as promoting the major questions doctrine involved substantially different situations in which agencies worked outside of their bounds: “[in] each case, the Court thought, the agency had strayed out of its lane, to an area where it had neither expertise nor experience.”23 Kagan asserts regarding West Virginia v.

EPA: “This is not the Attorney General regulating medical care, or even the CDC regulating landlord-tenant relations. It is EPA (that’s the Environmental Protection Agency, in case the majority forgot) acting to address the greatest environmental challenge of our time.”24 This case did not involve an agency regulating an area it did not have authority over. She further argues that the majority has overstepped its bounds in its decision by determining that “the court, rather than Congress, will decide how much regulation is too much.”25

IV

Analysis and Implications

It is clear that Congress granted authority to the EPA to determine the best way to reduce greenhouse gas emissions. When the EPA created a plan to significantly reduce emissions, the court ruled against it in a highly unnecessary intervention. By declaring that the EPA could not use its power to promote generational shifting, the court effectively gave itself power over the agency and Congress. The decision removed power from the experts in the field, relocating it to the Supreme Court justices. This use of the major questions doctrine curtails the essence of congressionally authorized regulation. The intention of congressional authorization, including the one given in the Clean Air Act, is to delegate broad authority to the agencies and allow the experts in the agency to regulate its industry. However, in its decision, the SCOTUS majority decided to intervene and require extensive Congressional approval of specific regulations.

The negative environmental effects of the decision are substantial. When promulgating the Clean Power Plan, EPA estimated that ”improved air quality resulting from a 32% reduction in GHG emissions by 2030 would each year prevent 3600 premature deaths, 1700 heart attacks, 90,000 asthma attacks, and 300,000 missed school and work days, yielding a yearly economic benefit of $34 billion.”26 The court’s in22

Ibid., 15.

Ibid., 19.

24 Ibid., 20-21.

25 Ibid., 32.

26 Kenneth W. Kizer, Frederica P. Perera, and Kari C. Nadeau, “Health Implications of the West 23

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FLORIDA UNDERGRADUATE LAW REVIEW tervention in the EPA’s regulation will likely cost lives through pollution and worsen the United States’s fight against climate change. Fortunately, much of the negative environmental effects of the decision were reversed by the Inflation Reduction Act (IRA). As the Biden administration’s signature environmental bill, and “designed in anticipation of the Court’s new demands,” the IRA’s amendment to the Clean Air Act was intended to ”provide a clear and contemporary statement that greenhouse gasses are air pollutants and ... direct the EPA to issue new standards.”27 To avoid the major questions doctrine criticism and the limitations it brought to the EPA’s regulations after the ruling, the Biden administration used the IRA to assert congressional approval of pollutant regulation; the Supreme Court could no longer argue that Congress had not given express authority for the regulation the administration wanted to advance. The passing of the IRA significantly weakens the West Virginia v. EPA decision’s environmental impact, as it largely halts any detrimental effects of regulation barriers on air pollution. Thus, the greatest impact of the West Virginia decision is not on the environment, but rather on legal precedent for future cases.

V

Conclusion

West Virginia v. EPA marks a key usage of the major questions doctrine in environmental law that will continue to influence future Supreme Court decisions.

Since this ruling, the Supreme Court has continued to curtail environmental regulations: in a 9-0 decision for Sackett vs Environmental Protection Agency (2023), the court “established a more stringent test to determine whether the Clean Water Act applies to a wetland,” a hefty blow to the EPA.28 It seems apparent that the court has taken a new approach regarding federal environmental regulation by removing autonomy from federal agencies. In any case, the major questions doctrine, for better or for worse, will continue to affect the range and power of federal regulation significantly.

Virginia v Environmental Protection Agency US Supreme Court Decision,” The Lancet Planetary Health 6 (11) (2022): e847–48.

27 David Doniger, “WEST VIRGINIA, THE INFLATION REDUCTION ACT, AND THE FUTURE OF CLIMATE POLICY,” Environmental Law Institute, n.d.

28 Amy Howe, ”Supreme Court curtails Clean Water Act,” SCOTUSblog, 2023.

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Works Cited Capozzi, Louis J. III. ”ARTICLE: The Past and Future of the Major Questions Doctrine.” Ohio State Law Journal (2023): 84, 191. Source.

“Climate Litigation More than Doubles in Five Years, Now a Key Tool in Delivering Climate Justice.” UN Environment, 2023. Source.

Doniger, David. “WEST VIRGINIA, THE INFLATION REDUCTION ACT, AND THE FUTURE OF CLIMATE POLICY.” Environmental Law Institute, n.d. Source.

Griffith, Thomas, and Haley Proctor. 2021. “Deference, Delegation, and Divination: Justice Breyer and the Future of the Major Questions Doctrine.” www.yalelawjournal.org, 2021. Source.

Howe, Amy. ”Supreme Court curtails Clean Water Act.” SCOTUSblog, 2023. Source.

Kerschner, Seth, Taylor Pullins, and Laura Mulry. “Supreme Court Rules EPA Cannot Require Existing Fossil Fuel Power Facilities to Shift to Lower CO2 Emitting Sources of Electricity.” White & Case LLP, 2022. Source.

Kizer, Kenneth W, Frederica P Perera, and Kari C Nadeau. “Health Implications of the West Virginia v Environmental Protection Agency US Supreme Court Decision.” The Lancet Planetary Health 6 (11) (2022): e847–48. Source.

Massachusetts v. EPA, 549 U.S. 497 (2007) “Regulating Greenhouse Gases from Existing Power Plants-the Clean Power Plan, Affordable Clean Energy Rule, & 2023 Power Plant Rules.” Harvard Law School - Environmental & Energy Law Program, 2024. Source.

“Summary of the Clean Air Act.” EPA. Source.

“The Major Questions Doctrine.” 2022. Source.

Volcovici, Valerie. “U.S. Court Deals Final Blow to Trump EPA’s Clean Power Rule Replacement.” Reuters, 2021. Source.

West Virginia v. Environmental Protection Agency, 597 U.S. 3 (2022).

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Regional Climate Refugee Policies: Expanding Legal Frameworks Ana Ferreira ’26 Spring 2024

FLORIDA UNDERGRADUATE LAW REVIEW

Abstract This paper explores the intersection of refugee policies with the contemporary issue of climate change. It advocates for a shift towards regional frameworks to address the challenges posed by climate-induced displacement, rather than an international one. It addresses the Free Movement Agreements (FMAs) in the Caribbean region as a short-term solution but argues that in the long term, an expansion is necessary. It argues for their expansion to include migration routes to the United States, Canada, and Mexico, emphasizing the importance of taking initiative in escalating climate impact. The paper also addresses potential obstacles such as political resistance and infrastructural limitations. Ultimately, it calls for a reevaluation of refugee policies to align with the realities of climate change and advocates for innovative regional strategies to mitigate its effects on vulnerable populations.

I

Introduction

The United Nations defines a refugee as a person “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of [their] nationality, and is unable or, owing to such fear, is unwilling to avail [themself] of the protection of that country.”1 . This definition has long been debated since its development in the 20th century. The most current point of contention is the lack of protection it provides for those experiencing climate-induced displacement. This paper will first analyze the broader context of why the expansion of the UN definition of a refugee to include climate-displaced persons is unfeasible. It will then narrow the scope to focus on the Caribbean Region, which currently operates under a regional Free Movement Agreement. After outlining the parameters of this FMA as well as the beneficial aspects, it then transitions to discussing why these benefits are only feasible in the short term. Overall, it will offer a solution in which the FMA expands to include North American Countries as well and justifies this expansion.

1

“Refugees,” UNHCR US.

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II

Understanding the Pitfalls of an International Definition of a Climate Refugee

The need for a legal body to govern the massive refugee movement first arose after various conflicts in the early 20th century.2 The establishment of the High Commissioner of Refugees followed, and the 1951 Refugee Convention set out the provisions for refugee status that still largely apply today.3 In the scope of the 20th century, a definition encompassing war and persecution aligns contextually with the historical events of the time. However, basing a definition on a particular group in a particular time period leaves a narrow window for future unpredictability.4 As a result, how many persons or what type may fall within the scope of who should be entitled to refugee status becomes limited.5 This has become evidenced by the recent push to expand the international definition to include a subset called “climate refugees.” The issue with defining and expanding a climate refugee into an international definition comes down to two main issues: what defines a well-founded fear of climate-related issues and the lack of resources to manage those refugees who already qualify. On an international level, to provide particular protections to a ‘climate migrant’ demographic, there must be the establishment of clear criteria to assess the claims and to be able to distinguish those who fulfill them from those who do not.6 The reality is that what pushes a person to seek refuge as a result of climate can vary so greatly that the issue becomes too nuanced for the current capabilities of the UNHCR—are climate refugees only those who have been impacted by a severe climate disaster? Would a definition include people who can’t afford to sustain themselves through subsistence anymore due to deforestation and desertification?

How immediate does the risk of a climate danger have to be to motivate someone to leave? There is too much ambiguity to assess the complexities of an international climate refugee status properly. Therefore, this leaves us to analyze alternate routes for climate refugees to gain legal ground: regional considerations.

2

Francesca Rosignoli, “The Unresolved Legal Dispute over the Recognition of ‘Climate Refugees,’” Environmental Justice for Climate Refugees, March 21, 2022, 31–71.

3 Ibid.

4 Austin T. Fragomen Jr., The Refugee: A Problem of Definition, Case Western Reserve Journal of International Law 3, no. 1 (January 1, 1970): 45–69.

5 Ibid.

6 Samuel Huckstep and Michael Clemens, “Why We Won’t Reach a ‘Climate Migrant’ Protection Category-and What We Can Do Instead,” Center For Global Development. Accessed April 15, 2024.

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III

Analyzing the Feasibility of Current Caribbean Region FMA

Regional climate refugee considerations are not a new idea, but their impacts and levels of effectiveness are generally unknown to the public. Often, environmental activism jumps to the end-all, be-all solution to climate refugees—simply protect the climate. The reality is, however, that people need to be equipped with legal protections for the worst-case scenario. Even if global cooperation allows for a cutback on carbon emissions, reversing the current impacts could take up to 1,000 years after a complete cessation.7 Protecting the climate is a long-winded process that requires addressing numerous complex factors, and in the meantime, individuals affected by climate-related issues cannot afford to wait without legal protections. In 2021, there were already more than 1.6 million people dealing with disaster displacement in the Americas.8 With this in mind, “Free Movement Agreements” or FMAs– like those utilized in the Caribbean– have been proposed as a viable solution.9 The Caribbean FMA functions such that when they are in peak hurricane season, or given the case of an intense climate disaster, citizens from participating countries are: “i) provided disaster displaced persons a right of entry in other islands; ii) supported the waiver of travel document requirements where documents had been lost or damaged; iii) granted indefinite stays to some disaster-displaced persons, facilitating permanent resettlement iv) eased access to foreign labor through a mutual recognition of skills scheme and/or a waiver of work permit requirements.”10 This FMA is effective and works as a legal pathway that does not require internationalscale involvement. However, these FMAs are viable only in the short term. Taking into account long-term analyses of climate-related issues in the Caribbean demonstrates that a greater legal force may be necessary. Between the years 1970-2010, storm frequency rose by 540% and 533%, respectively, while the frequency of other 7 Susan Solomon, Gian-Kasper Plattner, Reto Knutti, and Pierre Friedlingstein, “Irreversible Climate Change Due to Carbon Dioxide Emissions,” Proceedings of the National Academy of Sciences of the United States of America 106, no. 6 (February 10, 2009): 1704–9.

8 CAF, Climate change worsens the migration crisis in Latin America and the Caribbean, 2023.

9 Ama Francis, “FREE MOVEMENT AGREEMENTS & CLIMATE INDUCED MIGRATION: A Caribbean Case Study,” Columbia Law School, Sept. 2019.

10 Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW climate disasters increased by 309% and 425%.11 Additionally, floods exceeding 1 m MHHW (Mean Higher High Water) are likely to become common by the end of the century.12 Furthermore, the Caribbean deals with “twin vulnerabilities” that go hand in hand with an impending climate-related crisis: the highest average cost of natural disasters between 1980-2020, and some of the highest energy prices in the world.13 Thus, as they continue to be hit by rising sea levels and intense storms, they are unable to meet the costs of repairs and adapt their infrastructure, before being struck again with more damage. Admittedly, the evidence demonstrates that most climate refugees tend to move inter-regionally.14 This is why FMAs can and have been effective in recent years. However, as sudden-onset climate events become more frequent and intense, micro-scale inter-regional movement will no longer be viable from an infrastructural perspective, given the economic issues faced within the Caribbean.

IV

Justification for the Expansion of the Caribbean FMA to a Wider Region

As a result, a potential proposition stands: FMAs should continue to be used as a legal run-around for climate refugees, but the regions that take part need to be expanded. The future of climate refugee considerations now relies on a transitional period; those with the economic means to aid climate-impacted countries must take on an integral role, without yet resorting to vastly international involvement. So the question remains: should a sudden onset-climate disaster-based FMA in the Caribbean be expanded to include migration routes to the United States, Canada, and Mexico? Given historical migration patterns from the Caribbean into the US, it is a likely choice for climate-displaced persons. These countries contain the most resources and infrastructure to provide resettlement for Caribbean refugees. Taking into consideration current Caribbean migration trends, approximately 9.1 million migrants from the Caribbean live outside their countries of birth, according to mid-2020 estimates by the United Nations Population Division. Of 11

Omar Bello, “Disasters, Economic Growth and Fiscal Response in the Countries of Latin America and the Caribbean, 1972-2010: Omar D. Bello.” CEPAL Review 2017, no. 121 (October 23, 2017): 7–29.

12 Benjamin Strauss, Scott Kulp, Climate Central, and Inter-American Development Bank, “SeaLevel Rise Threats in the Caribbean,” Sea-Level Rise Threats in the Caribbean, February 2018.

13 IMF, “Caribbean Climate Crisis Demands Urgent Action by Governments and Investors,” June 27, 2023.

14 Francesca Rosignoli, “The Unresolved Legal Dispute over the Recognition of ‘Climate Refugees,’” Environmental Justice for Climate Refugees, March 21, 2022, 31–71.

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FLORIDA UNDERGRADUATE LAW REVIEW those living outside of the region, the United States was by far the top destination for Caribbean immigrants, followed by Canada.15 Taking migrational context into account in combination with the dire future the Caribbean faces because of climate, it is apparent that an exodus of migrants from the Caribbean is inevitable.

Therefore, an important viable option is expanding the “region” part of “regional climate-impacted considerations.” By doing so, the US, Canada, and Mexico can adequately prepare for an influx from an infrastructural and economic perspective.

This is not to say that a transition would be feasible within political climates. Public perceptions of immigration are generally negative in the United States and Canada, and the culture of climate change denial in the United States makes it particularly unwilling to acknowledge the importance of such a movement. Nor does this entail that it would be an easy transition to make; the vast regulatory and infrastructural changes would require extensive work to realistically make happen, additionally necessitating the creation of harmony between vastly different frameworks between the United States, Canada, and Mexico. But in an ideal circumstance, and in a context in which the climate crisis has not improved, FMAs would provide the US, Canada, and Mexico the mechanisms to prepare and set the provisions they deem fit. For example, the FMA could mimic the current standing Caribbean program, which only becomes applicable in the case of an intense onset climate event. This would resolve the previously outlined issue regarding generating specified criteria for what a climate refugee is: the criteria could be pre-set by the countries involved, such as only facilitating migration in the case of an intense weather event. It would also allow them to set criteria of impact, such as extending only to those who become displaced due to loss of home, or experience damages so intense that they have no choice but to relocate for financial reasons. Additionally, it would be up to the discretion of the countries involved how to allocate work permits, required travel documentation, and access to labor. Additionally, generating an orderly and legal form of migration can prevent “desperation-driven movements” which are typically catalysts for poor resource allocation and general tension. This would allow for the smoothest transition into the countries that could offer resettlement, and generate the infrastructure necessary to take on population influxes.

15 Jeanne Batalova and Jane Lorenzi, “Caribbean Immigrants in the United States,” migrationpolicy.org, July 17, 2023.

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V

Conclusion

Recall the context-dependent definition of a refugee—stemming from specified instances of persecution, ideas of a refugee remain limited. It’s due time to reframe this idea to conform to a more contemporary context; the most pressing issue of our modern time is climate change. As a result, legal frameworks should reflect this. As outlined previously, on an international scale, defining a refugee to include climate refugees becomes ambiguous because of two main points: the presence of over-nuanced criteria for a climate refugee, and the lack of international resources to maintain current refugees. Current short-term solutions like the Free Movement Agreement in the Caribbean allow for facilitated free movement inter-regionally for those impacted by climate. Although these agreements have been demonstrably effective thus far, they’ll only be effective for so long before climate changes outpace the infrastructural capacity of the region. With that in mind, it’s time to scale up, encouraging regional expansions for FMAs for a better long-term way to address climate issues. A potential example and framework that can be followed is the expansion of the pre-existing Caribbean FMA to allow movement into the US, Canada, and Mexico, which can potentially provide a greater long-term solution.

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Works Cited Batalova, Jeanne, and Jane Lorenzi. “Caribbean Immigrants in the United States.” migrationpolicy.org, July 17, 2023. Source.

Bello, Omar. “Disasters, Economic Growth and Fiscal Response in the Countries of Latin America and the Caribbean, 1972-2010: Omar D. Bello.” CEPAL Review 2017, no. 121 (October 23, 2017): 7–29. Source.

CAF. Climate change worsens the migration crisis in Latin America and the Caribbean. December 2023. Source.

Francis, Ama. “FREE MOVEMENT AGREEMENTS & CLIMATE INDUCED MIGRATION: A Caribbean Case Study.” Columbia Law School, September 2019. Source.

Fragomen, Austin T. Jr. The Refugee: A Problem of Definition. Case Western Reserve Journal of International Law 3, no. 1 (January 1, 1970): 45–69. Source.

Huckstep, Samuel, and Michael Clemens. “Why We Won’t Reach a ‘Climate Migrant’ Protection Category-and What We Can Do Instead.” Center For Global Development. Accessed April 15, 2024. Source.

IMF. “Caribbean Climate Crisis Demands Urgent Action by Governments and Investors,” June 27, 2023. Source.

Rosignoli, Francesca. “The Unresolved Legal Dispute over the Recognition of ‘Climate Refugees.”’

Environmental Justice for Climate Refugees, March 21, 2022, 31–71. Source.

Solomon, Susan, Gian-Kasper Plattner, Reto Knutti, and Pierre Friedlingstein. “Irreversible Climate Change Due to Carbon Dioxide Emissions.” Proceedings of the National Academy of Sciences of the United States of America 106, no. 6 (February 10, 2009): 1704–9. Source.

Strauss, Benjamin, and Scott Kulp, Climate Central, and Inter-American Development Bank.

“Sea-Level Rise Threats in the Caribbean.” February 2018. Source.

UNHCR US. “Refugees.” Accessed April 15, 2024. Source.

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Lost in a Divide: The Relationship Between Politics and Precedent Amelia Garvey ‘26 Spring 2024

FLORIDA UNDERGRADUATE LAW REVIEW

Abstract Two years ago, Roe v. Wade, a case that set one of the most controversial precedents in American history, was overturned by the U.S. Supreme Court. The effects have been numerous and far-reaching. Countries like France have even gone so far as to rewrite their constitution as a reaction to Dobbs v. Jackson Women’s Health Org. This case has garnered so much attention worldwide because of both its legal and social repercussions. Roe v. Wade was a significant precedent that was upheld for five decades, and justifying overturning such a precedent would seem a monumental task. Meanwhile, people all over the world are wondering what this could mean for women’s rights. The purpose of this paper is to explore the factors that influence the overturning and upholding of legal precedent through a comparison of several cases, and an examination of the political and social contexts surrounding them.

I

Introduction

It has been nearly two years since the U.S. Supreme Court overturned the precedent set by the landmark case Roe v. Wade. The death knell of Roe v. Wade began ringing, however, all the way back in 2018 with Mississippi’s Gestational Age Act. The Gestational Age Act’s purpose was to ban abortions after the 15th week of pregnancy.1 The petitioners in Dobbs v. Jackson Women’s Health Org. found this law to be disagreeable and thus, the case made its way to the Supreme Court. In a 6-3 decision, Roe v. Wade, which has been held judicially sacred for over fifty years, was reversed.2 The aftershocks of such a monumental decision have been felt around the world. They were especially powerful in France, where the outcry against the U.S. Supreme Court has progressively grown louder. Recently, the French Parliament approved a bill that will amend the French Constitution, and protect women’s abortion rights indefinitely.3 Not every case that makes it to the Supreme Court has such an immense impact.

Then again, not every case that makes it to the Supreme Court results in the reversal of a fifty-year-old precedent. The decision in Dobbs v. Jackson Women’s Health Org., and the international reaction to it, raises some interesting questions about the importance of case precedent. Precedents serve as a guide of sorts in Gestational Age Act, Miss. Code. Ann. § 41-41-191 (2018).

Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

3 Eleanor Beardsley, “France Makes History by Enshrining Abortion Rights in Its Constitution,” NPR, March 4, 2024.

1

2

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FLORIDA UNDERGRADUATE LAW REVIEW legal proceedings throughout the country. Specifically, precedents set by past cases influence decisions in cases involving the same issues. For example, Roe v. Wade set a precedent for cases about abortion and privacy, such as Planned Parenthood v.

Casey. Because precedents fill this significant role, it is extremely difficult for even an entity as powerful as the Supreme Court to justify overturning one. However, as the Judicial Branch becomes increasingly politicized, even the most historical and long-standing precedents run the risk of reversal. A close examination of cases, and their precedents, throughout history reveals the true nature of the relationship between politics and the importance of case precedent.

II

Ideology in an International Context

In regards to abortion law, France serves as an interesting counterpart to the United States. When the Supreme Court ruled in Dobbs v. Jackson Women’s Health Org., there was backlash but there were also supporters of the decision. In France, the issue is not so divisive. According to a poll produced by the Francebased Women’s Foundation, 90% of French men and women alike are in favor of safeguarding abortion rights.4 These results illustrate a clear difference in attitudes towards abortion in France and America. This difference arises from the prominent politicization of the issue in America. An overview of American states that have enacted stringent abortion laws following the Dobbs decision reveals a trend.

Traditionally Republican states like Alabama and Tennessee have gone so far as to prohibit abortion even in cases of rape and incest.5 In France, this sort of political polarity does not appear to be an issue in the instance of abortion law.

From an American perspective, it would seem French abortion law is more in line with liberal ideology. Legislature dealing with abortion was not always so progressive, however. Article 317, Section II of the French Penal Code quite explicitly criminalized abortion for a long time. Perpetrators could face up to ten years in prison as well as hefty fines.6 Article 317 has been modified greatly over the years, as views on abortion have shifted. It was not until 1992 that it was completely repealed, about two decades after Roe v. Wade.7 Taking this into consideration, it 4

Franceinfo. “Ivg Dans La Constitution: ‘Plus de 90% Des Français et Des Françaises Sont Attachés Au Droit à l’avortement,’ Rappelle La Présidente de La Fondation Des Femmes.” Franceinfo, February 28, 2024.

5 Yuval Schniktes, “Abort the Bans: Post-Dobbs United States is in Violation of International Law,” Southern California Review of Law and Social Justice 33, no. 1 (Winter 2024): 1.

6 Art. 317. C. pén. https://www.legifrance.gouv.fr/codes/id/LEGIARTI000006490192/198001-01.

7 Ibid

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FLORIDA UNDERGRADUATE LAW REVIEW seems both France and America have changed drastically when it comes to abortion law. French law was greatly influenced by the precedent set by Roe v. Wade. It could be said that it still is, as the overturning of this precedent was the catalyst for the recent amendments to the French constitution. However, as France has become more lenient in their abortion legislature, America has become more strict.

III

Comparing Cases Over the Years

To fully understand why this ideological swap has occurred, it is necessary to examine several significant cases throughout American history. There is a clear shift in ideals that is both social and political. These factors have had a large impact on the importance of precedent. One well-known example of this is the legalization of same-sex marriage. A major case that set legal precedent for cases involving same-sex marriage was brought to the Supreme Court of Minnesota in 1971, two years before Roe v. Wade was decided. In Baker v. Nelson, petitioners Richard John Baker and James Michael McConnell applied for a marriage license and were denied by the clerk because they were both male. The Supreme Court of Minnesota affirmed the Hennepin County District Court’s decision, as although there was no statutory prohibition of same-sex marriage, “the Fourteenth Amendment was not offended by the state’s classifications of persons authorized to marry.”8 As with Roe v. Wade, Baker v. Nelson stood as a legal precedent for several decades. The Baker v. Nelson precedent has been challenged several times since the initial ruling, as the LGBTQ+ community has continued to fight for expanded rights. DeBoer v. Snyder was a case brought before the United States Court of Appeals for the Sixth Circuit that was decided a year before Obergefell v. Hodges.

The Fourteenth Amendment was once again a point of contention in this case. The holding of the appellate court stated that the Fourteenth Amendment did protect the marriage rights of same-sex couples, and “neither the Equal Protection Clause nor the Due Process Clause prohibited a State from denying recognition to same-sex marriages conducted in other States.”9 Baker v. Nelson was specifically referenced in this case, and influenced the decision of the court. Because of a decision in a case 43 years later, same-sex couples were denied what is now considered to be a fundamental right. For better or for worse, precedent played a critical role in DeBoer v. Snyder.

8 9

Baker v. Nelson, 291 Minn. 310 (1971).

DeBoer v. Snyder, 772 F.3d 388 (2014).

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IV

Current Precedent and Politics

A great shift would occur in 2015 with Obergefell v. Hodges however. Support for same-sex couples has grown exponentially since 1971, and this was reflected in the Supreme Court’s decision. Even still, four justices expressed dissent, these being the conservative-leaning Roberts, Scalia, Thomas, and Alito. In his dissenting opinion, Chief Justice Roberts wrote that it is not the business of the Court to force States to recognize same-sex marriage and essentially redefine what marriage is in legal terms.10 This opinion is highly reminiscent of the reasoning outlined in the Baker v. Nelson decision. The precedent set by this case created an aversion to courts interfering with state legislatures. The precedent was important to the dissenting justices here, but it was ultimately dismantled. In the Supreme Court’s holding, both the Due Process Clause and the Equal Protection Clause were said to protect same-sex couples’ “fundamental right to marry.”11 Interestingly enough, the holding that overturned the Baker v. Nelson precedent also referenced the Fourteenth Amendment, this time using it to affirm gay marriage. This turnabout illustrates how interpretations of the Constitution, holdings, and case precedent change over time, demonstrating precedent is specifically affected by the societal norms of the time. With this in mind, the overturning of Roe v. Wade becomes even more puzzling. It would follow that as America has become more progressive in its ideals, Roe v. Wade would be forever upheld. Unlike gay marriage, though, abortion has become increasingly politicized. Recently, America has become more politically divided than ever, and the ideological chasm between the Democrats and Republicans has grown wider. According to PEW research, 82% of Republicans view Democrats unfavorably, and 79% of Democrats view Republicans unfavorably.

Thirty years ago, these percentages were 68% and 57% respectively.12 While these results still illustrate a divide, there has been a significant growth in animosity in recent years.

Unfortunately, abortion is one issue that has been muddied by politics. Although abortion has always been an inflammatory subject, it is at its core a privacy issue.

Substantive Due Process was at the center of Roe v. Wade, and it was determined that “the right of privacy. . . is broad enough to cover the abortion decision.”13 Case precedent is important, but it is plastic. Precedents can be interpreted in a variety of ways to suit the values of the American people, as with Obergefell v. Hodges.

10

Obergefell v. Hodges, 576 U.S. 644 (2015).

Ibid 12 Pew Research Center. “Political Polarization in the American Public.” Pew Research Center - U.S. Politics & Policy, June 12, 2014.

13 Roe v. Wade, 410 U.S. 113 (1973).

11

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FLORIDA UNDERGRADUATE LAW REVIEW In this case, the interpretation of the Fourteenth Amendment had changed since Baker v. Nelson. Thus, it was determined that the Baker v. Nelson precedent was no longer necessary, because it was limiting the rights of a substantial portion of the American population. If rights expansion is in the public’s best interest, it should follow that privacy, an individual freedom, should be similarly valuable. Thus the recent Dobbs v. Jackson Women’s Health Org. decision feels counterintuitive.

Because the Supreme Court leaned conservative in terms of its Justices’ ideologies though, it easy to see how the issue was influenced by politics.

V

Conclusion

According to Yuval Schnitkes, editor-in-chief of the Southern California Review of Law and Social Justice, the Dobbs decision does not hold up under international law. Schnitkes argues that taking away a woman’s right to abortion is paramount to a human rights violation.14 Considering the situation in France, this is certainly how the Dobbs decision has come to be viewed. Ultimately though, Dobbs v. Jackson Women’s Health Org. is a representation of how drastic politicization can affect case precedent. The issue at hand is so wrought with political tension that it can be difficult to see the heart of the matter. Not every precedent decided decades ago holds up to today’s social and cultural standards. Precedents should be there to guide legal proceedings but are moot if they don’t exist for the benefit of the people’s interest. This was the case for Baker v. Nelson, but not for Roe v. Wade. The Supreme Court did not just permit abortion in the Roe v. Wade decision; they also protected the right to privacy, a right which many value greatly. The protections they granted were enshrined in a critical precedent that logically should have stayed standing. Yet sadly, these protections were lost in the chasm between two political parties.

14

Yuval Schniktes, “Abort the Bans: Post-Dobbs United States is in Violation of International Law,” Southern California Review of Law and Social Justice 33, no. 1 (Winter 2024): 1.

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Works Cited Beardsley, Eleanor. “France Makes History by Enshrining Abortion Rights in Its Constitution.”

NPR, March 4, 2024. Source.

Baker v. Nelson, 291 Minn. 310 (1971). Source.

DeBoer v. Snyder, 772 F.3d 388 (2014). Source.

Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022). Source.

Franceinfo. “IVG Dans La Constitution: ‘Plus de 90% Des Français et Des Françaises Sont Attachés Au Droit à l’avortement,’ Rappelle La Présidente de La Fondation Des Femmes.” Franceinfo, February 28, 2024. Source.

Gestational Age Act, Miss. Code. Ann. § 41-41-191 (2018). Source.

Obergefell v. Hodges, 576 U.S. 644 (2015). Source.

Pew Research Center. “Political Polarization in the American Public.” Pew Research Center U.S. Politics & Policy, June 12, 2014. Source.

Roe v. Wade, 410 U.S. 113 (1973). Source.

Schniktes, Yuval. “Abort the Bans: Post-Dobbs United States is in Violation of International Law,” Southern California Review of Law and Social Justice 33, no. 1 (Winter 2024): 1. Source.

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Lawrithms; Predictive Regression Models in Judicial Systems Lily Haak ’25 Spring 2024

FLORIDA UNDERGRADUATE LAW REVIEW

Abstract The burgeoning of highly complex algorithms used for assessment in the judicial field continues to challenge the underpinnings of justice in America. COMPAS, or Correctional Offender Management Profiling for Alternative Sanctions is a software used to assess recidivism risks when determining pretrial release and parole possibility. In 2016, a ProPublica investigation discovered significant inconsistencies in rates assigned to White offenders and Black offenders. These findings play into a nuanced dialogue about how algorithmic decision-making ought to be leveraged in the legal field.

I

Introduction We now live in a digital society.1

A single, though broad implication of this brave new world is a governmental environment where digital algorithmic systems, rather than humans, make decisions that affect social outcomes, public policy, and individual lives.

Algorithms are common—they’re a set of rules that we employ to solve problems, or simply exist. However, in computational terms, they represent a divergence from manual intellectual labor, leveraging vast sets of data and highly nuanced statistical devices to execute incredibly important functions.2 Great interest has been placed in their ability to navigate digital landscapes, launching 16-year-old girls with iPhones into social media stars on platforms like TikTok, Instagram, and Snapchat; to generate incredibly lucrative financial environments (think SBF, FTX, Jane Street, Millenium, and even the University of Florida’s AlgoGators); and as of recent, to manipulate the judicial outcomes of thousands incarcerates across the country.

As evaluative methods in social justice ecosystems continue to evolve, understanding the underlying implications of how algorithms function — including factorial concerns that address the pillars of the 14th Amendment and its subsequent provisions on due process — becomes ever more necessary. This dialogue is imperative in determining the legality of using highly secretive technology to determine the outcomes of one’s incarceration, and subsequently their life; if our adventure into the depths of efficiency is only a shortcut to the obstruction of justice. In 2016, ProPublica conducted an investigation into the quantitative methods that Northpointe, 1

Deborah Lupton, Digital Sociology, 1st ed. New York: Routledge, 2014.

Cynthia Rudin, Caroline Wang, and Beau Coker, ”The Age of Secrecy and Unfairness in Recidivism Prediction,” Harvard Data Science Review, 2022.

2

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FLORIDA UNDERGRADUATE LAW REVIEW the mother company of the COMPAS system uses to recommend recidivism metrics to judges. Their team found that a black defendant is 45% more likely to receive a higher recidivism score than their white counterpart; a woman 19.4% more likely than a man; and 2.5 times more likely for defendants younger than 25.3 Below, I will identify two major legal dilemmas that seem to greatly affect these methods’ ethical usage and dispersion; violation of procedural due process via PSI and algorithmic processing; and the evaluative considerations produced by their mechanisms.

II

Factorial Concerns

There exists, in a new digital environment, a duty to evaluate the legal and ethical liability that technology presents to some of the most vulnerable sections of our modern society.4 Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) is a sophisticated web-based algorithmic tool designed to assist in the judicial and correctional processes by assessing criminogenic needs and evaluating the likelihood of recidivism among offenders. Developed to enhance decision-making in the criminal justice system, COMPAS employs a proprietary blend of data analytics and machine learning techniques to assess various risk factors associated with criminal behavior, thereby generating risk scores that predict an individual’s propensity for future offenses; it represents a new intersection of technology and jurisprudence, and all at once, aims to bring empirical rigor to the assessment of offender risk and inform sentencing, bail, and parole decisions.5 COMPAS, like other evaluative methods, requires the completion of a Presentencing Investigation (PSI) Report.6 The legal utility of the PSI is to equip judges with a nuanced profile of the defendant, thereby facilitating a sentence that is commensurate with both the gravity of the offense and the individual’s specific circumstances;7 PSIs are conducted with the goal of aligning sentencing with the dual objectives of punishment and rehabilitation, ensuring that sentencing contributes to the goals of reducing recidivism and enhancing public safety through tailored rehabilitative measures,8 aiming to embody the principle of proportionality and in3

Julia Angwin, Jeff Larson, Surya Mattu, and Lauren Kirchner, ”Machine Bias,” ProPublica, 2016.

4 Karen Yeung, ”A Study of the Implications of Advanced Digital Technologies (Including AI Systems) for the Concept of Responsibility Within a Human Rights Framework.”

5 Equivant, ”Practitioner’s Guide to COMPAS Core.”

6 Equivant, 2020 7 Todd R. Clear, Michael D. Reisig, and George F. Cole, American Corrections, Cengage Learning, 2013.

8 Edward J. Latessa and Paula Smith, Corrections in the Community, New York: Routledge,

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FLORIDA UNDERGRADUATE LAW REVIEW dividualized justice, which are convenient central tenets of the modern American legal system.

COMPAS evaluates a reported 137 factors to assess the risk of recidivism9 : beyond base factors of parole violations, gang affiliations, and or substance abuse, COMPAS’s PSI also asked questions that were meant to depict better the behavioral and or psychological dispositions of their subject (Angwin, Sample COMPAS Risk Score) including10 : How many of your friends or acquaintances have been arrested?

How often do you feel bored?

I have never felt sad about things in my life (Spectrum of Agree to Disagree) A hungry person has a right to steal (Spectrum of Agree to Disagree) I have played sick to get out of something (Spectrum of Agree to Disagree) Did you fail or repeat a grade level?

Responses to these questions, amongst a wide variety of others – including race, gender, sex, and age – become factorial weights in algorithmic evaluation. Briefly, I will describe how an algorithm leveraging regression modeling in this setting operates. Regression modeling has burgeoned in past decades as a method in legal analytics, used to discern the impact of various independent variables on a dependent variable, specifically sentencing length within judicial proceedings (Ulmer and Johnson 2004). A model predicts the dependent variable based on the known values of the independent variables, facilitating the exploration of relationships between variables and forecasting. At the heart of regression analysis lies the model’s equation, typically denoted as Y = β0 + β1 X1 + ... + βn Xn + ϵ11 2011.

9 Equivant. ”Practitioner’s Guide to COMPAS Core.”

10 Julia Angwin, “Sample-COMPAS-Risk-Assessment-COMPAS-’CORE,’” DocumentCloud 11 J. Neter, W. Wasserman, and M.H. Kutner, Applied Linear Statistical Models, Homewood, IL: Irwin, 1990.

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FLORIDA UNDERGRADUATE LAW REVIEW , where Y is the dependent variable, X1 , ..., Xn are the independent variables, β0 , ..., βn are the coefficients to be estimated, and ϵ represents the error term, encapsulating all other factors that influence Y besides the X variables.12 This statistical approach allows scholars to control for extraneous factors, providing a nuanced understanding of how certain attributes such as race, gender, and prior criminal history influence judicial decisions, while statistically adjusting for variables like offense severity and legal precedents.13 Opacity in highly dimensional settings, like those that consider race, sex, age, background, housing status, ethnicity, birthplace, and “likeliness to become a criminal again” remains incredibly difficult to map out using code. This is aptly referenced in a text by Jenna Burrell as “actionable algorithms & unavoidable complexity,” the minimization of social issues in exchange for efficiency, brevity, and clarity.14 Machine thinking processes ought to take into consideration equality, fairness, and notions of equity, which are all characteristics possessed by human algorithms – creating an actionable environment in which transparency is of the utmost importance will become an issue as algorithms continue to press the bounds of legal scholarship.

III

Methods of Evaluation

In response to Julia Angwin et al, Equivant released its own statistical response, claiming that the report focused incorrectly on metrics that were non-supportive to ethical and accurate decisions. One of the metrics used was equal calibration, which is satisfied when defendants who receive the same risk score are re-arrested at similar frequencies, regardless of race or ethnic identifiers. Equal calibration relies on two main “equal” statistical derivatives, both of which Equivant’s technology relies on. Accuracy equity is “when a risk scale can discriminate between recidivists and nonrecidivists equally well for two different groups, such as blacks and whites.15 The risk scale exhibits predictive parity if the classifier obtains similar predictive values for two different groups such as blacks and whites, for example, the probability of recidivating, given a high-risk score, is similar for blacks and whites.16 COMPAS prescribes that this equality in recidivism rates is proof that their algorithm can 12

D.C. Montgomery, E.A. Peck, and G.G. Vining, Introduction to Linear Regression Analysis, Hoboken, NJ: Wiley, 2012.

13 Jeffery T. Ulmer and Brian Johnson, ”Sentencing in Context: A Multilevel Analysis,” Criminology 42 (1) (2004): 137-77.

14 Jenna Burrell, “How the Machine ’Thinks:’ Understanding Opacity in Machine Learning Algorithms,” Search eLibrary :: SSRN, 2015.

15 Equivant, ”Response to ProPublica: Demonstrating Accuracy, Equity, and Predictive Parity.”

16 Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW effectively predict unbiased risk scores; if both white and black criminals are being re-arrested at the same rate when given the same score, there is no accurate evidence of systematic bias. Equivant further disputes the difference in False Positive Rates by noting that black defendants have a higher base rate of recidivism than white defendants, noting that ProPublica failed to make fair assessments by not taking into consideration the above inconsistencies when assessing their statistical methodology.

In Equivant’s official response letter to ProPublica, they identified several statistical errors, including that “PP combined the High and Medium levels and refer to this level in their article as “Higher Risk” — this has the effect of inflating the false positive rate and the corresponding base-rate sensitive Target Population Error.”17 Satisfying point Equal Calibration would require that defendants assigned the same risk score are re-arrested at a similar rate, but some black defendants may be labeled “high risk” without re-offending; the satisfaction of Equal False Positive rates assumes that black and white false positive rates would be equalized, as opposed to the 11% vs 25% figure discovered by ProPublica, with potentially varying rates of arrest even with the same risk number. In a pseudo-combination of both, similar to the original software, the system would work to make False Positive rates as low as possible while trying to produce Equal Calibration between the groups Satisfying both Equal False Positive Rates and Equal Calibration simultaneously is impossible because they impose different statistical objectives; equalizing false positive rates requires adjusting a decision threshold to balance performance across different groups, while equal calibration involves ensuring that defendants who receive the same risk score re-offend at similar rates, regardless of race. When utilizing COMPAS scores, judges decrease overall incarceration rates but inadvertently exacerbate racial disparities; This occurs because individuals identified as low risk by COMPAS are less likely to be incarcerated than their predecessors, benefiting predominantly white defendants due to pre-existing racial biases in risk assessments.

Consequently, a judge in Broward County might claim to support decarceration in the COMPAS era without realizing the unintended effect of widening racial gaps due to these biases.18 Black Boxes and the Right to Explanation Big data, its incumbent analytics, and the knowledge they produce are socio-political and cultural artifacts that are transforming how we live, work, and think about social problems.19 The most pressing, and relatively easy to identify concern of COMPAS’s technology is our 17

Ibid.

Utsav Bahl, Chad M. Topaz, Lea Obermüller, Sophie Goldstein, and Mira Sneirson, “Algorithms in Judges’ Hands: Incarceration and Inequity in Broward County, Florida,” SocArXiv, 2023.

19 Deborah Lupton, Digital Sociology, 1st ed. New York: Routledge, 2014.

18

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FLORIDA UNDERGRADUATE LAW REVIEW blatant inability to explain what’s going on inside it.

Blackbox technologies raise significant legal concerns due to their opaque decisionmaking processes, which can obscure accountability and impede regulatory oversight. Courts face challenges in applying traditional principles of liability and negligence to harms caused by blackbox systems, as it is often difficult to trace decision pathways, and legal provenance when identifying responsible parties.20 Most would agree that these types of technology necessitate rigorous standards to ensure their decisions are interpretable and justifiable, aligning with existing legal frameworks on transparency and fairness. But what about more than regulation — are penal members not entitled to a judicial system that is able to demonstrate a deep understanding of the technology they use, to explain factorially, normatively, and legally what their results mean and how they were produced?

Kate Vredenburgh identifies an exemplary account of this in a 2019 paper that identifies informed self-advocacy, and its underlying tenants as essential to preserving legitimacy and equality in non-voluntary, hierarchical institutions, rule-based causal explanations explain actions in terms of motivating reasons or reasons that ‘count in favor’ of an action.21 Rule-based normative explanations represent normative reasons that count in favor of an agent’s actions. These explanations have conditions: [1] we are only owed these explanations when stakes are “high” and [2] the level of detail required depends on what is being shared.22 Burdens and entitlements receive a higher level of explanation (and or free expertise) because revoking their dissemination without explanation could violate a positive “economic right,” in the case of social security. Other explanations classified as benefits, e.g., loans and scholarships, do not require the same level of detail because we are not entitled to them. The main pillar of Vredenburgh’s argument is that we have a positive right to explanation and a negative right to ambiguity, meaning that we are equally entitled to explanation as we are protected from systems that perpetuate unfair practices, or conceal the ethical reasoning behind their practices. This is where informed selfadvocacy is derived from—these are specifically the cluster of abilities Vredenburgh references.

Normative explanations can be more simply defined as the driving moral reasons behind a decision. Normative accounts must possess [1] relevant rules and [2] the normative reasoning behind them. In the case of new administrative policy, both American and British procedures require that the public is thoroughly informed and 20

Cathy O’Neil, ”Data Scientist Cathy O’Neil on the Cold Destructiveness of Big Data,” Quartz, 2016.

21 Kate Vredenburgh, ”The Right to Explanation,” Journal of Political Philosophy 30 (2) (2021): 209-229.

22 Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW that their feedback can be received.23 Informing the public requires a full listicle that explains “the need, source of authority, and reasons for the proposed rule change.”

This gives individuals the ability to consider proposals, understand their personal goals, and identify interests in change. This enhances informed self-advocacy by giving actors a democratic environment to simultaneously express personal interest and to recognize systemic imperfections, or areas where policy could be tweaked in the pursuit of accessibility, fairness, or transparency. She refers to agency as the ability to navigate the system that promotes your interests. Causal explanations enable agency by defining parameters of behavior that produce favorable results as stipulated by rules. Upon understanding constraints, individuals are equipped with the knowledge of how to modify their current behavior to achieve desirable results. The legal infrastructure of the United States, through both constitutional guarantees and statutory frameworks, supports a robust notion of procedural and substantive rights that accommodate these evolving explanations.

The Supreme Court’s articulation in Goldberg v. Kelly emphasized that procedural due process mandates ”timely and adequate notice detailing the reasons for a proposed termination” and ”an effective opportunity to defend by confronting any adverse witnesses and by presenting his own arguments and evidence orally.”24 The demand for transparency becomes even more critical in the context of decisions made by algorithmic systems. The opacity of such systems can obscure the rationale behind significant decisions affecting individuals, from criminal sentencing to credit scoring, thereby complicating the traditional due process analysis.

The perhaps most notable case of COMPAS’s lifespan is Loomis v. Wisconsin, in which the defendant challenged the use of an algorithmic risk assessment tool in sentencing on due process grounds.25 The court upheld the use of the algorithm, but the case marked the inception of a landmark discussion on how procedural due process ought to be explained in the age of the algogracy. Not that this subject hasn’t already been breached with earlier, less sophisticated technologies: Mathews v. Eldridge, extends the due process analysis into a balancing test, considering the private interest affected, the risk of erroneous deprivation of such interest through the procedures used, and the government’s interest, including fiscal and administrative burdens that additional procedural requirements would entail.26 In Connecticut v. Teal, the Supreme Court highlighted that discriminatory practices in employment processes violate Title VII of the Civil Rights Act, which could analogously apply 23

Ibid.

Goldberg v. Kelly, 397 U.S. 254 (1970).

25 David Cole, “State v. Loomis,” Harvard Law Review, 2017.

26 Mathews v. Eldridge, 424 U.S. 319 (1993).

24

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FLORIDA UNDERGRADUATE LAW REVIEW to algorithmic decision-making if it results in discriminatory outcomes.27 The necessity for clear, understandable explanations in decisions made by automated systems is also mirrored by international legal standards, such as the General Data Protection Regulation (GDPR) in the EU, which directly addresses the right of individuals to obtain explanations of decisions made by automated means. While the U.S. lacks a direct equivalent of the GDPR, the principles embedded in it resonate with the broader legal doctrines under U.S. law; those articulated in Reno v. Flores underscore the importance of government accountability in administrative actions.28

27 28

Connecticut v. Teal, 457 U.S. 440 (1982).

Reno v. Flores, 507 U.S. 292 (1993).

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Works Cited Alarid, Leanne Fiftal. Community-Based Corrections. Cengage Learning, 2015.

Angwin, Julia, Jeff Larson, Surya Mattu, and Lauren Kirchner. ”Machine Bias.” ProPublica, 2016.

Source.

Angwin, Julia. “Sample-COMPAS-Risk-Assessment-COMPAS-’CORE.’” DocumentCloud. Source.

Bahl, Utsav, Chad M. Topaz, Lea Obermüller, Sophie Goldstein, and Mira Sneirson. “Algorithms in Judges’ Hands: Incarceration and Inequity in Broward County, Florida.” SocArXiv, 2023. Source.

Berk, Richard. Criminal Justice Forecasts of Risk: A Machine Learning Approach. Springer, 2012.

Burrell, Jenna. “How the Machine ’Thinks:’ Understanding Opacity in Machine Learning Algorithms.” Search eLibrary :: SSRN, 2015. Source.

Chatterjee, S., and Hadi, A.S. Regression Analysis by Example. Wiley, 2015.

Civil Rights Act of 1964, Pub.L. 88–352, 78 Stat. 241.

Clear, Todd R., Michael D. Reisig, and George F. Cole. American Corrections. Cengage Learning, 2013.

Cole, David. “State v. Loomis.” Harvard Law Review, 2017. Source.

Connecticut v. Teal, 457 U.S. 440 (1982).

European Convention on Human Rights, art. 6, Nov. 4, 1950, Europ. T.S. No. 005.

Equivant. ”Practitioner’s Guide to COMPAS Core.” Source.

Equivant. ”Response to ProPublica: Demonstrating Accuracy, Equity, and Predictive Parity.”

Source.

Goldberg v. Kelly, 397 U.S. 254 (1970).

Goodfellow, Ian, Yoshua Bengio, and Aaron Courville. Deep Learning. MIT Press, 2016.

Hannah-Moffat, K. ”Algorithmic Risk Governance: Big Data Analytics, Race, and Information Activism in Criminal Justice Debates.” Theoretical Criminology 23 (4) (2019): 453-70. Source.

Harcourt, Bernard E. Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age. Chicago: University of Chicago Press, 2007.

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Johnson, Brian D. ”Racial and Ethnic Disparities in Sentencing Departures Across Modes of Conviction.” Criminology 41 (2) (2003): 449-90.

Latessa, Edward J., and Paula Smith. Corrections in the Community. New York: Routledge, 2011.

Loomis v. Wisconsin. 881 N.W.2d 749 (2016).

Lupton, Deborah. Digital Sociology. 1st ed. New York: Routledge, 2014. Source.

Mathews v. Eldridge. 424 U.S. 319 (1976).

Montgomery, D.C., E.A. Peck, and G.G. Vining. Introduction to Linear Regression Analysis.

Hoboken, NJ: Wiley, 2012.

Mustard, David B. ”Racial, Ethnic, and Gender Disparities in Sentencing: Evidence from the U.S. Federal Courts.” Journal of Law and Economics 44 (1) (2001): 285-314.

Neter, J., W. Wasserman, and M.H. Kutner. Applied Linear Statistical Models. Homewood, IL: Irwin, 1990.

O’Neil, Cathy. ”Data Scientist Cathy O’Neil on the Cold Destructiveness of Big Data.” Quartz, 2016. Source.

Pasquale, Frank. The Black Box Society: The Secret Algorithms That Control Money and Information. Cambridge, MA: Harvard University Press, 2015.

Presentence Investigation Report (PSI). In Correctional Assessment, Casework, and Counseling, edited by Anthony Walsh, 97-120. Washington, DC: Office of Justice Programs, 2001. Source. ”Procedural Due Process.” Wex — US Law — LII / Legal Information Institute, 2024. Source.

Reno v. Flores. 507 U.S. 292 (1993).

Rudin, Cynthia, Caroline Wang, and Beau Coker. 2022. ”The Age of Secrecy and Unfairness in Recidivism Prediction.” Harvard Data Science Review. Source.

Seber, G.A.F., and A.J. Lee. Linear Regression Analysis. Hoboken, NJ: Wiley, 2012.

Spohn, Cassia, and David Holleran. ”The Imprisonment Penalty Paid by Young, Unemployed Black and Hispanic Male Offenders.” Criminology 38 (1) (2000): 281-306.

U.S. Constitution, Amend. V.

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FLORIDA UNDERGRADUATE LAW REVIEW U.S. Constitution, Amend. XIV. Ulmer, Jeffery T., and Brian Johnson. ”Sentencing in Context: A Multilevel Analysis.” Criminology 42 (1) (2004): 137-77.

Vredenburgh, Kate. ”The Right to Explanation.” Journal of Political Philosophy 30 (2) (2021): 209-229.

Weisberg, S. Applied Linear Regression. Hoboken, NJ: Wiley, 2005.

Yeung, Karen. ”A Study of the Implications of Advanced Digital Technologies (Including AI Systems) for the Concept of Responsibility Within a Human Rights Framework.” Source.

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Dystopian America and the Overgrown Tree of Monopoly: A Legal Study on the Causes of and Solutions to Insulin Inaccessibility Eric Han Ruilong ’27 Spring 2024

FLORIDA UNDERGRADUATE LAW REVIEW

Abstract The freedom from illness is not so free in modern America. This legal analysis roots out the causes of the modern American dystopia: millions of diabetes patients reliant on insulin therapy are unable to combat the ever-rising cost of the life-saving drug. This analysis breaks down historical, regulatory, and legislative causes for the impenetrable monopoly in the insulin market. This analysis attributes the reality of today’s market to two reasons. First, overgenerous granting of both patent and FDA exclusivities allows prolonged monopolies to take root, resulting in market dominance beyond the terms of protection. Second, prior legislative errors and current governmental reluctance to intervene in the pharmaceutical industry heavily diminish enthusiasm for generic companies to compete with the market monopolies.

Finally, this analysis will provide resolutions and systematic changes that are necessary to holistically adjust insulin prices and provide affordable freedom from illness to all.

I

Introduction

The $1 sale of the insulin patent to the University of Toronto is perhaps the most commonly used example that emphasizes the selfless scientific commitment to the betterment of the world. While insulin saw dramatic changes throughout its history of development, the altruism of its initial inventor was not passed down. In the current healthcare system in the US, there are 7 million diabetic patients reliant on insulin therapy, and uninsured patients pay at least $120-$240 for a month’s supply of insulin., Diabetes is the most expensive chronic illness in the US; one out of six patients ration their monthly insulin, risking lethal complications like diabetic ketoacidosis. Under the American flag of unalienable rights to life, liberty, and the pursuit of happiness is a dystopia, where millions are told to pay or die. This legal analysis roots out the causes for this manifested dystopia: loose and overgenerous patent laws that granted market exclusivity of insulin products and federal regulations that demotivate market competition kept the century-long monopolies evergreen. Part two of the paper will introduce the historical problem of insulin inaccessibility. Part three discusses how the exploited patent system and FDA market exclusivities fuel the monopoly. Part four presents the reality that as the century-old patents start to expire, a series of legislations fail to invigorate generic competition to reduce drug prices. Finally, part five will provide resolutions and systematic changes that are necessary to holistically adjust insulin prices and provide affordable freedom from illness to all.

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II

Background

The story of insulin started in May 1921, when Frederick Banting, a practicing physician, reached out to J. J. R. Macleod, a renowned physiologist on carbohydrates, for help in finding a pancreatic solution to diabetes.1 Although dubious, Macleod provided equipment for Banting to begin his quest for an internal solution to diabetes along with Charles Best, one of Macleod’s students. It is a miracle that the underfunded and inexperienced lab found a consistent reduction of blood sugar and symptoms in diabetic dogs with their pancreas extract.2 Crowned as one of the most important medical innovations of the 20th century, the discovery opened a new door for medicine that could potentially save the illness that plagued humanity for millennia. Banting intended to keep that door open. With concerns about pharmaceutical companies competing with this innovation, Banting’s team applied for a patent in 1923.3 The patent effectively reveals the method of production for insulin, as the purpose as stated by Banting was that “when the details of the method of preparation are published anyone would be free to prepare the extract, but no one could secure a profitable monopoly.”4 History proved to fail Banting’s expectation of open access to medicine in its years of development. Since its initial discovery insulin has evolved significantly in its efficacy, production method, and ingredients. In the century of development, protamine was first added to extend the effect in the 1930s; zinc was added to combine short and long-acting insulin in 1946; lente insulin, which removes the reliance on protamine, was invented in the 1950s; monocomponent and single-peak insulins, which improves the purity, was invented in 1970s; the revolutionary recombinant DNA human insulin then removes the reliance on animal extract in 1978; finally, with the entry of DNA insulin to the market, major “structural modification” of insulin quickly branched out into a variety of products, each with certain advantage.5 Insulin in the market today is vastly different from the insulin Banting first invented. However, more than a century of development later, over 90% of insulin manufactured and sold today comes from virtually the same three pharmaceuticals: Eli Lilly, Novo Nordisk, and Sanofi.6 1

FDA, “100 Years of Insulin,” FDA History Exhibit, 2022.

Ibid.

3 Jeremy A. Greene and Kevin R. Riggs, “Why Is There No Generic Insulin? Historical Origins of a Modern Problem,” New England Journal of Medicine 372 (12) (2015): 1171–75.

4 Michael Bliss, The Discovery of Insulin, University of Chicago Press, 2013.

5 Ibid.

6 D Beran et al., “A Perspective on Global Access to Insulin: A Descriptive Study of the Market, Trade Flows and Prices,” Diabetic Medicine 36 (6) (2019): 726–33.

2

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FLORIDA UNDERGRADUATE LAW REVIEW Through patent evergreening, those pharmaceuticals maintain a market monopoly upheld by governmental policies intended for innovation. The US Constitution states that: “[the Congress shall have Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”7 Patents are therefore created to grant exclusivity to encourage technological innovations. Patents are 20 years of market exclusivity granted by the US Patent and Trademark Office (USPTO) for innovations that demonstrate utility, novelty, and non-obviousness (whether the invention is obvious to an industry).8 However, the evergreen monopoly for pharmaceuticals doesn’t seem to die. While the innovations significantly improve the quality of insulin, they also respectively extend a monopoly for 20 years, meaning that no companies are allowed to manufacture and sell insulin.

The latest patents lasted well into the 21st century even though “the latest and most commonly used analog insulin products are all over 20 years old.”9 In addition to protections offered by the patents, the US Food and Drug Administration (FDA) also grants regulatory exclusivities for the approval of new drugs or changes to old drugs that prevent the approval of generic competitors for a set amount of time.10 For example, by expanding the safe application of a drug for children, “a 6-month period of exclusivity is added to...all applications held by the sponsor.”11 Exclusivities and patents can be protected in conjunction to promote monopoly. While it is important to recognize that the incremental innovations in insulin are beneficial, the tree of innovation is now feeding on the lives of patients instead of saving them.

Rooted in patent exclusivities and cultivated in a competition-free environment, insulin monopoly endangers the lives of millions.

U.S. Const., art. I, § 8, cl. 8.

Cornell Legal Information Institute, “Patent,” LII / Legal Information Institute.

9 Vincent S. Rajkumar, “The High Cost of Insulin in the United States: An Urgent Call to Action,” Mayo Clinic Proceedings 95 (1)(2020): 22–28.

10 Anders Olsen et al., “Patents and Regulatory Exclusivities on FDA-Approved Insulin Products: A Longitudinal Database Study, 1986–2019.” PLOS Medicine 20 (11) (2023): e1004309–9.

11 Center for Drug Evaluation and Research, “Frequently Asked Questions on Patents and Exclusivity,” U.S. Food and Drug Administration, 2020.

7 8

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III

Exclusivities and Monopolies

III.1

The Exploitation of Exclusivities

First, the pharmaceutical company exploits the USPTO and FDA’s lenient protection for medicines. Many insulin products on the market today are drug-device products, meaning the insulin is sold along with their delivery device.12 All of these delivery devices are patented along with the insulin: “In the pharmaceutical market, manufacturers often seek patents not only on the underlying active ingredients in the drugs but also on peripheral aspects such as the excipients and methods of use.”13 A 2023 longitudinal study on overall patent and regulatory exclusivity protection after an insulin product’s FDA approval reports that the 56 “individual brand-name products” enjoy a median of 16 years of overall protection (patent plus exclusivities) since their FDA approval.14 However, of the 56 products, 33 of them are drug-device products and benefit from device patents.15 On two-thirds of those products, device patents are the last to expire, some of which are not relevant to insulin at all, amassing a median of 5.2 years of extra protection from the expiration of the drug protection.16 The overall duration of protection is even extended in 9 products by adding patents after FDA approval of the drug, receiving a median of 6 more years of monopoly.17 The compounded years of protection offered by patents irrelevant to the medicine themselves prolongs monopoly and prevents competition that may significantly reduce the price of insulin. Regardless of irrelevant patents, however, pharmaceutical insulin manufacturing lines of the same active ingredient already enjoy longer protection through making meticulously inconsequential changes to the lines. By changing the “volume, concentration, and modes of delivery” the manufacturing lines enjoy a median of 17.2 years of protection. Included in the data are the three longest manufacturing line protections that are all over 30 years, almost doubling that of the median.18 More fundamentally, the true efficacy of the “incremental” development of insulin during the 1950s-80s is under question.19 Although theoretically better than the previous versions, researchers point out 12

Anders Olsen et al., “Patents and Regulatory Exclusivities on FDA-Approved Insulin Products: A Longitudinal Database Study, 1986–2019.” PLOS Medicine 20 (11) (2023): e1004309–9.

13 Ibid.

14 Ibid.

15 Ibid.

16 Ibid.

17 Ibid.

18 Ibid.

19 Jeremy A. Greene and Kevin R. Riggs, “Why Is There No Generic Insulin? Historical Origins of a Modern Problem.” New England Journal of Medicine 372 (12) (2015): 1171–75.

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FLORIDA UNDERGRADUATE LAW REVIEW the lack of evidence for their definite superiority.20 The nuanced yet minute differences in the various products today are enough to justify the 56 unique product patents, but they simply cannot justify the added cost.

Patents eventually expire to allow market competition through generic drug production. However, as the majority of insulin patents sequentially expire in the 21st century, American diabetic patients still face a modern pharmaceutical market without available generic insulin, highlighting that issues pertaining to medical accessibility stem beyond patent granting. Greene and Riggs point out a surprising phenomenon in which older versions of insulin are deemed “obsolete” in the US market instead of being adopted by generic pharmaceuticals.21 Once these obsolete products are removed from the market, they are unavailable to patients even if doctors prescribe them.22 On one hand, pharmaceutical companies that had a monopoly over the market had no interest in manufacturing cheaper alternatives, and on the other hand, generic companies for the past decade saw little interest in competing with the giants. In the insulin market, small foliages like generic companies cannot gain enough nutrients to survive. Generic companies are unwilling to invest in risky “obsolete” products; instead, companies pick the low-hanging fruit of easy-to-manufacture small-molecule drugs, which insulin is not.23

III.2

Lack of Generic Competition

Failure of federal legislation to promote price-reducing competition in the insulin market allows monopolies to flourish. Generic companies are not able to use the traditional method to introduce generic insulin to the market. The HatchWaxman Act of 1984 was Congress’s first attempt to solve the overarching astronomical drug prices in the US by encouraging competition from generic drugs.24 A generic medicine is defined as “a medication that uses the same active ingredients as a brand-name medicine and must be bioequivalent.”25 Instead of the typical New Drug Application (NDA) that spans ten years of significant financial invest20

Bernd Richter et al., “Human versus Animal Insulin in People with Diabetes Mellitus,” Endocrinology and Metabolism Clinics of North America 31 (3) (2002): 723–49.

21 Jeremy A. Greene and Kevin R. Riggs, “Why Is There No Generic Insulin? Historical Origins of a Modern Problem.” New England Journal of Medicine 372 (12) (2015): 1171–75.

22 Ibid.

23 Ibid.

24 Skylar Jeremias, ”The Hatch-Waxman Act Turns 40: The Law That Made Biosimilars Possible,” The Center for Biosimilars, 2024.

25 Jane Kaufman, 2023. ”DEVELOPMENTS IN THE LAW: BEYOND REGULATION: COMPETITION IN THE PHARMACEUTICAL INDUSTRY AND THE PUBLIC MANUFACTURING OF DRUGS,” Loyola of Los Angeles Law Review (2023): 56, 331.

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FLORIDA UNDERGRADUATE LAW REVIEW ment from “initial drug discovery to marketplace,” the act creates an Abbreviated New Drug Application (ANDA).26 Because of the bioequivalent nature of generic drugs, ANDA does not require extensive clinical trials, making the procedure significantly faster and cheaper.27 The study demonstrates that in a market with six or more generic competitors, generic drug prices can be reduced by 95% of the brand-name price.28 Although revolutionary to the pharmaceutical industry, the shortened pathway did not create a generic market for insulin. Insulin is a largemolecular drug produced by living organisms. However, The Hatch-Waxman Act did not differentiate between small and large-molecule drugs as regulatory bodies do today, and therefore insulin was miscategorized. While small-molecule drugs can be easily copied, large-molecule drugs, or today known as biologics, are almost impossible to exactly duplicate.29 Biologics produced from living systems are expected to have slight variations, so under the standard of bioequivalence, generic companies are unable to proceed with ANDA.30 Delay in federal legislative change prevented biosimilars from entering the insulin market. Realizing the legislative flaw in the Hatch-Waxman Act, and the equivalent need for biologics replacement in the market, Congress passed the Biologics Price Competition and Innovation Act of 2009 (BPCI Act) to open the door for biosimilars, the non-branded biologic product to enter the market. Biosimilars are defined as products that are “highly similar” and have “no clinically meaningful differences” to the branded biologics.31 The BPCI Act resolved the confusing categorization of insulin by “[creating] a 10-year timeline to...allow for...the regulation of insulin as a biologic, not a drug.”32 The 10-year timeline extended the lifespan of the tree of monopoly to March 23, 2020, when the FDA first opened the biosimilar pathway; only in 2021 did the FDA pass the first biosimilar insulin, analog insulin glargine, Semglee.33 Semglee entered the market exactly a century after Banting’s discovery, 37 years after small-molecule generics began to compete and reduce brand-name drug prices. The BPCI Act fails to incentivize generics compa26

Ibid.

Ibid.

28 Ryan Conrad and Randall Lutter, “Generic Competition and Drug Prices: New Evidence Linking Greater Generic Competition and Lower Generic Drug Prices,” FDA. 29 Jeremy A. Greene and Kevin R. Riggs. “Why Is There No Generic Insulin? Historical Origins of a Modern Problem.” New England Journal of Medicine 372 (12) (2015): 1171–75.

30 “Biosimilars Info Sheet Level 1: Foundational Concepts,” FDA. 31 Leah Christl and OND Therapeutic Biologics and Biosimilars Team, “FDA’s Overview of the Regulatory Guidance for the Development and Approval of Biosimilar Products in the US.” In FDA. Accessed April 9, 2024.

32 FDA, “100 Years of Insulin,” FDA History Exhibit, 2022.

33 Ibid.

27

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FLORIDA UNDERGRADUATE LAW REVIEW nies to produce cheaper biosimilar insulins. Under regulatory guidelines, the FDA requires proof of biosimilarity between the biosimilar product and the brand-name drug.34 Although generic companies are not responsible for establishing the safety and efficacy of the biosimilar, in the “stepwise approach,” generic companies still need to conduct some animal and human trials.35 Generic drugs can dramatically reduce drug market price due to the lack of testing and trials required, but “even an abbreviated approval process for biosimilars will require substantially more original data,” resulting in an increased cost of development.36 A Biosimilar Council study that tracks Semglee’s performance since launch reports that in 2023, a standard pack size of 30 days supply costs $269, compared to its brand-name counterpart Lantus at $292, demonstrating an undesirable and insignificant price reduction.37 This price remains unaffordable, and is reflected in its market uptake: Semglee constitutes 17% of all commercial written prescriptions and 25% of fills.38 While the current biosimilar approval pathway ensures drug safety, it restricts the market competitiveness of biosimilars, preventing major price cuts.

The years 2021 and 2022 saw the most recent governmental effort to shakedown the pharmaceutical monopolies. First, through an executive order, the Biden administration aims to tackle corporate consolidation and the lack of competition in various industries. The order mobilizes various agencies and the White House Competition Council to enforce antitrust laws to break down market consolidations.39 Specifically, the administration calls upon an “aggressive legislative reform that would lower prescription drug prices.40 The reform is realized in the USPTO policies and the Inflation Reduction Act of 2022 (IRA). In response to the order, the USPTO collaborated with the FDA to outline initiatives that “protect against the patenting of incremental, obvious changes” to drugs, and to assign more expert patent examiners trained on biologics and pharmaceuticals to scrutinize patents to prevent the patenting of “trivial changes.”41 On the other hand, the IRA made rev34

Leah Christl and OND Therapeutic Biologics and Biosimilars Team, “FDA’s Overview of the Regulatory Guidance for the Development and Approval of Biosimilar Products in the US,” FDA, 2024.

35 Ibid.

36 Jeremy A. Greene and Kevin R. Riggs. “Why Is There No Generic Insulin? Historical Origins of a Modern Problem.” New England Journal of Medicine 372 (12) (2015): 1171–75.

37 Biosimilars Council, “Semglee Launch Tracking,” Biosimilarscouncil.org, 2023.

38 Ibid.

39 The White House, “Executive Order on Promoting Competition in the American Economy,” Whitehouse.gov, July 9, 2021.

40 Ibid.

41 Kathi Vidal and Robert M Califf, “Director’s Blog: The Latest from USPTO Leadership,” USPTO (blog), 2022.

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FLORIDA UNDERGRADUATE LAW REVIEW olutionary changes to price reduction of prescription drugs. The act establishes the Drug Price Negotiation Program, giving unprecedented power to the Secretary of Health and Human Services to negotiate drug prices between Medicare and participating companies. It creates cycles of negotiation starting in 2026, the first cycle of the ten highest-spending prescription drugs under Medicare Part D and Part B.42 The act introduces an “Extra Help” program waiving eligible candidates of their Medicare premium and deductible.43 Out-of-pocket cost is capped at $3500 per year starting in 2024, and $2000 starting in 2025.44 The persistently high price of insulin received the spotlight in the IRA, and the monthly supply of covered insulin is now capped at $35 for Medicare beneficiaries.45 Recent legislative developments create an optimistic outlook on efforts to reduce prescription drug prices.

However, the IRA is insufficient to solve general accessibility to insulin. While the Drug Price Negotiation Program was initiated in 2026, there is uncertainty as to the drugs chosen for the first cycles.46 The small number of chosen drugs leaves patients reliant on the nebulous unnegotiated drugs in jeopardy. The number (10 in 2026, 15 in 2027, 15 in 2028) lacks the “urgency” for patients reliant on life-sustaining drugs.47 There is additional doubt about the effectiveness of the price negotiation.

Under the IRA, the Secretary of HHS must take into consideration the development and research costs of a drug to determine its “maximum fair market price.”48 As previously discussed, drugs that underwent NDA or biosimilar approval processes involve high financial and time investments which justify their market price. The high prices are rooted in biosimilar approval processes and are further blooming in the monopolies. Without a different metric of price determination, the Drug Price Negotiation Program may see unsatisfactory results. The price protection offered by the IRA is also limited to only Medicare beneficiaries, leaving no regulatory policy on drug prices for other markets. Without preemptive price protection for Medicaid, the commercial market, the uninsured, and the American population under the age of 65, pharmaceutical companies can simply increase the cost of drugs in those unprotected markets to offset the reduced profit from Medicare.49 However, because 42 Jay-Donavin Ved, ”ARTICLE: The Inflation Reduction Act of 2022: Addressing Prescription Drug Coverage,” Annals of Health Law: Advance Directives (2023): 32, 131.

43 Assistant Secretary for Public Affairs (ASPA), Inflation Reduction Act of 2022, HHS.gov, November 16, 2023.

44 Ibid.

45 Ibid.

46 Jay-Donavin Ved, ”ARTICLE: The Inflation Reduction Act of 2022: Addressing Prescription Drug Coverage,” Annals of Health Law: Advance Directives (2023): 32, 131.

47 Ibid.

48 Ibid.

49 Jim Hahn, “The Pros and Cons of Allowing the Federal Government to Negotiate Summary

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FLORIDA UNDERGRADUATE LAW REVIEW core mechanisms like the Drug Price Negotiation Program have not been initiated yet, there is still much to look forward to when they do. Despite its shortcomings, the IRA is a monumental step towards stopping if not cutting down unreasonable drug pricing.

The cause of insulin inaccessibility in the US grows beyond patent laws and lack of federal antitrust regulation. Generic competitors face significant pushback from both brand-name companies and insurance companies. Brand-name companies often use a “pay-for-delay” to eliminate competitors, first by suing generic companies for patent infringement, then paying the generic company, who are unwilling to initiate a costly lawsuit, to stay out of the market.50 This is a tactic used throughout the pharmaceutical industry to maintain the status quo; its success is often due to the difficulty in differentiating a legitimate infringement suit from plain corporate bullying. Pharmacy Benefit Managers (PBMs), the middleman between pharmaceutical companies, retailers, and insurance companies, often negotiate for higher rebates from pharmaceutical companies for better formulary placement (insurance coverage priority), and because the brand-name companies have higher list prices (the price charged to insurance companies and patients), they can afford to do so.51 These behind-the-scenes dealings result in patient inaccessibility to biosimilar insulin. In the first quarter of 2023, Medicare only approved 55% of Semglee prescriptions and 44% of unbranded cheap insulin biosimilars; in commercial markets where 75% of Semglee prescriptions are approved, only 30% are of unbranded insulin biosimilars.52 While vigorous enforcement of antitrust laws may eliminate malicious patent infringement suits in the industry, greedy price inflation interactions between pharmaceuticals, retailers, and insurance companies are responsible for sustaining the growth of monopolies.

IV

A Call for Solutions

An in-depth examination of the root causes of modern-day insulin inaccessibility highlights the dire need for legislative and regulatory change. The granted market monopoly of insulin through patents and regulatory exclusivities is a learning opportunity for lawmakers. Both patents and regulatory exclusivities aim to allow Prescription Drug Prices,” CRS Report for Congress, 2005.

50 Kevin Wallentine, ”DEVELOPMENTS IN THE LAW: SHIFTING THE BURDEN ON PAYFOR-DELAY CHALLENGES: ANALYZING AB 824’S EFFECTS ON REVERSE PAYMENT SETTLEMENTS AND DRUG COSTS,” Loyola of Los Angeles Law Review (2020): 54, 367.

51 Anders Olsen et al., “Patents and Regulatory Exclusivities on FDA-Approved Insulin Products: A Longitudinal Database Study, 1986–2019.” PLOS Medicine 20 (11) (2023): e1004309–9.

52 Biosimilars Council, “Semglee Launch Tracking,” Biosimilarscouncil.org, 2023.

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FLORIDA UNDERGRADUATE LAW REVIEW innovators to reap benefits for their innovation investments. However, the lack of communication between the USPTO and FDA stacks up protections that are often too long in conjunction to jeopardize a free market and establish a monopoly. The two regulatory agencies must determine a maximum length of collective protection that balances between interests of both the innovation and the public. USPTO and FDA also must resolve the issue of incremental patenting beyond increasing scrutiny by experts in response to the 2021 Executive Order. Drug-device combination protection and patent-evergreening must be eliminated. Innovations of different magnitudes of impacts should not be given the same amount of protection. This study proposes two different solutions regarding pharmaceutical patents to impede patent and monopoly evergreening. One, USPTO can establish an evaluating system determining the significance of an innovation, and vary the protection based on significance level. Two, USPTOs can establish research and development cost estimation for life-saving drugs, and instead of offering a concrete period of protection, offer whatever period is required for brand-name companies to make a certain percentage of profit. Both methods satisfy the requirements set in the Constitution to encourage innovation while increasing competition to create more valuable inventions and decreasing the impact of “trivial” changes.

Now that most insulin patents have expired and innovation is sparse, the more relevant issue is insulin accessibility. To date, insulin biosimilars remain expensive and powerless to penetrate brand-name monopolies. Evidence points to a lack of competition in the insulin market. The biosimilar approval pathway requires animal and clinical trials that are necessary for the safety of consumers, impeding investments from generic companies to the daunting task. In 2015, Medicare spent 4.3 billion dollars alone on insulin glargine, the active ingredient in Semglee (lancet). If the federal government diverts that funding to subsidize the majority of that research and development cost for generic companies to create biosimilars, generic companies can significantly reduce the market price of biosimilar insulins, saving Medicare and the general public billions in the future. To further incite the enthusiasm of generic competition in the insulin market, the federal government must promote market uptake of biosimilar insulin. Unlike generic drugs, biosimilars struggle to take up market shares due to low priority on insurance formulary placement: insulin biosimilars are disadvantaged sprouts before they even reach the market. Also unlike normal insurance companies that rely on rebates from pharmaceuticals, Medicare and Medicaid are less reliant and can prioritize biosimilar spending to instill consumer confidence in the product, hopefully extending the demand to commercial markets. The combination of market price reduction and insurance promotion may finally yield meaningful price reductions to improve accessibility. The battle 71

FLORIDA UNDERGRADUATE LAW REVIEW against the tree of monopoly is a long one; however, while patient consumers waited a century for biosimilar insulin, the government must be proactive in combating monopolies. Modern America’s freedom from illness is not free, and will never be without governmental interference.

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Works Cited American Diabetes Association. “Economic Costs of Diabetes in the U.S. In 2017.” Diabetes Care 41 (5) (2018): 917–28. Source.

Assistant Secretary for Public Affairs (ASPA). Inflation Reduction Act of 2022. Hhs.gov. November 16, 2023. Source.

Beran, D., R. O. Laing, W. Kaplan, R. Knox, A. Sharma, V. J. Wirtz, J. Frye, and M. Ewen.

“A Perspective on Global Access to Insulin: A Descriptive Study of the Market, Trade Flows and Prices.” Diabetic Medicine 36 (6) (2019): 726–33. Source.

Biosimilars Council. “Semglee Launch Tracking.” Biosimilarscouncil.org, 2023. Source.

“Biosimilars Info Sheet Level 1: Foundational Concepts.” FDA. Source.

Bliss, Michael. The Discovery of Insulin. University of Chicago Press, 2013.

Center for Drug Evaluation and Research, “Frequently Asked Questions on Patents and Exclusivity,” U.S. Food and Drug Administration, February 5, 2020. Source.

Christl, Leah, and OND Therapeutic Biologics and Biosimilars Team. “FDA’s Overview of the Regulatory Guidance for the Development and Approval of Biosimilar Products in the US.” In FDA. Accessed April 9, 2024. Source.

Conrad, Ryan, and Randall Lutter, “Generic Competition and Drug Prices: New Evidence Linking Greater Generic Competition and Lower Generic Drug Prices.” FDA, 2019. Source.

Cornell Legal Information Institute. “Patent.” LII / Legal Information Institute. Source.

Cubanski, Juliette, Tricia Neuman, and Meredith Freed. “Explaining the Prescription Drug Provisions in the Inflation Reduction Act.” KFF, 2023. Source.

FDA. “100 Years of Insulin.” FDA History Exhibit, 2022. Source.

Gaffney, Adam, David U. Himmelstein, and Steffie Woolhandler. “Prevalence and Correlates of Patient Rationing of Insulin in the United States: A National Survey.” Annals of Internal Medicine 175 (11) (2022). Source.

Grassley, Charles E, and Ron Wyden. “The United States Senate Committee on Finance” Www.finance.senate.gov.

Accessed April 10, 2024. Source.

Greene, Jeremy A., and Kevin R. Riggs. “Why Is There No Generic Insulin? Historical Origins of a Modern Problem.” New England Journal of Medicine 372 (12) (2015): 1171–75. Source.

Hahn, Jim. “The Pros and Cons of Allowing the Federal Government to Negotiate Summary Prescription Drug Prices.” CRS Report for Congress, 2005. Source.

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Jeremias, Skylar. ”The Hatch-Waxman Act Turns 40: The Law That Made Biosimilars Possible.”

The Center for Biosimilars, 2024. Source.

Kaufman, Jane. ”DEVELOPMENTS IN THE LAW: BEYOND REGULATION: COMPETITION IN THE PHARMACEUTICAL INDUSTRY AND THE PUBLIC MANUFACTURING OF DRUGS.” Loyola of Los Angeles Law Review (2023): 56, 331. Source.

Olsen, Anders, Reed F Beall, Ryan P Knox, Sean S Tu, Aaron S Kesselheim, and William B Feldman. “Patents and Regulatory Exclusivities on FDA-Approved Insulin Products: A Longitudinal Database Study, 1986–2019.” PLOS Medicine 20 (11) (2023): e1004309–9. Source.

Rajkumar, S. Vincent. “The High Cost of Insulin in the United States: An Urgent Call to Action.”

Mayo Clinic Proceedings 95 (1) (2020): 22–28. Source.

Richter, Bernd, Gudrun Neises, and Karla Bergerhoff. “Human versus Animal Insulin in People with Diabetes Mellitus.” Endocrinology and Metabolism Clinics of North America 31 (3) (2002): 723–49. Source.

The White House. “Executive Order on Promoting Competition in the American Economy.”

Whitehouse.gov, 2021. Source.

U.S. Constitution, art. I, § 8, cl. 8.

Ved, Jay-Donavin. ”ARTICLE: The Inflation Reduction Act of 2022: Addressing Prescription Drug Coverage,” Annals of Health Law: Advance Directives (2023): 32, 131. Source.

Vidal, Kathi, and Robert M Califf. “Director’s Blog: The Latest from USPTO Leadership.”

USPTO (blog), 2022. Source.

Wallentine, Kevin. ”DEVELOPMENTS IN THE LAW: SHIFTING THE BURDEN ON PAYFOR-DELAY CHALLENGES: ANALYZING AB 824’S EFFECTS ON REVERSE PAYMENT SETTLEMENTS AND DRUG COSTS,” Loyola of Los Angeles Law Review (2020): 54, 367.

Source.

WHO Team. “Keeping the 100-Year-Old Promise: Making Insulin Access Universal.” World Health Organization, 2021. Source.

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The Essential Function of the Supreme Court: A Dialogue Wesley Holston ’26 Spring 2024

FLORIDA UNDERGRADUATE LAW REVIEW

Abstract Through the question-and-answer format of Professor Henry M. Hart’s celebrated The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic (otherwise known as the Dialogue), this article seeks to examine from several angles questions about the United States Supreme Court’s “essential role” in the Constitution’s scheme of government. The article advances positions relating to this “essential role” in the context of the Court’s use of its certiorari power to “cherry-pick” (in the words of one interlocutor) legal issues and of its relationship to other courts and the other two branches of the Federal Government. The dialogue takes place between two seemingly opposite viewpoints: one that sees the Court’s main function—and the function of all courts—as the decider of cases and another that sees the Court more as the designated interpreter and enforcer of constitutional meaning.

I

Introduction

It is the intention of this article to explore the role of the Supreme Court in the constitutional scheme. As Professor Henry M. Hart wrote in the introduction of his celebrated The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic – or, as it is more famously known, the Dialogue, “[t]he purpose of the discussion is not to proffer final answers but to ventilate the questions.”1 Towards this end, the question-and-answer format Professor Hart used has been adopted, as it is able to frame, contextualize, and compare the many different positions one may reasonably take on this topic more effectively than a straightforward argumentative article.

II

What is the Essential Role of the Judiciary?

Q. Discussing jurisdiction-stripping, one of the interlocutors in Professor Hart’s Dialogue judges that Congress may not make such exceptions to the appellate jurisdiction of the Supreme Court “as will destroy [its] essential role. . . in the constitutional plan.”2 What that “essential role” is Hart never elaborates on. What, in your opinion, could that “essential role” be?

1 Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1363 (1953).

2 Ibid., 1365.

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FLORIDA UNDERGRADUATE LAW REVIEW A. I think it is to enforce the supremacy of the Constitution. The Court’s other roles all derive from this one supreme function or power.

Q. Can you tell me what you mean by “interpretation of the Constitution”?

A. I mean that the Court must “enforce the Constitution,” as Professor Bandes says.3 Q. How does the Court do that?

A. Through its appellate jurisdiction. It allows the Court to uphold its own precedent and make sure its rules are being followed by the courts of the Nation.

Q. Do not Congress and the President also enforce the Constitution? And what of those private citizens who are the ones to bring suit against unconstitutional enactments? I would call them enforcers of the Constitution more than I would the courts. Private citizens can act on their own, but the courts can move only when requested to move; and, even then, only when they are constitutionally authorized to do so. If, pursuant to Article III, an issue is not a “case or controversy,” the courts can take no cognizance of it.4 They can not sua sponte reach out to correct an abuse when they see it; they are not even permitted to issue advisory opinions.

They almost always have to act after the fact, to remedy injuries already caused by abuse. This seems a rather weak power of enforcement, no?

A. Then let us not call the courts enforcers of the Constitution, but of constitutional supremacy. Surely, you can have no qualms with that way of putting it?

It makes the Supreme Court “the constitutional instrument for implementing the supremacy clause,” which would have little effect without it.5 Q. I am still uncomfortable, but before we continue, let us clarify something: are we speaking of the Supreme Court or of the entire Federal Judiciary, including the lower courts? Sometimes we refer to “the” Court and the courts and take as our subject now one, now the other without saying so.

A. Your question was about the Supreme Court. Let’s limit ourselves to that.

III

“Cherry-Picking”

Q. Fine. I think that your scheme condones the Court’s modern-day practice of “cherry-picking” legal issues—granting certiorari on these but not on those questions within the same case. I think that that flies in the face of Article III’s requirement 3

Susan Bandes, The Idea of a Case, 42 Stan. L. Rev. 227, 301 (1990).

Cf. U.S. Const., art. III, § 2, cl. 1.

5 Leonard G. Ratner, Congressional Power over the Appellate Jurisdiction of the Supreme Court, 109 U. Pa. L. Rev. 157, 160-1 (1960).

4

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FLORIDA UNDERGRADUATE LAW REVIEW that, “[t]he judicial Power shall extend to all Cases, in Law and Equity.”6 The word “case”—with all its questions of standing and jurisdiction and the like—is pretty determinative of the nature, or at least the object of the work of the Court. A case is a set of concrete facts that present certain legal questions the resolution of which may alter in a binding way the legal relationship between the concerned parties. To allow the Court to assert jurisdiction over this question but not those questions in the same case thwarts the real purpose of the case requirement; it permits the Court to decide not cases but issues.

A. If the issue is fairly presented by a case, and the facts are being used to inform the resolution of the issue, I can not see how the case requirement is in a meaningful way transgressed.

The Supreme Court is uniquely tasked with ensuring the supremacy and consistency of Federal law. Towards that end, I find no problem with allowing the Court to “cherry-pick” the questions it decides. With a limited amount of resources, I think it is only reasonable for the Court to be enabled to husband them and devote its attention to where it is most needed. If a case presents five questions and one is the subject of a circuit split and the others are comparatively unimportant or not ripe yet for decision (they are frivolous, perhaps, or the facts of the case do not conduce to a well-informed judgment), it would seem to me exactly what the Court should be doing to select the circuit split issue for decision and pass over the others.

Q. According to your conception, the facts of the case exist solely to aid the Court in its exposition of rules, in the same way that an administrative agency might collect data as it contemplates framing and promulgating a new regulation.

In other words, the Court treats cases like vehicles, or a means to an end (its own end, of course), in a way unparalleled anywhere in our judicial system.

It squanders the resources of litigants to have their attorneys brief and argue a single or a handful of questions out of many, while the case is dragged out in a lower court whose decisions on the other issues are themselves subject to Supreme Court review. How much more wasteful is it for the Court—as it does sometimes—to frame its own question and require the attorneys to argue it, in complete disregard of the question they themselves brought to the Court!

But even apart from that, I think that allowing the Court to pick and choose what areas of law it wishes to develop encourages it to pursue a non-judicial agenda; it at least makes it appear to the public to be doing so. When the Supreme Court invalidates a law, it can not “say, ‘Because we had to.’ Instead, [it] must say, ‘Because we chose to.’”7 This, at least, is the appearance in, say, Dobbs v. Jackson 6 7

U.S. Const., art. III, § 2, cl. 1. Italics mine.

Retrieved from Benjamin B. Johnson, The Origins of Supreme Court Question Selection, 122

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FLORIDA UNDERGRADUATE LAW REVIEW Health. It is hard to refute the allegation of the dissent, that the majority did not follow Casey in upholding Roe “for one reason and one reason only: because the composition of this Court has changed,” when the Court did not have to decide the case but chose to.8 A. This may be true in certain controversial cases. But your analysis can not explain why the Court has come to be viewed, not as a corrupt policymaker, but as the champion of civil rights. This is not a bad development, surely?

IV

The Supreme Court’s Function Relative to Those of Other Courts

Q. To the extent that it gives rise to the misunderstanding of the Court as a civil rights gumball machine, I think it is a bad development. This is at least partly to blame for the immense vulnerability of the Court when it decides to roll back civil rights precedent—as it did in Dobbs—even when it is completely justified in doing so.

Chief Justice Marshall, long before certiorari, once wrote of having to take a case he would rather avoid: With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. . . . . We find no exception to this grant [of appellate jurisdiction], and we cannot insert one.9 I do not think we will ever stop confusing the role of the courts, which say what the law is, not what it should be. But acting in accord with the Chief’s philosophy would at least give the Court a greater claim to impartiality, and therefore stronger protection against the charge of willfully changing the law—directly contributing Colum. L. Rev. 793, 863 (2022) (citing Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill, 100 Colum. L. Rev. 1643, 1717 (2000)).

8 Dobbs v. Jackson Women’s Health Organization, 597 U.S. 6 (2022) (Thomas, J., and Kavanaugh, J., concurring, Roberts, C.J., concurring in the judgment, and Breyer, Sotomayor, and Kagan, JJ., dissenting).

9 Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).

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FLORIDA UNDERGRADUATE LAW REVIEW to the perceived legitimacy of its decisions, the all-important bedrock on which the Court rests.

This leads us, coincidentally, to another misgiving I have with your theory.

The Supreme Court is the only Federal court with certiorari power. This fact, together with your proposition that the Court’s function is to “enforce constitutional supremacy,” seems to put the Court in a different category altogether from other Federal courts and, how much more, from State courts, as though these courts are not similarly competent and tasked to ensure that Federal law is upheld. But the Constitution vests the same judicial power in both Supreme and inferior Federal courts; and since the latter’s existence is always optional, we must assume that the state courts together with the Supreme Court are alone sufficient to accomplish the ends of the Federal judicial power.

A. You would deprive, then, the word “supreme” of all meaning?

Q. Not at all. I think it designates an entity that the Founders thought expedient – a single final tribunal with national jurisdiction. What I don’t think it does is grant the Court a constitutionally special status or “superpower.” In the constitutional text, the Court is differentiated from all other courts only in the guaranteed nature of its existence and in the extent of its jurisdiction. Indeed, it is possible that the distinction between supreme and inferior courts “refer[s] simply to the relative jurisdictional reach of the courts” and not at all to a hierarchical relationship of subordination of the latter to the former.10 A. That is another academic bad idea. Even if it is true that “supreme” is meant to describe the Court’s jurisdictional extent, that does not in any way rule out the idea that it has a special role in the judicial hierarchy. Indeed, it seems actually to support that idea. A single supreme court that has jurisdiction over the entire nation and can not itself be reversed and can not be disestablished by Congress must serve the full function of the Judicial Branch: upholding the supremacy of Federal law and preserving consistency in its application. No other court does these things in quite the same way and to quite the same degree as the Supreme Court.

Q. What you propose seems to me to be a difference of degree, not of kind. It is not the function of the Supreme Court that is different from other courts, but its relative effectiveness in doing that function.

A. There is a threshold after which a difference in degree becomes a difference in kind.

Q. I see each court fulfilling the same function, only on different levels. A circuit court ensures legal consistency on the circuit level, and the Supreme Court on the 10

Amy Coney Barrett, The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 343 (2006).

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FLORIDA UNDERGRADUATE LAW REVIEW national level.

It seems plain that Article III contemplates no role distinction between the Supreme Court and the rest of the courts of the Nation, Federal and State. The reason, in my opinion, that Article III spells out the original and appellate jurisdiction of the Supreme Court is not to give it a special status, but because it is setting up the Judicial Branch. A judiciary must have courts and authority to hear cases. Not to have established at least a “core” or “starting point” – the Supreme Court with its jurisdiction – thereby leaving the existence of all courts and their jurisdiction entirely to Congress would have been to make both optional in the same way inferior Federal courts currently are optional, which would have made optional, functionally at least, the entire Judicial Branch. The courts would have been wholly subordinate to Congress. That is plainly not the intention of the Founders.

Article III specifies that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”11 Having created the judicial power, Article III must vest it in something if it is not to be a creature of the other branches, and it does so in a supreme court. No distinction is made between the Supreme and inferior courts other than that one must exist and the others can be created by Congress, but the same judicial power inheres in both. This is evident in Section 2 when we are told that “[t]he judicial Power shall extend. . . ”12 without distinction made between the judicial power of the Supreme Court and the judicial power of the lower courts. Both classes of court are equally tasked with the exercise of the Federal judicial power, which exists to resolve conflicts in the types of cases enumerated in the Article.

Perhaps Article III—at most—makes the Supreme Court the head of the Judicial Branch. Whether or not this is true, the fact that it vests the judicial power both in the Supreme Court and in inferior courts without qualification means that both courts exercise the same power in the same way.

A. Where do the other judicial functions I identified—like preserving legal consistency—fit into your scheme?

11 12

U.S. Const., art. III, § 1.

Ibid., § 2, cl. 1.

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V

The Interpretive Power of the Supreme Court Compared to that of the Two Elected Federal Branches

Q. The Supreme Court does them, but whereas I see them as necessary effects of deciding cases on a national level, you make deciding cases merely those functions’ side-effects. If a certain case resolves a circuit split, then that is just an incident of the Court’s actual job: the decision of cases.

The other branches interpret the Constitution, too, yet we do not say that that is their function.

When Congress passes a bill, it expresses its opinion that it is valid and legal; the same goes when the President signs it. And both may very well choose to fail a bill if they decide that it is not constitutional.

A. You can not claim that those Branches interpret the Constitution in a manner analogous at all to the way that the Supreme Court does it.

Q. Why? A. I’ll let Publius answer: Limitations [on Congress’ power] can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.13 Just a little below he remarks, “that the courts were designed to be an intermediate body between the people and the legislature in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts.”14 The Court upholds constitutional supremacy against even the other two branches.

Interpret however they’d like, it is the Court’s constitutional determinations that are effective and final, not theirs.

VI

Conclusion

Q. Publius emphasizes, as you do, that the “duty” of the courts is to invalidate illegal laws. I think that this view rather neglects the role of the courts in purely 13 14

The Federalist No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

Ibid., 467

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FLORIDA UNDERGRADUATE LAW REVIEW private disputes. The question is, which duty is more important: the declaration of law or the vindication of rights?

A. That is reductionist. There are myriad functions of the Court and the courts.

It can be that one is not so much more important than another. If we accept Hart’s “essential functions” thesis, it may be necessary perhaps to assess a jurisdictionstripping bill in the light of the whole function of the Supreme Court. To what extent will it impact its ability to resolve disputes, declare the law, uphold Federal supremacy, and create legal consistency? The “essential function” may be the whole complex of tasks and unique roles that the Supreme Court—and the whole Federal Judiciary—fulfill in the constitutional scheme. What the Framers envisioned the Supreme Court as doing, that, perhaps, Congress may not destroy.

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Works Cited Bandes, Susan. The Idea of a Case. 42 Stan. L. Rev. 227, 301 (1990).

Barrett, Amy Coney. The Supervisory Power of the Supreme Court, 106 Colum. L. Rev. 324, 343 (2006).

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404 (1821).

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 6 (2022).

Hamilton, Alexander. The Federalist Papers: No. 78, 466, 467. Clinton Rossiter ed. (1961).

Hart, Henry M. Jr. The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic. 66 Harv. L. Rev. 1362, 1363, 1365 (1953).

Hartnett, Edward A. Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges’ Bill. 100 Colum. L. Rev. 1643, 1717 (2000).

Johnson, Benjamin B. The Origins of Supreme Court Question Selection. 122 Colum. L. Rev. 793, 863 (2022).

Ratner, Leonard G. Congressional Power over the Appellate Jurisdiction of the Supreme Court.

109 U. Pa. L. Rev. 157, 160-1 (1960).

U.S. Constitution, art. III, § 1.

U.S. Constitution, art. III, § 2, cl. 1.

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Livestock Slaughter in the United States: Ethical Implications of the Humane Methods of Slaughter Act of 1958 Kristina Kianovski ’27 Spring 2024

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Abstract The USDA provides guidelines for the humane slaughter of livestock in the United States which are meant to prevent unnecessary harm to farm animals. The research below is an analysis of this legislation, including an overview of the Humane Slaughter Act of 1958, the Federal Meat Inspection Act, the Federal Poultry Product Inspection Act, and recent additions to the code of federal regulations on the subject. All of this legislation was created to combat allegations of animal abuse and unethical practices in the livestock slaughter business.

To examine the ethical implications and shortcomings of this legislation, this text describes and analyzes the complications of the three methods of stunning in cattle, swine, and poultry: electrical stunning, captive bolt stunning, and carbon dioxide poisoning. These three methods are compared to one another and legislation meant to alleviate complications from the three methods is discussed.

The analysis of these methods, their potential complications, and the remedial legislation will demonstrate that current livestock slaughter guidelines are not effective in accomplishing their goal. The ethical violations that occur during livestock slaughter are not prevented by the implementation of this legislation, and it must be reformed to truly make an impact on the practice.

I

Introduction

Since 1958, the United States of America has shaped its agricultural practices— concerning animal ethics and concentrated animal feeding operations (CAFOs)—based on very few pieces of legislation. While agricultural practices such as pesticide use and weeding practices are strictly regulated by the USDA, livestock slaughter has comparatively vague guidelines that often fail to prevent unnecessary harm to livestock.1 To reform the Humane Methods of Slaughter Act, the Federal Meat Inspection Act, and the Poultry Product Inspection Act, the USDA passed regulations such as 9 CFR Part 313, hoping to alleviate certain ethical implications of livestock slaughter by creating stricter guidelines for the transport and humane slaughter of livestock.2 Nevertheless, many argue that this was insufficient to prevent the mistreatment and abuse of animals. In this journal, we will review the nuances of the regulations and legislation passed to protect the livestock in CAFOs, as well as raise some objections about the ethicality of these practices.

1 2

About OPMP. USDA. United States, Code of Federal Regulations, Title 9, Section 313.

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FLORIDA UNDERGRADUATE LAW REVIEW This journal is composed of five subsections. Section II (Humane Methods of Slaughter Act) is a description of the Humane Methods of Slaughter Act and its purpose in the greater agricultural industry. Section III (Federal Regulations) is an overview of the main federal regulations pertinent to methods of slaughter, such as the Federal Meat Inspection Act and the Poultry Product Inspection Act. Section IV (Methods of Slaughter) consists of the different methods of livestock slaughter, the tools used in each, and their shortcomings. Section V (Regulation of Method Administration) describes the federal regulations passed to alleviate complications with the methods of slaughter, and Section VI (Implications) discusses the ethical implications of the various regulations meant to alleviate complications with methods of slaughter.

II

Humane Methods of Slaughter Act

Firstly, it is important to understand the Humane Methods of Slaughter Act, a prominent piece of legislation originally created to mitigate unnecessary harm to animals in slaughterhouses.3 Passed in 1958 in response to general public concern about animal treatment in meatpacking plants, the Humane Slaughter Act of 1958 is comprised of four parts:4 (A) prevent needless suffering [of livestock]; (B) result in safer and better working conditions for persons engaged in slaughtering operations; (C) bring about improvement of products and economies in slaughtering operations; and (D) produce other benefits for producers, processors, and consumers that tend to expedite an orderly flow of livestock and livestock products in interstate and foreign commerce

The first part of this Act prevents the ‘needless suffering’ often associated with maltreatment of animals in CAFO environments. As defined by the Humane Methods Act, this means that (a) in the case of cattle, calves, horses, mules, sheep, swine, 3

United States, Code of Federal Regulations, Title 7, Section 48, 7 USC Ch. 48: Humane Methods of Livestock Slaughter (house.gov).

4 Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW and other livestock, all animals are rendered insensible to pain by a single blow or gunshot or an electrical, chemical or other means that is rapid and effective, before being shackled, hoisted, thrown, cast, or cut.5 Following this, the Humane Methods of Slaughter Act aims to protect slaughterhouse workers from unsafe conditions as well as expedite the flow of livestock and livestock trade in the way that least harms the animals.6 Nevertheless, the rest of the Act does not deal with the conditions under which the animals themselves are kept, with the exception of Section 903, which creates guidelines for the transportation of equine and grants authorization for the Secretary of Agriculture to alter these guidelines—but limits their influence over regulations regarding the slaughter of livestock.7

III

Federal Regulations

Secondly, we must understand the other two oldest pieces of legislation in the United States regarding livestock treatment—the Federal Meat Inspection Act of 1906 and the Poultry Product Inspection Act of 1957. The Federal Meat Inspection Act, although largely dealing with postmortem inspection as well as human consumption of meats, includes two valuable sections that are pertinent to the handling of livestock antemortem.8 The first of these is Section 603, which establishes that the Secretary of Agriculture may suspend all inspection and production of meat in a plant that does not comply with the guidelines of the Humane Methods of Slaughter Act.9 The second prominent section—which is more relevant for our purposes—is Section 610 Prohibited Acts.10 This section prohibits adulteration of livestock while in transit or prior to inspection, attempting to decrease any harm that may be inflicted on livestock before inspection and arrival at a slaughterhouse.11 This is important when analyzing common complications in animal slaughter, which often affect the quality of the meat and make the affected animal nonviable for trade 5

Humane Methods of Slaughter Act: USDA has addressed some problems but still faces enforcement challenges, (United States General Accounting Office, 2004), p. 2-3.

6 Congress.gov, ”H.R.4115 - 95th Congress (1977-1978): Humane Methods of Slaughter Act,” February 28, 1977.

7 Ibid.

8 Humane Methods of Slaughter Act, United States, Code of Federal Regulations, Title 7, Section 48.

9 Food Safety and Inspection Service. Federal Meat Inspection Act—Food Safety and Inspection Service.

10 United States, Code of Federal Regulations, Title 21, Section 603.

11 Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW or consumption.12 The Poultry Product Inspection Act has similar guidelines as the Federal Meat Inspection Act, establishing that the Secretary of Agriculture oversees the legal slaughter of poultry and the upholding of the Humane of Slaughter Act.13 However, the Poultry Product Inspection Act is even less strict than the FMIA, allowing for personal slaughter and distribution of poultry as long as it is labeled under the guidelines and fit for human consumption (§464. Exemptions).14 Understanding these Congressional acts is imperative to understanding both their direct implications and the regulations that have followed them. To create a complete picture, however, it is necessary to review both the complications of livestock slaughter and the ethical debates that arise based on these complications.

IV

Methods of Slaughter

There are four common methods of livestock slaughter: slaughter by electrical stunning, captive bolt stunning, carbon dioxide gas poisoning, and the gunshot method. This journal will not discuss the gunshot method, due to its decreased use in the U.S. as well as its close similarity to the captive bolt method.15 Captive bolt stunning—the most common of the four methods in cattle slaughter—is a method in which a stunner powered by gunpowder cartridges or compressed air is placed against the animal’s forehead. When the trigger is pulled, the stunner explosion drives a metal bolt into the animal’s brain, which is meant to cause immediate brain death for the animal. This is called the ‘captive’ bolt method in that the bolt is connected to the stunner, which differentiates it from a gunshot. Certain captive bolt stunners do not enter the animal’s brain, instead knocking the animal unconscious through a concussive force. These are referred to as mushroom stunners or non-penetrating captive bolts.16 This method, although widely used, presents a few controversies that cannot be ignored. For one, the captive bolt method requires a level of accuracy which is not always feasible when the animal is in distress. Additionally, there has not been much research concerning captive bolt stunning and its effects on the animal’s sensibility.

One study by Grandin found that out of 21 plants, 1.2% of the bulls or cows stunned 12

Ibid.

Jeff Welty, Humane Slaughter Laws, 70 LAW & CONTEMP. PROBS. 175 (2007).

14 “Food Safety and Inspection Service.” Poultry Products Inspection Act — Food Safety and Inspection Service.

15 Humane Methods of Slaughter Act, United States, Code of Federal Regulations, Title 7, Section 48.

16 Jeff Welty, Humane Slaughter Laws, 70 LAW & CONTEMP. PROBS. 175 (2007).

13

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The carbon dioxide method of slaughter is mainly used with pigs, who have deeper-set brains than cattle and thick skulls which make it difficult to properly aim with the use of the captive bolt method. In the carbon dioxide method of slaughter, pigs are placed on a conveyor belt which proceeds to drive the pigs through a carbon dioxide gas chamber, creating an induced asphyxiation that leads to death.18 Over the past decades, the carbon dioxide method of slaughter has become less frequent due to complications that arise during the asphyxiation of the animals. For one, it was found that the pigs may experience substantial pain and discomfort while in the gas chamber.19 One study found that pigs exhibited aversive behaviors (e.g. rearing, backing up, vocalization) when in the gas chamber, even at CO2 levels as low as 15%. However, this method of slaughter is one that poses few risks to meat quality, which needs to meet a certain standard postmortem.20 Finally, and most common, is the electric stunning method. This method is most commonly used on poultry, but also administered to many cattle and swine.

In this method, tongs or paddles are placed on either side of the animal’s head, and an electric shock is administered to stun the animal. In some cases, these paddles are administered on one side of the head and the body. With poultry, the process differs quite drastically; Poultry is shackled upside down on a conveyor belt and moved single file through a shallow pool of saline. This water is then electrically shocked to immobilize the birds. Upon immobilization, the birds have their carotid arteries severed by a human or machine cutter and suffer a rapid death due to exsanguination. The birds are then moved through a scald tank for feather removal.21 Although it is one of the most commonly used methods, electrical stunning is also regarded as the most ethically unsound. The first and most prominent argument against electrical stunning is that electrical stuns are not always effective in 17

Ibid.

A. Q. Sazili, P. Kumar, and M. N. Hayat, ”Stunning Compliance in Halal Slaughter: A Review of Current Scientific Knowledge,” Animals: An Open Access Journal from MDPI 13, no. 19 (2023): 3061.

19 Jeff Welty, Humane Slaughter Laws, 70 LAW & CONTEMP. PROBS. 175 (2007).

20 A. R. Steiner et al., Humanely Ending the Life of Animals: Research Priorities to Identify Alternatives to Carbon Dioxide. Animals: An Open Access Journal from MDPI 9, no. 11 (2019): 911.

21 National Agricultural Law Center, Slaughter and Processing In the United States: Oversight and Requirements, University of Arkansas Division of Agriculture Research and Extension.

18

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FLORIDA UNDERGRADUATE LAW REVIEW inducing insensibility, and may not stun the animal properly if the voltage is not high enough.22 Similarly, many argue that electrical stunning is as painful for the animals as it is for a person experiencing electric shock therapy.23 With poultry, these concerns become more significant; occasionally, poultry birds are able to evade the water completely and proceed to the next phase of the slaughter while conscious.

Unlike cattle electrical stunning, which is individualized based on the size of the cattle, size variation among poultry can affect whether or not the birds are immobilized when they are stunned. Often, this means that larger birds are not fully paralyzed during the stun and may regain consciousness as they are bleeding out.24 As such, this method of stunning is often regarded as controversial and has been the source of many philosophical arguments against meat consumption.

V

Regulation of Method Administration

Due to the vague nature of the Humane Methods of Slaughter Act and the lack of other legislation on the topic, there have been both federal and state regulations instituted to mediate the lack of specificity and complications that arose from the previous legislation. The most prominent of these is Title 9 Part 313 (9 CFR § 313.5) in the federal code of regulations, which outlines regulations for both the transportation and the humane slaughter of livestock.25 To combat the aforementioned complications with carbon dioxide slaughter, 9 CFR § 313.5 provides (roughly) the following guidelines:26 1) Carbon dioxide gas must be administered in a closed chamber to mimic surgical anesthesia before the animals are shackled, hoisted, or otherwise harmed. This is to be done in a way that mitigates the amount of discomfort and excitement of the animals 2) Driving the animals to the carbon dioxide chamber must also be done in a way that mitigates harm or discomfort to the animals. Use of electrical prodding equipment is to be used as little as possible or with 22

Jeff Welty, Humane Slaughter Laws, 70 LAW & CONTEMP. PROBS. 175 (2007).

A. R. Steiner et al., Humanely Ending the Life of Animals: Research Priorities to Identify Alternatives to Carbon Dioxide. Animals: An Open Access Journal from MDPI 9, no. 11 (2019): 911.

24 Ibid.

25 United States, Code of Federal Regulations, Title 9, Section 313.

26 United States, Code of Federal Regulations, Title 9, Section 313.5.

23

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FLORIDA UNDERGRADUATE LAW REVIEW the lowest voltage 3) Once exposed to the carbon dioxide, the animals shall remain unconscious during any shackling, hoisting, sticking, or bleeding. This is with the exception of swine in which death has been induced by the administration of carbon dioxide. Asphyxia or death shall not be induced in animals [other than swine] before bleeding.

Similarly, 9 CFR § 313.15 has guidelines regarding both mechanical/captive bolt and electrical methods of stunning animals.27 The first regulations of the captive bolt and stunning methods mirror those of the carbon dioxide slaughter, with animals required to be transported in a way that produces the least excitement as well as requiring animals to be unconscious before any further harm. However, further regulations on the administration of the captive bolt or stunners (amended last in 2004) include: 1) To assure unconsciousness with every blow, compressed air devices must have air pressure gauges read and kept at a uniform level which ensures the immediate death of every animal, 2) Stunning areas must be designed so as to limit the pain of every animal but also restrict movement in a way that allows for the stunning device to be used with as much accuracy as possible. This means splintered boards, loose bolts, holes, or broken planking are prohibited from stunning areas, 3) Correct detonating charge must be used based on the sex, breed, size, and species of animal, 4) Captive bolt stunners which inject compressed air into the cranium will not be used to stun cattle.28 Following is a summary of 9 CFR 313.30 guidelines regarding electrical stunning or paralysis of animals: 27 28

United States, Code of Federal Regulations, Title 9, Section 313.15.

Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW 1) Electrical shocks are to be administered in a way that renders the animal insensible to pain immediately thereafter, 2) Flow of animals through electrical current application equipment must be controlled as to be least harmful to the animal. All impellers or hanging devices must be constructed of flexible or hanging material, 3) Current must be applied as to avoid hemorrhages or tissue changes which would interfere with further inspection procedures.29

VI

Implications

After examining the CFR regulations meant to combat common complications with slaughter procedures as well as describing the persistent ethical issues with livestock slaughter, it becomes clear that regulating slaughter methods to alleviate the suffering of livestock is often ineffective. With procedures like livestock slaughter—which are prone to inconsistent outcomes—it becomes increasingly difficult to create effective guidelines. Evidently, the guidelines for electrical stunning and captive bolt procedures directly contradict the persisting ethical shortcomings of animal slaughter. Guidelines such as applying an even electrical current, limiting movement, and rendering the animal insensible to pain are difficult to enforce. Advocates of animal ethics argue we have a moral responsibility to amend standard procedures where poultry suffers long after being shocked and cattle are mechanically bolted multiple times before death due to inaccuracy of the stun.

After an analysis of these results, it is evident that more research is required to study the true damage caused by imperfections in slaughter methods. Additionally, current legislative guidelines for humane slaughter methods, which lack proper procedures in the case of a botched slaughter, must be amended accordingly. Furthermore, it is imperative to understand the true efficacy of stunning and captive bolt methods of slaughter with respect to the number of animals annually slaughtered in the United States before reaching a conclusion on whether these practices are ethical. Nevertheless, being vaguely worded and increasingly outdated, the Humane Slaughter Act of 1958—the predominant piece of legislation concerning slaughter in the United States—would also benefit from amendments to make it more relevant in the modern day.

29

United States, Code of Federal Regulations, Title 9, Section 313.30.

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Works Cited About OPMP. USDA. Accessed April 7, 2024. Source.

Food Safety and Inspection Service. Federal Meat Inspection Act—Food Safety and Inspection Service.

Food Safety and Inspection Service. Poultry Products Inspection Act — Food Safety and Inspection Service.

Humane Methods of Slaughter Act of 1958 Congress.gov. H.R.4115 - 95th Congress (1977-1978): Humane Methods of Slaughter Act. February 28, 1977. Source.

Humane Methods of Slaughter Act. United States, Code of Federal Regulations, Title 7, Chapter 48, Accessed March 20, 2024. Source Humane Methods of Slaughter Act. United States, Code of Federal Regulations, Title 21, Chapter 10, Section 464, Accessed March 20, 2024. Source.

HUMANE METHODS OF SLAUGHTER ACT: USDA has addressed some problems but still faces enforcement challenges. (United States General Accounting Office, 2004), p. 2-3. Source.

National Agricultural Law Center. “Slaughter and Processing In the United States: Oversight and Requirements.” University of Arkansas, Division of Agriculture Research and Extension. Accessed April 1, 2024. Source.

Sazili, A. Q., Kumar, P., and Hayat, M. N. ”Stunning Compliance in Halal Slaughter: A Review of Current Scientific Knowledge.” Animals: An Open Access Journal from MDPI 13, no. 19 (2023): 3061. Source.

Steiner, A. R., Flammer, S. A., Beausoleil, N. J., Berg, C., Bettschart-Wolfensberger, R., Pinillos, R. G., Golledge, H. D. W., Marahrens, M., Meyer, R., Schnitzer, T., Toscano, M. J., Turner, P. V., Weary, D. M., and Gent, T. C. ”Humanely Ending the Life of Animals: Research Priorities to Identify Alternatives to Carbon Dioxide.” Animals: An Open Access Journal from MDPI 9, no.

11 (2019): 911. Source.

United States, Code of Federal Regulations, Title 7, Section 48, Accessed March 20, 2024 7 USC Ch. 48: HUMANE METHODS OF LIVESTOCK SLAUGHTER (house.gov).

United States, Code of Federal Regulations, Title 9, Section 313, Accessed April 2nd, 2024. Source.

United States, Code of Federal Regulations, Title 9, Section 313.15, Accessed April 2nd, 2024.

Source.

United States, Code of Federal Regulations, Title 9, Section 313.30, Accessed April 2nd, 2024.

Source.

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Regulating Tech Titans — Why Section 230(c) Needs Revision Anneka Lupinek ’27 Spring 2024

FLORIDA UNDERGRADUATE LAW REVIEW

Abstract Although the Communications Decency Act of 1996 was passed with the intention of regulating technology that is now obsolete, two crucial sections within it form the basis for almost all modern tech regulation.1 Section 203(c)(1) says that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” and 203(c)(2) says that providers of information services shall not be held liable for “any action voluntarily taken...to restrict access to or availability of material that the provider or user considers to be...objectionable, whether or not such material is constitutionally protected.”2 Common law interpretation of what qualifies as an information service has given tech companies regulatory leeway beyond the original spirit of the statute. Additionally, recent SCOTUS rulings in Twitter, Inc. v.

Taamneh3 and Gonzales v. Google4 have further undermined the FCC’s power over modern tech companies. A revision of Section 230(c)(2)5 would adapt the act for the modern technological landscape by holding information services liable for restricting constitutionally protected speech.

I

Introduction

In the past decade, tech companies have been heavily criticized for inconsistent enforcement of their community guidelines. While victims of defamation and violence protest that tech companies repeatedly turn a blind eye to blatantly illegal content on their platforms, the restriction of constitutionally protected speech on public platforms has also sparked widespread outrage. People on both sides of the political aisle repeatedly call for Big Tech to be held accountable for this inconsistency. However, the civil law governing tech regulation—Section 230(c)6 of the 1996 Communications Decency Act—doesn’t provide much basis for accountability. This piece will establish that section 230(c) of the 1996 Communications Decency Act is flawed and in urgent need of revision. Currently, tech companies aren’t liable for illegal content they don’t regulate or legal content they do regulate. By revising 230(c)7 immunity and holding tech companies liable for censoring constitutionally Protection for Private Blocking and Screening of Offensive Material, 47 USCS § 230.

Ibid.

3 Twitter, Inc. v. Taamneh et al., No. 21–1496, 2023 U.S. 4 Reynaldo Gonzales et al., Petitioners v. Google LLC, No. 21–1333, 2023 U.S. 5 Protection for Private Blocking and Screening of Offensive Material, 47 USCS § 230.

6 Ibid.

7 Ibid.

1

2

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FLORIDA UNDERGRADUATE LAW REVIEW protected speech, Congress can restrict Big Tech’s power without stifling the growth of the industry.

Section 230(c) has two elements. The first states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”8 The second element asserts that providers of information services shall not be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be...objectionable, whether or not such material is constitutionally protected.”9 In other words, 230(c)(1) establishes that “information services” should not be held liable for allowing illegal content on their platforms, and 230(c)(2) establishes that these services should not be held liable for censoring legal content.

This begs the question: What is an information service? Common law holds that essentially all household name tech companies—from social media firms like Snapchat to search engines such as Google—qualify as information services.10 This means that almost every major online platform is eligible for 230(c) immunity.11 It is unrealistic to expect the consistent and fair application of community guidelines when companies are given such an extreme level of regulatory leeway.

This article consists of four parts. Part II will outline the historical context of the civil law surrounding internet regulation. Part III will review recent technological development and, by highlighting the consolidation of previously separate capabilities into modern tech titans, show that the flaws in 230(c)12 stem from a fundamental misunderstanding of this phenomenon’s effect on modern technology.

It will follow that the two-way immunity granted to so-called “information services” is overly broad. Part IV will demonstrate that a revision of 230(c)(2)(A) is overdue; and, as such, that 230(c) immunity should not apply to the censorship of constitutionally protected speech.

II

Background

It is widely known that the Internet has grown exponentially since its advent in the 1990s. However, civil law has been slow to adapt to the changing landscape.

8

Ibid.

Ibid.

10 Daniel T. Deacon, Essay: Common Carrier Essentialism and the Emerging Common Law of Internet Regulation, 67 ADMIN. L. REV. 133, (Winter 2015).

11 Protection for Private Blocking and Screening of Offensive Material, 47 USCS § 230.

12 Ibid.

9

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FLORIDA UNDERGRADUATE LAW REVIEW The most recent statutes that provide the foundation for modern tech regulation were passed almost 30 years ago—with technology in mind that is now obsolete.

II.1

The History of Technology Regulation

The Communications Act of 1934 formed the foundation of the modern legal landscape. It established two pillars of regulatory law: the concept of the common carrier and the Federal Communications Commission (commonly known as the FCC).13 Intended to regulate railroad companies, the Act defined a common carrier—somewhat vaguely—as “any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio.” Common carriers were issued a series of obligations: “to charge ‘just and reasonable’ rates, to file detailed rate tariffs, and to refrain from ‘unjust or unreasonable discrimination.’” Informally, entities that transport goods for a fee and indiscriminately serve the general public—as opposed to private carriers, who agree to transport things only conditionally—seem to qualify as common carriers. Historically, the category has been considered to include telephone companies.14 The Communications Act of 1934 established the FCC to enforce the aforementioned obligations.15 It granted the FCC ancillary jurisdiction—in other words, the FCC has legal jurisdiction over entities that do not qualify as common carriers, in addition to common carriers, in areas where these entities impact “telecommunication services.”

The second major predecessor of the Communications Decency Act and the first major erosion of FCC power was the Computer II Order, passed in 1980. The Computer II Order16 established the concept of enhanced services, which are computer services that enable users to manipulate information. Enhanced services were contrasted with basic services, which provided pure transmission without data processing capability. In other words, while basic services (like telephone lines) relay third-party speech blindly, enhanced services possess the power to review and alter user speech. The Computer II Order clarified that “computers hooked up to the telephone network to provide ‘data processing’ services” were enhanced services that would not be subject to common carrier regulation.

Purposes of Act; Federal Communications Commission created, 47 USCS § 151.

Daniel T. Deacon, Essay: Common Carrier Essentialism and the Emerging Common Law of Internet Regulation, 67 ADMIN. L. REV. 133, (Winter 2015).

15 Purposes of Act; Federal Communications Commission created, 47 USCS § 151.

16 Federal Communications Commission. ”FCC-05-150A1.”

13

14

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II.2

The Communications Decency Act

In 1996, the Communications Decency Act was passed, expanding on the enhanced and basic services dichotomy introduced in the Computer II Order and introducing the terms familiar in today’s legal landscape.17 The Act referred to enhanced services as information services and basic services as telecommunications services. In addition to the original definition, information services were defined as providing “the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications.” The definition of a telecommunications service was expanded to include “the offering of telecommunications for a fee directly to the public.”18 Telecommunications itself was defined as “the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.”19 Created by lawmakers determined not to crush the rapidly expanding Internet industry, “the twenty-six words which created the internet” established broad twoway immunity for information service providers with the intention of facilitating growth.20 Information services were not to “...be treated as the publisher or speaker of any information provided by another...content provider,” nor to be held liable for “...any action voluntarily taken in good faith to restrict access to...material that the provider or user considers...objectionable, whether or not such material is constitutionally protected.” Telecommunications services, on the other hand, would not be eligible for this dual immunity. While they also could not be held liable as the publishers of third-party speech, telecommunications services such as telephone lines were prohibited from restricting constitutionally protected speech.21

II.3

The Current Legal Landscape

Since the passage of the Communications Decency Act, tech companies and consumers have fought many legal battles regarding what qualifies for 203(c) immunity.22 One early test of the Communications Decency Act occurred in 1997 with Zeran v. America Online, Inc., when a man sued the company AOL over defamaProtection for Private Blocking and Screening of Offensive Material, 47 USCS § 230.

Ibid.

19 Ibid.

20 Jeff Kosseff, The Twenty-Six Words That Created the Internet, Ithaca, NY: Cornell University Press, 2019.

21 Protection for Private Blocking and Screening of Offensive Material, 47 USCS § 230.

22 Ibid.

17

18

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FLORIDA UNDERGRADUATE LAW REVIEW tory t-shirts sold on its platform.23 The plaintiff lost on the grounds that AOL had 230(c)(1) immunity and was not responsible for the illegal activity of third-party users.24 In 2008, the family of a 13-year-old girl who was sexually assaulted by a man she met on MySpace sued the platform for negligence and lost on the same grounds.25 These cases were part of a general trend towards strict adherence to 230(c).26 Their precedent established that tech companies would be granted 230(c) immunity for the blatantly illegal behavior of third-party users.

According to common law, 230(c) does not apply in cases involving tech companies’ own speech.27 In Maynard v. Snapchat, Inc. (2018) and Lemmon v. Snapchat, Inc. (2020), plaintiffs sued Snapchat over fatal car accidents that were indirectly caused by a Snapchat “speed filter” that encouraged users to film themselves driving at reckless speeds.28 Both plaintiffs won on the grounds that under 203(c), Snapchat is still “liable for its own content”29 as a “products manufacturer” with a “duty to design a reasonably safe product.”30 These cases bring to light an interesting 230(c) loophole—and further the confusion about how to categorize modern tech giants, many of which can arguably be classified, and regulated, in three significantly different ways. Should tech companies get the dual immunity of information services, the unilateral immunity of telecommunications services, or the regulatory obligations of product manufacturers? Maynard v. Snapchat, Inc. and Lemmon v. Snapchat, Inc. both seem to indicate that this decision is made on a situational basis—in other words, that there is no single right answer.

Whatever common law stability was established over the past 30 years with regard to 203(c)31 interpretation was undermined by two recent Supreme Court cases: Twitter, Inc. v. Taamneh (2022)32 and Gonzales v. Google (2023).33 In both of these cases, U.S. citizens were killed by acts of ISIS terrorism on international soil.

The families of the victims sought to hold Twitter and Google liable for damages 23

Zeran v. Am. Online, Inc., 129 F.3d 327, 1997 U.S. App. LEXIS 31791, 25 Media L. Rep. 2526, 10 Comm. Reg. (P & F) 456.

24 Protection for Private Blocking and Screening of Offensive Material, 47 USCS § 230.

25 Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 2007 U.S. Dist. LEXIS 12269, 35 Media L. Rep. 1520.

26 Protection for Private Blocking and Screening of Offensive Material, 47 USCS § 230.

27 Ibid.

28 Maynard v. Snapchat, Inc., 313 Ga. 533, 870 S.E.2d 739, 2022 Ga. LEXIS 68, 2022 WL 779733; Lemmon v. Snap, Inc., 995 F.3d 1085, 2021 U.S. App. LEXIS 13197, 2021 WL 1743576.

29 Ibid.

30 Maynard v. Snapchat, Inc., 313 Ga. 533, 870 S.E.2d 739, 2022 Ga. LEXIS 68, 2022 WL 779733.

31 230. Protection for Private Blocking and Screening of Offensive Material, 47 USCS § 230.

32 Twitter, Inc. v. Taamneh et al., No. 21–1496, 2023 U.S. 33 Reynaldo Gonzales et al., Petitioners v. Google LLC, No. 21–1333, 2023 U.S.

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FLORIDA UNDERGRADUATE LAW REVIEW under the Antiterrorism Act34 , which encourages citizens injured by international terrorism to sue any organization that “aided and abetted” said terrorism.35 These cases should have rested first on the question of 230(c) immunity.36 If Twitter and Google were immune from liability for illegal third-party speech under 230(c), as 30 years of precedent seemed to indicate they would be, then they could not have “aided and abetted” any third-party terrorist organization simply by failing to remove its content from their algorithms. However, rather than declaring Twitter and Google immune under 230(c), SCOTUS dismissed both cases on unrelated grounds, arguing that their actions failed to meet the Halberstam v. Welch standard for aiding and abetting.37 By blatantly ignoring 230(c) when making their ruling, the Supreme Court increased the confusion surrounding the statute and its interpretation. The question of whether the defendants were guilty of “aiding and abetting” ISIS would not make sense if they were viewed as information services with no agency over what is published on their platforms. As such, if Google and Twitter were immune under 230(c), the case should have been dismissed on those grounds. If Google and Twitter were not immune, this should have been clarified before the court moved to address the Antiterrorism Act. However, SCOTUS did neither of these things, leaving the issue of regulatory law even more muddled than it was before.

III

Analysis

In this environment of uncertainty, clear legislation backed by a strong understanding of modern technology is missing from the legal landscape. The Communications Decency Act of 1996 is based on a false premise: that there is a clear divide between information services and telecommunications services. In reality, most modern tech platforms are a combination of the two. Social media companies have the function of allowing third-party users to communicate unimpededly—the essence of what it is to be a telecommunications service. However, they also have the capacity to store and alter information, which qualifies them as information services under 230(c). In summation, social media companies act as hands-off conduits of third-party speech but have the added capacity to edit and delete this speech at will—all while enjoying dual legal immunity. These companies should not be granted 230(c) immunity just because they have a greater ability to interfere with third-party speech than their predecessors did. 230(c) was designed to support a Civil Remedies, 18 USCS § 2333 Ibid.

36 Protection for Private Blocking and Screening of Offensive Material, 47 USCS § 230.

37 Halberstam v. Welch, 705 F.2d 472, 227 U.S. App. D.C. 167, 1983 U.S. App. LEXIS. 34

35

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FLORIDA UNDERGRADUATE LAW REVIEW fledgling industry, not back powerhouses with an already unprecedented amount of power. Modern tech companies’ current capacity to oversee and control public discourse, if left unchecked, has worrying implications for the future of free speech as we know it. This power must be regulated, not rewarded.

IV

Solutions

To hold modern tech companies accountable and limit their ability to censor speech, Section 230(c)(2) must be revised. While it currently maintains that information service providers shall not be held liable for censoring any third-party material it deems “objectionable,” this immunity should only apply when this material is not constitutionally protected speech. Section 230(c)(2) should be revised to state that information service providers shall not be held liable for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be...objectionable, in situations where such material is not constitutionally protected.” This revision would leave information service providers with the clear, unilateral immunity outlined in section 230(c)(1) without stifling the growth of the industry with cumbersome regulations. However, the change would also limit the extent of personal jurisdiction tech companies have over what is distributed on their platforms. As such, it would establish an expectation that information services will err on the side of caution when regulating content that is not outright illegal.

Some might argue that promoting a more hands-off approach to content moderation would enable information service providers to incorporate sinister features within their platforms without repercussions. The implementation of biased and discriminatory algorithms (either accidentally or intentionally), for example, is a concern for many who feel that technological development is reinforcing social inequality. However, existing precedents have established that 203(c) immunity does not apply in cases where the defendant creates its own questionable content. For example, in both Maynard v. Snapchat, Inc. (2018)38 and Lemmon v. Snapchat, Inc. (2020),39 203(c) immunity did not immunize Snapchat from the liability for its own “speed filter.”

38 39

Maynard v. Snapchat, Inc., 313 Ga. 533, 870 S.E.2d 739, 2022 Ga. LEXIS 68, 2022 WL Lemmon v. Snap, Inc., 995 F.3d 1085, 2021 U.S. App. LEXIS 13197, 2021 WL 1743576

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V

Conclusion

The rapid development of the tech industry has left regulatory law unable to curb the power of modern tech giants. Today, inconsistent content moderation is a major concern for individuals on both sides of the political aisle. However, the 1996 Communications Decency Act—the basis for American tech regulation—is based on a faulty understanding of modern technology. Civil law assumes a clear dichotomy between “information services” and “telecommunication services” that no longer exists—enabling tech companies to get away with blatant regulatory inconsistency.

Not liable for allowing illegal content to proliferate on their platforms nor for inconsistently cracking down on constitutionally protected speech, these companies can regulate their platforms in whatever way they want. Never has it been more essential for lawmakers to adapt the 1996 Communications Decency Act to the modern technological landscape. Section 203(c)(2) should be revised to hold information services liable for the censorship of constitutionally protected speech, as such a revision would limit their power without impairing the spirit of growth that drove the development of the industry.

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Works Cited Deacon, Daniel T. Essay: Common Carrier Essentialism and the Emerging Common Law of Internet Regulation, 67 ADMIN. L. REV. 133, (Winter 2015). available at Source.

Doe v. MySpace, Inc., 474 F. Supp. 2d 843, 2007 U.S. Dist. LEXIS 12269, 35 Media L. Rep. 1520 (United States District Court for the Western District of Texas, Austin DivisionFebruary 13, 2007, Filed ), available at Source.

Federal Communications Commission. ”FCC-05-150A1.” Accessed April 4, 2024. Source.

FEDERAL STATUTE: Communications Decency Act of 1996 Jurisprudence Judicial Minimalism Twitter, Inc. v. Taamneh, 137 Harv. L. Rev. 400, (November, 2023), available at Source.

Gonzales, Reynaldo et al. Petitioners v. Google LLC No. 21–1333, 2023 U.S. Halberstam v. Welch, 705 F.2d 472, 227 U.S. App. D.C. 167, 1983 U.S. App. LEXIS 28914, 1983 WL 978800 (United States Court of Appeals for the District of Columbia Circuit April 12, 1983, Decided ), available at Source.

Keller, Daphne.* ARTICLE: CARRIAGE AND REMOVAL REQUIREMENTS FOR INTERNET PLATFORMS: WHAT TAAMNEH TELLS US. 4 J. Free Speech L. 87 , (2023), available at Source.

Klein, Andrew R.* ARTICLE: BALANCING INTERESTS UNDER SECTION 230(C) OF THE COMMUNICATIONS DECENCY ACT: USING THE SWORD AS WELL AS THE SHIELD. 55 Loy. L.A. L. Rev. 645, (Summer, 2022), available at Source.

Kosseff, Jeff. The Twenty-Six Words That Created the Internet. Ithaca, NY: Cornell University Press, 2019.

Lemmon v. Snap, inc.. 995 F.3d 1085, 2021 U.S. App. LEXIS 13197, 2021 WL 1743576 (United States Court of Appeals for the Ninth CircuitMay 4, 2021, Filed), available at Source.

Maynard v. Snapchat, inc.. 313 Ga. 533, 870 S.E.2d 739, 2022 Ga. LEXIS 68, 2022 WL 779733 (Supreme Court of Georgia March 15, 2022, Decided), available at Source.

Twitter, Inc. v. Taamneh et al., No. 21–1496, 2023 U.S. Zeran v. Am. Online, Inc., 129 F.3d 327, 1997 U.S. App. LEXIS 31791, 25 Media L. Rep. 2526, 10 Comm. Reg. (P & F) 456 (United States Court of Appeals for the Fourth Circuit November 12, 1997, Decided ), available at Source. § 151. Purposes of Act; Federal Communications Commission created, 47 USCS § 151 (Current through Public Law 118-40, approved March 1, 2024.), available at Source.

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Knowing and Culpability in Criminal Law Nicholas Randazzo ’26 Spring 2024

FLORIDA UNDERGRADUATE LAW REVIEW

Abstract Mens rea is a feature of law that accounts for criminal intent. If someone were to lack criminal intent and inadvertently commit some crime, their sentence would likely be lowered. This differs from the ignorantia juris non excusat manner in which those who lack knowledge of the law are treated. On face, this seems a double standard, since one cannot hold a criminal intent if it is the case they do not realize that they are even committing a crime. This paper seeks to delve into the philosophy of criminal law to explain the justification for the relevance of mens rea and if such a justification can be used to mitigate culpability in cases where defendants did not know the law. It does so by considering the nature of law, intuitions regarding culpability and negligence, and human fallibility.

I

Introduction

The broad underlying foundation of criminal law relies on some notion of responsibility and culpability. Whether one adopts a punitive, preventative, or curial view, the state must have some justification for having the capacity to leverage its coercive power against its subjects. Such justification is usually found in three key assumptions: that the subject had free will to decide to follow the law, that the subject knew the law, and that the subject chose to break the law.1 This feature of criminal law appeals to something greater than the law itself.

If it were the case that the law was completely arbitrary, for example, then many would feel justified in breaking the law in cases where they did not feel that the law was well-substantiated enough to justify itself. Resultantly, they would feel that the use of coercion would not be justified. Such arguments are commonly made against politically contentious laws, such as punishments for illegal immigration or possession of illicit substances. There must be something beneath the law itself—be it some moral rule or social norm—that makes society feel justified in leveraging the threat of coercion to enforce the law.

These three assumptions rely on some account of mens rea and actus reus: the notion that the subject had criminal intent in committing the action they committed and that the action that the defendant committed constitutes a violation of some law.

1

This claim will be challenged throughout the article, but the other assumptions regarding the law are more intuitive: punishment can only be leveled when one does wrong of their own accord.

This requires the choice to break the law and, a fortiori, free will.

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FLORIDA UNDERGRADUATE LAW REVIEW Standard accounts of mens rea include accounts of both intention and recklessness. For one to commit a crime intentionally, their crime must be 1) an essential feature of their will (i.e., were the criminal portion of their aims removed, their aims would be nonsensical) and 2) their will motivated some kind of action to carry out a crime—whether or not they were successful. Recklessness depends on one’s being aware that there is a risk of some harm and choosing to run the risk in a manner that we are aware is unjustified. In the United States, mens rea includes other forms including one acting knowingly, in other words, reasonably certain that the undesirable result that violates some law would occur) and negligently, which is that the person should have been aware of a large risk, but is not.

At the heart of both accounts of mens rea is awareness of the criminality of one’s actions. The degree to which mens rea ought to be a part of legal consideration is up for some debate among scholars, specifically regarding the parameters of how much one’s intention actually matters. Strict mens rea exists in cases in which there is some actus reus that is not accompanied by a mens rea requirement, whereas less narrow forms of mens rea place intention at the center stage. These distinctions, though important, may both face a problem in extreme cases of legal unawareness.

There exist numerous cases in which it is conceivable that a person could be unaware of the law: college students traveling to a foreign country during a study abroad, refugees that have been displaced into different nations as a result of political upheaval, particularly ignorant individuals, etc. The law is often applied in a ‘ignorantia juris non excusat’2 manner in these cases, yet this neglects fundamental intuitions regarding following rules, whether they be moral or legal.

This article proceeds in four parts. Part II discusses the key common-sense intuitions pertaining to mens rea. This Part also attempts to show the manner in which these intuitions may clash with one another, and provide justification for the need to reconcile said intuitions. Part III presents the discussion surrounding the notion of culpability and its relation with mens rea, illustrating problems with interpretations of negligence or ignorantia juris non excusat. These problems demonstrate that restricting mens rea introduces the risk of punishing people criminally for falling short of epistemic perfection and leading to a general resentment of criminal proceedings.

Part IV summarizes the discussion and provides important solutions to the problems discussed in previous sections.

2

Translated literally as: ‘ignorance of the law excuses not’

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II

Clashing Intuitions Behind Mens Rea

Mens rea requires that we value the intent of the person charged with some crime independent of any acts they may have committed. There exist two conflicting intuitions regarding criminal intent. The first is that if someone did not intend something, it was not their fault that such a thing occurred and therefore they ought to be held less culpable (or not at all culpable). I will refer to this as Int.1 throughout the rest of this article. The second is that, as a reasonable person would avoid some actions when there seems to be ample benefit in avoidance and little in pursuit, the state can be justified in punishing someone for acting unreasonably.3 I will refer to this as Int.2 throughout the rest of this article.

Int.1 is starkly exhibited in cases where causal chains result in some undesired or unintended effect. Consider People v. Gaworecki, wherein a provider of a controlled substance (heroin) was charged with manslaughter and criminally negligent homicide as a result of a buyer overdosing.4 In this case, the question of mens rea was: did Gaworecki know the potency of the drugs that he provided, and was he aware of the degree to which he endangered his clients?5 The court ruled that there was insufficient evidence to suggest that Gaworecki knew the extent to which he endangered his client, and the mere potency of a drug is insufficient to demonstrate criminal intent; he was therefore acquitted of both charges.6 In such a case, Gaworecki was in some way responsible for the death of his client (he provided the agent that his client overdosed on); however, the client’s death occurred in such an unintended way that he should not be treated as having been negligent in this case (i.e., he is not especially blameworthy, given that “the People failed to establish that defendant’s conduct was a gross deviation from the standard of care that a reasonable person would observe, as required for both crimes”).7 Int.2 becomes evident in cases where commonly-held moral inclinations would argue that some person is unreasonable in behaving in a particular way. Suppose a group of people travel to another country and are completely ignorant of the laws of that country. They decide to get in a fight with a random person in the country and beat the person to death. Such a case is deserving of punishment, as their 3

It should be noted that ”ample benefit in avoidance” could refer to the risk of harm, such as driving a vehicle without wearing a seatbelt, or moral risks—those of violating some fundamental moral principle.

4 Daily Record Staff, ”Court of Appeals - Mens rea: People v. Gaworecki,” Daily Record, The (Rochester, NY), 2022.

5 Ibid.

6 Ibid.

7 Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW action constitutes a flagrant violation of ethical conduct. Whether or not they knew the law, the perpetrator should have known that such actions are not permissible and therefore deserve punishment. In this case, the intent was not necessarily to violate the law, and there is thus a lesser degree of mens rea, but the actus reus is so obviously wrong that a suspension of mens rea is justified.

The combination of these two intuitions reveals that—ceteris paribus—mens rea is important in protecting us from accidents that we ought not to be punished for, but there is a limit to where this should be the case—we should be punished for doing some things so egregious that they are deserving of punishment. These intuitions become far more difficult when the law is based on principles other than universal moral intuitions. Suppose we make the Hobbesian claim that the law is valuable insofar as the sovereign has decreed it, and precisely because of this, we ought to follow it. Any violation of the sovereign must be punished. It would be the case that many individuals would find themselves expressing Int.1 as a result of being punished by laws they were not aware of, especially if the laws seemed odd or even immoral. There is a certain arbitrariness that exists if one is punished for breaking a law that they did not intend to break, as it ex hypothesi claims that we can be punished at any time for something we are not aware of.

Int.2 is especially difficult to defend in cases where the law does not appeal to some universal framework. Since Int.2 is one of the foundations for the argument to limit the scope of mens rea in criminal law, it reveals that at least one key importance of mens rea is in protecting from punishment those who could not have done otherwise. If one could have done otherwise, then punishment is justified.

Ignorance of the law has inherent limits in scope, as knowledge of moral rules makes it reasonable to assume that perpetrators understand that immoral conduct would be punished. We believe someone is blameworthy precisely in their ignorance of these moral rules, not in their ignorance of the law. This is likely the reason why courts often protect defendants from being held criminally liable when they are ‘morally innocent’.

III

Epistemic Features of Mens Rea and Wrongdoing

In defining mens rea, John Gardner remarks: More precisely: according to the mens rea principle, criminal wrongs should be such that one does not commit them unless one intends or is aware of at least one wrong-making feature of what one is about to do, 113

FLORIDA UNDERGRADUATE LAW REVIEW such that (assuming one knows the law) one is also alerted to the fact that what one is about to do will be of interest to the criminal law.8 In making this claim, Gardner highlights that criminal wrongdoing according to the mens rea principle depends essentially on awareness. There must be some feature of our pre-criminal actions that would raise a ”red flag” to alert us that we may be committing some criminal act, and that red flag requires that we know the law.

We have established that the principle of mens rea depends on the law having some connection to universally accessible moral truths or socially determined norms.

This results from the fact that blameworthiness is, in many ways, connected to moral truths or norm violations and not codified law per se. Because of this, it will become abundantly clear that ‘ignorantia juris non excusat’ becomes largely untenable.

Broadly speaking, philosophers recognize that there exists an epistemic component to moral actions. This epistemic component includes forms of awareness important for our moral calculus. Two of these forms of awareness are awareness of action—to know what one is doing—and awareness of moral significance—to know that one’s actions may be moral, amoral, or immoral. Awareness of action can be seen in cases where agents do not fully understand what they are doing. For example, consider a scientist who has coupled their next-door neighbor’s light switch to a device that electrocutes one of the scientists’ hostages. The lack of awareness of this fact on the part of the next-door neighbor would shield the scientist from ethical culpability, though they are responsible for electrocuting a hostage indirectly.

One would say that the scientist is the main agent of wrongdoing. Therefore, the claim can be made that, in similar cases, a lack of culpability arises from a lack of knowledge that has voided the possibility of criminal intent. As a result, it can be said that the epistemic component is a prior condition that must be fulfilled for one to have mens rea in the first place.

Now, suppose you wish to tell the evil scientist that what they did was morally wrong. The scientist responded that they did not know of the wrongness of their actions. Suppose it was also true that they did not realize that it was wrong when they did it. If that were the case, either one would say that the scientist should have known—and thus is blameworthy—or that the scientist did not know and thus was not blameworthy. The first claim corresponds to Int.2, but only makes sense if moral constructs are not arbitrary; if they are, then there is no reason to suppose that someone should have known to follow them.

8

John Gardner, “Wrongs and Faults” in Appraising Strict Liability, edited by Andrew Simester, Oxford Monographs on Criminal Law and Justice (Oxford, 2005; online edn., Oxford Academic, 1 Jan. 2010).

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FLORIDA UNDERGRADUATE LAW REVIEW Mens rea is a defense of both awareness of action and awareness of moral significance. Yet, ignorance of the law most parallels awareness of moral significance.

The trouble with laws is that they are not always universal, so there is no reason to expect one to know them (other than laws that prohibit fundamental violations of moral rules, such as murder). Just as Lord Mansfield famously states: “it would be hard upon the Profession if the law was so certain that everybody knew it; the misfortune is that it is so uncertain that it costs much money to know what it is, even in the last resort.”9 Some may claim that we take responsibility for breaking even arbitrary laws by entering into a social contract. As Holly Smith points out, there is a sense in which someone is culpable for a “risked upshot”– some risk that puts one into a position in which they risk harm towards others, and ignorance of the law can be one of these risks in certain cases.10 However, this argument seems to miss the mark by failing to consider human fallibility. If we are expected to fully know the law by merely entering the borders of some country, then we are inevitably opening the door to punishment for the imperfections of our faculty of memory (which is out of our control). Suppose some American is extremely educated in British law and is aware of the entire British common law excluding the Metropolitan Police Act, which in §60 prohibits one from beating a carpet in the metropolitan police district “before the hour of eight in the morning.”11 Suppose the American makes the unfortunate mistake of beating a carpet in the metropolitan police district—before eight in the morning—and is found liable for doing so. It seems true that the American has done his due diligence in learning the law and should not be held responsible, as they were not aware of the illegality of their actions.

Lastly, what if one is unaware of breaking the law and their actions yield some negative consequence? Should someone in this situation be held culpable? Consider the case of People v. Gaworecki once more, and suppose that Gaworecki was genuinely under the impression that the sale of heroin was completely legal. Some may make the case that his selling of heroin may not have had any criminal intent, but he nevertheless risked the lives of others. According to this line of thinking, the death of one of his clients is sufficient reason for the suspension of mens rea.

This line of thinking cannot be applied too unreasonably, as it sets the norm that if any conceivable danger exists and becomes actuality, mens rea can be suspended at a whim. Instead, as Michael Zimmerman suggests, the most pertinent aspect of culpability here is if someone believes that some negative outcome may reasonably 9

Hon. U. M. Rose, of Arkansas. “General Intelligence.” The Law Times, 102, (1897): 584–586.

Holly Smith, “Culpable ignorance,” The Philosophical Review, 92, no. 4, (Oct. 1983): 543-571.

11 Metropolitan Police Act 1839 (UK) no. 60.

10

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FLORIDA UNDERGRADUATE LAW REVIEW arise from their action, and chooses to do it anyway.12 This represents the form of wanton disregard that Int.2 tries to account for. In any situation in which the person did not hold that belief, they could not have foreseen any reason to choose another course of action, and therefore cannot be held culpable.

IV

Conclusion

The epistemic aspect of moral responsibility presents a significant challenge to the concept of ignorantia juris non excusat. This challenge is especially apparent where the law imposes restrictions on actions that may appear ethically permissible.

Moreover, given the immense complexity of most legal systems, it is unreasonable to expect ordinary individuals to be aware of every potential violation of the law; even those extensively versed in legal matters may inadvertently forget certain laws, leading to unintentional violations and subsequent punishment. Therefore, holding individuals accountable simply for not knowing the law is unjust, akin to penalizing them for any random action they might have taken. Of course, this necessitates qualification: when committing obscene acts such as murder, it seems that foundational moral principles are violated in a way that one cannot genuinely ”forget.”

Actions are typically undertaken with some perceived benefit in mind, and without awareness of relevant laws, individuals may see no reason to refrain from certain actions. In such cases, their decision-making lacks the necessary element of free will to restrain themselves since they have no reason to do so, rendering them nonculpable. Consequently, courts should exercise greater discretion in cases where defendants genuinely lack awareness of the law. Similarly, criminal laws that remove mens rea from consideration ought to be passed with serious care, so as to avoid punishing those who ought not be held blameworthy.

12

Michael J. Zimmerman, “Moral responsibility and ignorance,” Ethics, 107, no. 3 (Apr. 1997): 410–426.

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Works Cited Daily Record Staff. ”Court of Appeals - Mens rea: People v. Gaworecki.” Daily Record, The (Rochester, NY). January 6, 2022. Source.

Hon. U. M. Rose, of Arkansas. “General Intelligence.” The Law Times, 102, (1897): 584–586.

Gardner, John. “Wrongs and Faults” in Appraising Strict Liability. Edited by Andrew Simester, Oxford Monographs on Criminal Law and Justice (Oxford, 2005; online edn, Oxford Academic, 1 Jan. 2010). Source.

Metropolitan Police Act 1839 (UK) no. 60. Source.

Smith, Holly. “Culpable ignorance.” The Philosophical Review, 92, no. 4, (Oct. 1983): 543-571.

Source.

Zimmerman, Michael J. “Moral responsibility and ignorance.” Ethics, 107, no. 3 (Apr. 1997): 410–426. Source.

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The COMPAS Conundrum: Navigating Transparency and Fairness in AI-Assisted Criminal Justice Paolina Salas ’26 Spring 2024

FLORIDA UNDERGRADUATE LAW REVIEW

Abstract In an era dominated by rapidly advancing technologies, integrating artificial intelligence systems and highly complex algorithms into our criminal justice system creates expectations of enhanced efficiency and accuracy. The use of these technologies has nonetheless raised significant concerns regarding transparency and fairness. This paper examines the case of Loomis v. Wisconsin, which highlighted the challenges surrounding the application of the COMPAS algorithm in the criminal justice system.1 While COMPAS aims to predict the likelihood of a repeat offense, the rationale behind the technology’s conclusions is not well understood; this inherent opacity raises questions about due process rights and the reliability of its assessments. Despite the Wisconsin Supreme Court’s decision to uphold the use of COMPAS in sentencing, the lack of transparency regarding its methodology remains a critical issue. Moreover, concerns about the algorithm’s accuracy and fairness, particularly with regard to racial bias, further complicate its use. The paper also discusses the psychological phenomena that may influence judges’ reliance on COMPAS assessments, such as anchoring and automation bias. Ultimately, this paper argues for a cautious approach to the implementation of predictive recidivism technologies, emphasizing the need for clear milestones and continuous evaluation to mitigate risks and ensure fairness in decision-making.

This article proceeds in four parts. Part I will introduce the idea of opaque algorithms and their recent implementation in the criminal justice system through COMPAS. This part will also provide an overview of the Loomis v Wisconsin decision and the precedent it has set forth. Part II will further explain the impacts of the decision in terms of precedent and future acceptance of AI in the legal system. It will argue that Loomis v Wisconsin does not provide a sufficient conclusion or solution to the injustice claimed by Eric Loomis. Part III elaborates on the ineffectiveness of the case’s decision, detailing how easily it can be circumvented by increasing pressures to rely on AI from judicial peers and changing laws as well as cognitive phenomena that may cause judges to give increased importance to recognizably potentially flawed information. Part III also evaluates the fairness of COMPAS and the Loomis decision from statistical and legal standpoints. This exploration raises further questions about whether the technology can effectively play a positive role in the criminal justice system at its current stage in development. The concluding Part IV contends that it is important to continue research into AI systems like COMPAS for the criminal justice system, but their implementations should be gradual, with clear milestones to ensure fairness and accuracy, and should not be rushed into 1

State v Loomis.

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FLORIDA UNDERGRADUATE LAW REVIEW widespread use without a clear understanding of potential consequences.

I

Introduction

In our rapidly evolving technological landscape, opaque technologies—those whose internal mechanisms and decision-making processes are not easily understandable or accessible to the individuals they impact—are increasingly prevalent. These technologies, ranging from complex algorithms to artificial intelligence systems, play crucial roles in various facets of modern society, including criminal justice. However, the employment of opaque technologies like COMPAS in the criminal justice system also raises profound questions about transparency, accountability, and fairness. The implications of these technologies extend far beyond their immediate applications, shaping the very foundations of our legal systems and societal values. This essay will explore the challenges and complexities surrounding the use of COMPAS in the criminal justice system and examine how the highly limited precedent set forth by decisions like Loomis v State opens the door to a dangerous overreliance and overconfidence in potentially flawed and uncertain artificial intelligence systems.

COMPAS, which stands for Correctional Offender Management Profiling for Alternative Sanctions, is a popular algorithm used in the criminal justice system for predicting a defendant’s likelihood of reoffending. Developed by the company Northpointe (now part of Equivant), COMPAS is used by judges and parole boards to assist in making decisions about bail, sentencing, and parole. The algorithm analyzes various factors about an individual, such as criminal history, age, and employment status, to generate a risk score.2 This score is intended to help judges and parole boards assess the risk of a defendant committing another crime if released.

However, COMPAS and similar algorithms have been criticized for the opacity of their decision-making processes.3 While such potentially opaque technologies offer remarkable advancements and efficiencies, they also raise profound legal and ethical questions regarding accountability, transparency, and fairness.

Loomis v. Wisconsin illustrates these concerns. In 2016, Eric Loomis was convicted of several crimes, including fleeing an officer and driving a vehicle without the owner’s consent. During his sentencing, the court considered a COMPAS report, which classified Loomis as being at a high risk of recidivism. He was sentenced to 6 years in prison. Loomis argued that the use of the COMPAS algorithm violated his due process rights because the algorithm’s inner workings and specific factors 2

COMPAS Classification Inmate Management Support.

Lagioia, F., Rovatti, R., and Sartor, G. “Algorithmic Fairness through Group Parities? The Case of COMPAS-SAPMOC.” 3

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FLORIDA UNDERGRADUATE LAW REVIEW considered were not disclosed to him or his legal team. He contended that this lack of transparency made it impossible for him to challenge the accuracy or reliability of the COMPAS assessment.

The Wisconsin Supreme Court ultimately upheld the use of the COMPAS assessment in Loomis’s sentencing, finding that Loomis was provided with a summary of the factors considered by the COMPAS algorithm, as well as the factors that contributed to his risk score and that because “Loomis’s risk assessment is based upon his answers to questions and publicly available data about his criminal history, Loomis had the opportunity to verify that the questions and answers listed on the COMPAS report were accurate.”4 According to the decision, these factors would have allowed Loomis to argue against specific assessment factors he may have believed to be inaccurate or unfair.

II

The Missing Methodology

While Loomis may have had access to the facts considered and assurance that those facts were accurate, he was still deprived of information about the algorithm’s score prediction methodology. It remains a mystery how exactly COMPAS interpreted his answers to given questions to conclude that he was a high-risk offender.

Expert witness testimony during the case revealed that even “Sentencing courts have very little information about how a COMPAS assessment analyzes the risk: The Court does not know how the COMPAS compares that individual’s history with the population that it’s comparing them with. The Court doesn’t even know whether that population is a Wisconsin population, a New York population, a California population. There are all kinds of information that the court does not have, and what we’re doing is we’re misinforming the court when we put these graphs in front of them and let them use it for sentencing.”5 In response to this, the Loomis court maintained that judicial discretion would determine the role of the COMPAS score in court hearings, but that “Any presentence investigation report containing a Correctional Offender Management Profiling for Alternative Sanctions (COMPAS) risk assessment filed with a court must contain a written advice listing the limitations.”6 These include warnings about 1) the “proprietary nature of COMPAS” that prevents disclosure of how factors are weighed and scored determined; 2) COMPAS ability is limited to identifying groups of high-risk offenders, rather than particular high-risk individuals; 3) Some studies of COMPAS raise questions about minority 4

Ibid.

Ibid.

6 Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW offenders as having a higher recidivism rate according to the the algorithm; 4) A COMPAS risk assessment compares defendants to a national sample, without state population cross-validation study; 5) COMPAS must be constantly monitored for accuracy due to changing populations; and 6) COMPAS was not developed for use at sentencing, but for informing regarding treatment, supervision, and parole.7 Neither the decision in this case nor the implementation of the warning described above addresses the injustice that is at the heart of the Loomis case; that is, the inability to explain the methodology used in the COMPAS risk assessment tool. This warning may be understood as an attempt to instill skepticism of the tool so as to reduce the potential gravity of its role in the judicial decision-making process. However, it leaves too much room for discretion to merit judges who may be overestimating the accuracy and importance of this [suspiciously] ambiguous risk assessment tool.

Along this point, the Harvard Law Review writes, “The court’s “advisement” is unlikely to create meaningful judicial skepticism because it is silent on the strength of the criticisms of these assessments, it ignores judges’ inability to evaluate risk assessment tools, and it fails to consider the internal and external pressures on judges to use such assessments.”8 The inconclusive nature of the Loomis case is a testament to the fact that limited conceptual and intuitive understanding of these technologies may lead to flaws in judicial decision-making.

III

Under Pressure

Some of the “external pressures,” as mentioned in the Harvard Law Review may encourage justices to lean on this technology perhaps a little more than they should.9 An example of these external pressures include the major judiciary voices that advocate for the use of such technology and the various states that are considering implementing a requirement for this evidence-based algorithm to be used in sentencing proceedings. It seems like the tide is turning towards AI, and judges should hop on board to not be left behind.

Perhaps another reason for this widespread, seemingly unchecked change is another enticing element offered by COMPAS. That is– its ability to provide convenience to an overworked justice system. Some have made cases for COMPAS arguing that “ it may seem weird to rely on an impersonal algorithm to predict a person’s behavior given the enormous stakes. But the gravity of the outcome—in cost, crime, 7

Ibid. hlr. 2017. “State v. Loomis.” (Harvard Law Review, 2017).

9 Ibid.

8

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FLORIDA UNDERGRADUATE LAW REVIEW and wasted human potential—is exactly why we should use an algorithm.”10 But is this really enough to allow an incomprehensible computer system to sway decisions about the freedoms of Americans like Eric Loomis?

Let us examine COMPAS’ reliability in terms of two fundamental principles of the justice system: accuracy and fairness. Disappointingly, the COMPAS algorithm has a 65% accuracy rate.11 The difference between receiving an accurate COMPAS assessment and flipping a coin to land on heads is a mere 15%. This is underwhelming, and it becomes even more so considering that studies have found that nonexperts are as accurate as the COMPAS software in predicting recidivism.

As for fairness, the result is somewhat inconclusive. On one hand, ProPublica investigated COMPAS and found that the algorithm was more likely to incorrectly label Black defendants as being at a higher risk of reoffending compared to white defendants.12 This raised significant concerns about racial bias in the algorithm, as it seemed to disproportionately impact Black defendants. Others defended COMPAS, stating that their analysis did not find evidence of racial bias.13 They argued that the algorithm was fair and accurate in predicting recidivism rates across different racial groups.

How is it possible to have such diverging results? It may be because there are multiple standards for the statistical criteria of fairness.14 ProPublica based their research on a standard of fairness known as Error Parity which is based on there being equal error rates across relevant groups. Northpointe, however, satisfied the criteria of fairness known as Equal Positive Predictive Value, which requires the same rate of accuracy across relevant groups. These standards can never mathematically coincide unless the algorithm is perfect or the base rate of recidivism is equal across racial groups—both of which are virtually impossible.15 Many of these statistics and empirical discoveries were not readily available to inform the court’s understanding of algorithmic fairness. However, the court did attempt to provide a claim in favor of COMPAS fairness that appealed to accuracy.

In order to determine whether the use of COMPAS was fair according to due process, the Loomis court reviewed the decision Frey v Wisconsin, which stated that “A 10 Alexandra Taylor, “AI Prediction Tools Claim to Alleviate an Overcrowded American Justice System... But Should They Be Used?” (Stanford Politics, 2020).

11 Julia Dressel and Hany Farid, “The Accuracy, Fairness, and Limits of Predicting Recidivism.”

(Science Advances, 2018) 4 (1).

12 Julia Angwin, Jeff Larson, Surya Mattu, and Lauren Kirchner, “Machine Bias.” (ProPublica, 2016).

13 Sam Corbett-Davies, “A Computer Program Used for Bail and Sentencing Decisions 14 Deborah Hellman, Review of Measuring Algorithmic Fairness. (Virginia Law, 2020).

15 Ibid.

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FLORIDA UNDERGRADUATE LAW REVIEW discretionary sentencing decision will be sustained if it is based upon the facts in the record and relies on the appropriate and applicable law.”16 The Loomis decision references this by stating that because Loomis himself provided the information that informed COMPAS’s decision, that due process was not violated on account of the court being supplied with inaccurate information. This account of COMPAS exercise of fairness is not entirely persuasive either, as it still fails to address whether the algorithm, as a predictive agent that interprets this truthful information, can still yield mistaken results–which it does, a substantial 35% of the time.17 The loose regulation surrounding the implementation of COMPAS within the legal system leaves room for the acceptance of largely imprecise AI systems. Because there is no specific threshold for algorithmic accuracy that entails algorithmic fairness, it may be possible for even an algorithm with 51% precision to be justifiably reliable in a court of law. All this goes to say that COMPAS can not be said to be sufficiently accurate or definitively fair and that there is much more to be done in terms of defining algorithmic fairness that should be defined before AI takes a foothold in the justice system.

Another one of the main principles behind the verdict of the Loomis case was that COMPAS is not entirely responsible for sentencing, bail and parole decisions.

Rather, it plays a small part in guiding the judge to a reasonable conclusion. The supposed “limited role” of COMPAS was supposed to mitigate the effects of its inaccuracy and potential unfairness in the decision. However, several psychological phenomena demonstrate the extent to which COMPAS may open loopholes for the human brain to draw false or exaggerated conclusions during the decision-making process.18 One example of this is referred to as “anchoring” in which people subconsciously factor information into their opinions and decisions without consideration of strength or weakness.19 This means that despite the Loomis decisions’ implementation of accuracy warnings, COMPAS data may still subconsciously factor into the judicial decision-making process just as heavily as much more reliable forms of evidence. Additionally, the enabling of this loose regulation of COMPAS lays the foundation for a nearly blind trust in artificial intelligence due to the “automation bias.”20 Automation bias refers to the tendency to ” ascribe greater power and au16

Frey v. Wisconsin, 256 N.W.2d 214 (Wis. 1977).

Ibid.

18 Andrew Lee Park, “Injustice Ex Machina: Predictive Algorithms in Criminal Sentencing.”

(UCLA Law Review, 2019).

19 Thomas Mussweiler and Fritz Strack. “Psychological aspects of the anchoring effect.” *Journal of Experimental Social Psychology* 31, no. 4 (1995): 285-301.

20 M. David Enoch and Gary Klein. “Automation Bias in Intelligent Time Critical Decision Support Systems: The Role of System Confidence.” *Journal of Cognitive Engineering and Decision 17

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FLORIDA UNDERGRADUATE LAW REVIEW thority to automated aids than to other sources of advice.” This acts as yet another psychological loophole for acceptance of potentially error-ridden information.

All of this illustrates the Loomis decision was a step in the wrong direction when it comes to interpreting the place of opaque artificial intelligence algorithms in the criminal justice system. Enabling the use of loose regulation of COMPAS lays the foundation for an almost blind trust in artificial intelligence. The Loomis decision fails to account for pressures judges may face from trying to adapt a 300year-old system to a technological age as well as combating overcrowding and mass incarceration. It appears as if, in an effort to promote efficiency, the court has skipped over important questions surrounding the nature of algorithmic fairness. It also opens the door to subconscious biases and overreliance on these technologies.

IV

For the Future

Given the changing nature of the times in which we live and the immense benefit that could be provided to society through the implementation of systems like COMPAS to the criminal justice system, it would be ethically irresponsible to discontinue research into a potentially beneficial solution. However, it would be just as ethically irresponsible to allow for institutional momentum and urgency to excuse the uncontrolled implementation of AI in decisions regarding individuals’ freedoms without consideration of potential consequences. With that said, I would encourage the development and gradual implementation of predictive recidivism technologies under the condition that they be developed in clearly defined incremental milestones that aim to reduce risks with each phase of development. Advancements in the criteria that define fairness in satisfaction with the issues aforementioned in Part III as well as accuracy would characterize each milestone and progression would be contingent upon successes. This approach would work by limiting the scope of implementation to reasonably envisioned outcomes. For example, the goal of COMPAS research should not be to set out to an entire state or national population immediately. Instead, it should first focus on accurately predicting the recidivism rate of those who consent to the use of the machine in their sentencing decisions (perhaps in exchange for some sort of compensation) and only then scale upward cautiously, achieving success step by step while also carefully looking for downsides. This would require that it first be removed from common practice in the courts– contrasting the decision made in the Loomis case which upholds its use. This position avoids denial of technological advancements and new knowledge while remaining mindful of the Making* 6, no. 4 (2012): 359-377.

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Works Cited Angwin, Julia, Jeff Larson, Surya Mattu, and Lauren Kirchner, Machine Bias. (ProPublica, 2016).

Source.

COMPAS Classification Inmate Management Support. Accessed April 10, 2024. Source.

Corbett-Davies, Sam. “A Computer Program Used for Bail and Sentencing Decisions Source.

Dressel, Julia, and Hany Farid,The Accuracy, Fairness, and Limits of Predicting Recidivism. (Science Advances, 2018) 4 (1). Source.

Enoch, M. David, and Gary Klein. “Automation Bias in Intelligent Time Critical Decision Support Systems: The Role of System Confidence.” *Journal of Cognitive Engineering and Decision Making* 6, no. 4 (2012): 359-377.

Frey v. Wisconsin, 256 N.W.2d 214 (Wis. 1977).

Hellman, Deborah. Review of Measuring Algorithmic Fairness. Virginia Law, 2020. hlr. 2017. State v. Loomis. Harvard Law Review, 2017. Source.

Lagioia, F., Rovatti, R., and Sartor, G. “Algorithmic Fairness through Group Parities? The Case of COMPAS-SAPMOC.” AI & Soc 38 (2023): 459–478. doi:10.1007/s00146-022-01441-y.

Mussweiler, Thomas, and Fritz Strack. “Psychological aspects of the anchoring effect.” *Journal of Experimental Social Psychology* 31, no. 4 (1995): 285-301.

Park, Andrew Lee. “Injustice Ex Machina: Predictive Algorithms in Criminal Sentencing.” (UCLA Law Review, 2019). Source.

Taylor, Alexandra. AI Prediction Tools Claim to Alleviate an Overcrowded American Justice System... But Should They Be Used? Stanford Politics, 2020. Source.

State v Loomis. Accessed April 10, 2024. Source.

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Primed for Psychology: How Legal Reform Requires Social Science Kemarah Thermidor ’27 Spring 2024

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Abstract While a well-known outcome of Brown v. Board of Education1 was the implied progress in eradicating systematic racism, fewer know of its influence in removing the prejudice against psychological research in courts. “The Doll Test” was an experiment in which two psychologists assessed the effects of segregation on the racial perceptions of children, leading to results that significantly influenced the outcome of the case.2 Conclusions showcasing segregation’s detrimental consequences on the self-esteem of black children legitimized further input from social scientists.3 Without this influence, it is unclear whether lawmakers would have fully comprehended the harmful effects of segregation, a realization that led to the eventual integration of public schools. Brown v. Board of Education is linked to many other landmarks of the Civil Rights movement, but this convergence is due to the catalyst of the Clark’s Doll Test experiment. This paper seeks to argue for the expansion of social science’s role in the legal system. Section I covers the general history of the emergence of psychological findings in the court of law, Section II briefly discusses the role social science currently plays in legal proceedings, and Section III details areas of concern that highlight the urgent need for further applied input from psychologists in the field of law. The concluding section reiterates that awareness of the need for legal reform is insufficient for refinement and should be informed and moved by social science.

I

Introduction

The notability of Brown v. Board of Education did not begin the complicated relationship between psychology and legal decisions. The general agreement remains that the Muller v. Oregon ruling was due to the introduction of the Brandeis Brief

by Louis Brandeis, in which his findings implied the potential role scientific research could play in aiding legal decision-making.4 While individuals today may debate the validity of his conclusions, it is undeniable that this new revolution instigated a ripple effect in the legal realm by solidifying psychological research’s place in being insightful to legal trials. Specifically, the Brandeis brief introduced the use of social science within the court, a field previously considered insignificant concerning 1

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

Legal Defense Fund, Brown v. Board: The Significance of the “Doll Test,” NAACP Legal Defense and Educational Fund (2024).

3 Ibid.

4 Muller v. Oregon, 208 U.S. 412 (1908); Brandeis Brief — Encyclopedia.com 2

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FLORIDA UNDERGRADUATE LAW REVIEW law. The practice of filing amicus curiae briefs is connected to this first step in providing psychologists avenues to making their voices heard in court, an example being the filed amicus brief for Brown v. Board.5 Following the ruling of Muller v. Oregon, the legal realism movement rose to notoriety, with a focus on aligning court decisions with the realities of the social and political world.6 At its core, legal realism asks for the application of empirical data and observations in legal decision-making. While psychology might now be considered established within the legal realm, the history of its battle to earn its position there is less well-known. By examining the history between social science and law, we can better understand the potential future impacts this interaction can have. This understanding holds the purpose of requiring input from psychology for various areas of law.

II

Removing Doubt: The Results Speak for Themselves

The law is founded on the pursuit of justice; regrettably, the American legal system frequently fails to achieve this objective. The question becomes whether the resources of the social sciences may attend to the current blind spots of the law and justice system through facts and demonstrated evidence. Whether by further research into the structure of the court, assessments of participants within the court, and how to best maintain evidence-based reasoning, the interaction between social science and law should not be overlooked. The usage of social science research to support written opinions from the Supreme Court has risen from 10% in the year 1978 to 40% in 2015.7 As social science and law have intersected, psychology continues to prove itself advantageous in accomplishing the legal world’s goal of the pursuit of truth, with the U.S. Department of Justice even recognizing social science as “an analytic tool of the law.”8 Psychologists have brought much value to the modern legal world, exemplified by their providing of expert witness testimony, acting as a trial consultant, or other roles in the legal field.9 Even with the impact psychology has had on the legal system, there are still limitations to science’s role 5

The Likely Voter, Amicus Briefs: What They Are and How They Impact Court Cases, Sutherland Institute (2023).

6 Legal Realism — Encyclopedia.com.

7 Caroline Collier, U.S. Supreme Court Justices Use Social Science Research in Rulings, TCU Magazine (2022).

8 John Monahan & Laurens Walker, Social Science in Law: Cases and Materials — Office of Justice Programs.

9 L.R.C. Haward, Psychologist as Expert Witness (From Psychology, Law and Legal Processes, P 44-53, 1979, by D P Farrington, et al - See NCJ - 70738) — Office of Justice Programs.

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III

Implications: Why Law Still Needs Social Science

People v. Hatchett was one such case that illustrated the legal system’s continual incorporation of baseless evidence in reaching a verdict in trials that essentially hold the outcome of an individual’s life in its hands. Andre Hatchett (then a 20-yearold black male with special needs) was given a sentence of 25 years to life after being falsely convicted of second-degree murder based on eyewitness identification.10 This supposed eyewitness had been an individual arrested for burglary who, after providing a statement about witnessing the homicide being investigated and initially identifying another man who was not Hatchett, was released from police custody.11 Hatchett was not cleared until 2016 after an investigation concluded the conviction void, a primary reason being the questionable eyewitness identification which acted as the driving force for the prosecution’s argument.12 This unfortunate story seems to be repeated due to the legal system’s continuous disregard for the evidence against the accuracy of the practice that psychological studies have produced. As far back as 1975, psychologists have determined the practice of eyewitness investigations is easily influenced by minor factors such as the wording of a question.13 Countless individuals have been falsely accused, wrongly convicted, and lost their lives since then, and one must reckon with the sobering reality: many of these injustices could have been avoided if psychology had greater influence in legal proceedings.

The extent of what psychology has been able to do for the law has been limited due to the criminal justice system’s sometimes rigid framework. In its most explicit form, the silencing of input from psychologists is demonstrated in Rule 702 of the Federal Rules of Evidence.14 Rule 702 grants trial judges the role of “gatekeeper,” in the case of allowing expert opinion into the court.15 The rule consists of five considerations court judges should make when deciding whether an expert witness can testify in a trial. Known as the Daubert Standard, these include falsifiability of 10

People v. Hatchett, 225 A.D.2d 634, 639 N.Y.S.2d 114 (N.Y. App. Div. 1996).

Today Marks 3 Years of Freedom for Andre Hatchett, Innocence Project.

12 Ibid.

13 Elizabeth F. Loftus & Guido Zanni, Eyewitness Testimony: The Influence of the Wording of a Question, 5 Bulletin of the Psychonomic Society 86 (1975).

14 Cornell Law School, Rule 702. Testimony by Expert Witnesses, Legal Information Institute, 2011.

15 National Center for State Courts, Civil Action, 2006.

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FLORIDA UNDERGRADUATE LAW REVIEW the expert’s technique, whether it has gone through peer review, known standards of control for the technique, the scientific community’s acceptance of the technique, and the known error rate.16 While this restriction on the permissibility of expert witnesses in court has been framed as a way to reduce unreliable testimony (a “legal safeguard”), it lacks consideration for the biases of judges and their unfamiliarity with the way science approaches conclusions. Research suggests quality expert testimonies are often disregarded as evidence along with the admittance of faulty scientific evidence. Psychologists Margaret Kovera and Bradley McAuliff reveal significant results in their study comparing the perception of scientifically trained and untrained judges of expert research with differences in peer review status and internal validity; only 17% of the judges chose to admit valid scientific evidence with correlation being seen between the decision to admit and judges’ perceptions of the study, as well as their scientific training.17 This reveals either a clear bias against social science in the court or a lack of understanding of what valid scientific expertise looks like. It appears that the limitations of the most basic role a psychologist can play in the legal field (acting as an expert witness) are designed in such a way as to reduce the influence psychology has in guiding informed verdicts.

The legal world’s acceptance and continual consideration of faulty evidence and misinformed practices do not end at eyewitness testimony. Christopher Ochoa, only 22 at the time, falsely confessed to rape and murder and was convicted in 1989, serving 13 years until being released in 2002 due to the advent of improved DNA tests.18 The justice system’s interrogation method, known as the Reid Technique, has been researched, along with other interview and interrogation methods, to understand what may lead an individual to claim a crime they did not commit.19 The very nature of the Reid Technique is accusatory, with the goal of confession. The modern interrogation technique includes 9 steps, with items such as, “direct confrontation,” “minimize the frequency of suspect denials,” and “if suspect cries. . . infer guilt.”20 Based on knowledge of his over 30 years studying false confessions, psychology professor Saul Kassin remarked, “...in American style interrogation, people can become so stressed and so broken down and they start to feel so hopeless about their current situation that they come to believe in a rational way a confession is in their best 16

Meghan Ryan, Daubert Standard, LII / Legal Information Institute, 2018.

Margaret Kovera & Bradley McAuliff, The Effects of Peer Review and Evidence Quality on Judge Evaluations of Psychological Science: Are Judges Effective Gatekeepers?, psycnet.apa.org, 2000.

18 Maurice Possley, Christopher Ochoa — National Registry of Exonerations, www.law.umich.edu, 2012.

19 James Orlando, Interrogation Techniques, Connecticut General Assembly, 2013.

20 Aldert Vrij, Reid Technique—an overview, ScienceDirect Topics, 2004.

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FLORIDA UNDERGRADUATE LAW REVIEW interest. . . they get so confused by the fact that American police are permitted to lie. . . that in some cases people accused of crimes. . . become so confused by the lies that they actually come to believe they have committed this crime” in response to an interview question on the factors contributing to false confessions.21 It is difficult to replicate the real-life scenarios leading to false confessions, but psychologists have been able to argue for interrogation reforms that would mitigate the risk of false confessions and explore interrogation techniques that would increase the number of true confessions of crimes.22 Despite psychology’s attempts to assist and the acknowledgment of the legal system’s shortcomings in delivering justice, social science remains underutilized, and the system remains stagnant.

History reveals the initial reactions garnered when psychologists dare to critique the insufficiencies of the legal system. Hugo Münsterberg, a pioneer of psychology, is a chief example of the scorn that law occasionally extends to social science.23 Münsterberg’s On the Witness Stand explored topics such as witness memory, false confessions, and the prevention of crime.24 He expressed the need “to adjust [psychological] research to the practical problems themselves and thus, for instance, when education is in question, to start psychological experiments directly from educational problems,” specifically addressing the legal field.25 Both Münsterberg and his call to the integration of psychology and law were met with criticism and mockery by John Wigmore, a prominent legal scholar at the time, and other colleagues.

Wigmore described Münsterberg’s claims of the necessity of an alliance between law and psychology as “erroneous, incorrect, and untrue” in Wigmore’s response article to On the Witness Stand.26 The undermining of psychological findings as it relates to present-day legal proceedings such as the Reid technique for interrogations and eyewitness identification combined with the hefty limitations of expert testimony in court parallel the inconsideration that was once given at the simple suggestion of a psychology-informed legal system.

21

Gisli H. Gudjonsson & John Pearse, Suspect Interviews and False Confessions, 20 Current Directions in Psychological Science 33, 2011.

22 Evan Nesterak, Coerced to Confess: The Psychology of False Confessions, Behavioral Scientist, 2014.

23 Brian Bornstein & Jeffrey Neuschatz, Hugo Münsterberg’s Psychology and Law: A Historical and Contemporary Assessment, Oup.com, 2023.

24 Hugo Munsterberg, On the Witness Stand, 1908.

25 Ibid.

26 John Wigmore, Professor Muensterberg and The Psychology of Testimony, 3 Illinois Law Review, 1909.

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IV

Conclusion

The core of law relies on legal precedent, rendering the application of a considerable amount of needed and informed changes to the structure of legal trials difficult.

In addition to fueling the legal system’s resistance to change, these precedents can lead to the wasted potential of a union between psychology and law. The trend of psychological experts proffering proven data relevant to legal trials and policy and being met with resistance by those in the legal field continues to ruin lives and impede reform. Although the legal system strives for fairness and objectivity, there are numerous cases—some of which could have been prevented with prior appeals for change—where the law has failed to fulfill this promise to the public. The legal world requires a stronger partnership with social science to inform legal proceedings based on tested empirical evidence and data; despite the elevated position of social science within the law due to landmark cases such as Brown v. Board of Education, there remain unreasonable restrictions and biases against the field of social science that prohibit the growth of its influence. A lack of attention to psychological findings permits faulty practices to continue to obstruct true justice. While increased awareness of the legal and justice systems’ flaws has forced policy changes, psychology’s ability to lead the legal system to be a mode of truth, justice, and safety remains largely unexplored.

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