Fordham Undergraduate Law Review: Volume I (Spring 2020) by Fordham Undergraduate Law Review

FORDHAM UNDERGRADUATE LAW REVIEW

INAUGURAL

EDITION

NOTES EMINENT DOMAIN IN NEW YORK CITY Aiden Hannon

ON MOOTNESS Thomas Reuter

BATTLE OF THE STRIPES Rahul Sukesh

WHAT ARE WE REALLY EATING? Lily van Petten

GENETIC PATENT REFORM IN THE UNITED STATES Abigail Carlson

CLIMATE CHANGE AND INTERNATIONAL LAW Jenny Han and Amanda Kuras

CICERONIAN WHISTLEBLOWING Tyler Raciti Editor-in-Chief

Hailey Sylvander

#METOO, MEET INCLUSIVITY

VOL. 1

Mercy Adoga

SPRING 2020

FORDHAM UNDERGRADUATE LAW REVIEW

LETTER FROM THE EDITOR-IN-CHIEF VOL. 1

2019-20

NO. 1

May 24, 2020 Dear Reader: It is with profound passion and privilege that I present to you the inaugural edition of the Fordham Undergraduate Law Review (FULR). When I first conceived of an undergraduate legal journal, I had an admittedly ambitious vision: not only to curate extraordinary semesterly legal volumes, but also to create a dynamic ecosystem of talented attorneys of tomorrow. By forming a publication enthralled in fruitful legal dialogues, I firmly believed that FULR could be made into a malleable community ignited by a curiosity in the law. Today, I am humbled to see this vision realized. Our vibrant community of nearly four hundred members marks a distinct expansion of the pre-law opportunities at Fordham University and has achieved spectacular results relative to similar pre-law journals nationwide. A million congratulations are in order to the Editorial Board, whose outstanding demonstration of care, compassion, and grit has led FULR to become one of the largest publications at Fordham Universityâ&#x20AC;&#x2122;s undergraduate colleges. Their leadership during the days and endurance through the nights has engendered this impressive edition. In this issue, you will read the legal perspectives of our pioneering group of undergraduate authors. This issue consists of eight notes, with each marking the wide breadth of disciplinary topics Fordham pre-law undergraduates engage in. I am also incredibly proud that in a male-dominated legal industry, the majority of our Editorial Board, faculty advisory board, and authors presented in this inaugural edition are women. While FULR seeks to foster an inclusive and diverse pre-law community, I firmly believe that this majority reflects the natural transformation of the legal sector. I would like to thank all of you that have made this volume possible. I owe a special thank you to Dean Mantis, our faculty advisor, and Dean Annunziato, our faculty mentor, for their guidance throughout the publication process. Please do not hesitate to reach out to the Editorial Board at fulr@fordham.edu to share your comments. We openly welcome your feedback. Sincerely,

Tyler Raciti, Editor-in-Chief

TABLE OF CONTENTS VOL. 1

SPRING 2020

NO. 1

EMINENT DOMAIN IN NEW YORK CITY Aiden Hannon.................................................................................................1

ON MOOTNESS: THE NEW YORK STATE RIFLE PISTOL ASSOCIATION V. THE CITY OF NEW YORK, NEW YORK Thomas Reuter................................................................................................8

BATTLE OF THE STRIPES: AN ARISTOTELIAN ANALYSIS OF ADIDAS’ “THREE STRIPE TRADEMARK INFRINGEMENT CASES Rahul Sukesh.................................................................................................19

WHAT ARE WE REALLY EATING?: AN ANALYSIS OF FOOD LABELING TRANSPARENCY Lily van Petten..............................................................................................28

GENETIC PATENT REFORM IN THE UNITED STATES: THE GROWING PROBLEM WITH § 101 Abigail Carlson.............................................................................................41

WHISTLEBLOWING AS A CICERONIAN MORAL OBLIGATION TO THE STATE Hailey Sylvander..........................................................................................50

CLIMATE CHANGE AND INTERNATIONAL LAW: A CASE FOR EXPANDING THE DEFINITION OF “REFUGEES” TO ACCOMMODATE CLIMATE MIGRANTS Jenny Han and Amanda Kuras.....................................................................58

#METOO, MEET INCLUSIVITY: CRIMINAL PROCEDURE IN SEXUAL ASSAULT CASES SHOULD INCLUDE PEOPLE WITH INTELLECTUAL DISABILITIES Mercy Adoga................................................................................................71

MASTHEAD VOL. 1

2019-20

NO. 1

EDITORIAL BOARD TYLER RACITI Editor-in-Chief AIDEN HANNON Co-Managing Editor

JENNIFER RIVERO Co-Managing Editor

NAOMI IZETT Co-Managing Editor

DAVID ROSSMAN Executive Articles Editor

REBEKAH NATHAN Executive Online Editor

REEVE CHURCHILL Executive Articles Editor

ARIANNA CHEN Executive Online Editor

SEAN Oâ&#x20AC;&#x2122;BRIEN Business Administrator SENIOR EDITORS REBECCA HALL MARGARITA MCCOY JACK QUAGLINO EMILY LIU MAYA BENTOVIM

CATHERINE GASSIOT GRACE DAVIDSON MAGGIE LAVENGOOD ANIKE TELLA-MARTINS ASHLEY WRIGHT

ELISE MCDONALD GABRIELLA MANGOME SYDNEY BECK HANNAH PERRY ROBERTO LEITO

STAFF WRITERS JONATHAN KATZ WISLANDE FRANCISQUE ELIZABETH REED BRANDON GJONGECAJ DANIEL GOLDSHMID EMILY SEEBERGER OLIVIA FRANTZESKOS ZEKE TWEEDIE

EMILY CERRON APRIL GORE PANTHO SAYED GARRETT LUEG VENDELA DENTE SAMANTHA DAVIS HANI JAWABRAH DANIELLE POOLE

HILLARY MANTIS, J.D. Faculty Advisor

SOH BHATTACHARJEE ANDREW MILLMAN ANNA SCHMITT MIKE RUSSO DANIELLE POOLE ANNA TORPEY ANTHONY GAMBINO MICHAEL BONGIOVANNI

RACHEL ANNUNZIATO, PH.D. Faculty Mentor

MISSION VOL. 1

SPRING 2020

NO. 1

The Fordham Undergraduate Law Review (FULR) is an entirely student-run, scholarly journal at the undergraduate level for the Fordham University and legal community. Our publication includes a wide array of topical and historical legal issues covering both domestic and international affairs in its scope. FULR is a coveted opportunity for high-achieving, exceptional writers examining a range of disciplinary lenses as it relates to the nuances of law. In this pursuit, we have forged a driven, competitive community of students that engage in fruitful discussions on various legal issues. These exceptional attorneys of tomorrow are given opportunities for publication and offered admission to prelaw networking events with distinguished Fordham alumni. Learn more about opportunities to join our team at fulr@fordham.edu.

INSTITUTIONAL PARTNERS ROSE HILL DEANâ&#x20AC;&#x2122;S OFFICE, Fordham College at Rose Hill PRE-LAW ADVISING OFFICE, Fordham College at Rose Hill & Lincoln Center OFFICE OF STRATEGIC INITIATIVES, Fordham College at Rose Hill OFFICE OF STUDENT INVOLVEMENT, Fordham College at Rose Hill PRE-LAW SOCIETY OF ROSE HILL & LINCOLN CENTER, Fordham College at Rose Hill & Lincoln Center Thank you to our institutional partners for their supportive mentorship and financial assistance. Without their help, this volume would not have been possible.

The views expressed by the contributors are not necessarily those of the Editorial Board or the institutional partners of the Fordham Undergraduate Law Review. While every effort has been made to ensure the accuracy and completeness of information contained in this journal, the Editors cannot accept responsibility for any errors, inaccuracies, omissions, or inconsistencies contained herein. No part of this journal may be reproduced or transmitted in any form or by any means, including photocopying, recording, or by any information storage and retrieval system, without permission in writing. The authors who submitted their work to the Fordham Undergraduate Law Review retain all rights to their work. Fordham Undergraduate Law Review Volume I, Issue I, 2019-20 https://research.library.fordham.edu/fulr/

NOTE EMINENT DOMAIN IN NEW YORK CITY Aiden Hannon* On the first of February, 2008, the United States Court of Appeals for the Second Circuit upheld the condemnation and subsequent development of several Brooklyn properties in Vanderbilt Yards that were obstructing the construction of a new stadium for the New Jersey Nets. The rationale behind the decision in Goldstein v. Pataki derives from the Fifth Amendment’s Takings Clause, which holds that “private property [shall not] be taken for public use without just compensation.” The new construction project would bring a National Basketball Association franchise to Brooklyn, theoretically raising the tax revenue and creating more jobs, alongside sixteen high-rise apartments and several office buildings. The properties were eligible for condemnation due to repeated blight condemnations issued to them by the City of New York. The properties could not be considered to be for the public benefit because developer Bruce Ratner and his company Forest City Ratner (FCR), who took the lead on the project, benefited directly from their work and collaborated with the Empire State Development Corporation (ESDC) to have the properties condemned. The United States Court of Appeals for the Second Circuit rejected the strong case against Ratner and other government officials and departments involved in the Atlantic Yards project due predominantly to one of the most notorious cases of eminent domain abuse in recent public memory, Kelo v. The City of New London. This Note will argue that the precedent of the Kelo and Goldstein decisions, in tandem with weak blight standards, puts New York homeowners at risk of eminent domain abuse. I. INTRODUCTION............................................................................................ 2 A. The Flawed Usage of Eminent Domain........................................ 3 II. THE ROLE OF BLIGHT.................................................................................3 III. THE KELLY TEST: DETERMINING PRETEXT .............................................. 4 A. The Evidence of Pretext in Goldstein............................................5 *

B.A. Candidate for Economics (major) and English (minor), Fordham College at Rose Hill, Class of 2022. This Note would not be possible without the support of the Editorial Board of the Fordham Undergraduate Law Review, with special thanks to David Rossman (Executive Articles Editor), Tyler Raciti (Editor-in-Chief), and Naomi Izett (Co-Managing Editor), who gave direction, guidance, and editing assistance to the project. Maya Bentovim (Senior Editor) deserves the most thanks for doing the first edit of this Note, which was no doubt a difficult task. I would also like to thank Professor Arnold Adler for showing me it is possible to challenge myself academically with the topic of eminent domain in New York City. In addition, I must thank my family for their enduring love and support.

EMINENT DOMAIN IN NEW YORK CITY

[Vol. 1

B. The Normalization of Pretextual Takings...................................... 5 IV. CONCLUSION............................................................................................. 6 I. INTRODUCTION The eminent domain takings in Goldstein v. Pataki had relevant precedent under the Kelo ruling, which held that economic development met the Takings Clause of the Fifth Amendment. The plaintiffs of the case were citizens of New London whose homes were seized by the defendant, the city of New London, on the grounds of eminent domain to use the land to build a Pfizer plant in the hopes that the development would economically revitalize New London. Upholding the takings, the court ruled in favor of the defendant in a 5 to 4 majority. This decision upended the widely accepted legal understanding that the constitution proscribed takings for private use.1 Justice O’Connor characterized the problem with the majority ruling in her dissent: Today the court abandons this long-held, basic limitation on government power. Under the banner of economic development, all private property is now vulnerable to being taken and transferred to another private owner, so long as it might be upgraded — i.e., given to an owner who will use it in a way the legislature deems more beneficial to the public – in the process.2

O’Connor’s objection applies to the Goldstein v. Pataki decision. The Justice’s dissent accurately predicted economic takings that overwhelmingly benefit private parties at the expense of homeowners. This prediction is demonstrated in the non-binding aspect of eminent domain condemnations, as seen in the disastrous outcome of the redevelopment authorized by the Kelo case. As of 2010, all former homes were destroyed (with the exception of one which was relocated),3 and no development occurred as Pfizer was combating a combination of financial uncertainty amid the 2008 financial crisis, contract disputes, and a general loss of interest due to negative publicity resulting from the trial.4 The only substantial uses for the lot since have been for storing storm refuse following Hurricane Irene in 2011 and as a colony for feral cats.5 While this lot will undoubtedly be used in the future, it is entirely plausible that a development company working with a state or local government could use eminent domain to seize property from homeowners only for unforeseen circumstances, financial or otherwise, to hinder development or even prevent it entirely. In situations like the 1

See Dana Berliner, Looking Back Ten Years After Kelo, 125, YALE L.J. F. 82 (2015). See Kelo v. New London, 545 U.S. 469 (2005). (quoting Justice O’Connor). 3 See Somin, Ilya, The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain, 233 (2015). 4 Id. at 235. 5 Id. 2

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

aforementioned, former residents find themselves displaced from their original properties, and municipalities are deprived of a planned source of revenue. A. The Flawed Usage of Eminent Domain There is an extreme lack of binding terms which allows corporations to exaggerate claims of economic benefits in order to use eminent domain to build on properties they would not otherwise be able to access. In the similar case of Poletown Council v. Detroit, the City of Detroit used eminent domain to secure a significant amount of private property in the Poletown neighborhood of Detroit to transfer to General Motors to develop a plant to stimulate the economy.6 On March 13th of 1981, the Michigan Supreme Court ruled in favor of the defendants, citing the alleged benefits of 6,150 jobs7 as meeting the public use requirement. The Court proceeded to state: “If the public benefit was not so clear and significant, we would hesitate to sanction approval of such a project.”8 However, the Court’s decision and subsequent development would not result in the intended benefits, as the plant would open two years late and employ 3,600 workers at the height of its operation in the 1990s.9 This systemic flaw gives a considerable economic advantage to corporations, which could lobby for condemnations and face no consequences for failing to deliver a public use benefit. While the Atlantic Yards project may deliver on the intended benefits, it is necessary to view the project from an ex-ante perspective and anticipate future uses of eminent domain. With precedent in cases like Goldstein, Kelo, and weak blight laws, developers can theoretically use eminent domain to (re)develop in any part of New York City on their terms. II. THE ROLE OF BLIGHT An important, yet problematic aspect of the eminent domain process is the classification of condemned property as blighted. A blighted area, according to The New York State Constitution, consists of “substandard and insanitary areas.”10 Article XVIII of the New York Constitution was initially written to address the issue of slums and other dire urban living conditions. As Judge Fuchsberg of the New York State Court of Appeals noted in Yonkers Community Development Agency v. Morris: “Historically, urban 6

See Poletown Council v. Detroit, 410 MICH. 616. See Somin, supra note 4, at 76. 8 See Poletown Council v. Detroit, 410 MICH. 616. 9 See Somin, supra note 4, at 77. 10 See N.Y. CONST. ART. XVIII, § 1. 7

EMINENT DOMAIN IN NEW YORK CITY

[Vol. 1

renewal began as an effort to remove "substandard and insanitary" conditions which threatened the health and welfare of the public, in other words "slums,”11 whose eradication was in itself found to constitute a public purpose for which the condemnation powers of government might constitutionally be employed.”12 The Empire State Development Corporation conducted a blight study of the Atlantic Yards site in 2006 which found that the site “is characterized by blighted conditions that are unlikely to be removed without public action”13 and that development would remedy these conditions. There are two problems with this classification. Firstly, the takings meet the standards of a pretextual taking, and secondly, broad blight standards that classify average to below-average properties as equivalent to dire conditions of urban decay allow the seizure of said properties. III. THE KELLY TEST: DETERMINING PRETEXT The concept of pretext arose as a limiting principle on eminent domain takings in the case of West River Bridge Company v. Dix, wherein Justice Woodbury questioned the legitimacy of an eminent domain taking that benefitted a private party while satisfying a public use.14 As Justice Kennedy clarified in his concurrence on Kelo v. New London: “A court [...] should strike down a taking that, by a clear showing, is intended to favor a particular private party, with only incidental or pretextual public benefits [...].”15 While pretextual takings are unconstitutional, as Justice Kennedy’s concurrence demonstrates, the difficulty of determining what actions are pretextual remains as the term pretext itself is undefined and, therefore, is up to judicial discretion. Several standards that could be applied already exist. For instance, Professor Daniel Kelly outlined several principles which could determine whether a taking was pretextual or not: the magnitude of public benefits, the extent of preparation and planning, and the identification of the private parties who stand to benefit from the taking.16 However, despite overwhelming evidence to suggest that these factors were present in Goldstein,17 the tests fall short of what is necessary to determine pretext. The magnitude of public benefits is defective as a rule because there is no determined amount of public benefit or lack thereof, which would confirm a taking as pretextual. The 11

See id. See Yonkers Community Dev. Agency v Morris (37 NY 2D 478, 481-482 [1975]). 13 See Atlantic Yards Arena and Redevelopment Project Blight Study, AKRF, INC. (2006). 14 See Lynn E. Blais, The Problem with Pretext, 38, FORDHAM URB. L.J. 971 (2011). 15 See Kelo v. New London, 545 U.S. 469 (2005). 16 See Daniel B. Kelly, Pretextual Takings: Of Private Developers, Local Governments, and Impermissible Favoritism, 17, SUP. CT. ECON. REV. 173, 174-75, 185 (2009). 17 See Somin, Let There Be Blight: Blight Condemnations in New York After Goldstein and Kaur, 38, FORDHAM URB. L.J. 1211 (2011). 12

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

principle of the extent of preparation is irrelevant because the amount of preparation does not determine whether a taking is pretextual – it would merely measure the amount of time put into a project, not the intent. The identification of private parties is necessary to determine who would benefit from the taking, but it still fails to demonstrate whether or not the public benefits are pretexts for the private benefit of the parties. Kelly goes on to suggest an intent-based test, but this is equally as vague, as it is plausible that private parties may have mixed motives.18 However, Kelly does propose a workable framework in which eminent domain takings can be evaluated to be pretextual or not. This framework, called the Kelly test, works in a similar way to a workplace discrimination lawsuit, in that the condemned must provide a direct or indirect case of favoritism with proof that a private party involved with the development stands to benefit.19 A. The Evidence of Pretext in Goldstein An analysis of the usage of eminent domain in Goldstein v. Pataki would reveal that the aforementioned takings were indeed pretextual by applying the Kelly test. Given that Ratner and FCR were the impetus behind the project and that the ESDC’s blight report — which approved the condemnation of properties needed to develop — was published three years after the project was announced, indirect favoritism is not hard to prove. The fact that FCR and Ratner stand to benefit from the transaction is absolute, as the ownership of a stadium in a metropolitan city is extremely lucrative. The United States Court of Appeals for the Second Circuit rationalized their decision to ignore these pretextual factors by, as Professor Ilya Somin describes it: [Refusing] to consider any evidence of improper motive, ruling that whenever a taking is ‘rationally related to a classic public use,’ it is impermissible to ‘give close scrutiny to the mechanics of a taking [...] as a means to gauge the purity of the motives of various government officials who approved it.’20

This precedent of judicial abdication means that if a developer can provide a possible public use, they can use eminent domain to secure the property, given that it is classified as blighted for development. B. The Normalization of Pretextual Takings

See Kelly, supra note 16, at 19. Id, at 34. 20 See Somin, supra note 17, at 1214. (quoting Goldstein v. Pataki, 488 F. SUPP. 2D 254.). 19

EMINENT DOMAIN IN NEW YORK CITY

[Vol. 1

Perhaps one of the most threatening precedents to safe property ownership is the Yonkers Community Development Agency v. Morris decision, in which the Appellate Court of the State of New York noted: Gradually, as the complexities of urban conditions became better understood, it has become clear that the areas eligible for such renewal are not limited to ‘slums’ as that term was formerly applied, and that, among other things, economic underdevelopment and stagnation are also threats to the public sufficient to make their removal cognizable as a public purpose.21

To make “economic underdevelopment” a public interest threat akin to “slums” puts most properties at risk of eminent domain abuse; every property can be considered “underdeveloped” to some degree. The ESDC blight report, which deemed the Brooklyn properties in Goldstein v. Pataki as blighted, cited “vacant lots, irregularly shaped lots, building facades that are in ill-repair (e.g., crumbling brickwork, graffiti, flaking paint), and structures suffering from serious physical deterioration”22 as indicators of a heavily blighted area. A resident of Brooklyn would come to the conclusion that most of the borough suffers from blighted conditions under the standards set by the ESDC report. The ambiguous definition of blight combined with lenient pretextual standards prioritize the development of property over the security of homeownership. IV. CONCLUSION What can be done to remedy the lack of protection for homeowners against development? The Appellate Court of the State of New York endorsed legislative change in Goldstein v. Urban Development Corporation, stating that: Whether a matter should be the subject of a public undertaking — whether its pursuit will serve a public purpose or use — is ordinarily the province of the Legislature, not the Judiciary, and the actual specification of the uses identified by the Legislature as public has been largely left to quasi-legislative administrative agencies.23

This line of reasoning defers the judicial responsibility to lawmakers. However, given that large private developers could lobby the legislature (in 2006, Bruce Ratner was revealed to be the third-largest spender on lobbyists in the state of New York, spending 2.105 million dollars on lobbying

See Goldstein v. URBAN DEV. CORP., 921 N.E.2D 164 (2009). See Atlantic Yards Arena and Redevelopment Project Blight Study, supra note 14. 23 See Goldstein v. URBAN DEV. CORP., 921 N.E.2D 164 (2009). 22

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

expenses that year alone)24 it may be more efficient to find a different solution. Professor Ilya Somin suggests increasing the amount of compensation property owners receive and abolishing the current standard to compensate homeowners with the fair market value of their property. In fact, three members of the Supreme Court of the United States which decided on Kelo (Anthony Kennedy, David Souter, and Stephen Breyer) advocated this position to alleviate the damages of the Kelo takings.25 Whatever the solution is chosen, it is imperative to implement it soon, as the Goldstein precedent is detrimental to New York homeowners. ***

See Kuntzman, Gersh, Ratner's Lobby Hobby: Bruce Spent Big in Albany Last Year, BROOKLYN PAPER, 24 Mar. 2007, <www.brooklynpaper.com/ratners-lobby-hobby-brucespent-big-in-albany-last-year/>. 25 See Somin, supra note 4, at 205.

NOTE ON MOOTNESS: THE NEW YORK STATE RIFLE PISTOL ASSOCIATION V. THE CITY OF NEW YORK, NEW YORK Thomas Reuter* The principles of limited government, separation of powers, and federalism have become ubiquitous colloquialisms echoed in the halls of legislatures, courts, and research institutions. Despite preconceived notions, these principles are not partisan. Their application may be debated, but their importance is not denied. This Note examines the limits of the Supreme Court of the United States as established in Article III of the United States Constitution. Specifically, it defines the standards of justiciability and examines one element: mootness. The Note looks at a 2013 New York City case regarding Second Amendment rights: The New York State Rifle Pistol Association v. The City of New York, New York. The Supreme Court of the United States had not heard a major gun rights case in almost 10 years (the last being landmark cases District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010)). While the Court granted certiorari in January of 2019, it faced a significant obstacle: the controversy’s resolution. Given the resolved grievances, the Supreme Court of the United States had to consider whether or not it held the requisite jurisdiction to examine the merits of the case. This Note will begin with a discussion on the purpose and limitations of the Judiciary. This discussion will be followed by a history of the case and the grievances sustained by the petitioners. Thirdly, the Note will define mootness and apply the doctrine to the facts of this case. Importantly, the Note also examines the exceptions to the mootness doctrine: when a case is “capable of repetition, yet evading review” as established in Southern Pacific Terminal Co. v. Interstate Commerce Com.. Finally, the Note acknowledges varying jurisprudential philosophies but emphasizes the Court’s uniform commitment to and understanding of the standards of justiciability, specifically mootness. Political Philosopher Leo Strauss once wrote, “good writing achieves its end if the reader considers carefully the ‘logographic necessity’ of every part, however small or seemingly *

B.A. Candidate for Political Science and Theology, Fordham College at Rose Hill, Class of 2022. It has been an honor to be a part of the Fordham Undergraduate Law Review as a Senior Editor. I look forward to the continued advancement and success of this new Journal. I would like to thank the Editorial Board for their tremendous support. I also owe a debt of gratitude to Constitutional Law Professor Dr. Robert Hume whose wisdom and insights have inspired and motivated me to keep exploring the law. Lastly, to my family and friends who provide consistent, loving encouragement: thank you.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

insignificant, of the writing.” Considering the United States Constitution to be a piece of “good writing,” the text must be scrutinized, analyzed, understood and applied. The text of the Constitution grants the Judiciary jurisdiction over “controversies” for which, the Note argues, there remains none in The New York State Rifle Pistol Association v. The City of New York, New York. I. INTRODUCTION....................................................................................... 9 II. HISTORY OF THE CASE: AMENDED LAWS AND PROVISIONS AFFECTING THE CONTROVERSY.................................................................................. 10 III. THE MOOTNESS DOCTRINE AND THE ROLE OF THE JUDICIARY...........11 A. Exceptions to the Mootness Doctrine..................................... 12 B. Precedence for Assigning Mootness to Cases Experiencing Amendments to Laws in Question Post-Certiorari......................13 C. Mootness Irrespective of Intentions........................................15 IV. JURISPRUDENCE AS IT RELATES TO THE MOOTNESS DOCTRINE..........16 V. CONCLUSION....................................................................................... 17 I. INTRODUCTION The judicial power of the United States, vested in one Supreme Court, extends to “all Cases, in Law and Equity arising under this Constitution,” as well as “Controversies.”26 The U.S. Supreme Court has chosen to define justiciable standards as cases and controversies. By doing so, the Court places a meaningful restriction on its judicial power. The Court does not opine what the law ought to be, does not comment on legislative shortcomings or inaccuracies, and does not act in an advisory capacity. Rather, the Court chooses to define the law through the cases and controversies that arise under its jurisdiction. When a case or controversy is justiciable, it is relevant and appropriate enough to be heard by the Court. However, the Court has also defined what is non-justiciable. Justices determine justiciability by looking at whether a case or controversy is ripe, moot, if the petitioners have standing, and if the issue is a political question. If the Court finds that a case does not meet a satisfactory threshold for any one of these four criteria, the case is found to be non-justiciable and must be dismissed. This Note will solely examine mootness in New York State Rifle & Pistol Association, Inc. v. The City of New York. The mootness doctrine is a judicial procedure limiting the U.S. Supreme Court to only deciding live controversies: controversies capable of being redressed with a favorable decision. In New York State Rifle & Pistol Association, Inc. v. The City of New York, an issue initially arose 26

See U. S. CONST., art. III, § 2, cl. 1.

ON MOOTNESS

[Vol. 1

over the constitutionality of a New York law regulating the transportation of firearms. The petitioners, Romolo Colantone, Efrain Alvarez, and Jose Anthony Irizarry, challenged a portion of a New York City law regarding a “premise license” which hindered their ability to freely transport their firearms to, specifically, a second house as well as to shooting ranges outside of New York City.27 In June of 2019, the City adopted amendments to the New York City law around premise licenses, resolving both of the grievances experienced by the petitioner.28 New York State also repealed the restrictions placed on the petitioners in this case.29 This Note will document the history of New York City laws, explain the mootness doctrine and why its application is necessary, and provide information about the previous jurisprudential opinions of Justices. Pursuant to precedents, the Constitution, and the change in law, a case or controversy no longer exists in this case. In order to maintain strict fidelity to stare decisis, it is imperative that the U.S. Supreme Court find this case moot and provide instructions for the case to be remanded to a lower court with directions to dismiss. II. HISTORY OF THE CASE: AMENDED LAWS AND PROVISIONS AFFECTING THE CONTROVERSY

The initial controversy stemmed from a provision within the New York City licensing scheme. Within New York City, there are two types of licenses available to gun owners: a premise license and a carry license. A “carry license” is issued in rare circumstances when an individual can demonstrate that “proper cause exists.”30 A “premise license,” the license at issue in this case, allows an individual to keep their firearm in the residence to which the firearm was licensed and may not remove the firearm from that address unless to “maintain proficiency in the use of the handgun” at an authorized shooting range or to transport the firearm to an authorized area for hunting.31 Under the initial City of New York rule 5-23, the shooting range must be within the City of New York.32 The three plaintiffs all held a premise license, however, they wished to “transport their handguns to shooting ranges and competitions outside New York City” and, one of the plaintiffs, Mr. Colantone, wished to transport his firearm from his house in New York City to a second house 27

See 38 R.C.N.Y. § 5-01(a), New York State statute, NEW YORK PENAL LAW § 400.00(2)(a), (b) (Consol. 2019). 28 See N.Y.C. CHARTER § 1043(f)(1)(c)., App. 9a–10a (38 R.C.N.Y. § 5-23(a)(5), (6))., App. 10a (38 R.C.N.Y. § 5-22(a)(16))., App. 8a–9a (38 R.C.N.Y. § 5-23(a)(3)). 29 See App. 14a (N.Y. Penal Law § 400.00(6)). 30 See N.Y. Penal Law §§ 400.00(2)(a), (f). 31 See 38 RCNY § 5-23(a). 32 See id.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

upstate.33 Barred from doing either of these things under the city law, the plaintiffs filed suit in the Southern District of New York claiming that the law’s restrictions on the transportations of their guns infringed upon their Second Amendment rights, their First Amendment right of expressive association, the dormant Commerce Clause, and the fundamental right to travel.34 The District Court dismissed the complaint and, on appeal, the 2nd Circuit Appellate Court affirmed. Since then, New York City has amended its regulations, and New York State passed a law that now allows for the transportation of licensed handguns to shooting ranges outside of municipal borders and to a second home.35 Given that the petitioners are no longer hindered by the law, the case no longer qualifies as an Article III case or controversy; thus, the case should be found moot and the merits of the case need not be examined by the Court. III. THE MOOTNESS DOCTRINE AND THE ROLE OF THE JUDICIARY Mootness implies that there has been some kind of a change in the case (i.e. time or a change in law), thus the issue or controversy at hand has passed and there is nothing to decide. Fundamental to the understanding of Mootness is DeFunis v. Odegaard.36 Mario DeFunis was rejected from the University of Washington Law School despite having the requisite test scores and grades for admission.37 Specifically, DeFunis held higher LSAT scores than other minorities who were granted admission.38 A trial court’s decision to order the public school to admit him was overturned by the Washington Supreme Court.39 Upon appeal, the U.S. Supreme Court agreed to hear the case. Notably, the University of Washington Law School ended up admitting DeFunis and he had “registered ‘for his final quarter in law school,’”40 when the U.S. Supreme Court was preparing to hear the case. Since DeFunis was set to complete his final year at UW Law School, and his issue had been remedied, the controversy between the parties was no longer "definite and concrete"41 and no longer "touch[ed] the legal relations of parties having 33

See New York State Rifle & Pistol Ass’n v. City of New York, Docket No. 15-638-cv (2018). 34 See id. 35 See N.Y.C. CHARTER § 1043(f)(1)(c)., App. 9a–10a (38 R.C.N.Y. § 5-23(a)(5), (6))., App. 10a (38 R.C.N.Y. § 5-22(a)(16))., App. 8a–9a (38 R.C.N.Y. § 5-23(a)(3)). 36 DeFunis v. Odegaard, 416 U.S. 312 (1974). 37 DeFunis v. Odegaard, op. cit., at 329. 38 Id, at 321. 39 Id, at 335-6. 40 Id, at 315-6. 41 Id, at 317.

ON MOOTNESS

[Vol. 1

adverse legal interests."42 Since there was no more existing case or controversy, the U.S. Supreme Court rendered the case non-justiciable and moot. The Federal Courts do not act in an advisory capacity, nor can they decide cases simply because there is “great public interest in the continuing issues raised by [the] appeal.”43 Rather, North Carolina v. Rice,44 referencing Oil Workers Unions v. Missouri,45 says “federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.”46 Returning to New York Rifle & Pistol Association v. The City of New York, there were two grievances: the law prohibited persons with a premise license to transport their handgun to a second residence outside of New York City and it prohibited the transportation of a premise-licensed handgun to a shooting club outside of New York City.47 In June, those laws were reversed.48 The petitioners now have the ability to transport their handguns to second homes outside of the borders of New York City and they are able to transport their guns to shooting clubs outside of New York City. Since the petitioners’ complaints have been remedied given the change in law, the litigants are no longer affected by the outcome of the case and so the case should be deemed moot. A. Exceptions to the Mootness Doctrine Now, there are exceptions to the mootness doctrine; most relevant to the aforementioned case is an exception regarding repetition created in Southern Pacific Terminal Co. v. Interstate Commerce Commission.49 In the Majority opinion written by Justice McKenna, it is established that in cases where the issue is “capable of repetition, yet evading review,” the Federal Courts should not dismiss the case on behalf of mootness.50 It is foreseeable that the petitioners in New York State Rifle & Pistol Assn. would claim that their grievances are “capable of repetition.”51 Originally, the City of New York 42

Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241 (1937). 82 WASH. 2d 11, 23 n. 6, 507 P. 2d 1169, 1177 n. 6 (1973). 44 North Carolina v. Rice, 404 U.S. 244. 45 Oil Workers Unions v. Missouri, 361 U.S. 363, 367 (1960). 46 North Carolina, op. cit., at 246. 47 38 R.C.N.Y. § 5-01(a), New York State statute, NEW YORK PENAL LAW § 400.00(2)(a), (b) (Consol. 2019). 48 N.Y.C. Charter § 1043(f)(1)(c)., App. 9a–10a (38 R.C.N.Y. § 5-23(a)(5), (6))., App. 10a (38 R.C.N.Y. § 5-22(a)(16))., App. 8a–9a (38 R.C.N.Y. § 5-23(a)(3)). 49 Southern Pacific Terminal Co. v. Interstate Commerce Com., 219 U.S. 498 (1911). 50 Id, at 515. 51 Id. 43

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

simply affirmed that it would no longer enforce the restrictions set out in Rule 5-23, the law in question here. Three months later, the NYPD released amendments to Rule 5-23 to the public that would satisfy today’s petitioners concerns. These amendments were adopted by the City. Additionally, as previously mentioned, in June 2019, New York State changed its laws to remove the transportation restrictions hindering the petitioners.52 “Before a case will be dismissed as moot, the Court has imposed a burden on the defendant to prove that there exists no reasonable expectation of recurrence.”53 The changes in the City’s enforcement should be sufficient to deem this case moot, however, the New York State law change is plenary to cement its mootness and prove that there “exists no reasonable expectation of recurrence.”54 B. Precedence for Assigning Mootness to Cases Experiencing Amendments to Laws in Question Post-Certiorari. Precedence supports why a change in law can deem a case moot. In United States v. Alaska S.S. Co.,55 the Interstate Commerce Commission (ICC) mandated carriers to use a specific bill of lading: a receipt of goods given from the carrier to the deliveryman that have been shipped. Carriers complained that the ICC did not have the power to prescribe bills of lading. The ICC appealed a district court ruling in favor of the ruling, but while the ICC faced a temporary injunction from the district court, Congress passed the Transportation Act of 1920. The Transportation Act of 1920 changed the way the ICC issued bills of lading.56 Per the new Congressional legislation, the Court found that “[w]here by an act of the parties, or a subsequent law, the existing controversy has come to an end, the case becomes moot and should be treated accordingly” and so, “in our view the proper course is to reverse the order, and remand the cause to the court below with directions to dismiss the petition.”57 In another gun restrictions case, United States Department of Treasury v. Galioto,58 the plaintiff was barred from purchasing a firearm because, 10 years prior, he was committed to a mental institution. 18 U.S.C. prohibited the selling of a firearm to anyone committed to a mental 52

See App. 9a–10a (38 R.C.N.Y. § 5-23(a)(5), (6)). See Richard H. Fallon, Jr., Of Justiciability, Remedies, and Public Law Litigation: Notes on the Jurisprudence of Lyons, 59 N.Y.U. L. REV. 1, 27. 54 Id. 55 See United States v. Alaska S.S. Co., 253 U.S. 113 (1920). 56 Id, at 115. 57 Id, at 116. 58 See United States Department of Treasury v. Galioto, 477 U.S. 556 (1986). 53

ON MOOTNESS

[Vol. 1

institution.59 The district court found numerous faults with portions of the law and declared the statute unconstitutional. During the United States’ appeal, the statute was amended so that it would allow any person previously prohibited from buying a firearm, to apply for a license.60 In that case, the Court unanimously agreed, as C.J. Burger wrote, “This enactment of the lawsignificantly alters the posture of this case.”61 C.J. Burger continues to explain that the new legislation regarding 18 U.S.C.S. “affords an administrative remedy to former mental patients like that Congress provided for others prima facie [at first] ineligible to purchase firearms. Thus, it can no longer be contended that such persons have been ‘singled out.’”62 Given that the new legislation served as a remedy to Mr. Galioto’s concerns, the Court “vacated the judgement” and “remand[ed] the case for further proceedings consistent with this opinion.”63 Finally, even just last year, the current Court, prior to the confirmation of Justice Kavanaugh, came to a unanimous agreement in United States v. Microsoft.64 Here, Microsoft contended that a search warrant did not apply to information (specifically emails) held overseas.65 There was, at one point, a controversy between Microsoft and a Magistrate Judge over information held abroad that was accessible through a warrant, however, “on March 23, 2018, Congress enacted and the President signed into law the Clarifying Lawful Overseas Use of Data Act (CLOUD Act).”66 The CLOUD Act clarified that a business such as Microsoft was obligated to, among other things, disclose electronic communications “located within or outside of the United States.”67 After the CLOUD Act was passed, the Government obtained a new warrant to access the information and the Court held that “no live dispute remains between the parties over the issue with respect to which certiorari was granted.”68 For those reasons: This case[…] has become moot. Following the Court’s established practice in such cases, the judgment on review is accordingly vacated, and the case is remanded to 59

See 18 U.S.C.S. § 922, § 925. United States Department of Treasury v. Galioto, op. cit., at 558. 61 Id, at 559. 62 Id. 63 Id, at 560. 64 United States v. Microsoft, 138 S. CT. 1186 (2018). 65 Justin A. Anderson, Lorin L. Reisner, Serrin Andrew Turner, In the Matter of a Warrant to: Search a Certain E-Mail Account: Controlled and Maintained by: Microsoft Corporation., 13-MAG-281415, F.Supp.3d 466 (S.D.N.Y. 2014). 66 United States v. Microsoft, op. cit., at 1186, 1187. 67 CLOUD Act §103(a)(1). 68 United States v. Microsoft, op. cit., at 1188. 60

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

the United States Court of Appeals for the Second Circuit with instructions first to vacate the District Court’s contempt finding and its denial of Microsoft’s motion to quash, then to direct the District Court to dismiss the case as moot.69

Through precedence and unanimous support, it should be clear that when new legislation is passed that directly eliminates the controversies held in a specific case, that case becomes moot. Furthermore, it is not relevant to the Court whether the law enacted was done so to avoid a ruling on the issue. C. Mootness Irrespective of Intentions Enacting a law for the purpose of avoiding a ruling is neither objectionable nor relevant. The intentions behind legislation should play no role in the Court’s assessment of a specific case’s justiciability. When a live controversy ceases to exist, and the ruling of the Court would no longer impact the injury complained of, the Court should and has deemed the case moot. In Kremens v. Bartley,70 the Court looked at a case regarding hospital regulations. Five plaintiffs challenged the constitutionality of a Pennsylvania statute that regulated the admission of minors to a state mental health institution simply because their parents placed them there, despite the minor’s objection.71 After the U.S. District Court for the Eastern District of Pennsylvania found the statute unconstitutional, Pennsylvania passed the Mental Health Procedures Act (MHPA). This reversed the statute and treated minors, who were 13 years of age and older, as persons above 18 years of age for purposes of admittance to a state mental health institution.72 Upon direct appeal to the Supreme Court, given that there was no longer a controversy, a majority of the Court found the issue moot, vacated the District Court’s ruling, and remanded the case. Importantly, in Justice Rehnquist’s majority opinion, he states, “the fact that the Act was passed after the decision below does not save the named appellees' claims from mootness.”73 Similarly, in Buckhannon Bd. & Care v. W. VA. Dep’t of Health Human Res.,74 petitioners argued that a self-preservation clause in the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990 were unconstitutional. Then, “[i]n 1998, the West Virginia Legislature enacted two bills eliminating the self-preservation requirement, and respondents moved to dismiss the case as moot. The District Court granted the motion, finding 69

Id. See Kremens v. Bartley, 431 U.S. 119 (1977). 71 Id. 72 Id, at 125. 73 Id, at 119. See also: id, at 128. 74 See Buckhannon Bd. & Care v. W. VA. Dep’t of Health Human Res., 532 U.S. 598. 70

ON MOOTNESS

[Vol. 1

that the 1998 legislation had eliminated the allegedly offensive provisions and that there was no indication that the West Virginia Legislature would repeal the amendments.”75 In today’s case, New York State Rifle & Pistol Association Inc. v. City of New York, it is true that legislation was passed after the Supreme Court granted certiorari, however, the precedence in Kremens and Buckhannon is clear: the timing of new legislation is irrelevant. The only importance to mootness is if the issue at hand still exists and, given New York’s new legislation that enables transportation of firearms to second homes outside of city boundaries and shooting ranges outside of city boundaries, the plaintiff’s alleged injuries are no longer existent and the case should be moot. IV. JURISPRUDENCE AS IT RELATES TO THE MOOTNESS DOCTRINE In a world of ever-diversifying judicial philosophies, one understanding seems uniform throughout the Justices: the limits of Article III judicial powers. Every Justice recognizes that a case is only justiciable if it can be categorized as a case or controversy. Mootness has remained an important and significant restriction on the Judicial branch. However, the Justices’ common understanding of justiciability is not only apparent in their voting records but also their judicial philosophies. In the Williams and Mary Law Review, Alberto Gonzales, former counsel and U.S. Attorney General to President Bush, outlined Chief Justice Roberts’ judicial jurisprudence. Gonzales defined the four pillars of C.J. Roberts’ judicial philosophy: judicial avoidance, judicial deference, narrow construction, and clarity. The first sequential section of Robert’s ideology, judicial avoidance, states: if at all possible, cases must be dismissed on grounds of standing, mootness or ripeness. Never rush to make a decision unless necessary and avoid the temptation to reinvent extant legal interpretations of law or precedent.”76 The importance of mootness is recognized on both ends of the Court’s ideological spectrum. In an Note on the Robert’s Court in the Akron Law Review, in Genesis Healthcare Corp. v. Symczyk, “Justice Thomas held that ‘the… respondent's suit became moot when her individual claim became moot, because she lacked any personal interest in representing others in this action.’”77 In the same Note, it was noted that "a case becomes moot only when it is impossible for a court to grant any effectual relief to the prevailing 75

Id, at 601. Alberto R. Gonzales, In Search of Justice: An Examination of the Appointments of John G. Roberts and Samuel A. Alito to the U.S. Supreme Court and Their Impact on American Jurisprudence, 22 WM. & MARY BILL OF RTS. J. 647, 693. 77 Andrew J. Trask, The Roberts Court and the End of the Entity Theory, 48 AKRON L. REV. 831, 857. 76

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

party."78 Furthermore, a former clerk for Alito recognized the ability to “[moot] a statute with a subsequent statute."79 Even Justice Ginsburg, who has been historically reluctant to resort to mootness on a case, recognized that before the merits of a case are examined, the case must be justiciable. One of her former law clerks wrote that “mootness was occasionally an obstacle to her success on the merits.”80 In fact, “Justice Ginsburg asked the highest percentages of Threshold, Precedent, and Fact questions… In Camreta, her first question was a Threshold question about mootness: ‘Why would he face liability?’”81 with her second question targeted on the merits. The order of questions is relevant here because a case must be deemed live (not-moot) before merits can be examined. V. CONCLUSION The New York Rifle and Pistol Association cited two injuries when they chose to pursue a case against the City of New York: their inability to transport guns to a shooting range outside of the City and their inability to transport guns to a second house outside of the City. Since that initial case, the State of New York has enacted a law that reverses both of those injuries. Mootness is assigned to situations in which “concrete adverseness once existed, but no longer does” in part because “concrete factual development continues to be available to assist the Court”82 (i.e. a new law). The U.S. Supreme Court understood mootness as, “the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).”83 With a favorable decision, there would be no tangible change to the petitioners, placing this case squarely within the modern mootness doctrine. “The mootness doctrine addresses the problem of abstract remedial orders, rather than the problem of abstract holdings, i.e., holdings not rooted in the concrete experience provided by the

Id, at 859. Keenan D. Kmiec, The Origin and Current Meanings of Judicial Activism, 92 CALIF. L. REV. 1441, 1469. 80 Michael J. Klarman, Social Reform Litigation and Its Challenges: An Essay in Honor of Justice Ruth Bader Ginsburg, 32 HARV. J.L. & GENDER 251, 291. 81 Cynthia Kelly Conlon and Julia M. Karaba, May It Please the Court: Questions About Policy at Oral Argument, 8 NW. J. L. & SOC. POL'Y 89, 108. 82 Susan Bandes, The Idea of a Case., 42 STAN. L. REV. 227, 245. 83 Emily Tancer Broach, Post-Conviction Proceedings, Supervised Release, and a Prudential Approach to the Mootness Doctrine, 2010 U. CHI. LEGAL F. 493, 499. 79

ON MOOTNESS

[Vol. 1

controversy.”84 When a controversy no longer exists, it becomes burdensome to the Court to hear the case. There is a reason that the Court has created a set of standards for a case to be deemed justiciable. The Court simply does not have the time, nor constitutional authority, to hear cases with no controversy that cannot be redressed by a favorable decision. Corey C. Watson commented on Justices Scalia and O’Connor’s defense of the mootness principle in their dissent in Honig v. Doe85 stating: The dissent unequivocally declared that mootness is a doctrine anchored to our Constitution with ‘deep roots in the common-law understanding, and hence the constitutional understanding, of what makes a matter appropriate for judicial disposition.’86

Mootness is caused when the Court finds “either (a) that the issues presented are no longer ‘live’ or (b) that the "'parties lack a legally cognizable interest in the outcome.'"87 It is clear that the issues in The New York State Rifle Pistol Association, Inc., v. The City of New York are no longer live and neither party holds a “cognizable interest in the outcome,” in which case, the precedence, the opinions of legal experts, and the structure of the Constitution all point to one simple remedy: declare the case moot. ***

David M. Driesen, Standing for Nothing: The Paradox of Demanding Concrete Context for Formalist Adjudication, 89 CORNELL L. REV. 808, 829. 85 See Honig v. Doe, 484 U.S. 305 (1988). 86 See Corey C. Watson, Mootness and the Constitution, 86 NW. U.L. REV. 143, 144. (quoting Honig v. Doe). 87 See id, at 148.

NOTE BATTLE OF THE STRIPES: AN ARISTOTELIAN ANALYSIS OF ADIDAS’ “THREE STRIPES” TRADEMARK INFRINGEMENT CASES Rahul Sukesh*88 This Note explores the extent to which adidas' "three stripes" mark can extend beyond the fashion industry and can claim ownership over three solid stripes as intellectual property. Through exploring adidas’ “three stripes” mark from 2008 onwards, this Note will probe how adidas managed to target companies not only in the industry in which the trademark pertains to, but also industries that fall beyond adidas' jurisdiction of fashion. Firstly, the Note will explore various outcomes of trademark infringement cases, and what the plaintiff, adidas, attempted to claim. Secondly, two lawsuits, considered within the domain of fashion, will be briefly explored. Following this discussion, there will be an investigation into the merits of a case adidas made against a third apparel company that, while within the fashion industry, had seemingly questionable intentions. Thirdly, this Note will explore lawsuits that adidas has pursued that are either questionable and/or outside the fashion industry. Fourthly, one recently decided case influencing adidas’ trademark on an international level will be examined. These lawsuits will be analyzed through Aristotle’s theory of property ownership which state there are “natural” needs which support going after trademark infringement cases, and “unnatural” needs, the latter of which might suggest adidas is acting unethically. This Note will argue that while the lawsuits against Juicy Couture, Inc. and Payless ShoeSource, Inc. were justified under “natural” needs, the lawsuits against Sketchers USA, Inc., PUMA SE, Tesla Motors, Inc., FC Barcelona, Forever 21, Inc., and, as proven, Shoe Branding Europe BVBA, were based on “unnatural” needs, and therefore immoral. I. INTRODUCTION...................................................................................... ....20 II. OVERVIEW OF ADIDAS’ TRADEMARK INFRINGEMENT CASES....................21 A. Adidas’ Reasonable Claims.........................................................22 *

B.A. Candidate in English and Political Science at Fordham College at Lincoln Center, Class of 2022. This Note would not have been possible without the entire Fordham Undergraduate Law Review. Special thanks to Sean O'Brien (Business Administrator) who helped me in the initial stages of development, David Rossman (Executive Articles Editor) who repeatedly gave me feedback and served as my editor for the majority of the writing process. Additionally, I would like to thank the Fordham Office of Student Involvement for providing me free Ram Van passes so I could commute to the Rose Hill campus every week for meetings. Thank you to my family and my mentor, Heidi Elkins, for their loving encouragement throughout the writing process.

BATTLE OF THE STRIPES

[Vol. 1

B. Adidas v. Puma: The Battle of the Striped Cleat.........................23 C. Adidas in the World of Stripes.....................................................24 D. Implications of the European Union...........................................25 IV. ARISTOTELIAN INPUT..............................................................................26 V. CONCLUSION............................................................................................27 I. INTRODUCTION The role of a trademark is to protect an idea, or “intellectual property,” from being used by someone else without the creator’s consent or recognition. According to the Federal Trademark Act of 1946 (Lanham Act), a trademark “distinguishes a company’s goods or services through a name, word, symbol, device, or any combination thereof.”89 Branding allows companies to distinguish themselves from their competition and protects both the consumer and producer from competitors’ products that appear to be similar or identical.90 A strong brand is one that is composed of “identifiable, enduring and meaningful” components;91 moreover, consumers are increasingly able to identify specific products and services simply by their logo.92 A brand seeks to deliver a favorable image that designates a source of goods; when it satisfies the legal standard, it is recognized as a trademark.93 The market is saturated with sport goods and services, which makes obtaining a trademark an essential element of brand development, management, and protection. Specifically, trademarks can provide companies with a competitive advantage and help increase revenue streams, as the product or service can have a unique association that differentiates it from other products.94 But where does the line blur on what can be protected? Enter adidas95 and the apparel company's trademarked three-stripe pattern. Adidas has been accused by several other brands of pursuing trademark infringement claims 89

15 U.S. Code § 1127. Garett J. Longwell, Managing Brand Equity: Capitalizing on the Value of a Brand Name, David A. Aaker, The Free Press, New York, JOURNAL OF BUSINESS RESEARCH, Vol. 29(3), 247-248, (March 1991). 91 Wallace, et. al., Sporting Facebook: A Content Analysis of NCAA Organizational Sport Pages and Big 12 Conference Athletic Department Pages. INTERNATIONAL JOURNAL OF SPORT COMMUNICATION, Vol. 4, 422-444. (2011). 426. 92 Clement, A., Contemporary Trademark Law and Sport, JOURNAL OF LEGAL ASPECTS OF SPORT, Vol. 12, 1-35. (2012). 93 Cho, S., Empirical Substantiation of Sport Trademark Dilution: Quasi-experimental Examination of Dilutive Effects, JOURNAL OF LEGAL ASPECTS OF SPORT, 25, 27-55. (2015). 94 Keller, K. L., Strategic Brand Management: Building, Measuring, and Managing Brand Equity. Upper Saddle River, NJ: Prentice Hall. (1998). 95 Adidas stylizes its brand name with a lower-case “a” instead of an upper-case “A,” which is reflected throughout court opinions and this Note. 90

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

too aggressively against manufacturers who use any number of stripes on its products. Some sport brands argue that adidas is within their rights to protect its brand from infringement. Conversely, others believe that adidas has overpoliced its marks and may be filing frivolous claims.96 Therefore, the purpose of this study is to analyze adidas’ legal strategy for protecting its brand from potential trademark infringement. Through adidas’ reconstruction of intellectual property law, the apparel company has developed a well-oiled strategy of suing competitors for patterns that are not only similar to their design, but also has threatened to sue unrelated companies that have three stripes in their products. How can one company establish such a foothold over trademark protection? What does this mean for intellectual property law at-large? Most pertinent to this Note, what are the ethical implications of this kind of behavior? II. OVERVIEW OF ADIDAS’ TRADEMARK INFRINGEMENT CASES Federal courts generally handle the issues of trademark infringement, trade dress infringement, and dilution by applying 15 U.S. Code § 1125.97 Section 1125(a) provides that any individual who commercially uses “any word, term, name, symbol, or device, or any combination” in a false or misleading manner that is likely to confuse is liable to the party that is harmed by the infringement.98 Section 1125(c) further provides that the harmed party is entitled to injective relief if the harmed party’s “distinctive,” “famous” trademark is used commercially by another which could dilute the mark “by blurring or [...] by tarnishment.”99 However, the harm to the holder of the mark or trade dress must be irreparable to grant injunctive relief.100 In adidas America, Inc. v. Sketchers USA, Inc.,101 the Ninth Circuit found that adidas suffered , or was likely to suffer, irreparable harm as to the infringement of the first claim, but that adidas had not proven irreparable harm as to the second claim despite infringement being proven; thus, adidas was entitled to injunctive relief for its first claim, but not its second.102 Previously, Skechers agreed to not use the three-stripe mark, or any design or mark that could be 96

See Cho, op. cit. 34-5. See also: Howard, D. J., et al., The Effects of Brand Name Similarity on Brand Source Confusion: Implications for Trademark Infringement, JOURNAL OF PUBLIC POLICY & MARKETING, Vol. 19, 250-264. (2000). 259. 97 See 15 U.S. Code § 1125. (“providing the federal statute that pertains to trademark infringement, trade dress infringement, and dilution.”) 98 Id. § 1125(a)(1). 99 Id. § 1125(c)(1). 100 See Adidas Am., Inc. v. Skechers USA, Inc. 890 F.3d 747, 761 (9th Cir. 2018). (“requiring evidence of ‘irreparable harm’ for a preliminary injunction to be granted.”) 101 890 F.3d 747 (9th Cir. 2018). 102 890 F.3d at 758-761.

BATTLE OF THE STRIPES

[Vol. 1

sufficiently similar to confuse. According to 15 U.S. Code § 1117(a), violations of infringement can include “monetary relief, including defendant's profits, any damages sustained by the plaintiff, and the costs of the action.”103 The conceding of Sketchers to adidas makes a transformation in trademark litigation brought about through fear of liability. A. Adidas’s Reasonable Claims In March of 2017, Adidas filed a lawsuit against clothing company Juicy Couture Inc. (“Juicy Couture”). Dating back to 2009, in which Juicy Couture released apparel with the three stripes, the two companies came to a settlement agreement where Juicy Couture would “not produce, manufacture, distribute, [or] sell … any … apparel bearing the three-stripe mark or any design feature … confusingly similar.”104 Despite this agreement, Juicy Couture began selling apparel with the three-stripe mark. Adidas filed a lawsuit claiming the apparel was “in blatant disregard of Adidas’s rights.”105 Moreover, Adidas added that this action was a “breach of contract” that “irreparably [harmed] Adidas’s brand and its extremely valuable ThreeStripe-Mark.”106 Filing seven claims for relief, all of which highlighted the violations Juicy Couture made, the two later entered into a yet another settlement.107 In August of 2006, Adidas sued Payless ShoeSource, Inc. (“Payless”) for infringing on their three-stripe mark.108 Payless not only copied the pattern, but also the color pallet. As such, Adidas responded with eleven claims of relief.109 Adidas cited the defendants were responsible to: Recall all products bearing the Three-Stripe Mark [sic] […] or any other confusingly similar variation thereof [and] be compelled to account to Plaintiffs for any and all profits derived by defendant from the sale or distribution of infringing goods.110

Unable to reach a settlement, the case went to court. In the Court of Oregon, jurors looked at over 268 pairs of Payless shoes and found 267 of them to be infringing on adidas’s trademark. The Court found Payless’ 103

About Trademark Infringement, United States Patent and Trademark Office, Sep. 26, 2014, accessed on Nov. 12, 2019, <https://www.uspto.gov/page/about-trademarkinfringement>. 104 Complaint at 1, Adidas America, Inc. v. Juicy Couture Inc., 3:17-cv-00437-SB (U.S. D. Or. Mar. 17, 2017). 105 Id, at 11. 106 Id, at 12. 107 Id, at 2. 108 See Adidas America, Inc. v. Payless ShoeSource, Inc. 529 F. Supp. 2d 1215 (D. OR. 2007). 109 Id. 110 See id.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

actions willfully executed with malice and fined the company a total of $304,617,335.111 In an effort to lessen the damage amount, Payless appealed by claiming that adidas “failed to introduce evidence showing that customers were likely to confuse Payless' two-and-four-stripe shoes with [a]didas' trademarked versions, aside from ‘incomplete’ surveys that did not address all of the styles at issue,” and failed to prove how they suffered from this infringement.112 Although the judge rejected the arguments, the monetary damages were ultimately reduced to $24.7 million. Despite this, Payless filed an appeal. Adidas immediately filed a cross-appeal, and in 2009, both sides agreed to a quiet dismissal. B. Adidas v. Puma: The Battle of the Striped Cleat Based on the two aforementioned lawsuits, adidas’ legal strategy to squash obvious trademark infringements has been determined.113 However, how has adidas protected its brand against companies who only mildly resemble the three-stripe mark? No matter how disconnected the brand and product is from the apparel company, adidas has an infamous history of filing frivolous lawsuits against any company selling a product that vaguely includes the three-stripe mark. In the case against PUMA SE (“Puma”), adidas sued for making a pair of soccer cleats that have four stripes. In the adidas’ complaint, they stated the following: Puma’s use of four diagonal stripes on the side of the Infringing Cleat [was] a blatant attempt […] to trade on the goodwill and commercial magnetism Adidas [sic] has built up in the Three-Stripe Mark [sic] and to free-ride on Adidas' [sic] fame as a preeminent soccer brand.114

Referencing their history with Puma, adidas added to their claim by saying, “Puma is thus intimately familiar with adidas’s three-stripe mark and the enormous goodwill it represents.”115 In their complaint, adidas asked for the court to:

111

See Adidas-America, Inc. v. Payless ShoeSource, Inc. 546 F. Supp. 2d 1029 (D. OR. 2008). 112 See Payless Drops Appeal Of $305M Adidas Trademark Win, Law360, accessed on Oct. 28, 2019, <www.law360.com/articles/145508/payless-drops-appeal-of-305m-adidastrademark-win>. 113 Robbie DiMesio, Jury Gives Adidas $305 Million in Payless Stores Trademark Suit, THE OREGONIAN, 6 May 2008, accessed on Nov. 20, 2019, <www.oregonlive.com/breakingnews/2008/05/portland_jury_orders_payless_t_1.html>. 114 Darren Heitner, Adidas Sues Puma for Confusion Between Three-Stripe and Four-Stripe Soccer Cleats, FORBES MAGAZINE, Feb. 27, 2017. 115 Adidas Sues Puma Over 'Three-Stripe' Trademark, LAW360, accessed Nov. 20, 2019, <www.law360.com/articles/893823/adidas-sues-puma-over-three-stripe-trademark>.

BATTLE OF THE STRIPES

[Vol. 1

...permanently enjoin Puma from distributing, marketing or selling footwear using or bearing a confusingly similar imitation of the Three-Stripe Mark [sic]; award adidas monetary damages and to treble that award; require Puma to disgorge all profits from sales of the Infringing Cleat; and award adidas punitive damages, attorneys’ fees, and costs.116

Although this case has yet to be settled, it is useful to evaluate the merits of this lawsuit. Moreover, upon looking at the alleged infringed pair of cleats, the stripes are skinny and round-ended as opposed to adidas’s bold straightended stripes. This lawsuit shows that adidas will aggressively chase the minutest of potential infringements to protect their mark. C. Adidas in the World of Stripes Adidas has not only targeted fashion companies with lawsuits. Some of adidas’ frivolous lawsuits have targeted FC Barcelona and Tesla Motors, Inc.. Through this, adidas has established themselves as a dominant force in the world of trademarks. While the legitimacy regarding some of adidas’ claims are questionable at best, their lawsuits establish the apparel company as titans of the trademark – regardless of the outcome. Now let us turn to the first frivolous lawsuit: FC Barcelona. When adidas became aware of the “soccer clubs” trademark, what immediately followed was a filing for a notice of opposition. Despite the strong and swift opposition from adidas, the resemblance in the three-stripe mark was not as similar. The trademark FC Barcelona applied for was a square that had seven alternating red and blue stripes, a divergence from the three stripes adidas sought to protect. In their formal notice of opposition, “consumers familiar with the footwear and apparel associated with [adidas’] Three-Stripe-Mark are likely to assume […] goods offered under [FC Barcelona’s] Mark originate from the same source, or that they are affiliated” with [a]didas.117 Despite this weak connection, FC Barcelona pulled out of their application for a trademark – an apparent win for adidas. When Tesla Motors, Inc. (“Tesla”) announced their car, the Model 3, the company had plans to symbolize the number three with three horizontal bars.118 However, adidas filed a notice of opposition.119 Adidas claimed that 116

Complaint at 1, Adidas America, Inc. v. Puma North America, Inc., 3:17-cv-00283 at 4 (U.S. D. Or. Feb. 17, 2017). 117 Notice of Opposition, Adidas-America, Inc. v. Futbol Club Barcelona, ESTTAA779839, Serial 79148498, Oct. 31, 2016. 118 The mark Tesla tried to trademark was very similar to Tesla’s symbolic “E” in their logo. 119 Notice of Opposition, Adidas America, Inc. v. Futbol Club Barcelona, ESTTAA779839, Serial 79148498, 2016.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

Tesla was intentionally trying to deceive consumers into believing the Model 3 was an adidas branded car. This was not so much an argument against how Tesla using the mark would hurt them, but an evaluation into how established adidas’ three-stripes has become in the world.120 In response to questions, adidas said they were “pursuing the case because Tesla was looking to put the logo on clothing and other products”.121 It appears that, under these circumstances, the case had weak foundation and was hypothetical at best. Tesla later decided to use the number three (“3”) instead of the three-lined symbol. After the decision to use the numeric three was finalized, Tesla said that “this was strictly a Tesla branding decision and not a response to the trademark issue.”122 In retrospect, Tesla was attacked on hypothetical grounds and conceded for reasons unrelated to adidas’ frivolous case. D. Implications of the European Union Although adidas has mostly been victorious in their fights to protect the three-stripe mark, the apparel company recently lost a trademark battle with the European Union (E.U.). Dating back to 2010, Adidas sued the Belgian footwear company, Shoe Branding Europe BVBA (Shoe Branding), for attempting to file their own trademark in 2009. In 2013, the Office for Harmonisation in the Internal Market (OHIM) rejected Adidas’s notice of opposition and cited Article 8(1)(b) Regulation No. 207/2009 on the basis that the directions of the stripes were “...not sufficient to demonstrate the mark at issue has come…to distinguish those goods from those of other undertakings.”123 Unsatisfied by this loss, adidas applied for wider protection through a “...mark as consisting of three parallel equidistant stripes of identical width, applied on the product in any direction.”124 The trademark was approved, and for two years, the protection was upheld. In 2016, Shoe Branding asked for the trademark to be annulled.125 The EUIPO “annulled the registration of that mark on the ground that it was devoid of any distinctive character.”126 In a failed attempt in 2019 to appeal the decision, the EUIPO upheld their ruling given in 2016. Not only did 120

Id. Jon Fingas, Adidas Thinks Tesla's Old Model 3 Logo Is a Little Too Familiar, ENGADGET, 19 July 2019, accessed Nov. 20, 2019, <www.engadget.com/2017/02/08/adidas-trademark-dispute-with-tesla/>. 122 Id. 123 Adidas AG v. Shoe Branding Europe BVBA, T-145/14 (7th Chamber of the General Court of the EU May 21, 2015). 124 Adidas AG v. EUIPO, T-307/17, ECLI:EU:T:2019:427 (9th Chamber of the General Court of the EU Jun. 19, 2019). 125 Id. 126 Id. 121

BATTLE OF THE STRIPES

[Vol. 1

adidas lose the claim against Shoe Branding, but also lost the widened protection in the European Union. Despite this loss, adidas still had protection over their individual trademarks. However, adidas failed to materialize one far-reaching trademark giving the apparel company broad protection over the three stripes. What does this mean for the adidas? Adidas’ in-house counsel stated that “this loss, the loss of reputation, is enormous, [and we will] submit this ruling to the judge.”127 They also projected optimistic tones, stating that “it won’t be the end of the three stripes trademark.”128 Despite the apparently large loss dealt to adidas, shares in the company dropped only by 1.8 percent129. Based on the aforementioned, it is improbable adidas stops going after these types of cases in an overly aggressive fashion. Considering adidas’ actions, to what extent are their legal practices ethical? IV. ARISTOTELIAN INPUT Trademark is essentially an issue of private property. Aristotle suggests private property leads to the “...greatest interest and care to their own property.”130 An Aristotelian input helps evaluate the merits of adidas’ trademark infringement suits. In discussing property ownership, Aristotle distinguishes between “natural” needs, and “unnatural” wants. While “natural” needs are justified needs, Aristotle suggests “unnatural” wants are those where the motives are impure. For example, in the case of adidas’ trademark claims, Aristotle says “...exchanges for monetary gain are simply denounced as immoral.”131 Paralleling Aristotle’s framework specifically to adidas’ claims, we find that cases against companies like Juicy Couture and Payless Shoes are “natural” needs (protections) to ensure the brand’s image is not being damaged, while going after companies such as Tesla and F.C. Barcelona are “unnatural” needs. In other words, there is no reason to have protection in those realms because there is simply no legitimate connection, while there is an obvious connection between adidas’ three stripe mark and 127

Warner, Bernhard. “After Stunning Ruling, Adidas' Iconic Logo Could Lose Trademark Protection in EU.” Fortune, Fortune, 20 June 2019, <fortune.com/2019/06/20/adidastrademark-invalid-ruling/>. 128 Blenkinsop, Philip, et al. Adidas Loses EU Bid to Extend Three-Stripe Trademark. Edited by Alexander Smith and Louise Heavens, Business News, REUTERS, 19 June 2019, Accessed on Nov. 20, 2019, <www.reuters.com/article/us-eu-court-adidas/adidas-loses-eubid-to-extend-three-stripe-trademark-idUSKCN1TK0P7>. 129 Id. 130 Rothbard, Murray N. Aristotle on Private Property and Money: Murray N. Rothbard. MISES INSTITUTE, 4 Nov. 2017, Accessed on Nov. 20, 2019. <https://mises.org/library/aristotle-private-property-and-money>. 131 Id.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

companies like Tesla, and F. C. Barcelona, it is so minuscule and irrelevant that, from Aristotle’s perspective, adidas’ motives are “unnatural” wants. If one were to suggest adidas’ motives were not primarily connected with monetary benefit then, as Aristotle wrote, their unnatural wants “are limitless,” and one could make the case that aggressive infringement cases are an “unnatural” want.132 Briefly looking at one trademark infringement case adidas enacted against Forever 21 Inc., the company stated that they were “...tired of operating with a cloud over its head… and [became] unwilling to stop doing something it has every right to do and pay a bully to leave it alone, Forever 21 has decided that enough is enough.”133 Shortly after, Forever 21 filed a counter lawsuit on the basis of “unclean hands,” a defense for malicious prosecution, due to adidas’ attempt to sue over “...Forever 21’s striped clothing items [that] do not infringe” on anything.134 In response, adidas filed another trademark infringement suit. Days later, Forever 21 dropped their separate lawsuit and stated that they would countersue adidas in their lawsuit. The case has yet to be decided on. V. CONCLUSION From an Aristotelian viewpoint, viewing adidas as a titan of trademark infringement cases seems not far from plausible. Through adidas’ use of conventional legal precedent, as well as pushing the boundaries of infringement, the apparel company can crown themselves as kings in the realm of trademark law. While they must recoup from their major trademark protection loss in the European Union, it is unlikely that adidas will be too heavily impacted. This Note demonstrates not only adidas’ expansion of the boundaries of trademark law, but also the extent to which companies will go to increase their bottom line. ***

132

Id. Complaint at 1, Forever 21 Inc v. Adidas America Inc. et al, 2:17-cv-01752 (C.D. Cal.). 134 Id. 133

NOTE WHAT ARE WE REALLY EATING?: AN ANALYSIS OF FOOD LABELING TRANSPARENCY Lily Van Petten* Understanding a nutrition label can often be like deciphering ancient hieroglyphics. This Note examines the ethical and legal constraints of food nutrition labeling with specific key words such as “all-natural” and “superfood” in the United States. The subject of nutrition in the law is first explored through the 2018 lawsuit Rice v. National Beverage Corp. Many educated, nutritionally informed citizens still do not have a clear grasp of what chemicals and other synthetic ingredients they are consuming when buying popular brands. Large food companies use persuasive marketing to attract consumers, especially through misrepresenting nutritional data. In this case specifically, Lenora Rice sued the National Beverage Corporation for advertising their LaCroix products as “natural” despite the ingredients containing synthetic compounds such as ethyl butanoate, limonene, linalool, and linalool propionate. Although LaCroix claimed that there are indeed natural, plant-sourced versions of these compounds and that these particular forms are used in their products, the argument was dismissed as “incomplete” by Judge Joan B. Gottschall of the Northern District Court of Illinois. The primary issue here is that there is no legal definition of the word “natural”, nor are there definitions for “all-natural”, “superfood” or “antioxidants”, yet these words are thrown around in nutritional marketing campaigns all the time. Between 2016 and 2019, there were over 300 lawsuits disputing the use of the word “natural” alone. Not only is this misleading for consumers, but there are also both metabolic and nutritional repercussions for these misrepresentations that are explained further in this Note. The ethical component of this issue is presented later through a discussion of related cases that have highlighted this lack of legal clarity throughout the late 20th and early 21st century. The U.S. food labeling policies that are regulated by the FDA are not fully enforced, causing precedent to fall upon other organizations and inconsistent rulings. In short, this is an examination of the implications of vague legal language on the health of U.S. citizens.

Undergraduate Junior, Class of 2021, Fordham University College of Rose Hill, Prospective Bachelor of Science in Integrative Neuroscience and Bachelor of Arts in Political Science. The author thanks the FULR Editorial Board and its community, as well as Fordham University for the completion and publication of this Note.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

I. INTRODUCTION …………………………………………………………..29 II. RICE V. NATIONAL BEVERAGE CORP..……………………………………..31 III. RELATED CASES ……………………………………………………….34 IV. NUTRITIONAL ANALYSIS AND ETHICAL IMPLICATIONS ………………...36 V. CONCLUSION …………………………………………………………...39 I. INTRODUCTION The “American obesity paradox”, a development that has arisen as of the 21st century in the United States, is defined as the relationship between climbing obesity rates and a simultaneous consumer interest in eating healthy foods.135 The blame for this phenomenon is most often placed on large scale food producers and marketing techniques that create a “health-halo” around food, falsely boosting their nutritional benefits.136 Consumers seek nutritionally rich foods and are deceived by these “halo” foods as they are actually nutritionally empty. Labels such as “all-natural,” “superfood,” and “containing antioxidants” can be catching to the eye, but have no real medical or legal definition.137 The Food and Drug Administration (FDA) 138 is primarily responsible for the safety of the general public health and proper labeling of eighty percent of domestically and internationally produced food, as well as regulating the quality of human and veterinary drugs, vaccines, medical devices, tobacco products, cosmetics, and dietary supplements.139 So, it is clear that the regulation of “halo” foods would fall primarily upon this governmental administration. The amount of food produce overseen by the FDA totals up to approximately $417 billion from domestic producers and $49 billion from international imports yearly.140 There is some overlap, however, between the FDA and the Federal Trade Commission's (FTC) jurisdiction of oversight of food labeling and advertising. Primarily, the FDA is responsible for food labeling regulation, while the FTC is responsible for 135

Nicole E. Negowetti, Food Labeling Litigation: Exposing Gaps in the FDA’s Resources and Regulatory Authority, Governance Studies (The Brookings Institution, 2014), online at “<https://www.brookings.edu/wp-content/uploads/2016/06/Negowetti_Food-LabelingLitigation.pdf>” (visited Oct. 22, 2019). 136 Id. 137 See Superfoods or Superhype?, Harvard T.H. Chan School of Public Health: The Nutrition Source (2019), online at “<https://www.hsph.harvard.edu/nutritionsource/superfoods/>” (visited Oct. 24, 2019). 138 The FDA is not responsible for meat, poultry, or processed eggs, as they are regulated by the U.S. Department of Agriculture’s (USDA) Food Safety and Inspection Service (FSIS). 139 Id. 140 Id.

WHAT ARE WE REALLY EATING?

[Vol. 1

preventing misleading food marketing.141 Although food marketing is supposed to be tightly monitored, food producers get away with deceit, given the increased production of synthetic foods and legal ambiguity of wordage. The term “food fraud” refers to the deliberate mislabeling of food products and the purposeful deception of consumers for financial gain by producers.142 In 2012, the United States Pharmacopeia, a nonprofit organization that annually publishes a volume collection of drug information, launched The Food Fraud Database to track cases of these occurrences.143 Commonly mislabeled foods included honey, olive oil, saffron, milk, orange juice, fish, and coffee.144 Today, food has replaced tobacco as the new regulatory and class action target according to some legal commentators.145 The FDA has been petitioned multiple times by both private individuals and groups and federal courts to define the word “natural” in order to clarify confusion in nutrition labeling and food advertisements, as well as to eliminate food fraud.146 Although the FDA technically has primary regulatory oversight over food labeling, the void of precedent often falls upon lower court judges and private attorneys to make these decisions.147 As a result, food fraud perpetuates. Some parties have even requested that the term “natural” be made illegal as a descriptor on nutrition labels.148 There has been much controversy over whether it is lawful for genetically modified foods or products containing compounds such as high fructose corn syrup to be described as “natural” or

141

21 U.S.C. § 343(a) (2012). See Food Fraud and Commonly Mislabeled Foods, HG.org: Legal Resources (2019). Online at “<https://www.hg.org/legal-articles/food-fraud-and-commonly-mislabeled-foods31388>” (visited Oct. 24, 2019). 143 Id. 144 Id. 145 See Nicole E. Negowetti, Food Labeling Litigation: Exposing Gaps in the FDA’s Resources and Regulatory Authority, Governance Studies (The Brookings Institution, 2014), online at “<https://www.brookings.edu/wpcontent/uploads/2016/06/Negowetti_Food-Labeling-Litigation.pdf>” (visited Oct. 22, 2019). 146 FDA, Use of the Term Natural on Food Labeling, Food Labeling and Nutrition, (FDA, 2018), online at “<https://www.fda.gov/food/food-labeling-nutrition/use-term-naturalfood-labeling>” (visited Oct. 16, 2019). 147 See Nicole E. Negowetti, Food Labeling Litigation: Exposing Gaps in the FDA’s Resources and Regulatory Authority, Governance Studies (The Brookings Institution, 2014), online at “<https://www.brookings.edu/wpcontent/uploads/2016/06/Negowetti_Food-Labeling-Litigation.pdf>” (visited Oct. 22, 2019). 148 Id. 142

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

“all-natural,” considering that the definition is ambiguous.149 Despite the over 300 lawsuits disputed over the legal definition of these words in the past three years, the FDA has not put forth any clarifying statements.150 The most concrete official FDA policy is that a “natural” product is one comprised of no artificial or synthetic components that would not otherwise be included in that product, including color additives.151 Purposely, however, this definition does not acknowledge food production or manufacturing methods or the use of pesticides. By this logic, even foods that have been pasteurized, irradiated, or treated with any kind of thermal technology can still be described as “allnatural.”152 The FDA has not made any statements about whether or not the word “natural” should describe a healthy product or a certain grade of nutritional value.153 Some terms are specifically defined by the FDA, such as “natural flavors,” “organic,” and “healthy.”154 Containing “natural flavor,” for example, is an ingredient essentially derived from essential plant oils. While the term “healthy” can only describe a food that has low fat content and limited levels of cholesterol; additionally, if the item is a single-item food, it must provide at least ten percent of the daily value per serving of at least one of the following: vitamins A or C, iron, calcium, protein and fiber.155 Many gaping holes in food quality regulation and food labeling still exist, which leads to these hundreds of lawsuits that ensue over a single word on a food packaging label. II. RICE V. NATIONAL BEVERAGE CORP. When LaCroix, a sparkling water brand under the National Beverage Corp., the fifth-largest soft beverage company in the United States, started labeling their seltzer products as “all-natural” in 2018, sales of their seltzer 149

Id. LaCroix Lawsuit Highlights Issues With “Natural" Product Labeling, CBS News, (2018), online at “<https://www.cbsnews.com/news/lacroix-lawsuit-natural-raisesquestions-about-product-labeling/>” (visited Oct. 16, 2019). 151 FDA, Use of the Term Natural on Food Labeling, Food Labeling and Nutrition, (FDA, 2018), online at “<https://www.fda.gov/food/food-labeling-nutrition/use-term-naturalfood-labeling>” (visited Oct. 16, 2019). 152 See id. 153 Id. 154 Id. 155 Nicole E. Negowetti, Food Labeling Litigation: Exposing Gaps in the FDA’s Resources and Regulatory Authority, Governance Studies (The Brookings Institution, 2014), online at “<https://www.brookings.edu/wp-content/uploads/2016/06/Negowetti_Food-LabelingLitigation.pdf>” (visited Oct. 22, 2019). 150

WHAT ARE WE REALLY EATING?

[Vol. 1

beverages increased by seventeen percent in just that year alone.156 The company claimed that these beverages were a “‘natural’ sodium and caloriefree alternative” to soda, as the two listed ingredients were carbonated water and “natural flavors.”157 On October 1, 2018, customer Lenora Rice filed a lawsuit against the National Beverage Corp. in the Circuit Court of Cook County, Illinois, accusing LaCroix of creating products that contain synthetic ingredients and non-natural flavorings.158 Despite the product’s label, the beverage included compounds such as ethyl butanoate, limonene, linalool, and linalool propionate.159 After testing at an independent lab, these compounds were confirmed to be synthetic.160 In accordance with these findings, these compounds are all FDA certified as completely synthetic compounds.161 Results showed that these products are commonly added to food products and other consumer items for smell or taste enhancement.162 The original claim was a violation of warranty, unjust enrichment, and breaching of the Illinois Consumer Fraud and Deceptive Business Practices Act.163 Rice sought to force LaCroix to take the labels off of their products, handle any financial damages that could have resulted from this misconception, and to give up all profits collected by the seltzer products that were labeled misleadingly.164 The National Beverage Corp. immediately denied these allegations, claiming that Rice pursued the lawsuit with “‘malicious intentions’” comparable to “‘financial terrorism.’”165 They claimed that publicization of this case resulted in the loss of billions of dollars as investors began to pull out of the company, ultimately damaging LaCroix’s

156

LaCroix Lawsuit Highlights Issues With “Natural" Product Labeling, CBS News, (2018), online at “<https://www.cbsnews.com/news/lacroix-lawsuit-natural-raisesquestions-about-product-labeling/>” (visited Oct. 16, 2019). 157 Id. 158 See infra Nutritional Justification. (p. 10). 159 Rice et al. v. National Beverage Corp d/b/a LaCroix Sparkling Waters, No. 1:18-cv07151, (D. Illinois. July 11, 2019). 160 Id. 161 Id. 162 Id. 163 This act states that an advertisement may not “mislead any person to any sought after commercial transaction”. See Illinois Consumer Fraud and Deceptive Business Practices Act, 815 I11. Com. Stat. § 515/1 et seq., online at http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2356&ChapterID=67. 164 Celeste Bott, LaCroix's 'Outraged' Sanctions Bid In 'Natural' Suit Falls Flat, Law 360, (Nexis Lexis, 2019), online at https://www.law360.com/articles/1177489?copied=1, (visited Oct. 16, 2019). 165 Rice et al. v. National Beverage Corp d/b/a LaCroix Sparkling Waters, No. 1:18-cv07151, (D. Illinois. July 11, 2019).

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

“brand.”166 Rather, the corporation contested that these ingredients are indeed extracted from essential oils of fruits and distributed from suppliers that claim they are entirely “all-natural.”167 This argument was deemed inconsistent by the judge, considering that the original problem was the lack of the term’s legal definition.168 The definitions put forth by the FDA are based on previous precedents and refer to other scientific definitions of “natural” that are independent of legal significance.169 This leaves room for multiple technical interpretations of the word to arise, as it was argued in this case.170 The products were sent to a laboratory and were found to be safe according to nutritional scientists, although they were determined to be “in no way naturally produced.”171 LaCroix claimed that there are natural, plant-sourced versions of these compounds (ethyl butanoate, limonene, linalool, and linalool propionate) and that these particular forms are used in their products.172 This argument was deemed “incomplete” by Judge Joan B. Gottschall of the Northern District Court of Illinois, considering that the average customer would not know which form of these compounds was present in the beverage given the label provided.173 According to Gottschall, LaCroix’s case was a sympathetic one but ultimately relies on “argument and not evidence”.174 Gottschall stated that the corporation was guilty and should behave according to the plaintiff’s requests, considering "the court is in no position even to agree that an ingredient entirely derived from plants is of necessity 'all-natural.'"175 She further reasoned that the type and degree of processing of the product have to be considered into its determination of being “natural” or not, not just the original compounds it is derived from.176 In the end, National Beverage

166

Id. Id. 168 Id. 169 Id. The Department of Agriculture and Food Safety and Inspection Service defines “natural product” as one that “does not contain any artificial or synthetic ingredients and does not contain any ingredient that is more than ‘minimally processed’”. This is the definition that is used in this case in place of one put forth by the FDA. 170 See Id. Plaintiff argued that National Beverage Corp. incorrectly and unreasonably interpreted the FDA regulation. 171 Rice et al. v. National Beverage Corp d/b/a LaCroix Sparkling Waters, No. 1:18-cv07151, (D. Illinois. July 11, 2019). 172 Id. 173 Id. 174 Id. 175 Id. 176 Id. 167

WHAT ARE WE REALLY EATING?

[Vol. 1

Corp.’s motion for sanctions against Rice was denied because of a lack of an evidentiary basis for their claims.177 III. RELATED CASES It cannot be argued that food labels simply don’t matter. According to CBS News, Consumer Reports found that seventy-three percent of food shoppers seek out foods that are labeled as “natural” because they expect that the word signifies a higher nutritional value. Yet, there are no nutritional requirements to be met in order to use the word in advertising.178 Nutritional scientist and specialist Roger Clemens said in reference that Rice v. National Beverage Corp. that he believes “consumers today are confused with the word “natural,” and that people expect a higher grade of safety and wholesomeness in food described by this word.179 Author on nutrition law, Nicole E. Negowetti, argues that legally defining the word “natural” would certainly diminish the number of cases that are filed over this confusion every year.180 Instead, legal clarity is only achieved by private attorneys and statespecific laws that have created precedents about this word usage in the absence of a definition.181 A similar case occurred in February of 2017 with the labeling of General Mills Nature Valley granola bars in a case filed by the Organic Consumers Association, Beyond Pesticides, and Moms Across America.182 Nature Valley bars had been labeled with descriptions including ''healthy,” “100% Natural,” and “Made with 100% Natural Whole Grain Oats,” even though these products were found to contain glyphosate, a chemical pesticide and a major ingredient in Roundup, the most widely used herbicide183 in the country.184 The Organic Consumers Association, amongst others, claimed 177

Id. LaCroix Lawsuit Highlights Issues With “Natural" Product Labeling, CBS News, (2018), online at “<https://www.cbsnews.com/news/lacroix-lawsuit-natural-raisesquestions-about-product-labeling/>” (visited Oct. 16, 2019). 179 Id. 180 Nicole E. Negowetti, Food Labeling Litigation: Exposing Gaps in the FDA’s Resources and Regulatory Authority, Governance Studies (The Brookings Institution, 2014), online at “<https://www.brookings.edu/wp-content/uploads/2016/06/Negowetti_Food-LabelingLitigation.pdf>” (visited Oct. 22, 2019). 181 Id. 182 Organic Consumers Association v. General Mills, Inc., No. 1:16-cv-1921-ESH, (D. District of Columbia, February 22, 2017). 183 An herbicide is a substance used to kill weeds and unwanted plants and is toxic to vegetation. 184 Id. 178

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

that this inaccurate labeling violated the District of Columbia Consumer Protection Procedures Act, D.C. Code § 28-3901 et seq.185 Although the legal definition of “healthy” in this context is “beneficial to one’s physical state,” while “safe” means “free from harm or risk,” the defendant in this case was able to argue a flexible interpretation of the word “natural” considering the FDA only has an “informal policy” about the descriptors’ legal definition.186 It was not arguable that the levels of glyphosate were above the safe limit for consumption. Therefore, the product could not have been deemed “healthy.” However, there was still some ambiguity over whether General Mills could use the word “natural.”187 It is also important to note that chemical residues from pesticides are not required to be disclosed on a food label, and that refraining from doing so is technically not considered “misbranding,” as long as the pesticide levels are within the legal safe limit for consumption.188 Ultimately, however, General Mills was forced to remove these words and phrases from their package labels due to violation of the Federal Food, Drug, and Cosmetic Act policy on tolerances and exceptions for pesticide chemical residues.189 Other cases, such as Animal Legal Defense Fund v. Hormel Foods Corporation of 2017, have relied on precedent established by organizations other than the FDA.190 Here, the precedent put forth by Organic Consumers Association was upheld, on the premise that the wording was a violation of the District of Columbia Consumer Protection Procedures Act (DCCPPA).191 This ruling was further justified by using the definition put forth by the United States Department of Agriculture (USDA), which states that a “natural” product is one that contains no artificial ingredients or added color, and that is minimally processed.192 Further, minimal processing has to mean that the substance was processed in a way that does not fundamentally alter the product itself, and the label must explain precisely how the product was determined “natural” by including a specification, like “no artificial ingredients; minimally processed.”193 185

Id. Organic Consumers Association v. General Mills, Inc., No. 1:16-cv-1921-ESH, (D. District of Columbia, February 22, 2017). 187 Id. 188 21 U.S.C. §§ 343, 346a. 189 Id. 190 Animal Legal Defense Fund v. Hormel Foods Corporation, No. 16-1575, (D.D.C., April 7, 2017). 191 Id. 192 Meat and Poultry Labeling Terms, United States Department of Agriculture, (2015), online at <https://www.fsis.usda.gov/>, (visited Nov. 3, 2019). 193 Id. 186

WHAT ARE WE REALLY EATING?

[Vol. 1

The word “natural” is not the only culprit here. Legal issues arise with other words, including “superfood” and “power foods.” According to research from Harvard University, the origin of the word “superfood” came not from nutritionists and dieticians, but from an advertising campaign for bananas during World War I.194 To promote banana consumption, the United Fruit Company published pamphlets entitled “Points about Bananas” and “Food Value of the Banana,” which explained the practicality, versatility, and nutritional value of bananas.195 Now, superfood lists are used all over the internet and are littered in diet fads, despite the fact that there is no nutritional determination for what makes something a “superfood.”196 Although claimed “superfoods” such as blueberries, quinoa, broccoli, kale, salmon, and acai do have functional nutritional value, they often end up limiting consumer diets by creating a focus on a single category of foods that ultimately have no evidentiary basis.197 According to research performed in 2015 alone, there was a 36% increase internationally in the number of food products labeled either “superfood,” “superfruit,” or “super grain”; this trend shows that ultimately any food can qualify as a superfood.198 IV. NUTRITIONAL ANALYSIS AND ETHICAL IMPLICATIONS The compounds found in the sparkling water in Rice v. National Beverage Corp were found to be both unnatural and frequently used in non-food related products.199 The compound limonene has been shown to cause tumor growth and kidney toxicity; linalool is a popular cockroach insecticide, and linalool propionate is a strong compound used in cancer treatment.200 In this case, the claim was made that just because something is originally plant-based does not mean it is necessarily a natural compound, especially after certain chemical processes.201 This ruling ultimately followed an application of the legal definition of a “natural flavor,” which is an essential oil derived from

194

“Superfoods or Superhype?”, Harvard University School of Public Health: The Nutrition Source. (2019). Available at “<https://www.hsph.harvard.edu/nutritionsource/superfoods/>” (visited Nov. 3, 2019). 195 Id. 196 See id. 197 Id. 198 See id. 199 Rice et al. v. National Beverage Corp d/b/a LaCroix Sparkling Waters, No. 1:18-cv07151, (D. Illinois. July 11, 2019). 200 Id. 201 Id.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

plant material, and these compounds listed certainly do not fit the criteria for a plant-based essential oil.202 A study performed at Arizona State University found that consumers are significantly more likely to pay more money (in this study, $1.26 per pound more) for a beef product labeled “natural” only if they are not informed of the legal definition of the word.203 Additionally, if the product label also contains “grass-fed,” “corn-fed,” and “fed without genetically modified feed” along with the word “natural,” then uninformed consumers were likely to pay up to $3.80 per pound more for their product.204 These results found that consumers who are less informed about the definition of “natural” tend to overestimate the positive nutritional effects of natural products, while informed consumers were significantly less willing to pay the premium for the label including “natural.”205 According to research, approximately 80% of studied consumers see “food as medicine,” and seek out foods that are claimed to have preventative value, against health problems such as obesity, diabetes, high cholesterol, and hypertension.206 In 2017, sales of quinoa, chia seeds, and kale had large sales growth, and trending foods such as pea protein, seaweed, ginger, chickpeas, matcha, oats, and barley experienced increased consumer attention.207 This association with food and medicinal value is particularly concerning since it is an individual’s legal right to know what is in a product that they are going to consume.208 For individuals who have dietrelated health complications such as diabetes, the interpretation of nutritional information is critical and even potentially life-threatening. Vague, case-specific applications like these lead to public uncertainty about the quality of health products. Misinformation and misconceptions about health products are a particularly concerning issue considering that over one-

202

Id. Konstantinos G Syrengelas, Karen Lewis DeLong, Carola Grebitus, Rodolfo M Nayga, Jr, “Is the Natural Label Misleading? Examining Consumer Preferences for Natural Beef”, Applied Economic Perspectives and Policy, Volume 40, Issue 3, Oct. 2018, found at “<https://academic.oup.com/aepp/articleabstract/40/3/445/4566547?redirectedFrom=fullte xt>” (visited Nov. 3, 2019). 204 Id. 205 Id. 206 “Superfoods or Superhype?”, Harvard University School of Public Health: The Nutrition Source. (2019). Available at “<https://www.hsph.harvard.edu/nutritionsource/superfoods/>” (visited Nov. 3, 2019). 207 Id. 208 See FDA, Use of the Term Natural on Food Labeling, Food Labeling and Nutrition, (FDA, 2018), online at “<https://www.fda.gov/food/food-labeling-nutrition/use-termnatural-food-labeling>” (visited Oct. 16, 2019). 203

WHAT ARE WE REALLY EATING?

[Vol. 1

third of adults in the United States are obese.209 Today, this issue is one of the most prevalent health concerns in the nation and has been deemed an “epidemic”.210 Interestingly, as obesity rates rise, so does the interest in eating healthy and access to nutritional information, as well as an interest in shopping for locally sourced foods.211 This is likely the cause of the increase in sales of organic food rising almost three times the national sales from 2004 to 2012 ($11 billion to over $27 billion, respectively).212 Since then, the increase has been even more dramatic.213 It is no coincidence that the increase in branding products as “natural” has caused more interest in eating healthy. It is costly and time consuming for large-scale production companies to tightly monitor the quality of their products and to ensure they are non-GMO and not altered. A study published by the American Journal of Preventive Medicine found that the overwhelming majority of U.S. citizens are unable to understand the significance of the information in a Nutrition Facts Label.214 These numbers were significantly higher in the elderly, African Americans and Hispanics, the unemployed, non-U.S. born citizens, those with lower education, low income, low proficiency in English, and those living in the Southern U.S.215 The ethical issue at hand is the misleading of the public, who expect that they can trust a nutrition label to be factual and tightly regulated by government oversight. In place of the FDA, some nongovernmental groups have attempted to fill the void of label clarification. One of these is the Center for Science in the Public Interest (CSPI), a consumer advocacy group that monitors food labeling cases and advocates in both state and federal courts by suing or threatening to sue companies violating regulations around labeling deception.216 Although groups like this have been able to tackle many cases of food labeling violation, there would 209

Center for Disease Control and Prevention, Overweight & Obesity: Adult Obesity Facts (U.S. Department of Health and Human Services, 2018), online at “<https://www.cdc.gov/obesity/data/adult.html>” (visited Oct. 30, 2019). 210 Nicole E. Negowetti, Food Labeling Litigation: Exposing Gaps in the FDA’s Resources and Regulatory Authority, Governance Studies (The Brookings Institution, 2014), online at “<https://www.brookings.edu/wp-content/uploads/2016/06/Negowetti_Food-LabelingLitigation.pdf>” (visited Oct. 22, 2019). 211 Id. 212 Id. 213 Id. 214 Rothman, Russell L.; Housam, Ryan; Weiss, Hilary; Davis, Dianne; Gregory, Rebecca; Gebretsadik, Tebeb; Shintani, Ayumi; Elasy, Tom A. (2006-11-01). "Patient Understanding of Food Labels: The Role of Literacy and Numeracy". American Journal of Preventive Medicine. 31 (5): 391–398. doi:10.1016/j.amepre.2006.07.025. PMID 17046410. 215 Id. 216 Id.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

be much alleviation from the state and federal courts if legal clarity was brought to this issue.217 V. CONCLUSION A possible solution to this issue is replacing words like “natural” with more specific jargon such as “preservative-free” or “hormone-free.”218 Some health-conscious produce brands have already begun labeling with these more technical terms to satisfy consumer needs. This solution circumvents the legal issue of vague language and would not require the FDA to alter their regulations. However, these terms require a more researched, knowledgeable consumer to sift through products and find ones that match their needs in order for this branding to be beneficial.219 Many advocacy groups argue that the “natural” label should be banned to increase producer-consumer transparency, given that the word is legally empty. Although these groups claim that these cases are unlawful and misleading, they continue to occur despite petitions against the FDA.220 Recently, however, there is a positive trend emerging towards branding transparency in nutritional information. Beginning in 2012, large corporations like McDonalds and Panera Bread began posting calorie counts on their menus and branding apps that allow customers to view full nutritional info and customize their meal plan.221 As a result of this transition, sales rates have been maintained, but there has been a reported increase in customer satisfaction with McDonalds’ brand.222 This occurred in response to the Supreme Court’s decision to uphold former president Barack Obama’s healthcare bill which included requiring restaurants with more than twenty

217

See id. Meat and Poultry Labeling Terms, United States Department of Agriculture, (2015), online at <https://www.fsis.usda.gov/>, (visited Nov. 3, 2019). 219 Konstantinos G Syrengelas, Karen Lewis DeLong, Carola Grebitus, Rodolfo M Nayga, Jr, “Is the Natural Label Misleading? Examining Consumer Preferences for Natural Beef”, Applied Economic Perspectives and Policy, Volume 40, Issue 3, Oct. 2018, found at “<https://academic.oup.com/aepp/articleabstract/40/3/445/4566547?redirectedFrom=fulltext>” (visited Nov. 3, 2019). 220 See David Oliver, “FDA invites public comment on 'natural' food labeling”, Food Dive, Nov 10, 2015, available at “<https://www.fooddive.com/news/fda-invites-public-commenton-natural-food-labeling/408940/>” (visited Nov. 3, 2019). 221 McDonald’s Menu to Post Calorie Data, The New York Times, (2012), online at “<https://www.nytimes.com/2012/09/13/business/mcdonalds-to-start-posting-caloriecounts.html>” (visited Nov. 14, 2019). 222 Id. 218

WHAT ARE WE REALLY EATING?

[Vol. 1

locations to post calorie counts on their menus.223 Looking forward, there is hope that a more informed, nutritionally inclined population will know what to do when staring into the grocery store isles. ***

223

McDonald’s Menu to Post Calorie Data, The New York Times, (2012), online at “<https://www.nytimes.com/2012/09/13/business/mcdonalds-to-start-posting-caloriecounts.html>” (visited Nov. 14, 2019).

NOTE GENETIC PATENT REFORM IN THE UNITED STATES: THE GROWING PROBLEM WITH § 101 Abigail Carlson* With revolutionary findings in the biomedical industry growing exponentially, patents are more crucial than ever in crediting researchers for their property. Many of these patents are of genetic material which have rattled the fabric of trademark law. This paper aims to assess § 101 of the Patent Act and where genetic patents fall under the existing clauses. While most genetically modified patents have been upheld in the courts, precedent has established that there has to exist a certain degree of modification to the material to maintain the patent. This is because genetic material falls under the exception of the laws of nature. Because there are no concrete requirements of what modifications count as “new material” under § 101 of the Patent Act, there has become a need for legislatures to add more clear and detailed requirements of what defines a new invention or discovery. New requirements need to be made under this section so that researchers can continue and be credited for their achievements, but also protect companies from an unequal distribution of patents in the field. The importance of this change benefits the American people by ensuring that their own genetic makeup is not property of a company. I. INTRODUCTION …………………………………………………..…........ 41 II. THE HISTORY OF GENETIC PATENTS IN THE UNITED STATES …….........…43 III. THE DEFENSE OF GENETIC PATENTS………………………..…………...45 IV. ORIGINALITY IN GENETICS …………………………………………..…46 V. POTENTIAL SOLUTIONS……………………………….………..……......47 VI. CONCLUSION ………………………………………..……….………....48 I. INTRODUCTION Most people would agree that it would be unethical to patent a newly discovered food, but what about food that was modified by scientists? In the *

B.S. candidate for Chemistry at Fordham College Rose Hill, Class of 2023. I am grateful for the opportunity to be a part of the Fordham Undergraduate Law Review as a Senior Editor. I would like to thank my family for constantly inspiring and encouraging me. I also express my gratitude for the Editorial Board members and Fordham University faculty who have guided me through my research.

GENETIC PATENT REFORM IN THE UNITED STATES [Vol. 1

1990s, a group of European researchers genetically modified white rice to have unusually high amounts of beta-carotene to combat the lack of vitamin A in developing countries.224 This is now known as Golden Rice and has helped saved the lives of thousands of people that would’ve died of vitamin A deficiency. With the rise of revolutionary genetic patents on human material, people now question at what point these patents are unethical. Depending on the material attempting to be patented, there exists a fine line where patenting a certain subject matter becomes unethical or immoral, which in recent years has been increasingly more unclear to the medical industry. It is becoming increasingly more difficult for an individual or a company to successfully obtain and enforce a patent they have on discovered or modified biological material. Almost all patent cases that reach the Supreme Court bring to question the subject matter under § 101 of the Patent Act, which states that in United States Law: Whoever invents or discovers any useful process, machine, manufacture, or composition of matter, or any useful improvement thereof may obtain a patent [and] shall be determined only while considering the claimed invention as a whole, without discounting or disregarding any claim limitation.225

There are only four exceptions to the act — laws of nature, natural phenomena, abstract ideas, and judicial exceptions. The first three concepts are used by the courts to protect the most basic tools of scientific work, which include but are not limited to: naturally occurring processes, mathematical algorithms, or basic scientific principles. Judicially recognized exceptions are defined as “subject matter that the courts have found outside of, or exceptions to, the four statutory categories of invention….”226 In order to benefit both the people of the United States and the medical industry, § 101 of the Patent Act, needs to be more explicit in stating that no form of genetic material can be patented. The current legal standard has the potential to create a disaster for human ethical standards and cause 224

Genetically Modified Organisms: The 'Golden Rice' Debate, High School Bioethics, (New York University Langone Health), online at <https://med.nyu.edu/highschoolbioethics/genetically-modified-organisms-"golden-rice"debate> (accessed December 2, 2019). 225 2104 Inventions Patentable - Requirements of 35 U.S.C. 101 [R-08.2017], (The United States Patent and Trademark Office), online at <https://www.uspto.gov/web/offices/pac/mpep/s2104.html> (accessed October 6, 2019). 226 35 U.S.C. 102.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

companies who discover cures to monopolize their invention at the expense of mankind. It is also crucial to draw this line for researchers who also deserve to get credit for their years of work. II. THE HISTORY OF GENETIC PATENTS IN THE UNITED STATES Arguably, the first case in the United States to open up the issues that would rise with patenting genetic material dates back to 1948 with Funk Brothers Seed Co. v. Kalo Inoculant Co.227 Plants, specifically agricultural plants, are able to extract nitrogen from the atmosphere to make nitrogenous compounds that aid in their growth.228 However, this is only possible if a Rhizobuim bacteria specific to the plant is present.229 Unfortunately for farmers, these is no single bacteria that is effective on all plants, and if you attempt to mix the bacteria together, you get an adverse effect. For example, if a farmer had three different crops growing, he would need three separate species of the bacteria. Since the discovery of this helpful bacteria, companies in the United States have been selling packages of single species bacteria to farmers to use in the inoculation of their crops. This is what the Kalo Inoculant Company had been doing as well, until their researchers discovered that there exist strains of each species of bacteria that can be mixed, since they do not have an inhibitive effect on each other or the plants when theyâ&#x20AC;&#x2122;re used together. Knowing how transformative this discovery was, Kalo successfully received a patent for the process of taking these strains of bacterial DNA and merging them together.230 With this information, the company was able to transform their business and focused on selling a mixed culture of the strains of bacteria that could be used on multiple plants, so that farmers do not have to worry about bacteria mixing or buying the wrong species. Similarly, the Funk Brothers Seed Company was also selling these packages of mixed species to farmers soon after Kalo. Consequently, Kalo filed a lawsuit against Funk Brothers on the basis of patent

227

2106.04(b) Laws of Nature, Natural Phenomena & Products of Nature [R-08.2017], United States Patent and Trademark Office, accessed December 2, 2019, <https://www.uspto.gov/web/offices/pac/mpep/s2106.html#ch2100_d29a1b_13b6b_4c>. 228 2106 Patent Subject Matter Eligibility [R-08.2017], United States Patent and Trademark Office, accessed February 7, 2020, <https://www.uspto.gov/web/offices/pac/mpep/s2106.html.> 229 333 U.S. 127. 230 Scott Fields, Global Nitrogen: Cycling out of Control, United States National Library of Medicine, online at <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1247398/> (accessed December 5, 2019).

GENETIC PATENT REFORM IN THE UNITED STATES [Vol. 1 231

infringement. While the case was brought to the Supreme Court to settle whether Funk Brothers infringed on the patent Kalo had, the focus of the court became whether Kalo could even have a patent on the material in the first place. Unsurprisingly, United States Supreme Court found that there was no new innovation in the patent Kalo held and therefore stated that an implementation of a naturally occurring phenomenon in another aspect of nature is not patentable.232 While this may have been a victory for the plaintiff, this decision brought light to the issue of minor modifications of nature being patent eligible. One of the most researched medical issues in the United States is breast cancer, as it is one of the most common cancers and easy to treat if detected early. In 1990 Marie Claire King and her research team at the University of Washington discovered that somewhere on the seventeenth chromosome in human DNA was a gene that could be linked to breast cancer.233 This announcement inspired a group of researchers at the University of Utah to work tirelessly to find this gene, and four years after they did.234 In fact, they discovered two genes that are linked to hereditary breast cancer: the BRCA1 and BRCA2 genes. Almost immediately after, this research team known as Myriad Genetics incorporated successfully and received a patent for the genes. They began to administer tests on patients that tested for the gene for years until a group of researchers and companies filed a law suit against the company and brought the case, The Association for Molecular Pathology v. Myriad Genetics Inc. to the Supreme Court.235 Myriad Genetics argued that they could patent the BRAC genes, which is critical information for testing for and treating ovarian and breast cancer. For years the company was able to test whether this gene existed in their patients and were able to determine their risk for cancer. They referred back to the verdict in Mayo Collaborative Services vs. Prometheus Laboratories to argue that because Prometheus Laboratories was able to successfully hold a patent for their isolation of nature that therefore they have the rights to patent the isolated BRCA1 gene.236 The jury had to address the question of whether a naturally occurring segment of DNA or scientifically modified DNA is patent eligible. The jury 231

Funk Brothers Seed Co. v. Kalo Inoculant Co., op. cit. Id. 233 Id. 234 Id. 235 Genetically Modified Organisms: The ‘Golden Rice' Debate," op. cit. 236 Myriad: History, Myriad Genetics Incorporated, online at “<https://myriad.com/aboutmyriad/inside-myriad/history/>” (accessed December 3, 2019). 232

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

stated that, "Because abstract ideas, laws of nature, and natural phenomenon are the basic tools of scientific and technological work, [the plaintiff’s claim lies] beyond the laws of patent protection,”237 since Myriad didn’t invent new genetic material. Since the discovery and/or isolation of the BRAC genes are not a new innovation, it falls in the exception of the laws of nature and therefore cannot be patented. However, what makes this case especially interesting is that Myriad’s model of the BRCA1 and BRCA2 genes that are cDNA is patent eligible since technically it is not a product of nature and therefore is protected under § 101 of the Patent Act.238 This is because a strand of cDNA is a strand of DNA that is synthesized from a single-stranded RNA template in a reaction catalyzed by the enzyme reverse transcriptase and was man made in a laboratory by Myriad.239 While it is taken from a product of nature, DNA, because it is just a copy of DNA scientists have been able to make their own models of several types of DNA that is technically their own man-made creation. Although the lab technician removed a portion of the DNA sequence to formulate cDNA, it is a new invention in of itself. The reason this invention meets patentability requirements is because it is technically synthetic. III. THE DEFENSE OF GENETIC PATENTS While it might be obvious that there are ethical issues that arise if the United States allows researchers to patent their discoveries, it is important to consider the defense of Myriad and other companies that attempt to patent their discoveries. One of the biggest reasons medical companies and individuals conduct heavy research in the field is to discover something new that help patients. While the medical and pharmaceutical industry is arguably the largest business on the planet, the average salary of a researcher in the medical field is only around $80,000.240 One of the biggest reasons that so much money is dedicated to research is because companies know that with a big discovery means an even bigger profit. While in hindsight it might seem unfair for a company to hold a patent on a human gene, given the amount of time and energy these researchers put into their work, it is important that they get some credit for their efforts by obtaining a patent so that they can be rewarded with money in return for their findings. Without doubt, any 237

Id. Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576. 239 Id. 240 Id. 238

GENETIC PATENT REFORM IN THE UNITED STATES [Vol. 1

individual who dedicated much of their life toward research and finally found a solution to a medical problem would want to receive some money for their success. For instance, the cDNA model of the BRCA1 gene patented by Myriad is entirely synthetic and credit should be given to the researchers, since they invented something new. On the contrary, however, it is becoming increasingly more difficult for other research centers to reach their findings if companies patent a slight modification of nature that might be necessary for another researcher to use. Take again the cDNA model of the BRCA1 and BRCA2 genes for instance; if any other company makes this cDNA model or something close to it, Myriad has a patent on the invention and therefore the company would find themselves in legal troubles or fines from Myriad. This becomes such a controversial issue for the reasons that researchers want rightful credit for their work while society deserves to not have their DNA and genetic make-up owned by an individual or company. If it becomes increasingly harder for companies to receive patents on biomedical breakthroughs, society might begin to see the end of medical research. Companies should have the right to profit off their breakthroughs just as nature shouldnâ&#x20AC;&#x2122;t have itsâ&#x20AC;&#x2122; properties monopolized by companies. IV. ORIGINALITY IN GENETICS At the heart of genetic patents lies the question of where originality is introduced in the patent.241 It might have clear that the BRCA1 and BRCA2 genes in The Association for Molecular Pathology v. Myriad Genetics, Inc. could not be patented, but the importance of this case is to highlight that in some instances, even the slightest modification of nature can be considered a new invention. This rises an important question as to what extent does genetic material have to be modified in order for it to be considered a new innovation? In other words, what defines biological originality? To the Supreme Court, almost anything that is not strictly naturally occurring in nature could be patent eligible with, so far, very few exceptions. There exists a specific pattern of cases that have come to the supreme court where the plaintiff argues that the genetic material is original because they made a slight modification or application to it, such as the process of isolating the BRCA1 and BRCA2 genes. Similarly, in 2012, the Supreme Court addressed this explicitly in the verdict of Mayo Collaborative Services v. Prometheus Laboratories, Inc., where Prometheus held a patent 241

Id.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

on the methodology of determining the proper dosage of a drug to a patient. In specific, Prometheus discovered a method of measuring metabolites of a drug to decide whether to change the dosage of a drug on a patient. But, because, “to transform an unpatentable law of nature into a patent-eligible application of law, one must do more than simply state the law of nature while adding the words ‘apply it.’”242 This is a pattern of receiving a patent on the merit that the methodology of nature is a new invention should halt. Because of this decision, in addition to the decision of the Association of Molecular Pathology v. Myriad Genetics, Inc., there now exists a foundation of where originality in genetic patent lies. There must be an entirely new product of nature in order for it to be protected. As seen in Prometheus Laboratories, the method of how one uses nature and solely isolating a part of nature that had not been done earlier cannot be patented. Isolating a single gene is also not an original invention and also should not be eligible to patent. For something genetic to be truly original it must be manipulated into something unnatural.243 In other words, it must be something that could not have existed if it weren’t for its’ creator. V. POTENTIAL SOLUTIONS The primary source of confusion to corporations lies in § 101 of the Patent Act because it explicitly states that, “whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent….”244 In each of the cases mentioned previously, almost all of them use this exact clause to defend their patent, as this statement can be loosely interpreted. Many politicians have proposed slight changes to § 101 of the Patent Act with consideration of the recent biological issues that have repeatedly come up in court cases. One of the most recent proposals came shortly after the verdict of The Association for Molecular Pathology v. Myriad Genetics, Inc. This draft legislation to rewrite § 101 of the Patent Act was authored by Senators Tillis and Coons, and Representatives Collins, Johnson, and Stivers.245 In their draft, they proposed that “eligibility under this section shall be determined only while considering the claimed invention as a whole, without discounting or disregarding any claim limitation” should be 242

Id. Oskar Liivak, "The Forgotten Originality Requirement: A Constitutional Hurdle for Gene Patents.” 244 Mayo Collaborative Services v. Prometheus Laboratories, No. 10–1150. 245 Oskar Liivak, op. cit., 281. 243

GENETIC PATENT REFORM IN THE UNITED STATES [Vol. 1

added to § 101 of the Patent Act.246 Evidently, their proposal is unpopular. As a response, earlier this year over 120 different companies signed a coalition letter opposing draft legislation of § 101 of the Patent Act.247 The main claim of the opposition is that the proposal made by Senators Coons and Tilis, and Representatives Collins, Johnson, and Strivers is that it would encourage businesses to have exclusive rights over the laws of nature and human genes, which would hinder the tools of researchers and discourage people from pursuing independent research. The letter also claimed that giving more rights to businesses on a new finding takes away from the individual. While it is understandable that the companies involved in the coalition letter would be alarmed by the proposal, as it is unjust of them to assume that the following senators and representatives are trying to take away from the individual’s rights to their work. By adding this clause to the section, it makes it clearer to both companies and individuals that patents should be considered on a case by case basis. It also clarifies that patents are received when considering the invention as a whole and not just a portion of it. The proposal made by Senators Coons and Tilis, and Representatives Collins, Johnson, and Strivers is adequate. A proposal should be made that adds a clause that provides clarification in specific to patenting slight modifications of nature. This could be done with the help of a jury of lawyers who specialize in genetic patents (like the following committee of senators and representatives who drafted the last proposal), who can isolate extremely clear distinctions between an entirely new product of nature and nature. Perhaps the committee should consider redrafting a change to § 101, while also clarifying the exceptions to the section. While these exceptions are relatively clear, it is obvious that companies are still able to receive patents on nature that they shouldn’t have gotten in the first place. These minor modifications to the Patent Act may be intricate, but when it comes to patenting something more revolutionary — like a cure for cancer — these details are crucial for rightfully giving credit to its’ creator while also not allowing a single company to monopolize on it so that individuals are not discouraged from continuing their research. VI. CONCLUSION Because there exists no true requirement of what genetic material is 246 247

Id. 2104 Inventions Patentable - Requirements of 35 U.S.C. 101 [R-08.2017], op. cit.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

patentable, this has been a dangerous game to biomedical companies to see who can successfully receive a patent for their research findings first. It is important for the United States to continue to draw a distinction between what synthetic material is patent eligible. The section that currently exists to define this line is rather unclear. Genes and other genetic material can sometimes be patented as a unique combination of A’s, T’s, G’s, and C’s (adenine, thymine, guanine, and cytosine respectively). If this is allowed under the law, then the limit on what genetic material companies can patent does not exist.248 There should be a clause that pertains specifically to genetic patents so that companies can understand how they can make their findings original enough. The next stages of genetic patent reform will likely reflect these changes. ***

248

"What is DNA?," (United States National Library of Medicine), online at “<https://ghr.nlm.nih.gov/primer/basics/dna>” (visited December 1, 2019).

NOTE CLIMATE CHANGE AND INTERNATIONAL LAW: A CASE FOR EXPANDING THE DEFINITION OF “REFUGEES” TO ACCOMMODATE CLIMATE MIGRANTS Jenny Han* and Amanda Kuras**

The United Nations’ strict definition of “refugee” prevents individuals who are forced to migrate — often due to effects caused by climate change — from claiming the legal protections afforded to those lawfully classified as refugees. This restrictive definition represents a failure of current international law in responding to one of the world’s most pressing existential threats. The effects of climate change, including global warming, extreme weather and rising sea levels, displace millions of individuals worldwide. However, because climate change has only recently become recognized as a serious global and existential issue, international law has not yet responded to the threat. In this Note, the case will be made for expanding the definition of the term “refugee” to provide legally binding protections and tools for individuals who are affected by climate change. First, the current definition of a “refugee” will be deconstructed and an explanation will be given for why this definition leaves out climate migrants. We will use the case of Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation, and Employment in New Zealand as an example of how the current definition — and its application in international law — excludes climate migrants. A case that adopts a broader interpretation of refugee law will be discussed to compare the plight of climate migrants to refugees and to highlight the similarities between the two, specifically concerning the term “persecution” — one of the categories which classifies an individual as a refugee. Finally, the argument will be made that the rigid * B.A. Candidate for Math and Economics (major) and Business Administration (minor), Fordham College at Lincoln Center, Class of 2022. Being part of the Fordham Undergraduate Law Review as a Senior Editor has been an amazing experience. I would like to thank the Editorial Board of the Fordham Undergraduate Law Review who helped edit this Note and made the publication of this first volume possible. I owe a special thanks to my co-writer, Amanda Kuras, who I collaborated closely with on this project. Finally, thank you to my family and friends who endlessly support and encourage me. ** B.A. Candidate for International Studies (major) and Economics (minor), Fordham College of Rose Hill, Class of 2022. This Note would not be possible without the support of the Editorial Board of the Fordham Undergraduate Law Review, with special thanks to Naomi Izett (Co-Managing Editor), who gave direction, guidance, and editing assistance to the project. Jenny Han (Senior Editor) deserves the most thanks for co-authoring and editing this Note, which was with no doubt a difficult task. Additionally, I would like to thank my family and friends for their love and support through this process.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

and outdated definition of “refugee” unjustly excludes climate refugees who are facing human rights violations as a direct result of climate change. These cases could then potentially be used as justification for expanding the term “refugee” to include climate migrants. I. INTRODUCTION: POLITICAL REFUGEES.....................................................51 II. CLIMATE MIGRANTS................................................................................ 51 III. POTENTIAL TO EXPAND THE DEFINITION OF POLITICAL REFUGEE.......... 54 IV. CONCLUSION...........................................................................................57 I. INTRODUCTION: POLITICAL REFUGEES The 1951 United Nations Convention and Protocol Relating to the Status of Refugees defines a refugee as a person who: As a result of events occurring before 1 January, 1951, and owing to 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 his nationality.249

This convention occurred more than 30 years after World War I — when the international community first began to seriously consider and establish new legal instruments to protect persecuted individuals. During this period, many countries voluntarily issued travel documents to those they considered refugees. In addition, the 1933 Convention Relating to the International Status of Refugees (a precursor to the 1951 Convention) forbade the expulsion of refugees and protected their civil rights, although few states signed onto this treaty.250 In 1969, 18 years after the Convention, a multinational treaty, adopted by the United Nations after World War II with 144 signatories, not only defined the term “refugee,” but also provided a legal framework for refugees of war who were affected by events before 1951. Later, the 1967 Protocol Relating to the Status of Refugees extended refugee protection to people affected by events after 1951 as conflicts arose in colonized nations struggling for independence.251 Already in the early history of international refugee law, there were precedents established for altering the law in response to changing global circumstances and events. II. CLIMATE MIGRANTS

249

See United Nations Convention Relating to the Status of Refugees, art. I (1961). See Agnes Hurwitz, The Collective Responsibility of States to Protect Refugees, 10-11 (2009). 251 Id. at 14; Protocol Relating to the Status of Refugees (1967). 250

CLIMATE CHANGE AND INTERNATIONAL LAW

[Vol. 1

Because widespread recognition of climate change as a pressing global issue is a recent development, international refugee law has not yet adjusted to the realities of climate migration. Currently, millions of people around the world are displaced because of sudden climate-related events, such as natural disasters. Additionally, people are now beginning to witness the effects of slow-onset events related to climate change, such as ocean acidification, global warming, and rising sea levels. The effect of rising sea levels is most evident and impactful in the Pacific Islands, which have seen a dramatic decrease in size as the sea level rises by 12 millimeters per year in the Western Pacific Ocean.252 As a result, experts predict that 48 islands will be completely submerged by the year 2100 due to climate change.253 Due to the combination of slow and sudden-onset events, scientists also predicted that by 2050 there will be 143 million more climate migrants from Latin America, Sub-Saharan Africa, and Southeast Asia alone.254 The indirect effects of climate change can also cause instability and insecurity due to overcrowding into urban areas and increased scarcity of resources. For example, in a 2017 study, which analyzed the number of asylum applicants to the European Union from 103 source countries, it was found that climate change is often tied to persecution and war: as temperatures deviate from the optimal temperature for agriculture, people compete for scarcer resources.255 As temperature increases, asylum applications, under the current refugee definition, also increase at an accelerated pace.256 This study predicts that by 2100, asylum applications as a result of conflict and persecution induced by climate change will rise by 28%.257 Despite the limitations of current international refugee law in responding to the impending climate migrant crisis, very little action to modify international law has been taken. Most legal scholars agree that the current rigid definition of a “refugee” put forth by the 1951 Refugee Convention does not include climate refugees.258 Additionally, it is difficult for climate migrants to prove that they meet the requirement of persecution, as well as the requirement of being a member of a particular social group. While the effects of climate change are certainly harmful, they do not legally constitute 252

See John Podesta, The Climate Crisis, Migration, and Refugees, BROOKINGS, 25 July 2019, <https://www.brookings.edu/research/the-climate-crisis-migration-and-refugees>. 253 Id. 254 Id. 255 See Anouch Missirian & Wolfram Schlenker, Asylum Applications Respond to Temperature Fluctuations, 358 SCIENCE 1610–1614 (2017). 256 Id. 257 Id. 258 See Abdikarim Ali, Climate-Induced Migrants, International Law, and Human Rights, an Assessment, UNIVERSITY OF OTTOWA, 41-42 (2015).

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

persecution. As a result, one major challenge is identifying the “persecutor.” But the persecutor isn’t a particular state or organization, but rather nature itself — and perhaps the international community which contributes to climate change. In addition, even if the effects of climate change are classified as persecution, international law specifies that the persecution must occur on the basis of religion, race, nationality, political opinion, or membership in a particular social group.259 While climate change may affect certain groups more than others, it still affects a wide and diverse range of people. This fact makes it difficult to find one fundamental characteristic that defines and/or identifies the particular social group affected by climate change.260 International law does not currently recognize climate migrants as refugees, as exhibited by the 2015 case of Ioane Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment in the Supreme Court of New Zealand.261 In this landmark case, the first climate refugee application was rejected.262 According to the case, Ioana Teitiota and his wife moved to New Zealand with a permit, leaving the disappearing island of Kiribati in the Pacific Ocean.263 After residing there for three years, the couple’s permits expired in 2010 and they remained in New Zealand unlawfully.264 At the time of the case, the family also had three children who were not considered citizens of New Zealand.265 After being stopped at a traffic light, Mr. Teitiota applied for refugee status by claiming that his homeland, Kiribati, was disappearing due to rising sea levels.266 A Refugee and Protection Officer rejected Mr. Teitiota’s refugee application.267 Following this decision, Teitiota appealed to the Immigration and Protection Tribunal, which dismissed the appeal, holding that Teitiota was not a refugee under the definition set by the 1951 Refugee Convention.268 Specifically, the Tribunal noted that the act of persecution required “human agency” and that the effects of climate change were not faced by a particular social group, but 259

Id. Id. 261 See Ioane Teitiota v. Chief Executive of the Ministry of Business, Innovation and Employment, 107, SUP. CT. OF NEW ZEALAND (2015). 262 Id. 263 See Ioane Teitiota, supra note 13. 264 See AF (Kiribati), No. 800413, NEW ZEALAND: IMMIGRATION AND PROTECTION TRIBUNAL, 25 Jun. 2013, <https://www.refworld.org/cases,NZ_IPT,5dad6b754.html>. 265 Id. 266 Id. 267 Id. 268 Id. 260

CLIMATE CHANGE AND INTERNATIONAL LAW

[Vol. 1

rather the general population of Kiribati.269 Teitiota appealed to several other courts for leave to appeal until he finally reached the Supreme Court, which dismissed his application for leave to appeal.270 This case clearly illustrates the exclusive nature of the 1951 Refugee Convention’s definition of “refugee.” Although the New Zealand courts recognized and accepted many of Tietiota’s claims about the dangerous effects of climate change on residents of Kiribati, they were legally incapable of granting Teitiota and his family refugee status due to the restrictive nature of the term’s definition. III. POTENTIAL TO EXPAND THE DEFINITION OF POLITICAL REFUGEE: REFUGEE APPEAL NO. 71427/99 IN THE NEW ZEALAND REFUGEE STATUS APPEALS AUTHORITY In this decision by the New Zealand Refugee Status Appeals Authority, the definition of “persecution” is closely tied with human rights violations. The appellant in this case was a woman from the Islamic Republic of Iran, who was consistently abused and harassed by her first husband, a high official in the Pasdaran, a branch of the Iranian Armed Forces, whose political power and connections enabled him to deprive her (and her son) of their human rights.271 At the time of the case, the appellant’s second husband was imprisoned in Iran for his role in adding false details to the appellant’s passport to help her escape.272 The appellant, furthermore, had notice from her mother that her first husband had acquired a warrant for her arrest. In this case, the Appeals Authority ruled against the decision of the Refugee Status Branch of the New Zealand Immigration Service, which had denied the appellant’s refugee status application.273 The decision focused on the question of whether the appellant faced persecution. This involved an exploration of the meaning of the term persecution. The Appeals Authority clarified that the definition of persecution they adopted differed from the dictionary definition of persecution in its emphasis on the possible effect of persecution on the victim, rather than the persecutor’s intent.274 Thus, the persecutor’s intent matters less than the victim’s well-founded fear of potential persecution. This is a central point for climate migrants because it allows for the proper 269

Id. See, Ioane Teitiota, supra note 13. 271 See, Refugee Appeal, 71427/99, NEW ZEALAND REFUGEE STATUS APPEALS AUTHORITY, 16 Aug. 2000, <https://www.refworld.org/cases,NZL_RSAA,3ae6b7400.html>. 272 Id. 273 Id. 274 Id. 270

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

identification of persecutors as the international community that contributes to climate change, a group with human agency.275 Even though the countries that primarily contribute to climate change may not harbor malicious intent toward climate migrants, climate migrants are still affected by and fear the persecuting effects of climate change that these countries cause. Following this initial clarification, the Appeals Authority then continued to define persecution as the “sustained or systemic violation of human rights demonstrative of a failure of state protection.”276 This definition reflects the principle of surrogacy, given by James Hathaway, as well as the close relationship between persecution and violation of human rights.277 The human rights mentioned in the definition of persecution are the “core norms of international human rights law,” which include the International Bill of Rights in the Universal Declaration of Human Rights.278 In fact, the 1951 Refugee Convention evolved from Article 14 of this Declaration, which granted the right to seek and enjoy asylum in other countries.279 Thus, the relationship between persecution and human rights violations is enshrined both in court cases as well as multiple United Nations documents. The definition of persecution given by Professor Hathaway, and supported by the New Zealand Appeals Authority, also reflects the principle of surrogacy. This formulates the idea of national state protection as central to the question of refugee status. According to the principle of surrogacy, refugee law is called upon when a citizen’s home state fails to adequately protect the human rights of that citizen, and the refugee legal framework defines the roles and obligations of the international community to offer surrogate protection. Ultimately, the purpose of refugee law is to ensure every person’s human rights, even when their state fails to protect those rights. This failure of protection does not have to be the result of a state’s unwillingness to protect — it could also be a result of the state’s inability to protect the human rights of its citizens. Thus, one way of aligning the effects of climate change with persecution is through a discussion of human rights violations caused by climate change. The Universal Declaration of Human Rights includes two rights that climate change violates: the right to a standard of living adequate for health and the right to a standard of living adequate for housing.280 First is an 275

See Ali, supra note 10, at 42. See Refugee Appeal, supra note 23. 277 See Canada (Attorney General) v. Ward, 2 S.C.R. 689 (1993). See also: James Hathaway, The Law of Refugee Status (1991). 278 Id. 279 Id. 280 See United Nations Universal Declaration of Human Rights, art. 25 (1948). 276

CLIMATE CHANGE AND INTERNATIONAL LAW

[Vol. 1

investigation into the effects of climate change on health. Climate change and global warming have been shown to create the ideal environment for insects like mosquitoes, which can carry vector-borne diseases such as the Zika virus or malaria, that thrive in warmer environments.281 The higher temperatures associated with global warming can also cause various heat-related health issues, putting individuals at a heightened risk of heat stroke, exhaustion, cardiovascular issues, and kidney problems.282 Air pollution, and specifically fine particulate matter pollution, can cause various respiratory illnesses such as asthma, as well as cardiovascular diseases.283 Moreover, sea-level rise can cause flooding, which exposes coastline populations to contaminated floodwaters which bring disease. Finally, extreme weather events in general (such as hurricanes) threaten and harm public safety.284 Although many of these health issues will affect countries worldwide, the most devastating impacts that demand surrogate protection from the international community may be more concentrated. For example, island nations may be more susceptible to contaminated floodwaters. Continued research into the direct effects of climate change on public health, as well as further investigation of what an adequate standard of health legally entails, will be necessary in the future. Second is the threat that climate change poses to a standard of living adequate for housing. The most obvious effect of climate change on housing is its erasure of livable space in small island nations, such as Kiribati, through rising sea levels. For people living on the coastline, the only realistic option available may be to move further inland, but this will eventually cause overcrowding and congestion, which can then negatively affect public health. Unfortunately, islands like Tuvalu, Kiribati, and the Marshall Islands could be completely consumed by rising seas; they contribute very little to global emissions but disproportionately experience its effects.285 If these island nations disappear, their inhabitants must find ways to relocate to other countries. At this point, it would be impossible for their nation to protect them. Refugee law must then be properly equipped and prepared to step in and offer surrogate protection against this violation of the human right to a standard of living adequate for housing. 281

See Samantha Harrington, How climate change threatens public health, YALE CLIMATE CONNECTIONS, 2019, <https://www.yaleclimateconnections.org/2019/08/how-climatechange-threatens-public-health/>. 282 Id. 283 Id. 284 See Harrington, supra note 33. 285 See Justin Worland, How Leaders of Sinking Countries are Fighting Climate Change. Hereâ&#x20AC;&#x2122;s What the Rest of the World Can Learn, TIME, 2019, <https://time.com/longform/sinking-islands-climate-change/>.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

IV. CONCLUSION The United Nations’ dated definition of a refugee, established in 1951, has failed to evolve and develop with global issues. Many people who are forced to migrate from their native country due to the impact of climate change are not able to make this necessary move, or remain in a safer country permanently, due to restrictions in immigration law. As the case of Ioane Teitiota v. The Chief Executive of the Ministry of Business, Innovation and Employment demonstrates, the current definition and interpretation of a refugee does not allow climate migrants to claim refugee status. Through an analysis of the decision in Refugee Appeal No. 71427/99 in New Zealand — in which the applicant was granted refugee status based on the evident violation of her human rights — the similarities between the situations of refugees and climate migrants, can be seen. The aforementioned case, which adopted a broader definition of the term “persecution,” was used to tie refugee law to human rights in order to demonstrate how it also applies to climate migrants, who experience human rights violations that cannot be protected by their home nations. Although climate migrants might not face deliberately malicious persecution, they do face the devastating threat of anthropogenic climate change. Climate migrants deported back to their native country will have their rights and their lives endangered. Thus, this Note shows that adopting a broader definition of the term “persecution” can justify the acceptance of refugee applications from climate migrants. Although arguments can be made to include climate migrants into the current definition of refugee, a more effective approach would be a direct alteration of the definition currently used. Even with a broader definition of the term “persecution,” it can still be difficult to prove that the persecution from climate change is a result of the categories recognized by the United Nations, including race, religion, nationality, political opinion, or membership of a particular social group. If the definition of “refugee” is changed and extended to include the fear of persecution from climate change related damage and disasters, climate migrants will be more easily integrated into refugee status, thus saving millions of lives around the world. ***

NOTE WHISTLEBLOWING AS A CICERONIAN MORAL OBLIGATION TO THE STATE

Hailey Sylvander * 286

This Note explores the public law of whistleblowing through the lens of the Ancient Roman philosopher Marcus Tullius Cicero (106-43 BC). It first describes the current discourse on whistleblowing, justifications for whistleblowing, and a contemporary jurisprudential theory that examines those justifications. Then, the Note will explain Cicero’s theory on one’s duty to the state through acceptable public behavior, and how it relates to jurisprudence via the lens of morality. Next, the Note will apply Cicero’s theory to the case Department of Homeland Security v. Maclean to illustrate how the Supreme Court of the United States (the “Court”) has used precedent to justify the legal protection of whistleblowers. This Note analyzes the extent to which whistleblowing is an example of one’s duty to the state. As such, the Court recognizes this importance and has an obligation to protect certain whistleblowers through the Whistleblower Protection Act of 1989. Thus, whistleblowers should not be persecuted for simply adhering to their moral obligations to the state. Not only would persecution violate the Whistleblower Protection Act, but also Section 1 of the 14th Amendment in tandem with the United States Code, protecting all citizens equally. I. INTRODUCTION...........................................................................................58 II. CURRENT DISCOURSE ON WHISTLEBLOWING........................................... 60 III. A JUSTIFICATION OF WHISTLEBLOWING AND ITS THEORY…...................62 IV. WHISTLEBLOWING’S CONNECTION TO CICERO’S PUBLIC BEHAVIOR AND MORAL OBLIGATION PHILOSOPHY................................................................ 64 V. DEPARTMENT OF HOMELAND SECURITY V. MACLEAN AND CICERONIAN DUTY TO THE STATE......................................................................................66 VI. WHISTLEBLOWER PROTECTION ACT OF 1989 AND DHS V. MACLEAN...... 67 VII. CONNECTION TO THE 14TH AMENDMENT...............................................69 VIII. CONCLUSION.........................................................................................69 I. INTRODUCTION

B.A. Candidate for Classical Languages with minors in French and Middle East Studies, Fordham College at Rose Hill, Class of 2021. It has been an honor to write for the Fordham Undergraduate Law Review. I would like to thank the Editorial Board for all their help. I would also like to thank my family and friends who provide constant love and support. Without these people, this Note would not have been possible.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

In the present day, the word “whistleblowing” is used endlessly throughout various different media outlets. Most recently, a whistleblower is currently alleging that U.S. President Donald Trump solicited Ukraine to intervene in the 2020 Presidential election.287 Moreover, the word “whistleblower” can carry various connotations and opinions. While some view whistleblowing as a heroic duty to one’s state,288 others see whistleblowing as a threat to national security.289 Emerging from particular relevance of the issue within recent years, there has been a plethora of scholarly research on whistleblowing, presenting reasonable justifications for whistleblowing by exploring specific qualifications working within legal boundaries. In fact, ancient Roman philosopher Marcus Tullius Cicero indirectly provides a justification of whistleblowing through his treatise De Officiis.290 In De Officiis, Cicero discusses his theory of the best way to live, behave, and fulfill moral obligations.291 Because it was written during a time of great political upset in the Roman Republic,292 Cicero thematically aims to combat various revolutionary forces attempting to take over Rome in three books.293 In the first book, Cicero discusses what is honorable, how duties are founded in honor and virtue, and what the four main virtues are: prudence, temperance, fortitude, and justice.294 In the second book, he discusses the concept of advantages (private and public), how to improve one’s life, and how to honorably gain popularity.295 Lastly, Cicero examines the conflict that arises between expediency and virtue in the third book. Since all duties and acts are founded in the state,296 everything one does is for the state as a whole out of obligation. Specifically, Cicero defines correct public behavior on the basis that an action done for the sake of the state is a moral one. This Ciceronian justification can be used to examine the case of Department of Homeland Security v. Maclean.297 The whistleblowing actions 287

E.g., Jacob Pramuck, Whistleblower complaint is out: It alleges Trump abused power to influence 2020 election, CNBC, (Sep. 26, 2019), <https://www.cnbc.com/2019/09/26/house-intelligence-committee-releases-whistleblowercomplaint-about-trump.html>. 288 Id. 289 See id. 290 See also Marcus Tullius Cicero, De Officiis, § 1-121, Bk. 1-3 (45 BC). 291 See 65 Douglas Kries, On the Intention of Cicero's ‘De Officiis’, 375-93 (2003). 292 Id. 293 Id. 294 Marcus Tullius Cicero, De Officiis, § 1-121, Bk. 1-3 (45 BC). 295 Id. 296 Id. 297 See Department of Homeland Security v. Maclean, 572 U.S. 1114 (2015).

CICERONIAN WHISTLEBLOWING

[Vol. 1

of Robert J. Maclean can be justified given that his actions were an attempt to serve the state, which falls in line with Cicero’s philosophy.298 Cicero states: Promises are, therefore, not to be kept, if the keeping of them is to prove harmful to those to whom you have made them; and, if the fulfilment of a promise should do more harm to you than good to him to whom you have made it, it is no violation of moral duty to give the greater good precedence over the lesser good.299

Along with Cicero’s justification, the Whistleblower Protection Act of 1989 protects any federal employee acting to promote public safety.300 The protection of the legal system is not limited to federal employees, but extends to all citizens. Everyday citizens are protected by the Fourteenth Amendment, which ensures that each citizen is protected equally under the law in contingent with the United States Code.301 Any employee has the right to speak out against wrongdoing in the office without penalty, without discrimination, and without any retaliation.302 As Cicero and modern-day law suggest, serving the greater good by protecting others against injury is a just act protected under the 14th Amendment.303 II. CURRENT DISCOURSE ON WHISTLEBLOWING Despite the potential benefits of whistleblowing, there remains great contention around the issue in consideration of the argument that a whistleblower’s intentions are not necessarily for the greater good.304 For example, a whistleblower could seek to reveal a corporation or government’s secrets for a monetary reward or personal political gain.305 For instance, many accused Wikileaks' Julian Assange of utilizing whistleblowing as a means to promote his own political interests after he leaked sensitive United States documents. Exposing the nation’s operations in various countries around the world, many viewed Assange’s whistleblowing as a medium to make the news headlines and fuel specific political ideologies rather than a way to alert

298

See Marcus Tullius Cicero, De Officiis, § 1-121, Bk. 1-3 (45 BC). Marcus Tullius Cicero, De Officiis, § 1-121, Bk. 1-3 (45 BC). 300 Whistleblower Protection Act, 15 U.S.C. § 2087 (2011). 301 U.S. CONST. amend. XIV, § 2. 302 Id. 303 See Marcus Tullius Cicero, De Officiis, § 1-121, Bk. 1-3 (45 BC). 304 E.g., Chaya Benyamin, Are Whistleblowers Heroes or Traitors?, The Perspective, (2019), <https://www.theperspective.com/debates/politics/whistleblowers-heroes-traitors/>. 305 Id. 299

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

the world of the United States’ dealings with other countries and prevent further international discord.306 Additionally, some believe that whistleblowing works against the best interests of individuals because it can be harmful to the state itself.307 For example, Edward Snowden, former National Security Agency (NSA) security contractor, is a whistleblower, which proved to be a threat to the United States’ national security. However, Snowden decided to expose the state secrets that he was privy to as a contractor, and as a result, he exposed the operations, procedures, and vulnerabilities of the NSA.308 This posed a great risk for the United States because these leaks advised terrorist groups of the nation’s security weaknesses and security procedures. Americans were outraged by the released information concerning the agency’s invasion of privacy; this forced the NSA to cut back on their intense surveillance of United States citizens,309 which inevitably makes it increasingly difficult for the NSA to uphold national security interests.310 If the whistleblowing never occurred, the NSA would not have needed to cut back on their procedural security surveillance, which would allow for adequate protection of the United States. Lastly, those opposed to whistleblowing view whistleblowers as a threat to governmental authority. From their perspective, praising whistleblowers for leaking sensitive information revokes power from those who are legitimate leaders in government positions311 because these whistleblowers are not government officials nor have they been democratically elected. As a result, the democratic form of government where elected officials represent the people is disfigured, which is a sentiment shared by journalist Tom Mueller at Time Magazine.312 For example, Julian Assange meddled in the United States’ 2016 Presidential Election by interrupting the flow of democratic politics and its ideologies.313 Now, it seems that anyone who has politically charged information wields the power to dictate the course of politics. 306

See, Chaya Benyamin, Are Whistleblowers Heroes or Traitors?, The Perspective, (2019), <https://www.theperspective.com/debates/politics/whistleblowers-heroes-traitors/>. 307 See id. 308 Id. 309 Id. 310 See id. 311 See id. 312 Tom Mueller, Whistleblowing Is an American Tradition–and a Bad Sign for Our Democracy, TIME, (Nov. 21, 2019), <https://time.com/5735420/whistleblowers-inamerica-2019/>. 313 See, Chaya Benyamin, Are Whistleblowers Heroes or Traitors?, The Perspective, (2019), <https://www.theperspective.com/debates/politics/whistleblowers-heroes-traitors/>.

CICERONIAN WHISTLEBLOWING

[Vol. 1

In comparison, those who are in favor of whistleblowing often see it as a demonstration of loyalty.314 In the case of Enron’s whistleblower, Sherron Watkins,315 she did not take her knowledge to the public but rather relayed the information to the company’s founder, Kenneth Lay.316 Watkins held concerns about the company’s unreliable accounting and wanted to prevent the company from devastation.317 Thus, she was motivated by her loyalty to her company and felt an obligation to protect the corporation. For Sherron Watkins, she protected the greater good of the company through whistleblowing and risked her job in exchange. Additionally, the whistleblower is also seen as a mechanism to check and balance those in power318 and hold government officials or powerful business leaders accountable. In other words, a whistleblower has an ethical duty to maintain the same sense of moral obligation in others, which in turn ensures an ethical state. For instance, with the release of the Pentagon Papers, Daniel Ellsberg placed pressure on the United States to confess their operations in Vietnam and instigated a conversation about the use of force.319 This resulted in the United States’ confession and their report on Vietnam War operations, which is a testament to Ellsberg’s impact on the state’s ethical behavior as a whistleblower.320 As addressed above, there are many opinions of various United States citizens concerning the benefits and disadvantages of whistleblowing based on various historical precedents. However, the exemplified acts of whistleblowing done with the intention to promote the greater good or create a more just state are the justifications for whistleblowing. In other words, relaying beneficial information to the state, not for the sake of selfadvancement, is ethical and moral whistleblowing. Yet, whistleblowing must be done correctly to be acceptable. III. A JUSTIFICATION OF WHISTLEBLOWING AND ITS THEORY Aside from popular opinions, there are also scholarly justifications and theories that justify whistleblowing. Manohar Kumar and Daniele Santoro, coauthors of A Justification of Whistleblowing, uphold whistleblowing by

314

See id. Id. 316 Id. 317 Id. 318 See id. 319 Id. 320 Id. 315

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

establishing three necessary conditions: communication restraints, type of intent, and public interest.321 Communication restraints require that the revealed information must be informative, truthful, and accompanied by significant evidence.322 The act of whistleblowing must be as informative as possible for a given audience. Additionally, specific audiences are privy to certain information. Whether the information pertains to the United States as a whole or just a small group of people, knowing which audience should hear the information is crucial.323 Subsequently, no false information should be reported to the public, especially if the whistleblower knows it is false.324 Lastly, evidence must accompany the information,325 which prevents false or misleading information from being reported. The type of intent that is representative of justified, ethical whistleblowing is when it serves the state and its people.326 In order to establish the intent of the whistleblower, the authors suggest a test to determine whether their intent is based on feelings such as revenge, malice, or resentment.327 If the potential risk of whistleblowing outweighs the potential personal gain (if any), it suggests the whistleblower most likely has justified intentions in revealing the sensitive information.328 In other words, this shows that the whistleblower’s intentions are for the greater good; thus, they are adhering to their obligations to the state as opposed to what will offer the most personal benefit.329 Lastly, there is a condition requiring that the leaked information lies in the public interest and reveals an injustice, or breach of a certain right, done against members of the state.330 Kumar and Santoro state that there is no univocal definition of the term; therefore, they offer alternative definitions such as “public order,” “personal safety,” “public health,” or “national security and defense.”331 To expand upon the idea of public interest, they offer two distinct features of the term. The first feature states that everyone 321

Manohar Kumar and Daniele Santoro, A Justification of Whistleblowing, Sage Journals, 2017. 322 Id, at 671. 323 Id, at 678. 324 Id. 325 Id. 326 Id, at 669-84. 327 Id, at 677. 328 See id, at 677. 329 Id, at 679. 330 Id, at 681. 331 Id, at 682.

CICERONIAN WHISTLEBLOWING

[Vol. 1

in the public benefits from knowing the information; they note that the information must pertain to every person.332 Secondly, public interest relies on the information when it pertains to the “arrangement of rights,” the enforcement of rights, and the “enjoyment of rights.”333 IV. WHISTLEBLOWING’S CONNECTION TO CICERO’S PUBLIC BEHAVIOR AND MORAL OBLIGATION PHILOSOPHY In De Officiis (On Duties), Cicero examines the topic of duty and how duty should be performed by citizens.334 Many aspects of Cicero’s philosophy on duty can be applied to the act of whistleblowing; a philosophy so valued by ethical philosophers can be applied to the ethical modality of law. Thus, Cicero, a philosopher from over 2,000 years ago, can answer the present-day question concerning the morality and justification of whistleblowing. He encourages four main virtues that one must always practice in pursuit of an ethical life: truth, justice, fortitude, and temperance.335 These virtues must act as the foundational elements of one’s duties, which are allotted to humans through their ability to rationalize. According to Cicero’s philosophy, the human ability to reason, which grants perception and deduction of truth, can be found in no other species; all duties should have a basis in reason.336 In addition, reason permits friendships and relationships because a respect for fellow human beings grants every person to be given what they need to live a decent life and relationships to be well-maintained and kept in good faith.337 In other words, bonds between people allow for justice and fortitude.338 Reason also permits a free, unrestricted mind with the capacity to think for itself and human beings to have moderation and temperance.339 For Cicero, reason is the principle that allows people to make ethical and moral decisions. Cicero stresses the importance of justice by stating that the greatest glory of virtue is found in justice.340 In order to be just, there are two qualifiers: first, one must not harm another unless “provoked by injury,” and second,

332

Id, at 681. Id, at 683. 334 Marcus Tullius Cicero, De Officiis, § 1-121, Bk. 1-3 (45 BC). 335 Id, at § 1-19. 336 Id. 337 Id. 338 Id. 339 Id. 340 Id, at § 20-41. 333

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

possessions are kept private if private and kept public if public.341 By consequence, greed and “wrong-doing for the sake of greed should never be tolerated.”342 One’s motives should never be rooted in a desire of possessions beyond necessity because one might injure another. Also, Cicero explains that there are two injustices: injuring another and the failure to avoid injury when one has the ability to do so.343 In other words, idly watching an injury occur is as unjust as inflicting an injury onto another.344 Cicero’s ethics on justice and moral obligation are founded on the opinion that one must take action when they see injustice, while striving for the truth.345 Those who are privy to information that is hazardous to the public safety of this country have an obligation to take action against present or impending injuries. There is an obligation to protect the public, which is further upheld and ensured by legislation, just as there is to protect a family member. This is because a person is a member of the family, society, and state by birth;346 all three of these entities stand as a group one must defend from injury. Thus, there is always an obligation for those able to take action against maleficence founded in the bonds between individuals.347 Whistleblowing can be justified through the obligation to defend against injury and protect the bond between individuals. However, there is an issue regarding property. If the information is private intellectual property of a government or corporation, Cicero seems to believe it should be kept private, since private property can only be in the possession of the true owner.348 This does not mean the whistleblower cannot act against injuries, but rather the whistleblower cannot broadcast the information to the public. If one sees that information as necessary public knowledge as opposed to private intellectual property, then there is no issue preventing the display of information to the public. According to Cicero’s philosophy, the information cannot be used for self-advancement.349 For Cicero, self-advancement is identical to greed and would thus be an immoral and unjust means to an end.350 Whistleblowing must occur with the intent to

341

Id. Id, at § 20-41. 343 Id. 344 Id. 345 See id. 346 Id, at § 42-60. 347 See id, at § 20-41. 348 Id, at § 42-60. 349 Id. 350 Id, at § 20-60. 342

CICERONIAN WHISTLEBLOWING

[Vol. 1

serve and protect others against injury.351 According to Cicero, justice should always be preserved no matter the situation, respecting the conditions of private property and advancement.352 V. DEPARTMENT OF HOMELAND SECURITY V. MACLEAN AND CICERONIAN DUTY TO THE STATE The Ciceronian justification for whistleblowing can be applied to the case of the Department of Homeland Security v. Maclean. In July 2003, the Transportation Security Administration (TSA) became aware of a potential hijacking of United States planes, and it briefed United States Air Marshals that all outgoing Las Vegas flights would be cancelled until August.353 Air Marshal Robert J. Maclean was concerned that TSA was not adequately responding to the potential terrorist threat and by extension, endangering the public.354 To ameliorate this, he contacted MSNBC to notify the public of the inadequate precautions taken by the TSA, which led to the organization receiving some Congressional criticism for this inadequacy.355 As a result, TSA set up an investigation looking into the leak and Maclean revealed himself as the whistleblower.356 Maclean was removed from his role as Air Marshal on the grounds that he was unauthorized to expose sensitive security information,357 which he challenged before the United States Court of Appeals for the Ninth Circuit.358 He argued that the information was not labeled as classified and the information cannot be retroactively classified.359 However, the Court of Appeals stated that TSA had merely enforced regulations previously set in 2003 and determined that the information should have been labeled as classified, justifying the firing of Maclean.360 In looking at this case through the Ciceronian justification of whistleblowing, three key questions have to be answered to determine if it follows such a justification: one, were his actions just? Two, did they infringe on the definitions of Ciceronian properties? And three, was he acting in self351

See id, at ยง 20-41. See id, at ยง 1-19. 353 See Department of Homeland Security v. MacLean, Oyez Project, <https://www.oyez.org/cases/2014/13-894>. 354 Id. 355 Id. 356 Id. 357 Department of Homeland Security v. Maclean, 572 U.S. 1114 (2015). 358 Maclean v. Department of Homeland Security, 543 F.3d 1145, 1150 (9th Cir 2008). 359 Id. 360 See id. 352

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

advancement? In terms of Cicero’s view of justice and action against injuries, Maclean acted justly; he had the capacity to take action, and did so accordingly.361 Maclean did not stand by and let a potential injury to the public occur,362 but upheld his bond to society and state by releasing the information.363 Now, the discussion of property is difficult. TSA claimed Maclean had exposed classified information; this would label the information as private and, therefore, private property.364 However, Maclean stated that the information was not classified and could not be classified after being released to him.365 Since Maclean did not see the information as private, he does not appear to be knowingly injuring TSA or the Department of Homeland Security (DHS). Finally, to the point of self-advancement, it appears that Maclean was not acting to advance his position in the DHS, but rather in the best interests of the state and public. According to Cicero, Maclean’s whistleblowing is justified on these grounds. Unsatisfied with the Court of Appeals decision concerning the information’s classification, Maclean decided to challenge his termination in front of the Merit Systems Protection Board with the argument that his actions were protected by the Whistleblower Protection Act.366 Nonetheless, the Merit Systems Protection Board did not determine that Maclean’s actions were protected by this act because they were explicitly prohibited by law and illegal.367 Later on, however, the United States Court of Appeals for the Federal Circuit reversed the Merit Systems Protection Board ruling by stating Maclean’s actions were not explicitly prohibited or illegal.368 VI. WHISTLEBLOWER PROTECTION ACT OF 1989 AND DHS V. MACLEAN Whistleblowing rights and protection were first addressed by the Civil Service Reform Act of 1978.369 Signed into law by President Jimmy Carter, the act protected government employees from whistleblower retaliation and

361

See Marcus Tullius Cicero, De Officiis, § 1-19., Bk. 1 (45 BC). See also: Maclean v. Department of Homeland Security, 543 F.3d 1145, 1150 (9th Cir 2008). 362 See id. 363 Marcus Tullius Cicero, De Officiis, § 1-19., Bk. 1 (45 BC). 364 Id. 365 Maclean v. Department of Homeland Security, 543 F.3d 1145, 1150 (9th Cir 2008). 366 Id. 367 Id. 368 Id. 369 Whistleblower Protection Act: An Overview, Thomson Reuters, (March 16, 2017), <https://employment.findlaw.com/whistleblowers/whistleblower-protection-act-anoverview.html>.

CICERONIAN WHISTLEBLOWING

[Vol. 1

set up the Merit Systems Protection Board.370 In 1989, Congress passed the Whistleblower Protection Act in order to “strengthen and improve protection for the rights of federal employees, to prevent reprisals, and to help eliminate wrongdoing within the Government.”371 These aims were accomplished through clarifying where employees could report wrongdoing in the workplace and allowing the Office of Special Counsel (OSC) to represent whistleblowers in matters of retaliation.372 Those who are protected under the act are current and former federal employees and those applying to be a federal employee.373 However, the OSC does not take cases where the information was prohibited by law and required by executive order to be held a secret.374 Nonetheless, a federal employee can report a claim directly to the OSC for misconduct which falls under “a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, abuse of authority, substantial and specific danger to public health or safety.”375 Additionally, information must be first-hand and not speculations nor second-hand information.376 The claim cannot be made anonymously, but one’s identity can be kept confidential.377 Thus, for DHS v. Maclean, the Supreme Court of the United States affirmed, in a seven to two majority, that the United States Court of Appeals for the Federal Circuit was correct.378 Chief Justice John Roberts Jr. delivered the opinion.379 He said the Court held the language that Congress used in regard to the exception stated in the Whistleblower Protection Act, which allows for the prosecution of whistleblowers who reveal information “specifically prohibited by the law.”380 The fact that the exception only applies to disclosures prohibited by the law revealed Congress did not expect the exception to apply to information prohibited by regulations like the

370

See generally id. Whistleblower Protection Act, 15 U.S.C. § 2087 (2011). 372 See id. 373 See id. 374 Id. 375 Id. 376 See Whistleblower Protection Act: An Overview, Thomson Reuters, (March 16, 2017), <https://employment.findlaw.com/whistleblowers/whistleblower-protection-act-anoverview.html>. 377 Id. 378 Department of Homeland Security v. Maclean, 572 U.S. 1114 (2015). 379 Whistleblower Protection Act: An Overview, Thomson Reuters, (March 16, 2017), <https://employment.findlaw.com/whistleblowers/whistleblower-protection-act-anoverview.html>. 380 Department of Homeland Security v. Maclean, 572 U.S. 1114 (2015). 371

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

TSA’s.381 Furthermore, the Court rejected the government agency’s argument that disclosures like Maclean’s were specifically prohibited and a threat to public safety.382 In summation, the Whistleblower Protection Act bars a government agency from taking action against an employee who discloses security information for public benefit.383 VII. CONNECTION TO THE 14TH AMENDMENT Section one of the Fourteenth Amendment can be applied in conjunction with the Whistleblower Protection Act of 1989.384 If a person who fits the necessary descriptions for protection under the Act faces prosecution, it is not only a violation of the Act and its protection, but also a violation of the Fourteenth Amendment.385 The Fourteenth Amendment ensures equal protection under the law, stating that “All persons born or naturalized in the United States [...] are citizens of the United States and of the State wherein they reside. No State shall [...] deny to any person within its jurisdiction the equal protection of the laws.”386 Furthermore, being considered a whistleblower cannot be a threat to one’s rights because, whether in the public or private sector, their rights are ensured by the Bill of Rights.387 A whistleblower should not receive any discrimination or unequal treatment because their actions because such discrimination violates the United States Code, which protects employees in the workplace against discrimination.388 VIII. CONCLUSION In consideration of the aforementioned array of opinions, various scholars have produced bodies of work to justify whistleblowing by presenting specific qualifications and working within the legal boundaries of the law. Through Marcus Tullius Cicero, one can find an indirect justification of whistleblowing in his work De Officiis.389 381

See id. See id. 383 Whistleblower Protection Act: An Overview, Thomson Reuters, (March 16, 2017), <https://employment.findlaw.com/whistleblowers/whistleblower-protection-act-anoverview.html>. 384 U.S. CONST. amend. XIV, § 1; Whistleblower Protection Act, 15 U.S.C. § 2087 (2011). 385 See id. 386 Id. 387 See id. 388 See generally Fair Labor Standards Act of 1938, 29 U.S.C. § 218c (2011). 389 Marcus Tullius Cicero, De Officiis, § 1-121, Bk. 1-3 (45 BC). 382

CICERONIAN WHISTLEBLOWING

[Vol. 1

With this Ciceronian justification, the final decision for the case of the Department of Homeland Security v. Maclean can be justified on the basis that his actions attempt to serve the state by releasing information that would protect citizens.390 In addition, the Whistleblower Protection Act of 1989 protects Maclean, since he is a federal employee acting to promote public safety.391 Furthermore, federal employees are not the only people in the United States protected by the law. The everyday citizen is protected by the Fourteenth Amendment, which ensures equal protection under the law for every citizen.392 This allows for an employee of any company to speak out against wrongdoings within the office without penalty, discrimination, or any retaliation, since such attacks would be deemed illegal and in violation of said worker’s rights.393 It is just to serve the greater good; it is a just action when done with the correct intentions; and, it is a just action when one works to protect others against injury.394 Thus, serving the greater good is protected by law. ***

390

Marcus Tullius Cicero, De Officiis, § 1-19., Bk. 1 (45 BC); Department of Homeland Security v. Maclean, 572 U.S. 1114 (2015). 391 Whistleblower Protection Act, 15 U.S.C. § 2087 (2011). 392 U.S. CONST. amend. XIV, § 1. 393 See 29 U.S.C § 218c (1938). 394 See Marcus Tullius Cicero, De Officiis, § 1-121, Bk. 1-3 (45 BC).

NOTE #METOO, MEET INCLUSIVITY: CRIMINAL PROCEDURE IN SEXUAL ASSAULT CASES SHOULD INCLUDE PEOPLE WITH INTELLECTUAL DISABILITIES Mercy Adoga * 395

This Note explores the legal history of criminal law involving sexual assault cases of persons with intellectual disabilities from 1989 to the present day. The nuances of this legal history will be analyzed through the lens of State v. Scherzer, otherwise known as the Glen Ridge case of 1989. This Note will analyze the effect the Glen Ridge case had on later cases, and how the criminal justice system continues to treat intellectually disabled survivors of sexual assault. Statistics show that people who have intellectual disabilities are more likely to be sexually assaulted, and that the conviction rate for these cases is lower than those without intellectual disabilities. The third legal principle of the rule of law states that the law must be administered fairly and impartially, regardless of race, color, religion, ethnicity, gender or disability. This Note argues that the third legal principle of the rule of law in the United States may exist de jure in the cases of people with intellectual disabilities, but it may not exist de facto. Due to this trend and its inherently negative effects, policy changes need to be made regarding investigative and courtroom procedures. I. INTRODUCTION…………………………………………..……….....…....72 A. The Implications of the Definition of Consent in Intellectual Disability Sexual Assault Cases………....…......................................73 II. IMPACT OF THE GLEN RIDGE CASE OF 1989…………….……..…….......74 A. Treatment of Intellectually Disabled Victims Can Lead to Witness Tampering.........................................................................................76 B. The Psychological State of the Victim and Its Effects on the Trial...77 C. The Misguided Treatment of the Intellectually Disabled in the * B.A. Candidate for Political Science, Fordham University, Class of 2020. I would like to thank God, my family, friends (and elder brother in particular who leads by example in his legal education). Human rights do not just include racial, gender, and religious rights. It includes the rights of those with disabilities. We must recognize that identities often intersect and are not mutually exclusive. We can consider human rights as inherent and inclusive if people with disabilities are provided with fair treatment under the law. 395

#METOO, MEET INCLUSIVITY

[Vol. 1

Courtroom...........................................................................................78 III. CONCLUSION………………………………….………..………............79 I. INTRODUCTION In recent years, survivors have felt empowered to speak freely about their sexual assault.396 The explosive sexual assault allegations made against fallen Hollywood mogul Harvey Weinstein has elevated conversations about the prevalence and frequency of sexual assault. This is evidenced by the viral hashtag #MeToo used on Twitter by survivors who have felt emboldened to share their sexual assault experiences and traumas.397 Despite recent popularity, the #MeToo movement, created by Tarana Burke on MySpace in 2006, has typically omitted the voices of those in the intellectual disability community. Generally, federal and state courts define people with intellectual disabilities as those diagnosed with a condition that includes “below average intellectual function and a lack of skills necessary for daily living.”398 Psychologists believe that intellectual disability is characterized by limitations in intellectual functioning and adaptive behavior. These limitations result in the need for a support system to help intellectually disabled persons participate in everyday life activities.399 Even with such a support system, there are uncountable challenges that intellectually disabled people face. Studies show that people with intellectual disabilities are more likely to be sexually assaulted.400 According to the National Center for Victims of Crime, individuals with a disability were more likely to be victims of “violent victimization” than individuals who did not have a disability.401 Like other victims, the intellectually disabled are hesitant to come forward because they fear being either discredited or reporting their abuser. Victims with intellectual disabilities are also reluctant to come forward because of the pressures they may face from community members. This logic is sound: 396 See Bonnie Wertheim, The #MeToo Moment: Covering 'The New Red Carpet, THE NEW YORK TIMES, 7 Jan. 2018, <https://www.nytimes.com/2018/01/06/us/the-metoo-momentcovering-the-new-red-carpet.html>. 397 Id. 398 FAQs on Intellectual Disability, AMERICAN ASSOCIATION ON INTELLECTUAL AND DEVELOPMENTAL DISABILITIES, <www.aaidd.org/intellectual-disability/definition/faqs-onintellectual-disability>. 399 Id. 400 Joseph Shapiro, The Sexual Assault Epidemuc No One Talks About, NPR, 8 Jan. 2018, <https://www.npr.org/2018/01/08/570224090/the-sexual-assault-epidemic-no-one-talksabout>. 401 Crimes Against People with Disabilities, THE NATIONAL CENTER FOR VICTIMS OF CRIME, 2018, <ovc.ncjrs.gov/ncvrw2018/info_flyers/fact_sheets/2018NCVRW_Victims WithDisabilities_508_QC.pdf>. This research was compiled over a four-year period.

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

discreditation tactics are often brought forth by the defense. Another reason that prevents victims from reporting is the fact that law enforcement officers and lawyers can at times be misguided in their attempts to help victims with intellectual disabilities because they sometimes lack the training needed to assist these victims.402 The issue of consent is difficult to assess in cases of sexual assault involving people with intellectual disabilities since the psychology of victims with intellectual disabilities differs from those who do not have such an inhibition. In cases where the victim cannot speak, the issue of consent becomes even more difficult to handle. If the victim cannot speak, it is no longer a situation of hearsay. Rather, the case becomes entirely dependent on the word of the abuser. According to one of the legal principles of the rule of law, the law should be administered fairly and impartially regardless of race, gender, and physical disability. Yet, the Glen Ridge case and the following cases display the discrepancies in the sexual assault cases involving victims who have an intellectual disability as opposed to victims who do not have an intellectual disability. As such, because of the third legal principle of the rule of law, and because there is a systemic issue of unequal treatment among intellectually disabled victims, there should be national legislation to promote training in sexual assault cases involving people with intellectual disabilities. This Note will lay the foundation for such legislation. A. The Implications of the Definition of Consent in Intellectual Disability Sexual Assault Cases On March 1st, 1989, a seventeen-year-old girl referred to as M. G. went to Carteret Park in Glen Ridge, New Jersey.403 According to M. G., she ran into boys from her school: Christopher Archer, Grober, Quigley and twin brothers Kevin and Kyle Scherzer. She stated in the trial that Grober said if she followed them into his basement, she would get to go on a date with a boy named Paul.404 M. G. then followed the boys into the basement where they instructed her to masturbate, and perform fellatio on each of them.405 M. G. stated that she allowed Kevin, Grober and another friend of the boys, Corcoran to penetrate her with foreign objects.406 Additionally, four of the boys sucked on her breasts.407 Before leaving, the boys instructed M. G. not 402

See Joseph Shapiro, How Prosecutors Changed The Odds To Start Winning Some Of The Toughest Rape Cases, NPR, 16 Jan. 2018, <https://www.npr.org/2018/01/16/577063976/its -an-easy-crime-to-get-away-with-but-prosecutors-are-trying-to-change-that>. 403 State v Scherzer, 301 N.J. SUPERIOR COURT OF NEW JERSEY, 363. 404 Id. 405 Id. 406 Id. 407 Id.

#METOO, MEET INCLUSIVITY

[Vol. 1

to say anything to anyone or else she would get in trouble.408 M. G. did not leave the basement until all the boys left, and she later told her swim instructor what happened.409 She expressed her hesitation to talk about the incident because she did not want to get the boys in trouble, and believed them to still be her friends after the incident.410 Throughout the legal process, M. G. recanted statements about the incident because she worried about the boys not wanting to be her friend.411 A friend of the boys, named Ferraez, took M.G. out for ice cream and secretly taped their conversations while she tried to persuade M.G. to change her story.412 The tapes were redacted and played for the jury, after Rape Shield Law hearings. Expert witnesses called to the stand testified that Ferraez was trying to lead M.G..413 By the end of the trial, the boys were convicted of sexual assault in the second degree in 1993.414 Both defense and prosecution made M.G.â&#x20AC;&#x2122;s intellectual disability central to core arguments in their cases.415 The defense portrayed M.G. as a sexual aggressor while claiming that her intellectual disability did not prohibit her from consenting to sex, rather it lowered her inhibitions toward sex. The prosecution team claimed that since M.G. had an intellectual disability, she could not consent to sex nor could she understand it.416 The Glen Ridge case is one of the first instances in the United States where a sexual assault case involving a victim with an intellectual disability was successfully prosecuted.417 Both the defense and prosecution made M.G.â&#x20AC;&#x2122;s intellectual disability central to the arguments throughout the case.418 II. IMPACT OF THE GLEN RIDGE CASE OF 1989 Since Glen Ridge, the United States has had countless sexual assault cases involving people with intellectual disabilities and other ranges of disabilities.419 This is true in State v. Estime where an intellectually disabled woman in Boynton, Florida was raped.420 In 2004, prosecutors suspected that the woman had been raped because she became pregnant, but since she could 408

Id. State v Scherzer, 301 N.J. SUPERIOR COURT OF NEW JERSEY, 363. 410 Id. 411 Id. 412 Id. 413 Id. 414 Id. 415 See id. 416 See id. 417 See id. 418 See id. 419 See Justin Jouvenal, A Caregiver Raped Two Intellectually Disabled Women, Police Say. Both Gave Birth to Children, THE WASHINGTON POST, 2 Mar. 2019. 420 State v. Estime, 259 So. 3d 884. 409

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

not speak, the suspect denied the charge.421 The case went cold until 2016, when the police reopened the case and ran the suspect’s DNA.422 His DNA was a match to the woman’s rape, and so the police arrested him.423 However, in November of that year the trial court freed the suspect, ruling that police waited too long to do DNA testing and that the statute of limitations ran out.424 This decision was later repealed in 2017 and the perpetrator was arrested in 2019.425 Consent is not universally defined in the United States and varies by state. According to Florida Statutes § 794.011, consent is defined as: [...] intelligent, knowing, and voluntary consent and does not include coerced submission. ‘Consent’ shall not be deemed or construed to mean the failure by the alleged victim to offer physical resistance to the offender.426

Even though Florida clearly defines consent, other states – like Virginia – do not provide a clear definition of consent. However, it is against the law to engage in any form of sexual contact with an intellectually disabled person in Virginia, Florida, and New Jersey.427 These statutes have several negative implications because of their approaches to people with intellectual disabilities. People with intellectual disabilities vary functionally on a spectrum, thus these statutes assume that people with intellectual disabilities cannot consent to sex even when they want to. There needs to be clearer and more specific laws that are able to recognize when a person with an intellectual disability has consented to sex and when they have not. By having statutes that outlaw any sexual contact with an intellectually disabled person, the courts are violating the third legal principle of the rule of law by not treating people with intellectual disabilities fairly. The conviction rate in sexual assault cases involving victims with intellectual disabilities is still low despite these statutes that outlaw sexual contact with intellectually disabled people.428 State v. Estime displays the problem of how consent is legally defined across the United States; the definition leaves no room for the courts to decide the cases on the actual facts of the case and fails to acknowledge how the spectrum of intellectual disabilities affects consent.429

421

Id. State v. Estime, 259 So. 3d 884. 423 Id. 424 Id. 425 Id. 426 46 Fla. Stat. § 794.011 (2019). 427 See id. 428 See Crimes Against People with Disabilities, supra note 7. 429 See State v. Estime, 259 So. 3d 884. 422

#METOO, MEET INCLUSIVITY

[Vol. 1

A. The Treatment of Intellectually Disabled Victims Can Lead to Witness Tampering Nancy Thaler, deputy secretary of Pennsylvania’s Department of Human Services, stated in an NPR article that people with intellectual disabilities “are generally taught from childhood up to be compliant, to obey, to go along with people.”430 This is especially relevant in cases of sexual assault because victims that have an intellectual disability can be easily persuaded to not report assault, or to drop charges. This pressure can come from the perpetrators’ families, friends or legal counsel, as well as the perpetrators themselves, and can greatly affect the victim throughout the legal process. For example, in the case of Glen Ridge, M. G. recanted multiple times, and later testified that she did so due to the urging of people from her town, and that she did not want to get the boys who assaulted her in trouble. Studies completed by NPR show that people with an intellectual disability are generally eager to please, and this can make them hesitant to come forward.431 More recent studies completed by the U.S. Department of Justice show that in most cases of sexual assault the victims are assaulted by people that they know and even trust, which makes the thought of testifying against them in court dramatically more difficult for them.432 When victims take a long time to come forward, defense attorneys can use the victim's hesitance as evidence of dishonesty. Since people with intellectual disabilities are taught to be obedient from a young age, it follows that they can be easily swayed into changing their story. This pressure may be evident either in their statement for the police report or in their court testimony. Witness tampering is defined as when a person: [...] knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to – influence, delay, or prevent the testimony of any person in an official proceeding.433

Although people from the community in Glen Ridge and Virginia did not use physical force, one could argue that they misled the victim in order to manipulate their testimony. The way a police officer approaches an intellectually disabled victim can lead to witness tampering; this is best seen in their occasional treatment of the intellectually disabled as “children.” Police officers often take victims with an intellectual disability to interview rooms designed for children.434 430

Joseph Shapiro, supra note 6. Id. 432 Id. 433 18 U.S.C. § 1512 subsection B. 434 Joseph Shapiro, supra note 8. 431

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

The officers tend to ask abstract questions, instead of literal and specific questions, that can be hard for people with an intellectual disability to understand.435 The legal third principle of the United States rule of law states that the law must be administered fairly and impartially, regardless of race, color, religion, ethnicity, gender or disability.436 The way police officers and lawyers tend to approach people with intellectual disabilities violates the third legal principle of the rule of law because these tactics better apply to children than intellectually disabled adults. B. Psychological State of the Victim and Its Effects on the Trial Those with intellectual disabilities already face biases outside of the courtroom.437 While they are often considered “slow”438 by some individuals,439 they are generally seen as equal to those without intellectual disabilities.440 Rather, people with intellectual disabilities may function in a way that is different, but not insufficient.441 Those who have an intellectual disability and use vocabulary that is not equal to their age still have the ability to remember traumatic experiences, such as rape.442 This means that people with intellectual disabilities communicate differently than those without such disabilities. When defense attorneys in the Glen Ridge case, as well as the State v. Estime,443 could no longer dispute that a sexual act took place, they moved to trial to plead their clients’ cases taking an affirmative defense. The boys in the Glen Ridge case claimed that M. G. behaved in a sexual nature on her own, and even came onto them.444 The implication being that even if M. G. did not understand the situation, it did not mean that she did not want the boys to commit sexual acts upon her. The court allowed M. G.’s sexual 435

Id. What Is the Rule of Law? WORLD JUSTICE PROJECT, <worldjusticeproject.org/aboutus/overview/what-rule-law>. 437 See Michelle Diament, Netflix Defends Use Of 'Retarded,’ DISABILITY SCOOP, 24 Sep. 2018, <https://www.disabilityscoop.com/2018/09/24/netflix-defends-use-ofretarded/25536/>. 438 See Chris P. Johnson and William O. Walker, Mental Retardation, PEDIATRICS IN REVIEW, July 2006. <http://pedsinreview.aappublications.org/cgi/reprint/27/7/249>. 439 See Michelle Diament, supra note 43. 440 FAQs on Intellectual Disability, AMERICAN ASSOCIATION ON INTELLECTUAL AND DEVELOPMENTAL DISABILITIES, <www.aaidd.org/intellectual-disability/definition/faqs-onintellectual-disability>. 441 Id. 442 Joseph Shapiro, From The Frontlines Of A Sexual Assault Epidemic: 2 Therapists Share Stories, NPR, 18 Jan. 2018, <https://www.npr.org/2018/01/18/577065301/from-thefrontlines-of-a-sexual-assault-epidemic-two-therapists-share-stories>. 443 See State v. Estime, 259 So. 3d 884. 444 State v Scherzer, 301 N.J. SUPERIOR COURT OF NEW JERSEY, 363. 436

#METOO, MEET INCLUSIVITY

[Vol. 1

history to be a part of the record, calling her former guidance counselor to testify. The counselor testified that M. G. had said things of a sexual nature during lunch, and was touched by someone in her schoolâ&#x20AC;&#x2122;s cafeteria.445 The guidance counselor tried to explain to M. G. that she had the right to say no to people who ask her to commit sexual acts, but she claimed that M. G. did not understand the concept.446 According to M. G., she did not know she could say no to her friends.447 Through the cross-examination of Dr. Gerald Meyerhoff, a psychiatrist, he testified that even though M. G. may have understood that she was engaging in sexual conduct, she did not understand that she had the right to refuse the boys.448 Furthermore, it was also argued that because M. G. did not understand the right to refuse, she did not see what the boys did to her as coercion because she only understood coercion as the use of physical force.449 C. Misguided Treatment of the Intellectually Disabled in the Courtroom Many people with intellectual disabilities think in ways that are more literal. Abstract concepts such as euphemisms, metaphors, or even hypothetical questions can be quite confusing.450 Oftentimes in court and under pressure, people with intellectual disabilities can have trouble putting the correct event into a proper time sequence.451 The issue is that while lawyers can regularly pose abstract and hypothetical questions in the courtroom, a person with an intellectual disability will not understand it in the same way a person without an intellectual disability will understand. If the law was applied fairly to all people regardless of disability, then people with intellectual disabilities should be questioned in a manner that would be easier for them to understand. Indeed, both the defense attorneys and the prosecution share a common approach in the courtroom: they both claimed that M. G. 's limitations from her intellectual disability played a role in the events leading up to and during the assault. However, both accounts do not paint a fair picture of the victim to the jury. On the one hand, the defense paints her as a sexual aggressor,452 who not only understood sexual acts but also craved them by evidence of her past sexual experiences. On the other hand, the prosecution argued that M. G.'s limitations were a result of her intellectual disability and could not understand the ability to say no because 445

Id. Id. 447 Id. 448 Id. 449 Id. 450 See Joseph Shapiro, supra note 8. 451 Id. 452 Id. 446

2020]

FORDHAM UNDERGRADUATE LAW REVIEW

she was desperate for friendship. Both sides described M. G. as an aggressor or vulnerable girl unaware of the situation. However, M. G. knew enough to tell someone what happened to her. The reason why both approaches were problematic is that there is no middle ground of how they address the victim. Both approaches make it easy for people to generalize that those with an intellectual disability cannot consent at all. III. CONCLUSION Federal legislation like the American Disabilities Act of 1990 provides regulations for governments and businesses to follow regarding people with disabilities, but this legislation does not guarantee de facto equal treatment of people with disabilities. As determined in State v. Estime, there must be a balance in the investigative and legal proceedings involving people who have an intellectual disability. Not all people with an intellectual disability function the same. At the same time, the victim's mental capacity or hesitance should not call into question whether or not an assault occurred. Courts and police departments need training to ensure that victims with an intellectual disability feel comfortable to come forward when an assault has been committed. Rather than having investigators applying the same approach as they use for children, they should use literal and specific questions, all while letting the victim know that they can rephrase their questions. The courts, as well as the investigators, should not assume that just because some victims with intellectual disabilities do not say no during the assault, that they wanted the sexual act to happen. M. G.â&#x20AC;&#x2122;s desire for friendship was not a justification for her assault. To allow a perpetrator to walk free because a victim did not say â&#x20AC;&#x153;no,â&#x20AC;? or could not speak at all, would be a miscarriage of justice. Whether or not a victim with an intellectual disability can speak, they still have a voice. The courts and the criminal justice system need to empower victims to come forward and teach people to listen despite the difficulties presented. There needs to be mandatory training in which law enforcement officials learn about intellectual disabled victims and other forms of disabilities in order to help prepare them for these kinds of cases. The courts must also make clearer laws that recognize when people with intellectual disabilities are consenting to sex and when they are not. The criminal justice system needs to find a balance in their investigative and legal proceedings with all victims of sexual assault regardless of intellectual disability. While the #MeToo movement brought attention to the sexual assaults happenings of the entertainment industry, the movement must work to capture the extent of sexual assaults in the intellectual disability community. This can be achieved through a

#METOO, MEET INCLUSIVITY

[Vol. 1

reworking of the current investigative and criminal trial proceedings involving those with intellectual disabilities. ***

FORDHAM UNDERGRADUATE LAW REVIEW VOL. 1

FORDHAM.BEPRESS.COM/FULR

SPRING 2020