Fordham Undergraduate Law Review: Volume V Issue 2 (Spring 2022)

FORDHAM UNDERGRADUATE LAW REVIEW

FIFTH EDITION

NOTES

IS THERE A PLACE FOR GOD IN THE EXECUTION CHAMBER?

Nicholas Raptis

THE INADEQUACIES OF PERPETUAL CONTRACTS

Carlos Chacin Ferro

THE PEREMPTORY CHALLENGE AND FAIR RACIAL REPRESENTATION ON AMERICAN JURIES

Danielle Poole

FEMALE GENITAL MUTILATION: THE ICC AND HUMAN RIGHTS VIOLATIONS

Daymara Rodrigues

BREAKING OUT OF OUTDATED LAW: REFORMING DATA PROTECTION LAWS

Samantha Scott NOT A SLAVE 4 U

Jack Hayes

CROSSING THE FINAL PICKET LINE: LABOR UNIONS’ BOUNDARIES

Amy Herd

CONVERSION THERAPY LEGISLATION

Dylan Ayer

INACCESSIBILITY IN THE MTA

Sasya Koneru & Ethan Dubinsky

PROTECTING THE RIGHT TO VOTE FOR MINORITY COMMUNITIES

Nadia Blouin

Tyler Raciti

FORDHAM UNDERGRADUATE LAW REVIEW

FALL 2020

SPRING 2022

Edited by the Undergraduates of Fordham University

Undergradlawreview.blog.fordham.edu

LETTER FROM THE EDITOR-IN-CHIEF

VOL. 5 SPRING 2022 NO. 2

May 22, 2022

Dear Reader:

It is our honor to introduce Volume V Issue 2 of the Fordham Undergraduate Law Review (FULR). This issue, the Breyer Edition, is named in honor of recently retired Supreme Court Justice Stephen Breyer, who remained committed to the exactness of justice, the perfectibility of the legal system, and honest decision-making.

Each semester, FULR provides a unique opportunity for Fordham students to not only explore their interest in law but also to contribute their voices, outlooks, and well-founded opinions to the legal field. This semester, we are emphatically impressed with our writers’ abilities to employ their reasoning, research, and writing skills to craft legal arguments. FULR’s writers have answered complex questions posed to them through legal debates happening around the world while also questioning proposed solutions, analyzing different viewpoints, and criticizing injustice.

We are particularly proud of the array of topics students chose to focus on for this publication. This publication focuses on both local issues, such as the Metropolitan Transit Authority’s potential violations of the Americans with Disabilities Act, and international issues, such as the ways in which international law can address female genital mutilation. This volume also spans areas of constitutional law, contracts, labor laws, discrimination, voting rights, and criminal law. We could not be more proud of our writers’ dedication to ensuring their viewpoints are well-educated and well-evidenced and that their opinions provide meaningful contributions to the wide variety of topics they chose to research and write about.

We owe tremendous thanks to our fellow Editorial Board members, April Gore, Arianna Chen, Anthony Vu, Madalyn Stewart, Jonathan Katz, and Thomas Murray, for their dedication to and enthusiasm for FULR. We would also like to thank everyone in the Fordham University community who has made this volume possible. We owe special thanks to Father Brendan Horan, our faculty advisor, and to Tatiana Hyman, the Editor-in-Chief of Volume 89 of the Fordham Law Review for their continued support. Please do not hesitate to reach out to the Editorial Board at fulr@fordham.edu to share your comments.

Sincerely,

Reeve Churchill, President & Co-Editor-in-Chief, 2021-2022

Caroline Morris, Co-Editor-in-Chief, 2021-2022

THE FINAL PICKET LINE: HOW THE LEGAL SYSTEM IS DISREGARDING LABOR UNIONS’ BOUNDARIES

RIGHT TO VOTE FOR MINORITY COMMUNITIES: ON THE IMPORTANCE OF THE COVERAGE FORMULA AND PRECLEARANCE

VOL. 5

MASTHEAD

SPRING 2022

EDITORIAL BOARD

REEVE CHURCHILL President & Co-Editor-in-Chief

ARIANNA CHEN

Co-Managing Editor

MADALYN STEWART

Executive Notes Editor

THOMAS MURRAY

Executive Layout Editor

NO. 2

CAROLINE MORRIS Co-Editor-in-Chief

APRIL GORE

Co-Managing Editor

ANTHONY VU Executive Online Editor

JONATHAN KATZ

Business Administrator

BUSINESS ADMINISTRATOR ASSISTANTS

ELIZABETH LEBCI ETHAN DUBINSKY

ALLEYAH ALLY

MARIEME BARRY

AHAN DHAR

SENIOR EDITORS

ANDREW FALDUTO

KEVIN JAMES

CHRISTOPHER KERRANE

ELIZABETH LEBCI

STAFF WRITERS

NICOLETTA LOUKAS

MARGARITA MCCOY

OLIVIA LILLEY

DANIELLE BARBER

NADIA BLOUIN

AHAN DHAR

ETHAN DUBINSKY

CARLOS CHACIN FERRO

JACK HAYES

AMY HERD

BRIAN T. INGUANTI

EMMA KIM

SASYA KONERU

DANIELLE POOLE

FATHER BRENDAN HORAN, S.J. Faculty Advisor

NICHOLAS RAPTIS

DAYMARA RODRIGUES

ELI SALOMON

JOHN SCHNEIDER

SAMANTHA SCOTT

APHRODITE STAMBOULOS

HILLARY MANTIS, J.D. Faculty Mentor

VOL. 5

MISSION

SPRING 2022 NO. 2

The Fordham Undergraduate Law Review (FULR) is an entirely student-run, scholarly journal at the undergraduate level for 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 they relate 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 pre-law networking events with distinguished Fordham alumni. Learn more about opportunities to join our team by emailing fulr@fordham.edu.

INSTITUTIONAL PARTNERS

ROSE HILL DEAN’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 V, Issue 2, 2022

https://research.library.fordham.edu/fulr

IS THERE A PLACE FOR GOD IN THE EXECUTION CHAMBER?: HOW PRISONS LIMITED SPIRITUALITY FOR DEATH ROW INMATES

Nicholas Raptis*

Inmates in American prisons forfeit many of their constitutional rights upon incarceration. Federal legislation, such as the Religious Land Use and Institutionalized Persons Act of 2000, guarantee prisoners limited rights, yet restrictions beyond basic con finement to the prison facility are still legally placed upon inmates. States have an official interest in keeping prison personnel and prisoners safe, which promotes the imposition of certain precautionary measures. Inmates on death row face harsher restrictions than most, given the magnitude and complexity of capital punishment. To ensure a successful procedure, prisons restrict the number of people involved, including those able to attend the execution; in some instances, this leaves prisoners with minim al, if any, options for spiritual advisors to guide them through the execution process. The U.S. Supreme Court originally upheld a prison's right to exclude spiritual advisors in Dunn v. Ray (2019). Mere months later, the Court decided that the prohibition of one’s right to spiritual advisors violated the Constitution in Murphy v. Collier (2019). These conflicting cases left an unclear precedent for prisons to follow and left prisoners on death row unsure whether their First Amendment religious freedoms were protected. The Court has only recently settled this issue in Ramirez v. Collier (2022), which decided that prisons must make accommodations for inmates on death row to access spiritual advisors of their own religion. This Note will examine the Supreme Court’s conflicting decisions regarding inmates’ rights on death row, as well as the continual struggles that death row inmates face to protect their constitutional rights.

* Political Science Major with a Minor in Visual Arts. Fordham University Rose Hill, Class of 2023. Taking part in the Fordham Undergraduate Law Review was one of the most difficult yet rewarding things I have done in my collegiate career. I want to thank my Senior Editor, Olivia Lilley, for assisting me in the process and providing me with vital feedback.

I. INTRODUCTION

The concept of religious freedom for all is a fundamental and foundational principle that the United States of America is built upon evidenced by its inclusion in the First Amendment to the U.S. Constitution. 1 The First Amendment includes the Establishment and Free Exercise Clauses, which prohibit the government from mandating a specific religion for the people, and further ensure that there are no regulations on how one practices their religion. 2 The first section of the Fourteenth Amendment extends these protections beyond the federal level, preventing state governments from infringing upon these rights.3 The Fourteenth Amendment affords all citizens the “equal protection of laws,” which is vital to consider when dealing with discrimination in the treatment of various religious persuasions.4

These religious privileges and protections apply to all Americans, even for those on death row potentially facing capital punishment. The passage of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) upheld this argument, as the Act explicitly states that “[n]o government shall impose a substantial burden on the religious exercise of a

1 U.S. CONST. amend. I.

2 Id

3 U.S. CONST amend. XIV, § 1; see Cantwell v. Connecticut, 310 U.S. 296 (1940) (incorporating the Free Exercise Clause); see Everson v. Board of Education, 330 U.S. 1 (1947) (incorporating the Establishment Clause).

4 Id.

person residing in or confined to an institution.”5 However, the qualifying term “substantial” leaves room for some restrictions to be placed on inmates.

In Turner v. Safley (1987), the Court ruled that prisons can be justified in the constraint of inmates’ First Amendment rights.6 After Turner, prisons followed the standard to see limitations as “reasonable” when scrutinized. 7 This standard changed after the passage of The Religious Freedom Restoration Act (RFRA) (1993), which reaffirmed the free exercise of religion as an inalienable right, and also laid out the requi rements for governments to limit this right.8 Under this law, states must meet a higher burden, showing that their actions were reasonable and demonstrating that there was a “compelling governmental interest” that required limitations on prisoner freedoms.9 Concerning executions, the Act discerned that it is in the government’s interest to ensure the safety of prison employees and the humane death of the inmate. The restrictions enacted to achieve these interests must constitute “the least restrictive means” to protect the inmate’s rights to the greatest extent possible.10.

This Note will examine the religious protections provided for prisoners in the United States, specifically those on death row who wish to interact with a spiritual advisor of their choice at the time of their execution. The third section will look to determine whether prison regulations intended to limit access to these advisors are constitutional. The fourth section will examine efforts to repeal the death penalty and the ways in which reform may benefit current inmates. This Note will conclude by arguing that the Supreme Court has set a clear precedent on the matter in Ramirez v. Collier (2022), ultimately requiring states to make reasonable accommodations to all religious persuasions that do not conflict with the compelling government interest to perform a safe and controlled execution. This Note also explores how this impacts future reform efforts.

5 Religious Land Use and Institutionalized Persons Act of 2000, Pub. L. No. 106-274, 114 Stat. 803.

6 Turner v. Safley, 482 U.S. 78 (1987).

7 Id. at 86.

8 Religious Freedom Restoration Act of 1993, Pub. L. No. 103 -141, 107 Stat. 1488.

9 Id. at 1489.

10 Id.

II. CONFLICTING CASES

Although cases concerning the issue of prisoners’ rights have come before the Supreme Court for centuries, it is only as of recently that the Court has heard cases concerning the role of religious advisors in the execution chamber. Most jurisdictions limit the number of accepted individuals present at an execution, primarily for precautionary reasons. Beyond those administering the lethal injection, few people are allowed access to even view the process, let alone stand in the execution chamber. One protocol sheet for single-drug lethal injection states that members of the execution team must be “directly involved in performing tasks critical or necessary to carrying out” the procedure.11 The same guidelines apply to non-execution team personnel that are involved in the process, including ministers and religious chaplains.12

Although religious advisors are not directly involved i n the administration of lethal injection, their presence may still be necessary for the inmate. It has been documented that the extreme conditions of being incarcerated on death row often push inmates toward religion. 13 Therefore, it can be assumed that these same inmates would reasonably want religion to be involved in some capacity as they reach their final moments of life. 14 The Court has recently faced an increasing number of issues regarding the role and involvement of religion within the execution room.

A. Dunn v. Ray

The first case concerning spiritual advisors for death row inmates that reached the Supreme Court was Dunn v. Ray (2019). Domineque Hakim Marcelle Ray was set to be put to death for the robbery, rape, and murder

11 Execution Procedure Manual for Single Drug Protocol (Pentobarbi tal), NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY (Sept. 25, 2015), https://files.nc.gov/ncdps/documents/files/Protocol.pdf

12 Id.

13 David Lynch, Religious Coping Mechanisms of Death Row Inmates at 5, UNIVERSITY OF ALBANY SOCIOLOGY (2016), https://scholarsarchive.library.albany.edu/cgi/viewcontent.cgi?article=1003&context=hon orscollege_sociology.

14 Geysel M. Gómez Lozada, May I Hold Onto My God As I Die?: An Analysis on a Death Row Inmate's Right to Spiritual Advisors Inside the Execution Chamber , 7 LINCOLN MEM’L U. L. REV. 90, 106 (2020).

of a fifteen-year-old girl in Alabama.15 Ray requested a stay of execution after the state denied his request to have a Muslim imam present in the execution room.16 Ray also requested that the state-employed chaplain who was a Christian not be present in the execution room, which is usually protocol.17

Ray framed the state’s actions as violations of his religious rights under the Establishment Clause insofar as the state endorsed a specific religion by only providing inmates access to these limited spiritual advisors. The Supreme Court ultimately ruled to vacate the defendant’s stay of execution in a 5-4 decision.18 However, the Court failed to set a clear precedent with this ruling as to whether spiritual advisors of choice were to be allowed for inmates on death row. Since the “only reason the Supreme Court provided for dissolving the stay was that Mr. Ray had waited too long to allege the Establishment Clause claim,” it was unclear whether Ray would have received a different decision should he have filed his claim sooner than two months before his scheduled execution.19 Regardless, Ray was executed on his scheduled date with no religious advisors present in the room.20

B. Murphy v. Collier

The Court would hear a similar case in Murphy v. Collier (2019), not even two months after Ray was executed. Patrick Henry Murphy Jr. was involved in the murder of a Texas police officer after he escaped from prison with six other inmates.21 Murphy and his co-conspirators were caught and subsequently sentenced to death; four of them were already executed before Murphy’s scheduled date.22 Murphy requested that a Buddhist advisor be

15 Memorandum Opinion and Order at 1, Ray v. Dunn, No. 2:19-CV-88-WKW (M.D. Ala. 2019).

16 Id. at 6.

17 Id.

18 Dunn v. Ray, 139 S. Ct. 661, 661 (2019).

19 Lee Kovarsky, Delay in the Shadow of Death , 95 N.Y.U. L. REV. 1322, 1333 (2020).

20 The state was willing from the beginning to exclude the state employed Ch ristian chaplain from the process. Ray's assertion of a violation of the Establishment Clause was moot once the state agreed to remove the Christian advisor.

21 Caroline Koch, Dead Wrong: Texas Tests the Free Exercise Clause and Religious Land Use and Institutionalized Persons Act By Banning Spiritual Advisors From Execution Chambers, 69 AM U. L. REV F. 125, 127 (2020).

22 Id.

present in the execution room with him as he was executed, but was denied, as up to that point, Texas only allowed Christian or Muslim advisors.23

In his petition for a stay of execution, Murphy cited violations of both the Equal Protection and Establishment Clauses.24 The additional assertion of an equal protection claim, among other things, distinguished his case from Dunn. The Supreme Court ruled 7-2 in favor of allowing a stay of execution, with only Justices Clarence Thomas and Neil Gorsuch dissenting.25 The majority opinion stated that the refusal to provide spiritual advisors for non-Christian and non-Muslim inmates amounted to “denominational discrimination” and therefore violated the Constitution.26 Murphy is alive as of June 2022 and will remain so “pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber.”27

C. Differing Opinions for Similar Cases

Although Dunn v. Ray and Murphy v. Collier called upon the Supreme Court to rule on similar issues, the rulings handed down were markedly different; this set forth an unclear precedent to interpret today. Both cases essentially involve a prisoner requesting a spiritual advisor of their choice to accompany them in the execution chamber. Despite the similarities, Ray was executed without an imam present, and Murphy had his stay of execution affirmed. 28 It appears that the opinions are dissimilar, not due to the case matter, but rather due to the manner in which the petitions were filed. Indeed, the majority opinion in Dunn turns not on any violation of religious freedoms but on Ray’s untimely filing of his petition only ten days before his execution date.29 By contrast, Murphy filed his petition over a month before his scheduled date of execution. 30

23 Id. at 128.

24 Murphy v. Collier, 139 S. Ct. 1111, 1112 (2019).

25 Id.

26 Id.

27 Id.

28 Gómez Lozada, supra note 15, at 107.

29 Memorandum Opinion and Order at 5, Ray v. Dunn, No. 2:19 -CV-88-WKW (M.D. Ala. 2019).

30 Memorandum Opinion and Order at 2, Murphy v. Collier et al., No. 4:2019cv01106 (S.D. Tex. 2019).

The length of time between the defendants’ petitions and their execution dates clearly impacted the Court’s decisions. Justice Samuel Alito voiced concerns about the timeliness of the petitions in commenting that “inexcusably late stay applications present a recurring and important problem.”31 By allowing a stay of execution for Ray, the Court would set a dangerous precedent for future inmates on death row to file a last -minute petition.

The Court’s wariness toward late stay petitions allowed a conflicting judgment to be handed down in a similar case only months after Ray. If timeliness were not a pertinent factor in these cases, the Court’s decisions may have aligned in both Ray and Murphy. The dissenting opinion “addresses that while the circuit court thought that there was a substantial likelihood that the prison's policy violated Mr. Ray’s First Amendment rights, the Supreme Court did not even address this issue, and instead denied relief on the grounds of timeliness.”32

The defendants also cited different violations in their petitions, which potentially makes the timeliness debate moot. Justice Brett Kavanaugh made a point to mention in his concurrence in Murphy that although the district court originally approved Ray’s stay of execution based on an equaltreatment claim, Ray himself “did not raise an equal-treatment argument in the District Court or the Eleventh Circuit.”33 Ray instead raised concerns based on the RLUIPA and the Establishment Clause of the First Amendment.34

Justice Kavanaugh also weighed in on the latter two points in his Murphy opinion, stating that the Establishment Clause claim was void once the state agreed to remove the Christian chaplain, and that the RLUIPA claim was void because the state holds a compelling interest to secure the execution room.35 While the differences are minimal, they resulted in the death of one man and the continued life of another. If Ray had cited a different violation and done so more than two months prior to his execution, the Court may have ruled differently. Inmates must act as punctual ly,

31 Murphy, 139 S. Ct. at 1112. Although timeliness seems to be particularly important for Justice Alito, he is not alone in his concerns. Justice Kavanaugh, who ruled in favor of a stay of execution for Murphy, ended his concurrence in that case with a message that people in similar circumstances should be warned to file their actions in a timely manner.

32 Gómez Lozada, supra note 15, at 106.

33 Murphy, 139 S. Ct. at 1112.

34 Memorandum Opinion and Order at 5, Murphy v. Collier et al., No. 4:2019cv01106 (S.D. Tex. 2019).

35 Murphy, 139 S. Ct. at 1112 (2019).

concisely, and diligently as possible when filing a petition to ensure their requests can be accommodated within the regulations set by the government and prison institutions.

III. STATE JUSTIFICATION

The ultimate punishment a state can impose upon a person is the removal of their right to life. There is no doubt that “a prisoner’s execution is a solemn moment that must be performed with the utmost seriousness and respect.”36 With this in mind, it is understandable that executions must follow strict protocols to ensure a humane, accurate, and thorough process. However, it is not clear to what extent these necessary restrictions may also “abridge the right of an individual to a dignified death.” 37 Issues arise as states try to find a balance between maintaining secure executions and preserving inmates’ constitutional rights.

A. Strict Scrutiny

From United States v. Carolene Products Company (1938), a case concerning the intricacies of “filled milk,” emerged one of the most influential pieces of writing in Supreme Court history.38 Footnote Four, as it is now widely known, set a new framework for courts’ exercise of the power of judicial review.39 Courts apply the “strict scrutiny” test to evaluate laws under certain circumstances, such as those that would be deemed unconstitutional or in violation of civil liberties. 40 Under the strict scrutiny test, the state must establish that the contested legislation serves a “compelling government interest,” and is “narrowly tailored” to accomplish that interest so as not to impose unnecessary restrictions.41

With regard to spiritual advisors in the execution chamber, the compelling government interest would be ensuring the security of prison staff as well as the success of the procedure. Holt v. Hobbs (2015) relied on

36 Gómez Lozada, supra note 13, at 104.

37 Id. at 115.

38 United States v. Carolene Products Co., 304 U.S. 144 (1938).

39 Strict Scrutiny, CORNELL LAW SCHOOL LEGAL INFO INST., https://www.law.cornell.edu/wex/strict_scrutiny#:~:text=Strict%20scrutiny%20is%20a% 20form,sues%20the%20government%20for%20discrimination; Carolene Products Co ., 304 U.S. at 152 n.4.

40 Id.

41 Id.

the RLUIPA’s standard for prison justification, which ensures that the “least restrictive” means for stifling freedoms must be in place. 42 In Dunn, the prison justified only allowing a Christian chaplain in the execution room on the ground that he was the only spiritual advisor employed by the facility.43 The prison expanded upon this logic by stating the prison chaplain “is a trained member of the execution team, who has witnessed dozens of executions, is trained on how to respond if something goes wrong, and if he disobeys orders, would face disciplinary actions.”44 The same cannot be necessarily said for a private spiritual advisor who is unaf filiated with the prison and must be brought in.

B. Biased Compelling Interests

The role of religion as a coping mechanism for prisoners cannot be understated, especially for those on death row. 45 In Dunn and Murphy, it is clear that “[t]he right to say a final prayer and the right to hold the hand of your spiritual advisor as you die . . . are not extraordinary or burdensome requests. At least, it had not been before, not when it came from Christian inmates.”46 Refusal of the request for a spiritual advis or by those who practice a non-Christian religion violates the Establishment Clause, as the clause prohibits the government from endorsing or favoring any specific religion.47 As the rules in many prisons stand, members of certain religions will have access to more rights simply due to the arbitrary fact that a member of their given religion is employed by the prison.

It is also not entirely apparent that the state’s justification for limiting advisors based on security concerns is warranted. In her dissent in Dunn, Justice Kagan wondered “why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received?” 48 She further argued that the state did not provide a sufficient explanation as to why a spiritual advisor of Ray’s choice could not have been briefed on the execution proceedings and even taken an oath that would be punishable by

42 Holt v. Hobbs, 574 U.S. 352, 353 (2015).

43 Gómez Lozada, supra note 13, at 103.

44 Id.

45 Lynch, supra note 12, at 10.

46 Gómez Lozada, supra note 13, at 106.

47 U.S. CONST. amend. I.

48 Dunn, 139 S. Ct. at 662.

law if broken.49 Many prisoners wait upwards of two decades on death row before being given a scheduled date for their execution. 50 It is not inconceivable that at some point during this waiting period, the prison would be able to accommodate a death row inmate’s request for a specific advisor, should they file the claim in a timely manner.

IV. SIGNIFICANCE DURING REPEAL EFFORTS

According to a recent Gallup poll conducted nationwide, fifty -five percent of Americans are in favor of the death penalty, the lowest figure ever reported.51 Currently, states have discretion regarding the legality of the death penalty in their respective states.52 Furthermore, there is a federal death penalty that, although applied infrequently, has been carried out as recently as 2021.53 Only twenty-seven states in the United States continue to uphold capital punishment as a potential punishment for crime.54 Nonetheless, the United States has carried out over 1,500 executions since 1976.55 As of April 2022, three inmates have been put to death and twelve more are scheduled to be executed at some point during the year. 56 While these inmates represent a small minority of the incarcerated population of the United States, they are nonetheless entitled to the same rights as all other prisoners under the RLUIPA and the Constitution.

49 Id.

50 Kovarsky, supra note 18, at 1333.

51 Gallup Poll: Public Support for the Death Penalty Lowest in a Half-Century, DEATH

PENALTY INFORMATION CENTER (2022), https://deathpenaltyinfo.org/news/gallup -pollpublic-support-for-the-death-penalty-lowest-in-a-half-century.

52 State by State, DEATH PENALTY INFORMATION CENTER (2021), https://deathpenaltyinfo.org/state-and-federal-info/state-by-state.

53 Federal Death Penalty, DEATH PENALTY INFORMATION CENTER (2022), https://deathpenaltyinfo.org/state-and-federal-info/federal-death-penalty.

54 DEATH PENALTY INFORMATION CENTER, Supra note 53.

55 Execution Database , DEATH PENALTY INFORMATION CENTER (2022), https://deathpenaltyinfo.org/executions/execution -database.

56 Upcoming Executions, DEATH PENALTY INFORMATION CENTER (2022), https://deathpenaltyinfo.org/executions/upcoming -executions#year2022.

A. History of Death Penalty Ban

Capital punishment was present in the Americas even before the United States gained independence from Britain.57 Although the idea of capital punishment is ingrained in the history of the United States, the preferred method of execution has evolved over time. The Court has repeatedly been asked to evaluate the death penalty in light of new execution methods facilitated by technological advances.

In In re Kemmler (1890), the Court was asked to adjudicate whether the electric chair constituted cruel and unusual punishment.58 While the Court ruled that the use of the electric chair did not violate the Eighth Amendment, the lasting precedent from this case was the Court’s definition of “cruelty” in punishments: “something inhuman and barbarous, something more than the mere extinguishment of life.”59

For a brief period in the 1970s, a nationwide ban was imposed on the death penalty. The ban was a result of Furman v. Georgia (1972), which held that Georgia’s discriminatory application of the death penalty toward minorities not the actual death penalty itself amounted to a violation of the Eighth Amendment.60 Furthermore, the discriminatory nature of the practice also violated the Fourteenth Amendment’s Equal Protection Clause.61 However, the victory for anti-death-penalty advocates was shortlived. While Furman was not overturned, parts of the decision concerning specific deficiencies in Georgia’s law have nonetheless been superseded by the replacement statutes that the state enacted.62 However, the Furman ruling was functionally circumvented in Gregg v. Georgia (1974). 63 The Court stated that “the death penalty is not a form of punishment that may never be imposed.”64 This echoes the sentiments of In re Kemmler, which distinctly stated that the imposition of the death penalty alone is not enough to constitute a violation of the Eighth Amendment. 65

57 Early History of the Death Penalty , DEATH PENALTY INFORMATION CENTER (2022), https://deathpenaltyinfo.org/facts-and-research/history-of-the-death-penalty/early-historyof-the-death-penalty.

58 In re Kemmler, 136 U.S. 436 (1890).

59 Id. at 447.

60 Id.

61 Id.

62 Id. at 186.

63 Gregg v. Georgia, 428 U.S. 153, 187 (1976).

64 Id.

65 In re Kemmler, 136 U.S. at 436.

Despite multiple challenges, the Court has stood firm in its decision to affirm the death penalty as constitutional. If the death penalty is to remain legal, there must also be a method for states to carry it out.66 In 2008, a case was brought forth to the Court which scrutinized the constitutionality of lethal injection. In Baze v. Rees (2008), the Court found that the use of lethal injection did not amount to cruel and unusual punishment. 67 The majority opinion held that lethal injection “does not create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death.” 68 The method of execution does not need to eliminate all possibilities for an inmate to feel pain, as established in Glossip v. Gross (2015).69 Instead, the possible pain must not go beyond the “barbarous” threshold, as described in In re Kemmler. 70 Under Baze and Glossip, states that still conduct executions have a viable method through lethal injection. As of 2020, all thirty-one states that still have capital punishment authorize the use of lethal injection.71

B. Death Penalty Reform

Despite legislative efforts in some states to abolish the death penalty, others have pushed to protect its continued use.72 As of 2020, the number of Americans awaiting execution was just under 2,500. 73 However, this number has been on the decline after an all-time high of over 3,500 inmates in the year 2000.74 Similarly, the annual number of people who have been executed has declined since 2000, with only fourteen executions being carried out in 2020 at the state and federal levels.75 Although popularity and usage are declining, progress for the total abolition of the death penalty is slow and perhaps irrelevant to those who are already slated for execution. With multiple cases affirming the constitutionality of the death penalty, a

66 Glossip v. Gross, 576 U.S. 863, 863 (2015).

67 Baze v. Rees, 553 U.S. 35, 41 (2008).

68 Id.

69 Glossip, 576 U.S. at 863.

70 In re Kemmler, 136 U.S. at 436.

71 Tracy J. Snell, Capital Punishment, 2020 - Statistical Tables, U.S. DEPT OF JUSTICE (Dec. 2021), https://bjs.ojp.gov/content/pub/pdf/cp20st.pdf.

72 Recent Legislative Activity, DEATH PENALTY INFORMATION CENTER (2022), https://deathpenaltyinfo.org/facts-and-research/recent-legislative-activity.

73 Snell, supra note 71.

74 Id.

75 Id.

nationwide ban seems improbable. However, it is not impossible to improve the conditions for prisoners that already face capital punishment.

In 2002, a commission formed by the state of Illinois which has since abolished the death penalty gathered valuable insight into the complicated nature of repeal efforts. At the time of the commission, abolition of the death penalty was not a feasible option, as a majority of citizens in Illinois still favored capital punishment.76 This commission can serve as a model for implementing reform and alleviating issues surrounding the death penalty if it is to remain in effect. In cases where capital p unishment was a possible sentence, the commission recommended increasing police investigation into the crimes committed by those on death row. 77 The purpose behind this recommendation is to ensure that the individual who is charged with the crime is guilty, as the punishment of death is much more severe than ordinary jail time. Since 1973, 186 inmates on death row have been set free and exonerated of all charges. 78 Ideally, every case would be given the attention needed to apprehend the correct perpetrator, but the margin for error is much smaller in cases concerning capital punishment, simply because the stakes are much higher.

One of the commission’s recommendations, banning the execution of mentally disabled criminals, has since been mirrored by the Court. In Atkins v. Virginia (2002), the Court determined that the execution of prisoners with severe intellectual disabilities constituted a violation of the Eighth Amendment.79 Nonetheless, there are still not sufficient protections for those diagnosed with a serious mental illness.80 Many jurisdictions make a distinction between the mentally disabled and those with diseases such as bipolar disorder or schizophrenia, although mental health experts believe both groups suffer from similar defects in their decision-making abilities.81 This may have been only a partial victory for advocates of death penalty reform, but it nonetheless emphasizes that change is possible.

76 George H. Ryan, Report of the Governor's Commission on Capital Punishment , STATE OF ILLINOIS (Apr. 2002), https://ip-no.org/wp-content/uploads/2018/05/report-of-theRyan-Commission.pdf.

77 Id

78 Innocence, DEATH PENALTY INFORMATION CENTER (2022), https://deathpenaltyinfo.org/policy -issues/innocence

79 Atkins v. Virginia, 536 U.S. 304 (2002).

80 Mental Illness, DEATH PENALTY INFORMATION CENTER (2022), https://deathpenaltyinfo.org/policy -issues/mental-illness

81 Id.

IS THERE A PLACE FOR GOD IN THE EXECUTION CHAMBER? [Vol. 5 14

V. CONCLUSION

Similar to Murphy, Ramirez v. Collier (2022) found that inmates are afforded religious rights while in the execution chamber. 82 Akin to Ray and Murphy, Ramirez concerned a Texas prisoner on death row who requested that his personal Buddhist spiritual advisor be allowed in the execution chamber while he was put to death. 83 Unlike Ray and Murphy, Ramirez also requested that his advisor touch him and recite prayer aloud as he was being executed.84 Texas denied the request for an advisor to be able to touch the prisoner during the execution, but did not point to any specific protocol under which this would be a violation. 85 Ramirez argued that this denial was in violation of the RLUIPA as well as the First Amendment.86

This went beyond the Court’s confirmation of discriminatory practices in Murphy, as this case also involved a spiritual advisor being able to lay hands on a prisoner and therefore becoming actively involved in the execution process. 87 The Court ruled in an 8-1 decision that Texas’s restrictions were unconstitutional as it left Ramirez “unable to engage in protected religious exercise in the final moments of his life.” 88 In Justice Kavanaugh’s concurring opinion, he also found that the compelling state interest of safety may be secured even if accommodations are made for spiritual advisors to touch prisoners and speak aloud.89

Justice Alito wrote the dissenting opinion for the case, citing concerns for “abusive litigation” as he did in both Ray and Murphy. 90 Justice Sonia Sotomayor, however, felt that it was the Texas prison system, and not Ramirez, that had failed to act in a timely manner. After Ray filed his grievance, the prison waited over a month to deny the request. 91 Justice Sotomayor further stated that this delay, whether intentional or not, gave the impression that the prison was attempting to sabotage inmates’ attempts at filing petitions.92 Ross v. Blake (2016) prevented prisons from intentionally

82 Ramirez v. Collier, 142 S. Ct. 1264 (2022).

83 Id

84 Id. at 1268.

85 Id at 1269.

86 Id.

87 Murphy, 139 S. Ct. at 1112.

88 Ramirez, 142 S. Ct. at 1282.

89 Id. at 1286.

90 Id at 1292.

91 Id. at 1285.

92 Id.

creating difficult processes for prisoners to use their petitions. 93 Justice Alito’s position also suggested a larger problem for inmates bringing their complaints before the Court.

Prisoners face a multitude of problems and must traverse a complex legal system to receive relief. It is possible that a “disconnection exists” between justices and petitioners that affects the Court’s decision -making.94 Qualified and timely representation is not a reality for most inmates, and these qualities are essential in counsel for capital punishment cases. 95 Without prior knowledge of the criminal justice system, it is not reasonable to expect inmates to know the intricacies of filing motions with the proper authorities. Perhaps the issue the Supreme Court should be wary of is not whether inmates are attempting to abuse the system in order to prolong their executions, but rather whether they are adequately represented and understand the options they have before them.

Ramirez marks a decisive victory for death row inmates, but also all prisoners in the United States. After the ruling in Murphy, instead of accommodating the defendant, Texas responded by banning all spiritual advisors from the execution chamber. The complete pro hibition of all religious advisors was subsequently found to be unconstitutional in Gutierrez v. Saenz (2020).96 At the end of the majority opinion, Chief Justice John Roberts noted that, should the state attempt something similar and try to prohibit Ramirez from the proper access to a spiritual advisor, the district court should take necessary preventative action.97 The Court is now aware of state attempts to work around their decisions and are adjusting their decisions accordingly.

There should be a middle ground that prisons and inmates can achieve where both have their interests fulfilled. The religious protections guaranteed by the Constitution and RLUIPA do not necessarily interfere with the state's interest in securing the safety of all involved with executions. The lasting precedent from Ramirez will be that prisons must make a more concerted effort to find this balance, or the Court will force narrower restrictions to be made.98 Based on the judges’ opinions within the cases presented in this Note, many death penalty sentences appear arbitrary,

93 Ross v. Blake, 578 U.S. 632 (2016).

94 Gómez Lozada, supra note 13, at 104.

95 Id. at 105.

96 Gutierrez v. Saenz, 590 U.S. 141 (2020).

97 Ramirez, 142 S. Ct. at 1284.

98 Id. at 1289.

IS THERE A PLACE FOR GOD IN THE EXECUTION CHAMBER? [Vol. 5 16

which was why executions were halted briefly in 1972 under Furman. 99 Racial disparities in sentencing have been statistically reported, with perpetrators of crimes that include white victims being more likely to receive the death penalty.100 Proper protections and sentencing regulations also still do not exist for criminals who are found to suffer from a serious mental illness.101 After Ramirez, it is clear that reform can be achieved in these areas. Beyond the religious protections Ramirez adds for those on death row, this case proves that law and precedent are ever evolving and that fighting for change is never a futile effort.

This Note was edited by Olivia Lilley

99 Furman, 408 U.S. 238 (1972).

100 Race, DEATH PENALTY INFORMATION CENTER (2022), https://deathpenaltyinfo.org/policy -issues/race.

101 Mental Illness, DEATH PENALTY INFORMATION CENTER (2022), https://deathpenaltyinfo.org/policy -issues/mental-illness.

THE INADEQUACIES OF PERPETUAL CONTRACTS: A DEFENSE OF GOLDMAN SACHS AGAINST CHARLES

SCHWAB AND TD AMERITRADE

Carlos Chacin Ferro*

1

The legitimacy of perpetual contracts has been a prominent and controversial issue in the legal field, as courts often find they do not hold any legal basis. As a matter of law, established by the jurisprudence covered in this Note, courts disfavor perpetual contracts as they are unreasonable and inadequate. This Note will give background information on perpetual contracts by examining court cases such as William B. Tanner Company v. Sparta-Tomah Broadcasting Company (1983), to explore courts’ jurisprudence on perpetual contracts and indefinite agreements.

This Note will commence by outlining The Charles Schwab Corporation v. The Goldman Sachs Group, Inc. (2018) and the Appellate Division of the New York Supreme Court’s opinion on the case. This Note will t hen provide a brief background on perpetual contracts. Within this section, this Note will review precedent to support the claim that courts generally disfavor perpetual contracts. This Note will then contextualize the jurisprudence to serve as a defense for Goldman Sachs against Charles Schwab and TD Ameritrade to terminate the Distribution Agreement at issue. By examining the case and defense of Goldman Sachs, this Note will expose the inadequacies of perpetual contracts to bring forth precedent for other cases in the future. Ultimately, this Note will discuss perpetual contracts’ legal weaknesses to argue that Goldman Sachs acted legally in its termination of the Distribution Agreement.

* B.S. Candidate for Finance and Business Law and Ethics, Gabelli School of Business at Fordham University Rose Hill, Class of 2025. It has been a pleasure and honor to be part of the Fordham Undergraduate Law Review as a first-year writer. This experience has been gratifying and invaluable as it has taught me the fundamentals of legal writing and shone light on my interest in law. I want to especially thank Caroline Morris, FULR’s Co -Editorin-Chief, for her advice on pursuin g law as an undergraduate student and guidance on this Note. I also would like to thank the FULR Editorial Board and my friends and family, who have provided endless support and advice.

CHARLES

CORP. V. GOLDMAN

I. INTRODUCTION

The Supreme Court of Mississippi held in 1876 that “[p]erpetual contracts . . . will not be tolerated by the law, or rather will not be enforced as imposing an eternal and never-ending burden.1 Clearly, perpetual contracts agreements constructed to serve a specific purpose without specification of time span or duration have been a deeply-rooted issue in the legal system because they imply that designated actions and commitments must continue in perpetuity.2 Perpetual contracts, also referred to as indefinite contracts, represent significant inconsistencies within contract law. Ultimately, there is not enough contractual basis to determine that perpetual contracts may be

1 Echols v. New Orleans, Jackson & Great N.R.R. Co., 52 Miss. 610, 614 (1876).

2 Id.

enforced in perpetuity.3 In scenarios in which a court evaluates the legitimacy of terminating a perpetual contract, under common law, th e court has the power to impose a term of “reasonable time”4 to terminate such an agreement.5

An example of this principle is Charles Schwab Corporation v. Goldman Sachs Group, Inc. (2020). In this case, the Charles Schwab Corporation (Charles Schwab) and the TD Ameritrade Holding Corporation (TD Ameritrade) brought legal action against the Goldman Sachs Group (Goldman Sachs) for breach of contract. Contrary to the plaintiffs’ argument that the agreement was perpetual, the New York Supreme Court held that the contract could only be held binding for a reasonable period of time. This Note argues through the use of common law and the exposition of the inadequacies of perpetual contracts, that Goldman Sachs legally terminated its Distribution Agreement with Charles Schwab and TD Ameritrade, contrary to the decision of the First Department Appellate Division. This Note will document Charles Schwab Corporation v. Goldman Sachs Group, Inc. and provide background on the concept of perpetual contracts, detailing its fundamental failures. This Note will also examine several cases in which similar scenarios were examined and found to terminate perpetual distribution agreements. This Note will examine the inadequacy of perpetual contracts and how they can be terminated to demonstrate their legal deficiency, and to serve as a defense for Goldman Sachs in agreement with the court’s dismissal of the suit. This Note will ultimately argue that all perpetu al agreements can be terminated after a “reasonable time,” as no contract can last in perpetuity unless explicitly stated in the contract.

3 Forever is a Long Time or No Time at All: More Idiosyncrasies of the Common Law of You Need to Know, JD Supra (2019), https://perma.cc/8DPL -UHQY.

4 See William B. Tanner Co. v. Sparta-Tomah Broadcasting Co., 716 F.2d 1155, 1158 (7th Cir. 1983); see Echols, 52 Miss. at 614 (1876); see Glacial Plains Coop v. Chippewa Valley Ethanol Co., A19-0254 (Minn. Ct. App. Sep. 16, 2019). Reasonable time is implied by the court through common law practice when contracts do not state the agreement's life span or termination date. Reasonable time establishes that enough time has passed from the moment of its creation that it can then be dissolved. This standard is discuss ed more thoroughly in Section II of this Note.

5 Forever is a Long Time or No Time at All, supra note 3.

II. BACKGROUND ON PERPETUAL AND NON-ESTABLISHED EXPIRATION CONTRACTS

An expiring contract has an explicit termination date. A provision including “unambiguous expressions of ‘forever’” would then be legally binding, rendering a contract perpetual.6 However, most contracts claiming to be “perpetual” do not contain explicit expressions of “forever.” 7

The common law’s freedom of contract principles8 allow for agreements with a specific end date or statement claiming its longevity to govern court decisions.9 When agreements do not specify their expiration date, but include statements such as “continue ‘indefinitely,’ or ‘until terminated by the mutual agreement of both parties,’ or ‘until terminated as the result of a material breach by either party,’ or ‘as long as one party continues to perform’ by providing the designated services or goods,’” then the courts will be able to use the Common Law.10 The common law gives courts the power to infer a “reasonable time” for a term of a contract, which may be “indefinite.” 11

III. CHARLES SCHWAB CORPORATION V. THE GOLDMAN SACHS GROUP, INC.

This section will discuss Charles Schwab Corporation v. Goldman Sachs Group, Incorporated from the point of appeal on August 13, 2020. This Note will discuss facts of the case relevant to the point in time of the lawsuit, the appeal and the court’s decision, and the plaintiffs’ reasons for seeking legal action. Goldman Sachs seeks to dismiss the appeal by Charles Schwab.

6 Forever is a Long Time or No Time at All, supra note 3.

7 Id.

8 Principle, No. IV.1.1 - Freedom of Contract, TRANS-LEX L. RES., https://www.translex.org/918000/_/freedom-of-contract/ (“The parties are free to enter into contracts and to determine their contents.”).

9 Id.

10 Forever is a Long Time or No Time at All, supra note 3. The common law permits courts to use legal precedent established through jurisprudence and court decisions and opinions to decide a case with no relevant or applicable written law.

11 Charles J. Faruki, The Defense of Terminated Dealer Litigation: A Survey of Legal and Strategic Considerations, 46 OHIO ST. L.J. 925 (1985).

UNDERGRADUATE LAW REVIEW 21

A. Facts of the Case

In 2001, Goldman Sachs and Charles Schwab entered into three contracts together: the Distribution Agreement, the Research Agreement, and the Data License Agreement. Only the Distribution Agreement stated that it “does not expire on a date certain and does not contain any provision for its termination at will,” implying that it will last into perpetuity. 12 Since then, the contract has been extended for more than seventeen years. There was no conflict between the parties within the first six years of entering into the contracts. On December 15, 2007, after the expiration of the Research Agreement and the Data License Agreement, although nothing occurred, Goldman Sachs first suggested that the “Distribution Agreement should have [been] terminated at the same time as the other two agreements.” 13 After another six years, performing under the agreement for a total of twelve years, both parties entered the “Assignment Agreement” in 2013, reaffirming that the Distribution Agreement would “continue to govern” and “remain in full force and effect.”14 Since Goldman Sachs saw no clear reason for dissolving the contract at the time, the Distribution Agreement was then extended and both sides abided by their obligations.

In 2018, Goldman Sachs contended that it had the right to terminate the Distribution Agreement, as it should have expired in 2007, when the Research Agreement and the Data License Agreement did initially. 15 To dissolve itself from Charles Schwab and TD Ameritrade, and to prove that the Distribution Agreement was no longer beneficial, Goldman Sachs developed “its private-banking arm, which serves individual clients who, like Schwab and TD Ameritrade’s customers, want the opportunity to participate in public offerings of new-issue securities for which Goldman Sachs serves as the underwriter.”16

Charles Schwab and TD Ameritrade were unwilling to reject Goldman Sachs’s attempt to dissolve its partnership and terminate the Distribution Agreement. The termination of the Distribution Agreement would halt their intake of IPO shares from Goldman Sachs that they could se ll to their customers.

12 Complaint, The Charles Schwab Corporation et al. v. The Goldman Sachs Group, Inc. et al., No. 654674/2018 (N.Y. Sup. Ct. Sept. 20, 2018).

Through its counsel, on April 4, 2018, Goldman Sachs provided Charles Schwab and TD Ameritrade with written notice terminating the Distribution Agreement.17 Goldman Sachs then offered to let the contract expire on September 20, 2018, but asserted that “the Distribution Agreement is terminable at will, even in the absence of such a provision to that effect.” 18

B. Opinion of the Appellate Division

The First Department of the New York Supreme Court found that the Distribution Agreement did not provide mutual benefit to both parties and, since it had endured for a reasonable time, it could expire . 19 The Court rejected the plaintiffs’ allegations of continuous mutual benefit to Goldman Sachs, as it found that the “alleged benefit is merely access to customers, and thus, the ability to sell more shares.” 20 Charles Schwab and TD Ameritrade agree with the First Department that “the order appealed from should be reversed and the amended complaint reinstated.”21 The First Department argued that the lower court:

Incorrectly determined as a matter of law that the distribution agreement at issue, which was silent as to duration and had provided defendants with no meaningful contractual benefits since 2007, had continued for a ‘reasonable time’... and that therefore it was properly terminated by defendants. It incorrectly concluded that it would be “unreasonable for a one-way option to persist so many years after a significant benefit accrues to the defendants.22

Yet the New York Supreme Court held that, “as a general rule, a contract that fails to explicitly define duration will continue for a ‘reasonable time.’”23 The court stated that if the duration or the lifespan of the distribution agreement were omitted, then the “courts ‘may’ inquire into the intent of the parties to supply the missing term if it may be ‘fairly and reasonably fixed by the surrounding circumstances and the parties’ intent.”24

17 The Charles Schwab Corporation v. The Goldman Sachs Group, Inc., 186 A.D.3d 431 (2020); Complaint, The Charles Schwab Corporation et al. v. The Goldman Sachs Group, Inc. et al., No. 654674/2018 (N.Y. Sup. Ct. Sept. 20, 2018).

18 Id.

19 Charles Schwab, 186 A.D.3d (2020).

20 Id.

21 Id.

22 Id.

23 Id.

24 Id.

IV. JURISPRUDENCE ON TERMINATING PERPETUAL CONTRACTS

A. Jurisprudence on Rejection of Perpetual Contracts due to Indefinite Essence

1. Jespersen v. Minnesota Mining & Manufacturing Co.

In McDonald v. Scitec, Inc. (2013), the Illinois Supreme Court held that ‘forever’ is illogically extensive and there are many variables that change and evolve in ways that cannot be accounted for in contracts. 25 The court in McDonald cited Jespersen v. Minnesota Mining & Manufacturing Company (1998), stating, “Advances in technology, changes in consumer taste, and competition mean that once-profitable businesses perish regularly… men and women of commerce know this intuitively and achieve the flexibility needed to respond to market demands by entering into agreements terminable at will.”26 As circumstances change, companies transition, markets and industries evolve, and individuals and corporations must adapt to the everdynamic essence of society and economies. The Illinois Supreme Court affirmed this precedent because it is indisputable. 27 For this same reason, it would be unreasonable to imply that a contract can be indefinite if not explicitly stated within the clauses, especially if a specific party is trying to terminate it.28 Furthermore, according to contract law, “a party that terminates an agreement need not state the reasons for termination unless the contract itself requires it to do so.”29

B. Jurisprudence on Rejection of Perpetual Contracts due to Reasonable Time

1. William B. Tanner Co. v. Sparta-Tomah Broadcasting Co.

William B. Tanner Company v. Sparta -Tomah Broadcasting Company (1983) led to the Seventh Circuit affirming that it does not favor contracts of perpetual or unlimited duration.30 Therefore, the court concluded that if a contract does not explicitly state its term, the court will not infer that a

25 McDonald v. Scitec, Inc., Docket: BCD -12-269, 9-10 (Me. 2013).

26 Id

27 Id.

28 Forever is a Long Time or No Time at All, supra note 3.

29 Id.

30

William B. Tanner Co. , 716 F.2d at 158.

contract is of perpetual duration.31 The common law employed in the Tanner decision derives from Accord United States Surgical Corporation v. Oregon (1980), in which the Southern District of New York stated that “a perpetual obligation is not inferred from the absence of a date of termination; if parties intend perpetual duration, they must expressly say so; if no duration is stated, the contract is for a reasonable time, in this case, four to five years.” 32

The Tanner opinion set a precedent on distinguishing any potential issues from the stated terms within the contract and omission in contract interpretation.33 Accordingly, the court states, “the problem of interpreting the meaning which parties intend contractual terms to have is distinct and should be considered separately from the problem of construing the scope of a contract.”34 Contracts should be created without any ambiguity.35 Although the parties involved in the contract may not know or want to admit how long the contract should last, it is still their responsibility to ensure that the contract is airtight, so as to not leave it to the interpretation of the court based on common law.36

2. Echols v. New Orleans, Jackson & Great Northern Railroad Co.

According to the New Orleans Supreme Court, the law will not tolerate or enforce perpetual contracts as “imposing an eternal and never -ending burden.”37 The court stated that “an agreement to furnish a support or service… at a specified price… without specification as to time, will be construed either as terminable at pleasure…” or after reasonable time.38 If the court decides that reasonable time has occurred, under common law, the obligation of the contracts will be terminated. 39

31 Id.

32 Id; see also United States Surgical Corp. v. Oregon Medical & Surgical Specialties, Inc., 497 F. Supp 1, 71 (S.D.N.Y. 1980).

33 Id.

34 Id.

35 Faruki, supra note 11.

36 Forever is a Long Time or No Time at All, supra note 3.

37 Echols, 52 Miss. at 614 (1876).

38 Id.

39 Id.

UNDERGRADUATE LAW REVIEW 25

3. Minnesota Supreme Court Overview

According to the Minnesota Supreme Court, “contracts of perpetual duration” without a specified term “are disfavored,” and therefore will be interpreted as having an indefinite duration, except if the parties expressly state that the contract is perpetual. 40 The court also stated that no “magic words” are required within the contract to state if it is legitimately perpetual. The Minnesota Supreme Court stated that the contract must specifically state “forever.”41 Accordingly, “indefinitely [is] not ‘forever,’ not ‘perpetually,’ and not ‘permanently.’”42 In conclusion, a contract of indefinite duration “is terminable at will upon reasonable notice to the other party after a reasonable period of time has passed.”43

4. Glacial Plains Coop. v. Chippewa Valley Ethanol Co.

The Minnesota Court of Appeals heard Glacial Plains Cooperative v. Chippewa Valley Ethanol Company (2019). As mentioned previously, a contract with an “indefinite duration” is not perpetual unless explicitly stated.44 Thus, in Glacial Plains, the Minnesota Supreme Court declared that a “long-term” distribution agreement that did not state the length of the term to “supply grain to an ethanol plant,” did “not unambiguously express an intent to form a contract of perpetual duration, and [was] thus a contract of indefinite duration [that] is terminable at will upon reasonable notice once a reasonable time has passed.”45

V. ADVOCATING FOR DEFENSE OF THE GOLDMAN SACHS GROUP, INC., AND THE TERMINATION OF ITS PERPETUAL CONTRACT

As a matter of law, courts do not favor “perpetual contracts” for their unreasonable nature and inadequate composition, as proven and established by Jespersen, Tanner, Echols, and Glacial Plans. Thus, Goldman Sachs should have the right to legally terminate the Distribution Agreement with

40 Glacial Plains Coop v. Chippewa Valley Ethanol Co., A19 -0254 (Minn. Ct. App. Sep. 16, 2019).

41 Id.

42 Forever is a Long Time or No Time at All, supra note 3.

43 Id.

44 Id.

45 Id.

Charles Schwab and TD Ameritrade.46 Since the Distribution Agreement is a contract that “does not expire on a date certain [,] . . . does not contain any provision for its termination at will,”47 and does not claim a duration of “forever,” it does not serve an indefinite term. Therefore, to stop termination, the plaintiffs would need to prove to the court that reasonable time has not yet passed, and that the agreement still upholds equal benefit for both parties.

It is first necessary, then, to evaluate the contract’s element of “reasonable time.” The Distribution Agreement between Goldman Sachs, Charles Schwab, and TD Ameritrade was in effect for over seventeen years. As evidence that reasonable time has not yet passed, th e plaintiffs applied Haines v. New York (1977). In this case, the property owner, Haines, and New York City entered an agreement in 1924 to “construct and maintain a sewage disposal plant in an area where a reservoir from which the city received water was located,” in order to tend and improve the city’s health and safety concerns.48 Similar to Charles Schwab Corporation, the agreement in Haines did not specify the duration or lifespan of the contract for the city’s maintenance and expansion obligation. The Court of Appeals held that the agreement was still enforceable and therefore could not be terminated.49 The court concluded that “the agreement’s silence as to duration rendered it a perpetual contract, as well as the city’s argument that the agreement was terminable at will.”50

Superficially, it makes sense for the plaintiffs to use Haines as a legal foundation, as this action was brought in 1977, fifty -three years after the initiation of the city contract. Fifty-three years is certainly greater than the seventeen years the plaintiffs’ Distribution Agreement with Goldman Sachs had stood for, but the circumstances are entirely different. The sewage system in question in Haines was necessary for the good of society. The sewage system is a necessity that, if removed, would worsen the standard of living for people living in New York City, particularly given that the intended purpose of this specific sewage system was to improve the city’s health and safety.51

46 The Defense of Terminated Dealer Litigation: A Survey of Legal and Strategic Considerations, 46 OHIO ST. L.J. 925 (1985).

47 Complaint, The Charles Schwab Corporation et al. v. The Goldman Sachs Group, Inc. et al., No. 654674/2018 (N.Y. Sup. Ct. Sept. 20, 2018).

48 Haines v. City of New York, 41 N.Y.2d 769, 772 (1977).

49 Charles Schwab, 186 A.D.3d (2020).

50 Id.

51 Haines, 41 N.Y.2d at 772 (1977).

The Distribution Agreement between the plaintiffs and Goldman Sachs, comparatively, is not essential to Charles Schwab and TD Ameritrade. Therefore, termination of the contract will not be detrimental to the entities’ existence, as it would have been for New York City residents, had New York no longer funded the sewage system. Ultimately, the Haines precedent does not adequately apply to the Charles Schwab case because the circumstances are fundamentally different. Other cases have proven that reasonable time does not have to be lengthy; rather, it depends on the circumstances of the case.52 Additionally, Haines validates the common law and the courts’ authority to define reasonable time. Therefore, the Supreme Court of New York can also imply reasonable time in Charles Schwab.

Next, it is necessary to discuss how the Distribution Agreement is not mutually beneficial for Goldman Sachs. The Distribution Agreement works through the company Epoch, which Goldman Sachs acquired from the plaintiffs in 2001 for $192 million.53 The Distribution Agreement would allow Goldman Sachs to “invite through Epoch each of the [plaintiffs] to participate in Offerings on the terms set forth herein” and provide them with fifteen percent of Goldman’s “Fee Retention” in oversubscribed public offerings.54 In the first stage of the case, the Supreme Court of New York stated that the “alleged benefit [of Goldman Sachs] is merely access to customers, and thus, the ability to sell more shares.” 55 The plaintiffs are benefitting to a much greater extent than Goldman Sachs; not only are they obtaining a direct line of initial public offerings (IPOs) to sell to their customers, but they are also receiving the initial $192 million from selling Epoch.56

Goldman Sachs had to extend a large sum of capital expenditures to acquire the company and distribute IPO shares to the plaintiffs, which they did for more than seventeen years. IPO shares are very lucrative, and a company like Goldman Sachs through their new private-banking arm will not have trouble finding other firms interested in purchasing them. Therefore, as the court stated, this Distribution Agreement only benefits Charles Schwab and TD Ameritrade through access to customers, signifying that Goldman Sachs, with clear precedent, does not need the agreement to conduct business;

52 See William B. Tanner Co. v. Sparta-Tomah Broadcasting Co., 716 F.2d 1155, 1158 (7th Cir. 1983); see Echols, 52 Miss. at 614 (1876); see Glacial Plains, A19-0254 (Minn. Ct. App. Sep. 16, 2019).

53 Charles Schwab, 186 A.D.3d (2020).

54 Id.

55 Id.

56 Id.

rather, the respective companies benefit to a greater magnitude from this Distribution Agreement than Goldman Sachs. As the plaintiffs state, “every retail share that Goldman Sachs is contractually obligated to give to Schwab and TD Ameritrade is one fewer share th an it can make available to its customers.”57 Alternatively, the previous statement also means that every retail share sold by Goldman Sachs to other firms is one fewer share that Charles Schwab and TD Ameritrade can make available to its customers.

Ultimately, the New York Supreme Court was correct in ruling to terminate the Distribution Agreement in question in Charles Schwab. In this case, reasonable time had passed, and there was no longer a mutual benefit between the parties.

VI. CONCLUSION: IMPLICATIONS OF CHARLES SCHWAB CORP. V. GOLDMAN SACHS GROUP, INC. AND PERPETUAL CONTRACTS

The application of this case presents further justification for avoiding perpetual contracts due to their ambiguity and lack of legal standing. Courts disfavor perpetual contracts and will not adopt the view that contracts last forever, deeming them inadequate without mutual benefit and accountability for both parties. Therefore, contracts should state an expiration date by which both parties have to comply with their obligations, and with an extension clause that allows the contract's term to be extended. All perpetual agreements can be terminated after reasonable time, as no contract can last in perpetuity unless explicitly stated. As shown in Section IV, it is significant that the courts have the faculty, through the common law, to imply when reasonable time has passed. This judicial application demonstrates that the binding essence of a contract is only as good as its defense against termination. If an argument and evidence is not persuasive enough to the courts, judges will declare it to be of indefinite duration, ultimately terminating the contract.

Interestingly, while unethical, excluding a termination date for the contract allows for loopholes for dissolution of the agreement. Certain parties could attempt to establish a perpetual contract in bad faith, covertly creating an escape clause that they may use to exit when they please. Although true, this does not mean that everyone who establishes a contract with no expiration date, and wants to terminate, is acting unethically or without reason. Nonetheless, the ability to dissolve the contract still exists, and therefore “perpetual” contracts are inadequate. The law is supposed to protect

and bring justice to all parties involved, but in this case, justice can be subjective, as terminating a contract of unspecified duration is legal. Ultimately, attorneys should be reluctant to draft perpetual contracts.

In conclusion, this Note serves as a defense of Goldman Sachs in the termination of the Distribution Agreement. Since the agreement is a perpetual contract with no explicit claim of forever, along with the running for a reasonable time of seventeen years, and no longer extending mutual benefit, the court should evoke common law to rule in favor of Goldman Sachs and terminate the contract. * * *

This Note was edited by Christopher Kerrane

THE PEREMPTORY CHALLENGE AND ITS INHIBITION OF FAIR RACIAL REPRESENTATION ON AMERICAN JURIES

Danielle Poole*

The peremptory challenge enables judges and attorneys to strike potential jurors perceived as undesirable from serving on a jury. However, the use of these strikes is intrinsically related to racial stereotyping, impeding racial minorities from serving as jurors. This Note examines how, despite numerous challenges posed to the peremptory challenge, most notably Batson v. Kentucky (1986), racial discrimination in the jury selection process persists. This Note finds that no additional reform to the peremptory challenge will eliminate the racial bias associated with it. Therefore, this Note argues that the use of peremptory challenges by both the prosecution and the defense should be federally abolished.

* B.A. Candidate for Sociology and Communication & Culture, Pre-Law Track, Fordham College at Rose Hill, Class of 2023. I am a first-generation American and a first-generation college student, and plan to attend law school to pursue my passion for criminal justice reform. I would like to thank the Editorial Board of the Fordham Undergraduate Law Review for their devoted support in the development of this Note.

2022] FORDHAM UNDERGRADUATE LAW REVIEW 31

I. INTRODUCTION

“I consider trial by jury as the only anchor ever yet imagined by man by which government can be held to the principles of its constitution,” declared Thomas Jefferson on July 4, 1776.1 The Seventh Amendment to the U.S. Constitution safeguards defendants’ right to a trial by jury, enabling defendants to be judged by fellow citizens who embody a crucial role in the democratic system. 2 In the selection of potential jurors, both parties are allowed to use peremptory challenges (strikes) from the petit jury without providing reasoning.3 In Batson v. Kentucky (1986), the U.S. Supreme Court ruled that jurors cannot be excluded on the basis of race. 4 Thereupon, if challenged by the opposing party, the striking party would be required to provide race-neutral justifications for removing potential jurors, but this change has not removed racial discrimination in jury selection. 5 For example, courts have accepted explanations that directly correlate with race, such as that they live in a high-crime area.6 Black defendants are particularly harmed when attorneys act on their perceptions that race and juror desirability are linked. For instance, defendant Curtis Flowers in Flowers v. Mississippi (2019) endured six trials due to racially-charged prosecutorial misconduct.7 The peremptory challenge is intrinsically related to litigants’ conscious and unconscious racial biases, which impede both jurors’ and defendants’ equal protection rights guaranteed by the Equal Protection Clause of the Fourteenth Amendment.8 For juries to truly serve as “the heart and lungs of liberty,” as John Adams claimed in 1774, the peremptory challenge, enabling racial biases, must be federally abolished.9

This Note will analyze the evolution of the peremptory challenge to reveal that previous attempts to reform its use and minimize racial prejudice in the jury selection process have failed.

Proposed regulations of peremptory

1 Garvin A. Isaacs, Juror Appreciation Project to Emphasize Importance of Trial by Jury , 87 OKLAHOMA BAR JOURNAL 1923, 1924 (2016).

2 U.S. CONST. amend VII.

3 Deana Kim El-Mallawany, Johnson v. California and the Initial Assessment of Batson Claims, 74 FORDHAM L. REV. 3333, 3333 (2006).

4 Equal Justice Initiative, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy, 37 EQUAL JUSTICE INITIATIVE 5, 5 (2010).

5 El-Mallawany, supra note 3, at 3339-40.

6 Id. at 3354.

7 Flowers v. Mississippi, 139 S. Ct. 228, 2238 (2019).

8 David C. Baldus et al., The Use of Peremptory Challenges in Capital Murder Trials: A Legal and Empirical Analysis, 3 U. PA J. CONST. L. 3, 11 (2001).

9 Isaacs, supra note 1.

challenges to rectify this issue also will not eliminate attorn eys’ and judges’ subconscious and conscious dependency on racial stereotypes when striking potential jurors. This Note ultimately argues that the only way to ameliorate jury selection discrimination caused by improper uses of the peremptory challenges is to entirely eliminate the ability for the defense and prosecution in all court levels to strike venirepersons using peremptory challenges.

II. JURY SELECTION

A. The Formation of Juries

As Justice William Brennan noted, the Constitution’s guarantee of the right to a trial by jury was not only crucial to the founders of the United States, but “probably the only [right] universally secured by the first American constitutions.”10 The American justice system has thus long recognized the caliber of the right to a trial by jury. The process of jury identification begins by assembling a jury pool “as complete a list as possible,” which is theoretically representative of the citizenry.11 In reality, though, only citizens whom the state and the federal government can identify and contact receive notification to appear in court.12 From the larger pool of candidates, also known as the master wheel, a “venire,” or panel, of about twenty -to-fifty potential jurors is formed.13 These venirepersons are narrowed down to the petit jury through voir dire questioning (orally or via a written questionnaire),14 conducted by a judge or lawyer to determine their suitability for jury selection.15 Next, both litigants and the court can use a system of strikes to eliminate jurors.16 Challenge “for cause” strikes remove jurors who have proven their bias or clear incompetence; use of this form of strikes is generally unlimited.17 Peremptory strikes, on the other hand, are used against

10 Edward S. Adams & Christian J. Lane, Constructing a Jury that is Both Impartial and Representative: Utilizing Cumulative Voting in Jury Selection, 73 N.Y.U. L. REV. 703, 714 (1998).

11 Id. at 715.

12 Id. at 714-15.

13 Baldus et al., supra note 8, at 11.

14 Id.

15 Voir dire, CORNELL LAW SCHOOL LEGAL INFORMATION INSTITUTE, https://www.law.cornell.edu/wex/voir_dire.

16 Adams & Lane, supra note 10, at 721.

17 Id.

those whom litigants perceive as undesirable, and their quantitative use is regulated by state and federal jurisdictions.18

B. Race and Jury Selection

The Supreme Court has confirmed that the Constitution requires juries to be “truly representative of the community,” but certain groups continue to be clearly excluded from juries based on race. 19 Racial partiality is evident within each stage of jury selection, starting with the jury pool list. 20 The methods chosen to identify and contact the jury pool have historically generated groups with a lower percentage of racial minorities.21 For example, Black people are less likely to be identified for juror lists because they move more often than white people.22 At the venire stage, minorities who receive notice to report to the courthouse appear at a lower rate than the majority because they are more likely to ignore their summons and claim hardship for being in lower-income brackets.23 Finally, at the petit jury stage, prosecutors and litigants commonly eliminate most if not all minority venirepersons through strikes, particularly peremptory challenges.24 The following examination of discrimination at the sitting jury stage resulting from the peremptory challenge highlights its intrinsic preservation of this discrimination, the inability of previous resolutions to eliminate racial discrimination, and its ultimate need to be federally abolished.

III. THE PEREMPTORY CHALLENGE

The peremptory challenge is a particularly discriminatory aspect of the jury selection process because, even if the venire included complete racial representation, litigants employ racial stereotypes and biases in constructing their ideal jury. By definition, the peremptory challenge is made to remove a potential juror without assigning any cause. 25 The United States adopted the peremptory challenge from English common law, systematized its use by the

18 Id.

19 Id. at 718.

20 Id. at 715.

21 Id. at 716.

22 Id. at 705.

23 Id.

24 Id.

25 Peremptory challenge, MERRIAM-WEBSTER, https://www.merriamwebster.com/dictionary/peremptory%20challenge#legalDictionary.

defendant in federal criminal trials in 1790, and extended it to prosecutors in 1865.26 The number of peremptory challenges per side has considerable variability,27 depending on states’ discretion,28 the number of parties in the case, and whether it is a civil or criminal trial.29

Peremptory challenges are organized under four different categories. The first category includes challenges based on direct evidence of a juror’s potential bias, such as their reservations about the death penalty.30 The second category is peremptories, which is based on the appearance, attitude, and demeanor of the venire member, including their speech patterns, attire, circumstantial evidence of hostility (such as sarcasm or scowling), and body language (such as slouched posture or crossed arms).31 The third category of peremptory strikes rests on perceptions of the degree to which a juror’s race or gender may bias his or her decisions; for example, in rape cases, it is commonly believed that women are better jurors for the prosecution than men.32 It is also commonly believed that non-Black and Black jurors have significantly different reactions to cases involving Black defendants. 33 The fourth category of peremptories includes common stereotypes that hypothesize either an anti-defendant or anti-government bias, typically depending on demographics (race, gender, age), intelligence (education, occupation), and prior contact with the criminal justice system. 34 Although

26 El-Mallawany supra note 3, at 3336.

27 Baldus et al., supra note 8, at 13. The number of peremptory challenges varies based on the severity of the crime and the number of jurors removed from the initial jury list; e.g., N.Y. CRIM PROC Law § 270.25(2) (a) (McKinney 2000) (in single -defendant capital cases, both sides permitted twenty peremptories for regular jurors).

28 Id. at 14. In most states, the prosecution and the defense are permitted the same number of peremptory strikes. In four of the remaining states, the defense is permitted twice as many strikes as the prosecution.

29 Peremptory challenge, LAW.COM, https://dictionary.law.com/Default.aspx?selected=1501.

30 Baldus et al., supra note 8, at 14. This is considered a legitimate basis for a peremptory strike, but one author in response to Witherspoon v. Illinois suggested that this should be considered an inappropriate basis for the peremptory challenge. See Bruce J. Winick, Prosecutorial Peremptory Challenge Practices in Capital Cases: An Empirical Study and a Constitutional Analysis, 81 MICH. L. REV. 1, 43-44 (1982).

31 Baldus et al., supra note 8, at 14.

32 Id.

33 Id.

34 Id. In general, prosecutors perceive minorities as a threat, especially Black people, younger people, women, college educated, people with disabilities, liberals, “free thinkers,” and people from the helping professions (doctors, lawyers, and s ocial workers). Texas prosecutor Jon Sparling, who developed a training manual for prosecutors in the 1970s,

the theoretical goal of jury selection is a fair and impartial jury, the absence of a justification or explanation for peremptory strikes enables the movi ng party to act on their “real or imagined” fear that a venire member threatens their interest, particularly regarding the perceived link between a juror’s race and the case’s conclusion.35

A. Preliminary Cases Concerning Jury Selection Discrimination

The Supreme Court first addressed the constitutional concerns over discriminatory jury selection practices in Strauder v. West Virginia (1879).36

The Court held that West Virginia’s law barring African Americans from serving on juries violated Black defendants’ rights to the equal protection of the laws.37 A state accordingly violates the Equal Protection Clause when Black defendants are put on trial before a jury from which Black people were purposefully excluded.38 However, Strauder prohibited exclusion from the jury pool and venire only and, instead, permitted “neutral” selection methods.39 In practice, this continued the exclusion of racial mino rities through purportedly race-neutral means, making its application to the selection processes limited and ineffective. 40

In Swain v. Alabama (1965), a young Black defendant in Alabama was convicted of rape and sentenced to death by an all-white jury, from which the prosecutor had struck all six potential Black jurors. 41 To challenge his conviction, the defendant invoked Strauder, leading the Supreme Court to impose the first, but largely ineffective, limitation on the use of race in peremptories.42 The Supreme Court held that a prosecutor’s use of peremptory strikes to eliminate Black jurors based on their race violated the

specified: “You are not looking for a fair juror, but rather a strong, biased and sometimes hypocritical individual who believes that Defendants ar e different from them in kind, rather than degree.”

35 Id. at 12.

36 Strauder v. West Virginia, 100 U.S. 303 (1879).

37 Id.

38

El-Mallawany, supra note 3, at 3338.

39 Stauder, 100 U.S.

40Adams & Lane, supra note 10, at 716-717. Strauder did not address the issue of whether a defendant has the right to a “petit jury composed in whole or in part of persons of his own race.” It did not demand “inclusion to guarantee a jury representative of one’s peers.”

41 Samuel R. Sommers & Michael I. Nor ton, Race and Jury Selection: Psychological Perspectives on the Peremptory Challenge Debate , 63 AMERICAN PSYCHOLOGIST 527, 529 (2008).

42 Baldus et al., supra note 8, at 29.

equal protection rights of the eliminated juror and the criminal defendant, but only if the prosecutor repeatedly eliminated all Black venirepersons in case after case.43 Thus, Swain limited peremptories only if litigants summarily and repeatedly excluded Black people from juries, and the extremely high burden of proof was met to show long-term discriminatory jury selection practices.44 The Court concluded that Robert Swain failed to establish a prima facie case of purposeful discrimination as his case did not meet the sufficient detail required about the prosecutor’s long-standing use of racially charged peremptory strikes.45 In the two decades following Swain, not one federal court found the use of peremptory challenges to violate Swain’s standards.46

B. Batson v. Kentucky

The Supreme Court issued a landmark decision in Batson v. Kentucky (1986), holding that the prosecution’s use of race as a reason behind exercising the peremptory challenge was prohibited by the Equal Protection Clause.47 The case centered around James Kirkland Batson, who was found guilty of burglary by an all-white jury.48 In a 7-2 vote, the Court held that a “person’s race simply ‘is unrelated to his fitness as a juror,’” 49 recognizing that Kentucky’s use of peremptory challenges to exclude members of the Batson’s race denied him equal protection.50 The Court also addressed the unconstitutional discrimination against the four excluded Black jurors, which evolved through a series of court cases to protect minorities’ rights to participate in the democratic institution of the jury.51 In turn, the Supreme

43 Id. at 12.

44 Id. at 29-30.

45 El-Mallawany, supra note 3, at 3338.

46 Adams & Lane, supra note 10, at 722.

47 Batson v. Kentucky, 476 U.S. 79, 84 (1986); see Georgia v. McCollum, 505 U.S. 42, 59 (1992) extending this prohibition to the defense council.

48 Whitney DeCamp, It’s Still about Race: Peremptory Challenge Use on Black Prospective Jurors, 57 J. OF RESEARCH IN CRIME AND DELINQUENCY 3 (2020).

49 Batson, 476 U.S. at 87 (quoting Thiel v. Southern Pac. Co., 328 U.S. 217, 227 (1946) (Frankfurter, J., dissenting)).

50 El-Mallawany, supra note 3, at 3339.

51 Id. at 3340; e.g., Powers v. Ohio, 499 U.S. 400 (1991). The Court held that a defendant has the right under the Equal Protection Clause to object to race -based exclusion of jurors, whether the defendant and excluded jurors are of the same race. Powers opened the doors to use the Batson framework to expand equal protection jurisprudence. For example, in State v. Jordan, 828 P.2d 786 (Ariz. Ct. App. 1992), the Arizona Court of Appeals held that a person of Asian descent is a member of a racially cognizable group. In Joseph v. State,

Court rejected the “crippling burden of proof” 52 that Swain required by allowing a defendant to rely “solely on the facts… in his case” to claim that a prosecutor relied on race in their exercise of the peremptory challenge. 53

The Supreme Court developed a three-step prima facie case model of proof in an effort to protect equal protection rights and ensure the constitutionality of peremptory strikes.54 First, the opposing side must claim purposeful discrimination that the struck juror is a member of a cognizable group, and that the striking party excluded him or her due to his or her group identification.55 Next, if the court recognizes the claim, the striking party must respond with a race-neutral explanation for their peremptory strikes.56 Finally, if a race-neutral reason is advanced, the trial court decides whether there was purposeful discrimination.57 The Court, however, only provided examples of factors to consider in this process, leaving states and lower federal courts with a range of possible in terpretations and a high degree of discretion over unconstitutional peremptory strikes.58 Batson’s extreme vagueness required the Court to face more peremptory questions over what it deemed misinterpretations, exemplifying Batson’s true ineffectiveness. 59

C. Racially Discriminatory Consequences

Studies reveal that the race of a venire member is a critical factor in the use of peremptories by both prosecution and defense, with the prosecution disproportionately striking Black venire members and defense counsel

636 So. 2d 777, (Fla. Dist. Ct. App. 1994), the Florida District Court of Appeals held that Jewish persons constituted a cognizable group. In J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), the Supreme Court held that it was unconstitutional to exercise peremptory challenges on the basis of gender.

52 Batson, 476 U.S. at 92.

53 Id. at 95.

54 El-Mallawany, supra note 3, at 3341.

55 Id. at 3342.

56 Id.

57 Id.

58 El-Mallawany, supra note 3, at 3343.

59 E.g., Johnson v. California, 125 S. Ct. 2410, 2416 (2005) (the Supreme Court intervened over prima facie threshold issues set forth in Batson, mandating that the evidence of intentional discrimination in peremptory strikes need only be sufficient to support a l ogical conclusion or suspicion); Johnson, 125 S. Ct. at 2418 (noting that the California Supreme Court’s recognition that “it certainly looks auspicious that all three African -American prospective jurors were removed from the jury” was sufficient for a pri ma facie case).

disproportionately striking non-Blacks.60 Despite these race-based patterns, Batson’s “Achilles heel” requires proof of the striking party’s discriminatory state of mind.61 As Justice Thurgood Marshall explained, proof of intent to discriminate is elusive because racism may be conscious and unconscious in the minds of striking parties and presiding judges.62 In particular, Justice Marshall warned that this racist bias may lead attorneys to conclude that a prospective Black juror is “sullen” or “distant” characterizations which they would not have applied to a white juror acting identically.63 Unconscious stereotyping of racial minority venirepersons is thus a considerable concern, particularly as “much bias is automatic, unconscious, and unintentional.” 64 Furthermore, attorneys have limited information about potential jurors, causing them to frequently rely on group stereotypes, assisted by personal and lawyering experience and tradition, to guide their decision -making.65 Strikes based on stereotypes fundamentally undermine racial representation on juries and nullify minority defendants’ rights to a jury of their peers. 66

Due to the prevalence of unconscious racism, a striking party “could presumably give false reasons with an earnest demeanor,” 67 and trial judges are generally inadequate in questioning the striking party’s apparently neutral explanations.68 Courts have accepted peremptory explanations that directly coincide with race,69 and the Equal Justice Initiative uncovered “shocking, present-day evidence of racial discrimination in jury selection” which was nevertheless ruled race-neutral by courts.70 As law professor Leonard Cavise notes, “[a] large variety of explanations can be surrogates for race, gender, or ethnicity.”71 For instance, potential Black jurors have been struck because

60 Baldus et al., supra note 8, at 122.

61 El-Mallawany, supra note 3, at 3353.

62 Id. 3353-54; see also Brian J. Serr & Market Maney, Racism, Peremptory Challenges, and the Democratic Jury: The Jurisprudence of a Delicate Balance , 79 J. CRIM. L. & CRIMINOLOGY 1, 8 (1988).

63 El-Mallawany, supra note 3, at 3353.

64 Id. at 3354.

65 Adams & Lane, supra note 10, at 707.

66 El-Mallawany, supra note 3, at 3337.

67 Id. at 3355.

68 Id. at 3354.

69 Id.

70 Liane Jackson, The Chauvin Conviction Shows Why Diverse Juries Matter, ABA JOURNAL (August 1, 2021), https://www.abajournal.com/magazine/article/lessons -fromthe-chauvin-conviction.

71 Leonard L. Cavise, The Batson Doctrine: The Supreme Court’s Utter Failure to Meet the Challenge of Discrimination in Jury Selection, 1999 WIS. L. REV. 501, 543 (1999).

they lived in the same neighborhood as the defendant, 72 appeared to have “low intelligence,” or had relatives who attended historically Black colleges.73 Evidently, attorneys can take advantage of this ability to concea l racial bias, consequently turning jury selection for people of color into a “hazardous venture” where exclusion is paired with insulting commentary. 74 Furthermore, some district attorney’s offices responded to Batson by training prosecutors on how to effectively mask their exclusion of minorities from juries. For instance, prosecutors in Dallas County, Texas taught systematic strategies to exclude African Americans from jury service, which were codified in a training manual.75 Also, in 1997, an instructional video from the Philadelphia District’s Attorney Office was released, revealing a lecture by then Assistant District Attorney Jack McMahon which also promoted the striking of African Americans. 76 He acknowledged that his practice “may appear… racist or what not,” but it is ultimately encouraged because “the other side’s doing the same thing.” 77 Prosecutors who exclude people of color from juries ultimately face little to no repercussion or public scrutiny for their discrimination.78 In turn, most legal officials have come to rely on stereotypes as a common practice, 79 and, with racial discrimination claims being raised in fewer than ten percent of cases, each side tolerates the other side’s discriminatory employment of peremptory strikes.80

1. Flowers v. Mississippi

Flowers v. Mississippi (2019) depicts the clear dangers resulting from peremptory challenges and Batson’s ineffectiveness. Nearly four decades after Batson, Black defendants still do not receive a fair trial that is free from racial discrimination in jury selection.81 Since 1997, when Curtis Flowers was

72 Id. (“[o]ne prosecutor successfully excused several African -American jurors with the explanation that they were affiliated with Alabama State University, ‘a predominantly black institution’”).

73 Equal Justice Initiative, supra note 4.

74 Id.

75 Id.

76 Adams & Lane, supra note 10, at 708.

77 Id

78 Equal Justice Initiative, supra note 4.

79 Adams & Lane, supra note 10, at 708.

80 Baldus et al., supra note 8, at 123.

81 Alicia Diaz, Notes and Comment: Flowers v. Mississippi: The Culmination of Batson and its Progeny , 52 U. TOL. L. REV. 89, 90 (2021).

accused of capital murder for the death of Bertha Tardy, 82 Flowers has suffered for over twenty years and six trials in a legal saga to provide him with a fair trial. Two of his trials ended in a mistrial on multiple grounds, including prosecutorial misconduct of Doug Evans,83 and Flowers’ other convictions were reversed due to Batson violations.84 Winona County, Mississippi, where Flowers was tried, is roughly forty-five percent Black.85 Yet, only when there were more Black potential jurors than the state’s allotted number of peremptory strikes, or the trial court granted Batson challenges did a Black person serve as a juror.86 Across Flowers’ first five trials, the prosecutor, Doug Evans, struck over eighty-five percent of Black venirepersons.87

In Flowers’ sixth trial, the prosecutor used five of six peremptory strikes against Black venirepersons, accepting only one Black juror. 88 This jury of eleven white people and one Black person convicted Flowers of capital murder. Flowers appealed to the Mississippi Supreme Court again, which found all of Flowers’ claims to be meritless.89 In 2016, the Supreme Court remanded the case for further consideration, but the Mississippi State Court found again that “no Batson violation” had occurred.90 In 2018, Flowers’ case returned again to the Supreme Court, which ultimately determined there was a presumption of prejudice due to Evans’s pattern of discriminatory intent

82 Id. at 106

83 Id.

84 Id. at 90; see also id. at 106 (noting that during Flowers’ third trial, the Court was clear about its responses to the severity o f the Batson violations, claiming “[t]he instant case presents us with as strong a prima facie case of racial discrimination as we have ever seen in the context of a Batson challenge”).

85 Jackson, supra note 70.

86 Fourteenth Amendment Equal Protection Clause Batson Challenges Flowers v. Mississippi, 133 HARV. L. REV. 352 (2019).

87 Id. at 353. In Flowers’ first case, Evans eliminated all five Black potential jurors; see also Diaz, supra note 81, at 106 (noting that during Flowers’ third tri al, Doug Evan used all fifteen peremptory challenges against Black prospective jurors, and one Black juror sat on the jury only because Evan ran out of strikes to use).

88 Diaz, supra note 81, at 106-107.

89 Fourteenth Amendment, supra note 86, at 354 The state found no evidence in discrimination in the questioning methods of potential jurors, despite the State asking an “average of one question to each seated white juror” versus “29 questions to each struct black prospective juror.” The Court also found the state’s proffered race-neutral reasons for striking the five Black potential jurors as not pretextual and thus acceptable.

90 Flowers VI, 240 So. 3d 1082, 1092.

throughout the case’s history,91 and Flowers’ murder conviction and capital sentence were overturned.92

Flowers demonstrates how prosecutors may easily bypass Batson and maintain racial discriminatory practices through peremptory challenges. Therefore, the apparent remedy of Batson does not “redress the wrong,” and even when prosecutors are found to have discriminated against potential jurors, there exist no meaningful measures to prevent their continued violation.93 Flowers was another “missed opportunity” for the Court to remedy Batson’s failed eradication of prosecutorial misconduct and selection jury discrimination.94

IV. THE NEED TO ABOLISH PEREMPTORY CHALLENGES

The complete abolition of peremptory challenges is a necessary step for the Supreme Court to take in universally eliminating racial biases in jury selection. The superficial race-neutral reasons behind striking potential jurors evade formal protections against the strategic exclusion of racial minorities, resulting in juries that lack diversity of color, thought, experience, and socioeconomic background.95 Poorly representative juries deny members of minority groups the opportunity to play a significant role in the democratic legal process.96 By result, the construction of the jury has substantial impacts on the public’s perception of the accuracy of verdicts which casts mistrust97 and doubt on the race neutrality and legitimacy of the criminal justice system as a whole.98 Exclusionary juries also deny litigants the opportunity to be judged by an impartial jury.99 Despite judicial efforts to alter and improve uses of peremptory strikes through Batson and subsequent cases, unfairness

91 Fourteenth Amendment, supra note 86, at 354.

92 Id. at 353.

93 Id. at 361.

94 Id. at 353.

95 Jackson, supra note 70.

96 Adams & Lane, supra note 10, at 709.

97 Id see also Castaneda v. Parteda, 430 U.S. 482, 503 (1977) (Marshall J., concurring) (“Social scientists agree that members of minority groups frequently respond to discrimination and prejudice by attempting to distance themselves from the group, even to the point of adopting the majority’s negative attitudes towards the minority.”).

98 Id. at 713; e.g., id. at 707 (“As noted after the Rodney King trial, the lack of blacks on the state trial jury and the consequent lack of reflection of the community created an atmosphere where doubt in the system as a whole could exist.”).

99 Id. at 709.

is perpetuated through peremptories’ basis in subconscious perceptions, instincts, and stereotypes.100

Peremptory challenges are not a constitutional right, which has led lawyers notably Justice Marshall to argue for their complete elimination.101 Justice Marshall found fault with Batson’s effectiveness, because lawyers remain effectively free to discriminate when using peremptory strikes, and he accurately predicted that trial courts would be “ill equipped to second-guess” the race-neutral explanations offered by lawyers.102

The abolition of peremptory challenges would eliminate the incessant litigation burdens that Batson places on trial and appellate courts to objectively evaluate and review the possible hidden motives of attorneys.103 Additionally, factors such as religious preferences or political views are empirically revealed to have a meager impact on jury verdicts, yet peremptory challenges cause lawyers to devote extensive time to considering them.104 The abolition of peremptory challenges would end the systematic racial exclusion of nonwhite/Black venire members.105

A. Why Direct Regulations are Insufficient

More recently, proposed regulations to the peremptory challenge suggest the preservation of peremptory challenges, but with fewer allotted uses granted to each side.106 However, in instances where minority representation is limited, access to just one or two peremptory strikes could perpetuate the discriminatory exclusion of subgroups from juries.107 Criticisms of the abolition of peremptory challenge also raise the possibility that a disruptive, extreme person would be selected for a jury and distort the case.108 Nevertheless, these “speculative

100 Id. at 748.

101 Batson, 476 U.S. at 105-106 (1986) (Marshall, J., concurring); see also Rice v. Collins, 126 S. Ct. 969, 976 -77 (2006) (Breyer, J., concurring) (discussing the persistence of statusbased peremptory challenges despite Batson, and echoing Justice Marshall’s original call for the abolition of peremptory challenges).

102 J. W. Morehead, When a Peremptory Challenge is no Longer Peremptory: Batson’s Unfortunate Failure to Eradicate Invidious Discrimination from Jury Selection , 43 DEPAUL L. REV. 625, 638 (1994).

103 Id. at 639.

104 Id.

105 Baldus et al., supra note 8, at 129.

106 Morehead, supra note 102, at 640.

107 See Id. (“The problem is that in a diverse society, the peremptory challenge is actually a stacking tool that favors majority interests while handicapping the party who would benefit from minority representation on the jury.”) Tracey L. Altman, Note, Affirmative Selection: A New Response to Peremptory Challenge abuse , 38 STAN L. REV. 781, 800 (1986).

108 Morehead, supra note 102, at 640.

concerns are inherently unpersuasive” in comparison to the harm caused by unfair jury selection.109 Justice Lewis Powell explained that “it is the jury that is a criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.”110 This protection is substantially threatened by peremptory challenges.111

V. CONCLUSION

Peremptory challenges and fair jury selection are irreconcilable, and Batson and its later precedents are incapable of controlling racial discrimination in the jury selection process.112 Peremptory challenges permit strikes relying on gross stereotypes, and courts struggle to identify such racial discrimination,113 fundamentally excluding certain people and viewpoints.114 There is no reliable link between peremptory use and impartial juries, 115 and peremptory challenges cause young Black men in particular to have a low chance of being tried in front of members of their own race. 116 The jury, however, has “a venerable reputation as an institution necessary to our democracy,”117 so the practices governing it must ensure diverse representation and inclusion of people’s uniqueness. Furthermore, diverse juries are found to deliberate longer and more thoroughly evaluate evidence;118 they are “more efficient fact finders,” and they reduce the risk of extreme outcomes. 119 The peremptory challenge effectively inhibits the realization of these goals. It is time for the members of Congress and the Supreme Court to recognize that peremptory challenges are irreconcilable with racial bias and therefore must universally eliminate its use in criminal and civil trials. * * *

This Note was edited by Margarita McCoy

109 Id.

110 McCleskey v. Kemp, 481 U. S. 279, 310 (1987).

111 Morehead, supra note 102, at 640.

112 Baldus et al., supra note 8, at 37.

113 DeCamp, supra note 48.

114 Adams & Lane, supra note 10, at 758.

115 Sommers & Norton, supra note 41, at 528.

116 Baldus et al., supra note 8, at 127 (noting that criminal defendants have no explicit legal right to be tried by a jury of their “peers.”).

117 Adams & Lane, supra note 10, at 738.

118 Jackson, supra note 70.

119 Adams & Lane, supra note 10, at 743; e.g., Jackson, supra note 70 (arguing that the multicultural composition of the jury for Derek Chauvin’s charge for the murder of George Floyd was one of the most important factors in Chauvin’s conviction).

FEMALE GENITAL MUTILATION: WHY PROSECUTION BY THE INTERNATIONAL CRIMINAL COURT WOULD PREVENT HUMAN RIGHTS VIOLATIONS

Daymara Rodrigues*

Female genital mutilation (FGM) is a non -medical procedure removing portions or injuring female genitalia. Approximately 200 million women alive today have undergone female genital mutilation, which is severely harmful to these women, despite its cultural significance in many communities. The United Nations has affirmed the rights of women in the Universal Declaration of Human Rights and the Universal Declaration of Women’s Rights. The International Criminal Court also was created to enforce accountability. This Note will explain how FGM constitutes a crime against humanity under international law. This Note ultimately argues that countries without FGM laws must be prosecuted for crimes against humanity.

* B.A. Candidate for Political Science and Philosophy, Fordham Colleg e at Rose Hill, Class of 2023. The conceptualization of this Note would not have been possible without the continual discussion and queries on human rights issues with my family and friends . I want to give special thanks to the Fordham Undergraduate Law Re view for the opportunity to bring light upon a present and striking issue facing women unbeknownst by many today.

I. INTRODUCTION

Global society exists in a state of anarchy. No individual power rules over the international system; however, nations agree to comply with one another in order to maintain peace. After World War II, representatives of fifty countries convened at the United Nations Conference on International Organization to draft the United Nations Charter, formally creating the United Nations (UN).1 Committed to ensuring the injustices of Nazi Germany are never repeated, the UN established the Declaration of Human Rights. This document seeks to define universal, unalienable rights for all individuals of the world, and members of the UN “pledge themselves to achieve . . . the promotion of universal respect for and observance of human rights and fundamental freedoms.”2 The document was founded on the belief that individuals are born with certain inalienable rights that must be protected. Despite this consensus on universal rights, the method of enforcement remains ambiguous. The establishment of the International Criminal Court (ICC), adjacent to the UN, sought to enforce fundamental human rights. Despite the adoption of the international treaty Convention to Eliminate All Forms of Discrimination Against Women in 1979, which reaffirmed women’s rights,3 many still face prejudice embedded in cultural systems. For instance, the Bondo Society, a women -run community in Sierra Leone, promotes itself as a sisterhood and a place of solace for women. However, its leaders are dubbed supernatural beings and punish those who dare to reveal details of the community; thus, its traditions are kept hidden. Nevertheless, to join the Bondo, a girl in puberty must undergo genital mutilation, as a rite of passage into womanhood.4 Each girl who joins the Bondo aligns themselves with the surplus of two hundred million women and girls in ove r

1 History of the United Nations, UNITED NATIONS, https://www.unsecretariat.net/sections/history/history -united-nations/index.html.

2 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948).

3 Convention against Torture and Other Cruel, Inhuman or Degra ding Treatment or Punishment 1984, 1465 UNTS 85, pmbl.

4 Owolabi Bjälkande et al., Female Genital Mutilation in Sierra Leone: Who Are the Decision Makers? , 16 AFRICAN JOURNAL OF REPRODUCTIVE HEALTH 119, 121 (2012).

AND THE ICC

thirty countries who fall victim to female genital mutilation.5 World organizations have recognized, analyzed, and strategized on the issue of FGM, yet, limited direct action has been taken.

This Note will detail the cultural significance, context, and effects of female genital mutilation. Then, this Note will analyze how the United Nations and the International Criminal Court have failed to interpret the text of international doctrine as pertaining to female genital mutilation. This Note will continue by examining the ICC’s previous prosecutions of crimes against humanity. This Note will ultimately argue that the International Criminal Court must prosecute countries without bans on female genital mutilation, under international laws regarding sexual violence, for crimes against humanity.

II. BACKGROUND ON FEMALE GENITAL MUTILATION

FGM as defined by the World Health Organization (WHO) is used to identify “all procedures involving partial or total removal of the external female genitalia or other injuries to the female genital organs for non-medical reasons.”6 Specifically, the WHO has defined four distinct categories of FGM: (1) clitorectomy partial or complete removal of the clitoris, (2) without removing the labia majora, partial or total removal of the clitoris and labia majora, (3) narrowing the vaginal orifice without removing the clitoris but cutting the labia majora or minora, and (4) all other harmful procedures to female genitals for non -medical purposes.7 UNICEF estimates that two hundred million girls and women have undergone FGM, of which forty-four million were below the age of fifteen. Among the two hundred million women and girls, it is estimated that over half live in three countries Indonesia, Egypt, and Ethiopia.8 In 2021, UNICEF predicted that two million

5 Female Genital Mutilation , WORLD HEALTH ORGANIZATION 1, 2 (2019), https://www.jstor.org/stable/resrep28229#metadata_info_tab_contents.

6 Female Genital Mutilation , WORLD HEALTH ORGANIZATION (Jan. 21, 2022), https://www.who.int/news-room/fact-sheets/detail/female-genitalmutilation#:~:text=Female%20genital%20mutilation%20(FGM)%20comprises,organs%20 for%20non%2Dmedical%20reasons.

7 Eliminating Female Genital Mutilation at 24 WORLD HEALTH ORGANIZATION (2008), http://apps.who.int/iris/bitstream/handle/10665/43839/9789241596442_eng.pdf?sequence= 1.

8 Female Genital Mutilation/Cutting: A Global Concern , UNICEF (2016), https://www.unicef.org/sites/default/files/press-releases/glo-mediaFGMC_2016_brochure_final_UNICEF_SPREAD.pdf.

cases of FGM may occur over the next dec ade, especially because the COVID-19 pandemic has closed schools and disrupted protection programs.9

A. Cultural Significance

Although the origins of FGM are unclear, FGM can be generally traced back to ancient Egyptian religious ceremonies. 10 Currently, many regions maintain a taboo against disclosing information regarding FGM; thus, much of the available data is collected through anecdotal evidence and reporting.11 Nonetheless, UNICEF documents that FGM procedures are predominantly based in Africa, Asia, and the Middle East. 12 Somalia, Guinea, and Djibouti have the highest percentages of women between the ages of fifty to forty -nine years who have undergone FGM. 13 Gambia, Mauritania, and Indonesia account for a substantial portion of the girls from ages zero to fourteen who have undergone FGM.14

While FGM is often rooted in cultural practices, clear in its propagation in specific areas, the primary motivation for FGM varies across ethnic groups, tribes, and regions. FGM symbolizes gender roles, socio-economic status, femininity, and ultimately, humanity to those who participate. 15 For instance, in areas with widespread cases of FGM, such as Somalia and Sudan, genital mutilation is seen as an improvement, a mark of femininity, and an indication of beauty.16 Among countries in eastern Africa, natural or unmodified genitals are perceived as abhorrent, often identified as a mark of inhumanity.17 Further, communities, such as the Bondo of Sierra Leon, use FGM to indicate womanhood and a bond between th e members of the

9 Henrietta Fore & Natalia Kanem, 2 Million Additional Cases of Female Genital Mutilation Likely to Occur Over Next Decade Due to COVID -19, UNICEF (2021), https://www.unicef.org/press-releases/2-million-additional-cases-female-genitalmutilation-likely-occur-over-next-decade.

10 Amir Bahram Arab Ahmad, An Analytical Approach to Female Genital Mutilation in West Africa, 3 INTERNATIONAL JOURNAL OF WOMEN’S RESEARCH 37, 39 (2013).

11 Anne M. Gibeau, Female Genital Mutilation: When a Cultural Practice Generates Clinical and Ethical Dilemmas, 27 JOGNN 85, 86 (1997).

12 Female Genital Mutilation/Cutting: A Global Concern , supra note 7.

13 Id

14 Id.

15 Female Genital Mutilation , supra note 5.

16 Richard A. Shweder, What about “Female Genital Mutilation”? and Why Understanding Culture Matters in the First Place , 129 DAEDALUS 209, 216 (2000).

17 Id.

woman-only society.18 Ultimately, the WHO cites religious support, continuity of tradition, preparation for marriage, and discouragement of promiscuity among women as some reasons why FGM persists within communities.

B. Effects on Women

Despite FGM being increasingly performed by medical professionals as a harm reduction strategy, the health and psychological consequences of the procedure remain prominent.19 Short-term consequences of FGM include mutilated genital tissue, bacterial infection, shock, open sores, and death.20 Long-term symptoms include increased risk of child morbidity, infertility, reoccurring infection, and need for repeated closing procedures as wounds open.21 Beyond physical effects, psychological damage is also attributed to trauma from the procedure itself.22 Upon working with women from Senegal who have undergone FGM, researchers found that eighty percent of the women who underwent the procedure met the criteria for anxiety disorders, with an abnormally high percentage of women also exhibiting symptoms of post-traumatic stress disorder.23

III. LAWS REGARDING FEMALE GENITAL MUTILATION

In Africa, there is a severe lack of laws prohibiting FGM domestically and continentally. In twenty-eight African countries, it is estimated that fiftyfive million girls are at risk or have already undergone an FGM procedure. 24

18 Bjälkande et al., supra note 3, at 121.

19 Id. at 120.

20 Female Genital Mutilation , supra note 4, at 3; Gibeau, supra note 10, at 88.

21 Female Genital Mutilation , supra note 4, at 3; Gibeau, supra note 10, at 88.

22 Female Genital Mutilation , supra note 5.

23 Alice Behrendt & Steffen Moritz, Posttraumatic Stress Disorder and Memory Problems

After Female Genital Mutilation , 162 AMERICAN JOURNAL OF PSYCHIATRY 1000, 1001 (2005).

24 The Law and FGM: An Overview of 28 African Countries, 28 TOO MANY (2018), https://www.trust.org/contentAsset/raw-data/1e5a2969-bd56-4fc3-80345409fd161175/file.

A. Domestic

In observing domestic law within the twenty-eight countries, six do not have current laws against FGM. 25 Sierra Leone, Liberia, Mali, Chad, Sudan, and Somalia do not have laws that ban FGM, and over forty percent of women aged fifteen to forty-nine in these countries have already undergone FGM. 26

Even within the twenty-two countries that have adopted FGM laws, many do not enforce nor prosecute these crimes. 27 Kenya and Uganda provide the most comprehensive laws against FGM because they define it, criminalize the procedure and assisting in it, failing to report it, medical FGM, and crossborder FGM.28 Remaining countries with FGM laws lack one or more of these aspects of comprehensive laws.29

B. Continental

The African Union (AU) is an organization of African nations with the intention of fostering progress and human rights on the continent.30 Notably, the establishing document, the Organization of African Unity (OAU), highlights all African states on the continent and surrounding islands. Hence, subsequent charters and treaties apply to all African nations. Thus, the nations without FGM laws violate the charters on the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (RWA).31

The RWA explicitly requires the illegalization of FGM in Article V, ordering “prohibition, through legislative measures backed by sanct ions, of all forms of female genital mutilation, scarification, medicalisation and paramedicalisation of female genital mutilation and all other practices in order to eradicate them.”32

25 Id.

26

Female Genital Mutilation/Cutting: A Global Concern , supra note 7. In Sierra Leone, ninety percent of women aged fifteen to forty-nine have undergone FGM, while fifty percent have undergone it in Liberia, eighty-nine percent in Mali, forty-four percent in Chad, eighty-seven percent in Sudan, and ninety -eight percent in Somalia.

27 The Law and FGM, supra note 22.

28 Id. at 76.

29 Id.

30 Charter of the Organization of African Unity, May 25, 1963, 479 U.N.T.S. 39, 2 I.L.M. 766 (entered into force Sept. 13, 1963).

31 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (2003), art. 5.

32 Id.

FGM is a known, prevalent issue within African countries and exemplifies a detrimental inequity among men and women. Although the procedure is included in the RWA to “reaffirm” women’s rights, many governments fail to enforce the relevant article and have not been challenged by the AU for their disregard of the charter’s provision.33

IV. INTERNATIONAL FAILURE TO INTERPRET FEMALE GENITAL MUTILATION AS A VIOLATION OF SEXUAL VIOLENCE LAWS

A. The Universal Declaration of Human Rights

Countries that lack explicit laws against FGM but continue to practice it are violating the UN’s Universal Declaration of Human Rights (UDHR). Specifically, Article Five of the UDHR states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” 34 The UN defines torture as the infliction of physical or mental “severe pain or suffering” for “any reason based on discrimination of any kind.”35 Aforementioned reports have illustrated that the short and long-term physical effects on women cause “severe pain,” and repeated medical complications with further “suffering” resulting from psychological trauma from the procedure.36 Therefore, the utilization of FGM for any purpose, due to its clear traumatization inflicted upon victims, is a violation of Articl e Five of the UDHR.

As cultural groups and communities selectively discriminate against young women in furthering FGM, they furthermore violate Article Two of the UDHR. Article Two details that all individuals are entitled to universal rights and freedoms listed despite “sex,” “national or social origin,” and “birth or other status.”37 In countries that fail to restrict and prosecute FGM, women are born into innate deprivation of bodily autonomy. Universal rights and freedoms are withheld from FGM victims simply by virtue of being female and born within a society that uses the cultural propagation of FGM to reinforce the subjugation of women.

33 Id

34 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948), art. 5.

35 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, 1465 UNTS 85, art. 1.

36 Id.

37 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948), art. 2.

Articles Seven and Eight of the UDHR entail equality under the law, protection against any discrimination, and the right to an “effective remedy.”38 By this standard, Sierra Leone, Liberia, Mali, Chad, Sudan, and Somalia explicitly fail to provide equal protection to women. Accordingly, nations that do not provide equal treatment under the law for victims are permitting the continuation of the tortuous acts of FGM, withholding universal freedoms, and violating key components of the UDHR.

B. The Convention on the Elimination of All Forms of Discrimination Against Women

To reaffirm women’s equality and provide an approach for countries to combat discrimination, in 1979, the UN ratified the Convention on the Elimination of All Forms of Discrimination Against Women (CEAFDAW). In enforcing the convention, the CEAFDAW mandates that experts on the Committee on the Elimination of Discrimination Against Women compile a report every four years on the status of women. 39 The widespread practice of FGM violates Articles 1-6 of the CEAFDAW, which specify legal and cultural equality for women under the law of every country. 40 Discrimination against women is explicitly defined as “distinction, exclusion, or restriction” with the purpose of or resulting in diminishing or removing the human rights and freedoms of women on the basis of sex.41 Article Two outlines what measures states must agree to enact to create effective equality in law.42 Notably, Article Two requires states to enforce “appropriate legislation,” “refrain from engaging in,” and “take all appropriate measures” to end discrimination against women.43

Without explicit laws or enforcement mechanisms to guard against FGM, governments permit and legitimize the institutional discrimination against women through torturous mutilation. While countries may not endorse the practice, their inaction is also a violation of the convention, si nce the CEAFDAW places the burden upon nations to end cultural FGM by “all appropriate measures” in order to ensure the advancement of equality for women, per specified by Articles 3-5.44 While the popular rationale for FGM

is the propagation of cultural beliefs reinforcing the particular position of women within society,45 CEAFDAW imposes the burden on countries to dismantle these systems. Specifically, the CEAFDAW requires countries to “modify the social and cultural patterns of conduct” to remove practices that propagate the superiority or inferiority of men and women. 46 The goal is to increase “de facto equality” among men and women. In effect, the CEAFDAW makes cultural justifications of FGM illegitimate.47

C. The Rome Statute

The sanctioning of FGM constitutes as a crime against humanity per the ICC’s Rome Statute, which established the four international crimes of genocide, crimes against humanity, war crimes, and crime of aggression. Article Seven of the Rome Statute defines a crime against humanit y as “a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”48 The ICC has defined “widespread” to indicate the extent of the attack and a large number of victims. 49 “Systematic” is defined as “the organised nature of the acts of violence and the improbability of their random occurrence.”50 It is evident through numerous treaties and agreements that countries which fail to criminalize FGM are aware of the mutilation within their borders.51 FGM maps onto the cultural subjugation of women, is intentionally organized, and broadly occurs across Africa. Therefore, it is both widespread and systematic. FGM can be defined as a crime against humanity because it qualifies as pe rsecution. A crime against humanity can mean:

Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are

45 See Eliminating Female Genital Mutilation , supra note 6, at 5-7.

46 Id. art. 2.

47 Id

48 Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute], art 7, para 1.

49 Judgment, Prosecutor v. Dario Kordić and Mario Čerkez 29, Case No. IT -95-14/2-A (International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Dec. 14, 2004), https://www.icty.org/x/cases/kordic_cerkez/acjug/en/cer-aj041217e.pdf.

50 Id.

51 See The Law and FGM, supra note 22, at 72-4.

universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court. 52

The ICC clarifies the significant components of each crime under its Elements of Crimes section. For an action to constitute a crime against humanity of persecution, the perpetrator must deprive “one or more persons of fundamental rights,” and such individuals must be targeted based on their political, racial, national, ethnic, cultural, religious, or gender iden tity.53 Victims of FGM are targeted because of their gender. Likewise, for all crimes against humanity, the crime must also be a part of a “widespread or systematic attack against a civilian population” and the perpetrator must have known or intended to co ntribute to a “widespread or systematic attack.”54 FGM is widespread. And even when illegalizing the practice, many nations maintain cross-border FGM practices, allowing it to propagate among their civilians in nearby nations.55 Countries thus knowingly deprive women of their fundamental right to equality and freedom from torture.

In addition, FGM under the Rome Statute qualifies as a crime against humanity of “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”56 To establish a crime against humanity or other inhumane acts, the perpetrator must have “inflicted great suffering, or serious injury to body or to mental or physical health.”57 The act must be a part of a “widespread or systematic attack” against civilians, with the perpetrator understanding the conditions of said action and its contributions to the attack. 58 Fundamentally, FGM poses no benefit to women. Regardless of the cultural perceptions of FGM, the action itself is inherently harmful and causes serious injury to a woman’s genitalia. The results are intrinsically detrimental, causing short and longterm physical side effects and psychological harm.

Thus, under the Rome Statute, FGM is a crime against human ity of persecution and of other inhuman acts, as it targets women. FGM is both widespread and systematic and many countries are aware of the harm and the significant number of victims but choose to neither criminalize nor enforce existing bans against FGM.

52 Rome Statute, art. 7, para. 1 sec. h.

53 Elements of Crimes, 2011, art. 7, para. h, sec. 1.

54 Id. art. 7, para. g, sec. 5.

55 The Law and FGM, supra note 22, at 48-50.

56 Rome Statute, art. 7, para. 1 sec. k.

57 Elements of Crimes, 2011, art. 7, para. k, sec. 1.

58 Id. art. 7, para. k, sec. 4.

V. THE INTERNATIONAL CRIMINAL COURT’S PREVIOUS PROSECUTION OF CRIMES AGAINST HUMANITY

Although state leaders have not directly ordered women to be mutilated, the case of The Prosecutor v. Al-Tuhamy Mohamed Khaled (2013) illustrates that the ICC wields the power to prosecute a leader for human rights violations occurring under their authority. This case conveys an approach the ICC can and should take in prosecuting FGM. A warrant for Al -Tuhamy Mohamed Khaled, the former leader of the Internal Security Agency (ISA) in Libya, was issued on April 18, 2013, but he was never detained and died in February of 2021. 59 Khaled was charged with multiple crimes against humanity, including imprisonment, torture, persecution, and inhumane acts, and three types of war crimes: torture, cruel treatment, and outrages against personal dignity.60 Khaled, a government official in Libya, ordered in 2011 the end to Muamar Gaddafi’s opposition by “any means.” 61 As a result, Libyan civilians were arrested and subjected to torture by the state’s Internal Security Agency.62

Ultimately, the ICC charged Khaled, as they believed that “in his capacity as head of the ISA, [he] was in charge of all 33 ISA sub -agencies located on Libyan territory and that the members of the ISA were his subordinates.”63 This case illustrates a situation in which the individual c harged and responsible for the crimes neither gave the order nor enforced the order but nonetheless was in command when the crimes occurred. While there are differences between this case and the situation at hand with FGM notably that ISA was a state security operation while FGM is likely more communitybased there are nonetheless parallels between the case and FGM. Although governments have not ordered women to be mutilated, they are nonetheless conducting crimes against humanity.

59 The Prosecutor v. Al-Tuhamy Mohamed Khaled , INTERNATIONAL CRIMINAL COURT PROJECT (2022), https://www.aba-icc.org/cases/case/the-prosecutor-v khaled/.

60 Id.

61 Pre-Trial Chamber I, The Prosecutor v. Al -Tuhamy Mohamed Khaled 4-5, No. ICc01/22-01/13 (Int’l Crim. Court Apr. 18, 2013), https://www.icccpi.int/sites/default/files/CourtRecords/CR2013_03122.PDF.

62 Id.

63 Id.

VI. WHY FEMALE GENITAL MUTILATION OUGHT TO BE ENFORCED AS A CRIME AGAINST HUMANITY

The ICC must charge governments that oversee and have knowledge of FGM practices in their countries with crimes against humanity of prosecution and other inhumane acts because FGM practices infringe on the Rome Statute and women’s fundamental rights ensured by domestic and international laws. Among the six countries without laws against FGM, only two Sudan and Somalia are not signatories under the Rome Statute. In order for the ICC to directly prosecute members of a nation, it must have jurisdiction under the Rome Statute. For the ICC to have jurisdiction, the country must have ratified the Rome Statute and the crime must have occurred after ratification, proving to be a minor limitation in the ICC’s prosecutorial powers related to FGM.64 For the four countries that ratified the Rome Statute, the ICC can and must enforce Article Seven to uphold the rights of women who undergo mutilation to ensure the protection for vulnerable communities as wel l as uphold the sanctity of the Statute.

Although established as independent institutions, the ICC and the UN retain an interdependent relationship. To initiate a legal action in a country that has not ratified the Statute, the ICC must be referred to by t he UN Security Council.65 Thus, one way for the UN to compel the ICC to prosecute a case is to “initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.” 66 Hence, the UN Security Council should initiate an investigation into the rights violations that occur due to the continued practice and allowance of FGM in many countries. The UN and ICC can work in tandem to prosecute FGM.

VII. CONCLUSION

International organizations have been created to instill peace among nations through accountability measures for ensuring the fundamental rights and freedoms of all citizens. The UDHR, the CEAFDAW, and the Rome Statute are among texts that codify individuals’ rights.

FGM is a clear violation of international agreements, and it poses a severe threat to human rights. As a procedure which intentionally imposes adverse physical and psychological effects upon a designated community, FGM is

64 Rome Statute, art. 11, para. 1.

65 Id. art. 13, para. a.

66 Id. art. 15, para. 1.

inhumane and unequal treatment that violates international doctrines. Ultimately, the lack of explicit laws and enforcement measures protecting women from such atrocities demonstrates the continuation of inequality under the law. Women’s rights are reaffirmed by the Convention on the Elimination of All Forms of Discrimination Against Women, yet, there is no recourse to the continuity of FGM. The absence of laws against FGM in several nations is an infringement of the Rome Statute.

These countries are aware of the human rights violations against women and girls that occur within their borders, but continually neglect to address them. Thus, both the ICC and the UN have a responsibility to secure women’s rights through their intended accountability measures. Although FGM is a significant aspect of culture in many regions, the harm to women who undergo such mutilation cannot be ignored and must begin to be addressed by the international legal community.

This Note was edited by Marieme Barry

BREAKING OUT OF OUTDATED LAW: REFORMING DATA PROTECTION LAWS FOR THE INTERNET AGE

Samantha Scott*

This Note argues that the United States is far behind the rest of the world regarding data protection and privacy, and that there is a clear need to create more stringent national regulations. By exploring current law on the federal and state level, this Note then identifies proposed legislation to illustrate that more robust laws are necessary for protecting users’ personal data. Section IV will examine other countries’ laws and regulations regarding data protection, and how they may apply in the United States to create more substantial data privacy laws. This Note will examine the implications of a more stringent regulation of corporations in their relationship with the consumer, thus demonstrating that modifying privacy law is an overall positive policy decision.

* B.A. Candidate for International Political Economy at Fordham College at Rose Hill, Class of 2024. I hope to continue my academic career at law school and become a lawyer. This Note is dedicated to my family and friends, but especially my mom and dad for inspiring, encouraging, and challenging me every day.

I. INTRODUCTION

“Privacy is not a discrete commodity, possessed absolutely or not at all.1

- Justice Thurgood Marshall

Long before the Internet Age, Justice Thurgood Marshall spoke about privacy regarding personal information. He argued that those who disclose facts for a limited purpose to businesses should not assume that the information they provide will be released to other persons or used for other purposes.2 Providing a person or entity with information does not mean that it becomes public information; there is still a level of privacy and protection that the law warrants. Even though Justice Marshall was not referring to online data, he posits a question essential to data privacy and protection: Do businesses and tech companies have a right to use or sell the information they collect for other purposes?

In the United States, data privacy and protection is an area of the law concerning personal data and how it is collected and used by various persons in reference to the approximate use of personal information and the expectations of the individual in regards to their data.3 Nonetheless, the primary consideration in data privacy law is concerning who has access to individuals’ personal data, and how the United States can secure against unauthorized action.4 Currently, the federal law governing data protection and data privacy in the Internet Age is far behind modern standards, demonstrated by issues that have arisen within technology companies, including Facebook.

The United States may recognize that the current approach to data protection in privacy law is lacking, but there is not sufficient propos ed federal legislation that would properly combat the issue. Meanwhile, there have been substantial data protection laws passed on the state level and in other countries, which may be useful if the United States were to enact more substantial and transformative data protection laws. How data is used and protected needs to be thoroughly revised. By reviewing the nations at the forefront of privacy law in Section IV, notably Japan and the European Union

11 Smith v. Maryland, 442 U.S 735, 749 (1979) (Marshall, J., dissenting).

2 Id.

3 See Grace Park, The Changing Wind of Data P rivacy Law: A Comparative Study of the European Union’s General Data Protection Regulation and the 2018 California Consumer Privacy Act, 10 U.C. IRVINE L. REV. 1455 (2020).

4 Id. at 1459.

(E.U.), this Note determines what would be the most applicable to the United States. Given that the Internet Age and the presence of social media will be longstanding, this Note will argue that the United States must amend and propose new federal laws on data protection.

II. CURRENT LEGISLATION IN DATA PROTECTION POLICY IN THE UNITED STATES

Compared to other countries, the United States has no sweeping federal legislation or constitutional right5 that protects users of social media or social networking sites. Rather, the federal government has placed these regulations within other laws that are not designed to protect internet users. This approach to data privacy and protection law has created a patchwork of regulations and restrictions that largely leaves it up to the states to combat the issues of privacy and data protection online. Without the explicit right to privacy in the Constitution and the U.S. Supreme Court unwilling to resolve the threat posed by unprotected access to technology, the protection of internet users’ data relies on current, inad equate legislation.

A. Legislation at the Federal Level

Five significant laws dictate privacy and data protection on the federal level: the Children’s Online Privacy Protection Act (COPPA), 6 Federal Torts Claims Act (FTCA), 7 Health Insurance Portability and Accountability Act (HIPAA),8 Family Educational Rights and Privacy Act (FERPA), 9 and the Video Privacy Protection Act (VPPA).10 Congress enacted these laws largely to protect people’s data and privacy before the Internet Age, and therefore have limited application to internet services. Without regulations and rules expressly created in the modern era, these laws prove to be a poor fit for

5 Id. at 1468. (“A right of privacy is not directly expressed in the U.S Constitution or the Bill of Rights… U.S Supreme Court upheld that privacy is implicitly protected by the Equal Protection Clause of the Fourteenth Amendment…”).

6 See Children’s Online Privacy Protection Act, 15 U.S.C §§ 6501 -6.

7 See Federal Torts Claims Act, 28 U.S.C §§ 2671 -80.

8 See Health Insurance Portability and Accountability Act, 42 U.S.C §§ 1302 -9.

9 See Family Educational Rights and Privacy Act, 20 U.S.C § 1232.

10 See Video Privacy Protection Act, 18 U.S.C § 2710.

internet privacy and data protection nuances. 11 Among the aforementioned governing laws, only two explicitly reference and react to the shift in technology in the Internet Age: COPPA and FTCA. COPPA illegalized the collection and sale of personal information by the operator of a website or an online service that is directed to children, or is aware that the information collected is from a child.12 COPPA furthermore required that upon a parent’s request an operator must provide any personal information collected, and allows the parent to refuse the operat or’s further use or collection of personal information.13 Comparatively, FTCA empowers the Federal Trade Commission (FTC) to prevent unfair methods of competition and deceptive acts in practices involving commerce; as well as defines which acts and practices are considered unfair and deceptive. 14 This regulation includes the authority of the FTC to review applications and online services that violate their privacy policies, which grants the FTC jurisdiction over internet services. 15 However, the scope of both of these acts is limited. COPPA only protects data collected from children, while FTCA only grants jurisdiction to the FTC regarding unfair practices in commerce. The United States has accommodated digital technologies and internet services into existing and outdated legal structures, creating a poor fit for the privacy and protection issues seen today.16

B. Legislation at the State Level

Without protection for data on the federal level, several states have taken steps to protect consumers. Before the Internet Age, twelve states had written in their constitutions that privacy was a right, now encouraging additional states specifically, California, Colorado, and Virginia17 to pass

11 See also Anupam Chander, Achieving Privacy, 74 SMU L. REV 613 (“The U.S data privacy regime lacks a comprehensive that regulates the collection and processing of personal data of U.S residents by private parties”).

12 Children’s Online Privacy Protection Act, 15 U.S.C §§ 6501-6.

13 Id. § 6502.

14 Federal Torts Claims Act, 28 U.S.C §1346.

15 Id.

16 See Stephen Henderson, Expectations of Privacy in Social Media, 31 MISS C. L. REV. (2012); see also Woodrow Hartzog et al., Privacy’s Constitutional Moment and the Limits of Data Protection , 61 B.C. REV 1687, 1721 (2020).

17 See generally Pam Greenberg, Privacy Protections in States Constitutions, NCSL (Jan. 3, 2022) https://www.ncsl.org/research/telecommunications-and-informationtechnology/privacy-protections-in-stateconstitutions.aspx#:~:text=Constitutions%20in%20Alaska%2C%20Arizona%2C%20Calif

comprehensive privacy laws regarding data privacy and protection. Thes e laws borrow heavily from the European Union’s regulations on data protection and protect the data and privacy of in-state residents by regulating companies that collect data on the internet.

Within each of these state’ data laws, citizens are given the right to optout, delete, access, and correct on the Internet. Consumers may opt out and request that businesses stop selling their personal information. 18 They have the right to know or request that businesses disclose what personal data they have collected, used, or shared about a person and their reasoning for doing so.19 Consumers also have the right to have companies delete or change the personal information they have collected. 20

Overall, these state laws are comprehensive in protecting their resident s regarding data privacy and protection, but nonetheless have several limitations. None of these laws change the default option of data privacy to opt-out instead of opt-in. If users have to opt-in to use a service, they will be more likely to share their data, whereas in other countries, the default is to opt-out.21 Regardless, these states cannot protect those who are not residents, therefore leaving most of the U.S. population without such protection. 22

C. Overall State of Legislation

There is a clear need for one principal data protection law at the federal level. Currently, federal privacy laws solely require that companies do not engage in unfair or deceptive trade practices, that they provide consumers with a notice regarding the use of their data, and that they provide consumers with the choice to agree to the contract or not use the service at all.23 However, Congress should not base law which regulates social networking sites and internet services on protecting companies rather than users.24

ornia,shown%20in%20the%20table%20below ; See also Henderson, supra note 14, at 231; see generally Park, supra note 3, at 1468 (Offers an overview of the California model of data privacy and their law, the CCPA).

18 See CAL CIV CODE § 1.81.5; CO CIV CODE § 6.1.1301; VA CIV CODE §59.1-571.

19 Id.

20 Id.

21 See Park, supra note 3, at 1477.

22 See Henderson, supra note 16, at 231.

23 See Hartzog, supra note 16, at 1705; see also Park, supra note 3, at 1463 (“Yet, Internet governance by contract and the notion that a click constitutes a ‘manifestation of assent’ still remain powerfully relevant because it serves as the basis for many popular and wid elyused Internet programs”).

24 See Park, supra note 3, at 1463.

Federal law should emphasize the need for sufficient protection of the consumer rather than the company.

III. PROPOSED LEGISLATION REGARDING DATA PROTECTION IN THE UNITED STATES

Many lawmakers agree that it is time to create more comprehensive laws that respond to the changes in technology in recent years. Out of the thirty data protection bills on the floor, one bill has bipartisan support and bipartisan sponsorship: The Social Media Privacy Protection and Consumer Rights Act of 2021.25 The intention of the Act was to protect users’ privacy on social media and other online platforms.26

The Act defines personal data as individually identifiable information about an individual being collected online including location information, email address, telephone number, government identification, geolocation information, the content of a message, protected health information, and nonpublic personal information.27 This definition allows the Act to broadly regulate various social media applications. The Act also outlines several regulations for social media companies to follow. Firstly, a company must inform a user prior to creating an account that their personal data will be collected and used by the operator as well as by third parties; then, it g ives the user control over consent to the terms and privacy preferences. 28 If the operator chooses to change the privacy policy or data collection, they must inform the user and allow him to withdraw consent.29 Operators are also responsible for informing users if a security breach occurs, providing them with access to the breached personal data. 30 However, if the user refuses to consent, the operator has the right to deny certain services to the user. 31 Users furthermore have the right to a description of the privacy and security platform used by the operator. 32 The user has the right to be forgotten or withdraw consent from the service. If a user chooses to do so, no person or

25 See Social Media Privacy Protection and Consumer Rights Act of 2021, S.1667, 107th Cong. (2021). 26

party will be able to access a user's data later than thirty days after the user closes their account.33

The bill introduced by Senator Klobuchar is a significant step towards ensuring responsibility and accountability among operators of social networking sites and defining personal data in the Internet Age but is it enough? The bill is not as comprehensive as select state laws nor those of other countries regarding data protection. Moreover, the Act does not change the default from opt-in to opt-out, which would give the user more agency over their data. The bill is also primarily based on consumer rights and the protection of privacy, not the protection of the data collected. By analyzing the regulations implemented by various countries, Congress may develop a more comprehensive bill that emphasizes data protection as much as it does privacy protection.

IV. OTHER COUNTRIES’ LEGISLATION ON DATA PROTECTION

Since the United States is not at the forefront of data protection, this Note examines countries that have already codified robust legislation for data protection. Even on the state level in the U.S., state representatives applied data protection regulations from the European Union’s General Data Protection Regulation (GDPR). By analyzing data protection laws in the E.U., Japan, and Canada, this Note identifies how the United States could learn from the successes and shortcomings of international governance of data protection.

A. The European Union and General Data Protection Regulation

Currently, the E.U. has been the frontrunner in data protection and restrictions against data mining. Their regulatory code, the General Data Protection Regulation (GDPR),34 is a comprehensive law that protects the personal information of E.U. citizens even if the data collected ultimately is never processed in a E.U. state.35 In the GDPR, the E.U. outlines the consumers’ rights, the principles regarding the processing of personal data, and the obligations of controllers and processors of data.

Firstly, the GDPR categorizes the rights of a “data subj ect” an internet user in four main sections: transparency, information and access,

33 Id.

34 See generally 2016 O.J C (679)

35 See Hartzog supra note 16 at 1727.

rectification and erasure, and objection. 36 Data subjects have the right to transparent information from the data processor and the data controller regarding their data usage.37 Data subjects are also given the right to rectification, which is the right to edit the data that the processor has collected the right to be “forgotten,” so their data disappears upon leaving the service, the right to restrict the amount of data the controller processes, and the right to have data portability.

The GDPR also lays out the principles governing the processing of personal data by companies. Personal data has to be processed lawfully and transparently in a manner that is fair to all data su bjects.38 This data must be collected for a specific purpose and not further processed beyond that purpose.39 Data minimization or the limitation of data collection and processing to that specific purpose is a key principle highlighted by the E.U., as well as not retaining data on subjects for longer periods that go beyond the specified purpose of the data. 40 The collected data must be accurate, updated, and edited by the subject; inaccurate data must be erased or rectified.41 Data security and protection against unauthorized or unlawful processing are to be upheld by the controller or the data processor.

Data processors and controllers are required to uphold these principles of data protection. They must implement the appropriate security measures to ensure that controllers perform data processing correctly and protect against data breaches.42 If this doesn’t occur, the data controller or processor can be held accountable for their faults or breaches against regulation in a co urt of law.

The E.U. has seen significant improvements in data protection and minimization after implementing the General Data Protection Regulation. 43

36 See 2016 O.J C (679).

37 Id. at 39 (“The principle of transparency requires that any information and communication relating to the processing of those personal data be easily accessible and easy to understand, and that c lear and plain language be used”).

38 Id.

39 Id.

40 Id.

41 Id.

42 Id.

43 See Adam Satariano, E.U Takes Aim at Social Media’s Harms with Landmark New Law, THE NEW YORK TIMES (2022), https://www.nytimes.com/2022/04/22/technology/european -union-social-media-law.html

(In April 2022, The E.U. passed a new law, entitled the Digital Services Act, which further these protections); see also Council Directive 200/31/EC of the Regulati on of the European

For instance, in E.U. countries, there has been a decrease in the use of thirdparty cookies by data co ntrollers, third-party domains, and data usage. Clear similarities are visible between the GDPR and state -level data protection laws in the United States. However, the E.U. is an entirely separate entity with different rights bestowed to its citizens, thus creating obstacles for Congress if they intend to implement similar practices.

B. Other Countries’ Legislation Regarding Data Protection

Additional countries also passed data protection laws on the national level, some of which have advantageously followed in the footsteps of the E.U., while others have created laws before the GDPR and have since then continued to update them. Finally, other countries have developed far more stringent data protection laws that border on censorship and control.

In 2015, Japan built upon the principles of the GDPR by creating the Act on the Protection of Personal Information (APPI). 44 In their revisions, Japan expanded upon individual rights to data privacy, including deletion or disclosure of personal information.45 Japan has also extended its data protection to be extraterritorial, in a measure similar to the E.U., which protects the data of its citizens that might be processed abroad. 46 These stringent measures also increase penalties for violating the act by an additional 100 million Yen (1 million USD). 47 The case of Japan is indicative of the benefits of assuming the E.U’s measures on a national level. In fact, these laws allow Japan to have a mutual adequacy agreement with the E.U. that will enable them to share data freely.48 If Congress were to adopt equivalent measures to those of the E.U., the United States. could potentially create a similar agreement, making data passage easier for technology companies domestically.

Parliament and of the Council on a Single Market for Digital Services (Digital Services Act) and amending Directive 2000/31/EC.

44 See Hartzog, supra note 16, at 1697-98.

45 See New Amendments Passed to Japan’s Data Privacy Law , NAT’L L. REV. (2020), https://www.natlawreview.com/article/new-amendments-passed-to-japan-s-data-privacylaw. 46

Canada has implemented the Personal Information an d Electronic Documents Act (PIPDEA).49 The Act applies to private-sector organizations in Canada that collect data in commercial activity. The Act also applies to personal information that crosses borders.50 However, Canada’s data privacy and protection principles and their definition for commercial activity are far broader than that of Japan or the E.U. 51 While Canada developed a mutual adequacy agreement with the E.U. in 2001, it is limited to commercial activity.52 Here, PIPDEA represents a commercially based form of data privacy regulation that could nonetheless be a step towards the framework of the GDPR that the United States could take.

Overall, international regulation of data protection exceeds regulation in the United States. Because the United States does not have by E.U. standards an adequate level of data protection, there is no mutual adequacy agreement. The United States must work towards enacting new legislation.

V. PROPOSED FUTURE STEPS FOR DATA PROTECTION LEGISLATION IN THE UNITED STATES

A. Implementation of the European Union’s Policy

The global dominance of the European Union’s approach to data privacy is evident. States such as California follow the same regulation provided by the GDPR. The extent of the E.U.’s regulation allows for data protection beyond commercial purposes, as it covers social media, among all other data that European companies collect.

Adoption of this plan would positively change how the United States views data under federal law through a shift to individuals’ rights rather than those of American corporations. For instance, the E.U’s laws operate under default opt-out policies, whereas the United States laws focus on affirmation and default opt-in policies. This policy would also allow the United States to

49 See Personal Information Protection and Electronic Documents Act of 2000, S.C 2000,1,1. (Can.).

50 Id. at 4, 1.

51 Id. at 2. (“…means any particular transaction, act or conduct or any regular course of conduct that is of a commercial character, including the selling, bartering or leasing of donor, membership or other fundraising lists.”).

52 See 2002 OJ L2 Commission Decision of 20 Dece mber 2001 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequate protection of personal data provided by the Canadian Personal Information Protection and Electronic Documents Act.

have a common understanding with other countries.53 Specifically, the U.S. could arrange a similar adequacy deal to that of Japan and the E.U., or that of Canada and the E.U., which focuses on commercial activity.54 Implementation would also allow for the continuation of the E.U.-U.S. Privacy Shield that has been in place. 55 Importantly, this Note recognizes that the structure of the United States is vastly different from that of the E.U., which may inhibit Congress’ ability to implement a policy simi lar to the General Data Protection Regulation.

Specifically, the United States does not guarantee a right to privacy in the Constitution, unlike the E.U.56 Indeed, the GDPR relies on the assertion that all citizens of the E.U. have the fundamental right to privacy. The United States, comparatively, provides rights to privacy by extension, such as the right (to privacy) against unreasonable searches and seizures by the government; yet it is not expressly a right to privacy. Rules for privacy in the U.S. stem from public policy, and it is unclear if federal lawmakers could draft and implement legislation like that of the E.U. without a codified right to privacy.57 Therefore, this Note suggests the immediate resolution to identify applicable components of data protection policies under the GDPR and state law and apply them to a more stringent and restrictive law over data privacy and protection against technology companies.

B. Creation of a More Stringent Bill Regarding Data Privacy and Protection

Given that an unabridged implementation of E.U. regulation is unlikely, this Note will turn its attention to how Congress may enact more robust law on personal data privacy against technological companies, and in favor of users. Firstly, the United States should forge a stronger policy in favor of data minimization. Uncollected data cannot be exposed, hacked, or misused, since it was never collected in the first place. By limiting data collection, the

53 See Hartzog, supra note 16, at 1727; see Park, supra note 3, at 1463.

54 Id.

55 Id.

56 See 2012 O.J (326) 2. (“1. Everyone has the right to the protection of personal data concerning him or her. 2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified. 3. Compliance with these rules shall be subject to control by an independent authority.”); see also Hartzog, supra note 16, at 1727, 1729.

57 See Hartzog, supra note 16, at 1727, 1729.

government would grant users more data privacy and prote ction than any other current federal law. Furthermore, the U.S. should create principles of data in a similar manner to the E.U. and various states that give consumers certain rights over their data. By granting rights already set out, the United States can undo outdated laws and ensure the proper handling of data in a way that respects users’ data preferences. Congress should also alter notice and consent practices. Currently, data processing operates under contractual principles, which create a relationship between the business and the consumer by the click of a button that affirms that the consumer agrees to the terms. 58 Frequently, under the current opt-in policy, users cannot use the internet service without agreement; fundamentally, then, there is no o ption but to agree.59 If Congress adopted legislation to provide notice and require consent, or an opt-out default, technology companies would be unable to sell or use collected data without a user opting in. 60 In this way, the user assumes agency over their data, rather than automatically giving more market power to companies. The data of a singular user also should not be tied to that individual; rather, the federal government should protect the obscurity of a user on the Internet. De-identifying data prevents companies from changing privacy settings or using data-driven algorithms. Furthermore, Congress could potentially bring the country to the forefront of data privacy and protection, by targeting manipulative technological designs that are unfair to consumers.61 Many social media companies use technological designs that keep users constantly on their platforms, by releasing personal data about the consumer that is more frequently tied into

58 See Park, supra note 3, at 1473. (“The opt-in regime is the act of requiring online commercial actors to receive an individual’s ‘express, affirmative and informed consent before engaging in data processing’”).

59 Id

60 Id at 1474. ( “The opt-out rule “plac[es] the burden on the individual to prevent certain types of information being shared…”); see also Nicholas Economides, Restrictions on Privacy and Exploitation in the Digital Economy: A Market Fa ilure Perspective, J. OF COMP L. AND ECON. 10 (2021) (“In an opt-out regime, the company… would be unable to legally use or sell the information it had collected from a user who had not opted -in. For a company to be able to use or sell information it had collected, the user would need to affirmatively give their consent to the company by opting -in.”).

61 Id. at 76. (“The increasing accuracy of psychographic profiles and personality traits has become the new normal in data economy. It drives business practices and has enabled advertising to be targeted at consumers on an individual level.”).

using a social platform.62 By monitoring this type of manipulation, companies would collect fewer personal data, benefitting all users.

To include these recommendations under one piece of legislation that extends to all types of data (healthcare, child, education) would elicit the most effective form of federal data protection. Without one singular bill, gaps in the protection of users will always remain. Instead, Congress should close the loophole that permits companies to collect and sell data without consumer knowledge. Ultimately, introducing legislation to define the rights of users, articulating principles of data usage and protection, and holding technology companies accountable is necessary for the health of data and user privacy in the United States.

VI. CONCLUSION

This Note argues for large-scale change in how the United States ensures data privacy and protection in the Internet Age. However, that large-scale change will not relieve all issues. Smaller or independent companies which do not pose as great of a threat as large corporations could lack the resources to ensure compliance with complex regulations. 63 As a result, a small business may choose to ignore federal law. 64 This introduces the issue of enforcement. Government resources are already thinly stretched across a variety of federal agencies, and therefore may not have the ability to enforce privacy laws with the rigor of state-level legislation.65

While a valid concern, this issue could be resolved under the FTCA by giving agency to the Federal Trade Commission to enforce these laws. As for the struggles of smaller companies, it is noteworthy that this issue equally concerns any piece of legislation regulating business. While some entities may choose not to comply with the proposed regulation, well -known technology companies such as Facebook, Microsoft, and Google would likely be unable to avoid these changes.

Certainly, being on par with other major world powers is fundamental to the United States and its foreign policy, but data protection legislation is about more than that. This proposed legislation holds large technology companies accountable for their actions and protects consumers who have fallen through the gaps of patchwork regulations. Consumers deserve to be

62 Id. at 66. (“The ‘exploitation of attention’ and ‘attention theft’”); see generally Tim Wu, Blind Spot: The Attention Economy and the Law , ANTITRUST L. J 771. (2019).

63 See Chandler, supra note 11, at 622.

64 Id.

65 Id. at 623.

protected. Under the current, non-uniform policy on data protection, consumers do not fully receive protection necessary in the Internet Age. In effect, large technology companies have still persistently performed mass data collection, data selling, and user manipulation. During a Senate Subcommittee on Communications and Technolog y, Facebook whistleblower Frances Haugen spoke about the crisis of big technology companies and privacy, during which she stated, “the severity of this crisis demands that we break out of previous regulatory frames. Tweaks to outdated privacy protections… will not be sufficient.”66 Developing United States federal law as discussed throughout the Note is an immediate imperative. For the sake of sufficiently protecting internet users, U.S. law must advance into the Internet Age.

* * *

This Note was edited by Nicoletta Loukas

66 See Protecting Kids Online: Testimony from a Facebook Whistleblower Before Subcomm. on Consumer Protection, Product Safety, and Data Security , 117TH CONG. 21.

(Written Testimony of Frances Haugen, Facebook Whistleblower).

NOTE

NOT A SLAVE 4 U: CONSERVATORSHIP AND DUE PROCESS

Jack Hayes*

The process of conservatorship, that is, legally stripping an incapacitated individual of their rights and giving these rights to a surrogate, leaves many individuals in a vulnerable position. Many ill -intentioned conservators take advantage of a conservat ee’s vulnerability and attempt to capitalize on their distress. This phenomenon has been showcased by the dispute over the fourteen year-long conservatorship of pop-star Britney Spears. This Note examines the current shortcomings and loopholes of the conservatorship and guardianship systems as outlined in the Uniform Probate Code (UPC). Specifically, this Note will use the dispute over Britney Spears’ conservatorship as a case study in conservatorship abuse. This Note will begin with a contextualization of Spears’ conservatorship, including its origins, evolution, and demise. This discussion will be followed by an overview of conservatorships and the common motivations for and patterns of conservatorship abuse, and how the conservatorship of Britney Spears illustrated these patterns. Ultimately, this Note will examine Spears’ conservatorship, specifically through the rights Spears desired to have, to argue that the UPC should be reformed to include rules that give more rights to the conservatee, place more monitoring responsibilities on the court, and disincentivize abuse.

* B.A. Candidate for Political Science, Fordham College at Lincoln Center, Class of 2025. It has been an honor to be a member of the Fordham Undergraduate Law Review as a Staff Writer. I am immensely grateful for the Editorial Board’s assistance and support in the process of writing this Note, as well as my friends and family who have always been a source of encouragement.

I. INTRODUCTION

Conservatorship the process of a court stripping an incapacitated, mentally ill, or otherwise disabled individual (a conservatee/ward) of their decision-making authority and assigning it to a surrogate (a conservator/guardian) is intended to “protect . . . the disabled adult’s person, property, or both” from falling victim to poor decision-making on the part of the conservatee.1 Consequently, conservatees “lose numerous basic rights they formerly enjoyed as competent adults, such as deciding where to live and how to spend their money,” and those rights are then transferred to their conservator.2 Unfortunately, some conservators see their position as a means of capitalizing on the vulnerability of those in their care, which then opens the door to conservatorship abuse.

This phenomenon has become increasingly visible in light of the dispute over the conservatorship of singer Britney Spears. In 2008, followi ng a widely publicized mental health crisis, a California judge placed Spears under an emergency conservatorship, with her father James “Jamie” Spears serving as her conservator.3 This conservatorship later became permanent. 4 As the years passed, the mental health concerns that prompted the Spears conservatorship subsided, but the conservatorship persisted, and Mr. Spears became more controlling over Britney. 5 Ms. Spears felt that she had “a huge part of [her] womanhood stripped from [her]” and that her life “was never the

1 Tricia M. York, Conservatorship Proceedings and Due Process: Protecting the Elderly in Tennessee, 36 U. MEM. L. REV. 492, 493 (2006).

2 Id.

3 See Lisa Zammiello, Don’t You Know That Your Law Is Toxic? Britney Spears and Abusive Guardianship: A Revisionary Approach to the Uniform Probate Code, California Probate Code, and Texas Estates Code to Ensure Equitable Outcomes, 13 TEX. TECH. EST. PLAN. COMP. PROP. L. J. 587, 588 (2021). Ms. Spears had given up on her objections to the conservatorship, therefore making it voluntary in the eyes of the court.

4 Id.

5 Id. at 589.

same.”6 For instance, Spears’ father forbade her from getting married, having another child, or driving a motor vehicle. 7 Furthermore, Mr. Spears used the conservatorship as a bargaining chip to force Spears into business deals she would have otherwise opposed, with the threat of institutionalization or loss of custody of her children being used as a means of coercion. 8 Financially, Spears alleged that her father funneled upwards of thirty -six million dollars out of her estate to fund both Mr. Spears’ lavish lifestyle, 9 buying properties and vacations on Spears’ dime, as well as his legal team in order to keep the conservatorship in place. 10 Ms. Spears often compared “her seven-days-aweek, no-days-off schedule” to sex trafficking and pleaded with a judge to, at minimum, replace her father as her conservator. 11 Much of this information was not known by the public until 2019, after which these revelations sparked a campaign to “Free Britney” from her conservatorship. 12 This movement resulted in significant legal victories for Spears, culminating in the termination of her conservatorship in November 2021, nearly fourteen years after it began.13

This Note will first examine the current criteria (or lack thereof) used to determine whether a conservatorship is necessary, as well as the general rules and expectations of conservators. This Note will then analyze the various aspects of conservatorship abuse, largely through the lens of Britney Spears’ conservatorship. This Note will use the conservatorship of Britney Spears as a case study to ultimately argue that the federal government should reform the Uniform Probate Code (UPC), which outlines rules and procedures for

6 Id.

7 Jon Blisten, Britney Spears’ Conservatorship: What’s Going on and What’s Next? , ROLLING STONE (Nov. 12, 2021), https://bit.ly/36oJ1mV.

8 Id.

9 Stephanie Soteriou, Britney Spears Claimed Her Dad Told Her “I’m Britney Spears And I Call The Shots From Now On” On The Day He Be came Her Conservator And She Was "Never The Same" From That Moment , BUZZFEED NEWS (Mar. 15, 2022), https://bit.ly/36wRrZs.

10 Molly Claire Goddard, Jamie Spears' Attorney Vivian Thoreen Reportedly Requested $2 Million Dollars in Separate Estate Lawsuit For Late Zappos CEO Tony Hsieh , OK Magazine (Oct. 6, 2021), https://bit.ly/3u82a4K. Following the revelation of the “Free Britney” movement, Mr. Spears’ legal team set out on a tour of various television shows in which they defended the conservatorship in the court of public opinion. The publicity tour was paid for out of Ms. Spears’ estate without her permission.

11 Blisten, supra note 6.

12 Zammiello, supra note 3, at 590.

13 Blisten, supra note 6.

conservatorships, to regulate the powers of conservators, and to ensure due process for conservatees, as set forth in the Fourteenth Amendment.

II. OVERVIEW OF CONSERVATORSHIPS

A. Necessity of Conservatorships

Conservatorships are often considered a method of last resort in a court setting due to the extent to which they strip conservatees of civil liberties.14 For this reason, conservatorships are not intended to be indiscriminately handed out; rather, a judge or jury must find a conservatorship necessary. Despite this requirement, there are no specific legal criteria to warrant the imposition of a conservatorship. Rather, the UPC prescribes that one proposing a conservatorship must provide “clear and convincing evidence” (as well as evidence “beyond a reasonable doubt” in some jurisdictions) that a conservatorship is truly necessary. 15 The pitfall of this requirement is that one’s definition of “clear and convincing evidence” is subjective, meaning that the threshold for establishing a conservatorship may differ person to person.

Thus, resulting in certain individuals being placed under arguably unnecessary conservatorships, and others who may truly need to be placed under care not receiving the help they need. Indeed, in the case of Britney Spears, the petition for the appointment of a conservator claimed that Spears only twenty-seven years of age at the time was suffering from dementia, with no supporting documentation filed.16 Consequently, Spears was placed under a conservatorship when she did not need it, due to a subjective measurement of incapacity. Therefore, an objective standard of incapacity would reduce the likelihood of an inappropriate conservatorship being imposed, and subsequently reduce the risk of abuse of wards in unnecessary conservatorships.

B. Expectations and Norms of Conservatorships

14 Spencer Bokat-Lindell, Britney Spears and the Last Resort of Mental Health Care , THE NEW YORK TIMES (Jun. 29, 2021), https://nyti.ms/3toBFJ2.

15 Jocelyn Wiener, The Britney effect: How California is Grappling with Conservatorship , NEWSTEX BLOGS CALMATTERS (Jul. 22, 2021), https://bit.ly/3tp12ue.

16 Consent to Act as Conservator of the Estate at 3, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L.A. Super. Ct. Feb. 1, 2008).

Once a conservatorship is established, the UPC requires the court to ensure that the conservatorship is not being mismanaged. 17 The way in which the court does so varies slightly depending on the jurisdiction, as the UPC does not outline a specific procedure for doing so. Regardless, this procedure often involves the review of various financial disclosures made available by the conservators. The court thus possesses the right to approve or deny any transactions made of a conservatee’s estate depending on whether these transactions are in the best interest of the conservatee. 18

The pitfall that arises from this procedure, like that of the initial imposition of a conservatorship, is that “best interest” is a subjective term. This phenomenon is evident in the case of Britney Spears, where, in one instance, the court was presented with “proof” that giving the conservator’s pay was in Ms. Spears’ best interest, by merely explaining that the conservator’s “efforts and services have been of great benefit to the Conservatee,”19 with no further elaboration.20 This pattern of approval of transactions out of Ms. Spears’ estate continued, allow ing for Spears’ conservators to live lavishly on her dime.21 While this misuse presents risks to conservatees, in that it puts their estates at risk, the same phenomenon can occur in the inverse. That is, the court may also find that truly necessary actions taken by conservators are not in the conservatee’s best interest, thereby impeding upon a conservator’s ability to effectively discharge their fiduciary duties. These conflicting examples, therefore, necessitate the introduction of a more objective means of determining if an action taken by a conservator is truly in the conservatee’s best interest.

III. CONSERVATORSHIP ABUSE

A. Motivations for Abuse

17 Bruce Zager et al., Reforming Iowa's Guardian ship and Conservatorship System: An Introduction, DRAKE L. REV. DISCOURSE 100, 103 (2018).

18 Id.

19 Petition of Co-Conservator Andrew Wallet to Confirm Fees and Approval; Judicial Notice at 10, In re Conservatorship of Britney Jean Spears (L.A. Super. Ct. N ov. 14, 2018) (case number redacted).

20 Petition of Co-Conservator Andrew Wallet to Confirm Fees and Approval (despite vague wording, the court granted the request in full); Judicial Notice at 19, In re Conservatorship of Britney Jean Spears (L.A. Super. C t. Nov. 14, 2018) (case number redacted).

21 Report of James P. Spears and Andrew M. Wallet, Co -Conservators of the Estate: Petition for its Settlement and for Approval Thereof, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L.A. Super. Ct. Fe b. 1, 2013).

When a court establishes a conservatorship over an individual, the conservatee is left in an extremely vulnerable position: they often have no access to their money, are unable to leave their home on their own, and have little-to-no control over decision-making in their everyday lives. This vulnerability is of interest to many ill-intentioned conservators, as it allows them to take advantage of a conservatee and their estate, with the consent of the court, for their own personal benefit.22

This was the case for Britney Spears, whose parents saw her sixty million dollar estate as an opportunity to capitalize on her mental health struggles at the time.23 Mr. Spears is known to have struggled with alcoholism on multiple occasions and has struggled to maintain his family’s finances. 24 This should have disqualified Mr. Spears from serving as a conservator over his daughter’s estate, as it signals that he may use her abundance of wealth to make up for his lack thereof. Mr. Spears did just that, paying himself $16,000 per month ($2,000 more than that provided to Ms. Spears) and pocketing commissions from various business ventures undertaken by her. 25 The dispute over Ms. Spears’ estate clearly highlights what could be a common motive for conservatorship abuse: to benefit financially from their distress.

B. Judicial Complacency

In order for a court to impose a conservatorship, one must provide enough evidence to a judge or jury to conclude that an individual is in a state where they are unable to make sound decisions for themselves.26 If a conservatorship is then established, the court operates under the assumption that the conservatee lacks capacity, unless given reason to believe otherwise.27 For this reason, the court will often not listen to the complaint s

22 Kathie Brown Roberts et al., Guardianships in the Media, Can Utah Statutes Protect Against Abuse? , 34 UTAH BAR J. 43, 43 (2021).

23 Joanne Kavanagh, What Is Britney Spears’ Net Worth? , THE SUN (Feb. 9, 2021), https://bit.ly/3wVZ3jz.

24 See Liz Day et al., Britney Spears Quietly Pushed for Years to End Her Conservatorship , THE NEW YORK TIMES (Jun. 22, 2021), https://nyti.ms/38KYfnq.

25 Petition for Suspension and Removal of James P. Spears as Conservator of the Estate at 4-6, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L.A. Super. Ct. Dec. 13, 2021).

26 Wiener, supra note 14.

27 Zammiello, supra note 3, at 588. Since the majority of conservatorships affect the elderly, often with severe cognitive degeneration, conservatorships are most often

of a conservatee, since their assumption of incapacity leads them to question the statements and actions taken by the conservatee.

Indeed, Britney Spears made multiple attempts to modify, terminate, or otherwise complain about her conservatorship, but they were often dismissed by the court due to her previously established lack of capacity. As recently as 2021, Spears had lodged complaints with the court, which prompted her father to claim that they were “just incorrect” and that her incapacity influenced those complaints.28 Had it not been for the “Free Britney” movement, whose revelations cast doubt on Spears’ father and his attorneys, this statement by Mr. Spears’ lawyer would have likely been enough indication of incapacity for the court to settle the complaints.

In the final years of her conservatorship, Spears knew that she was of sound mind and that conservatorship was no longer necessary, but she did not want to have to prove that to a psychiatrist. 29 This request posed a significant roadblock to the termination of the conservatorship, as there were no other formal means of declaring that Spears was of sound mind that would have allowed the conservatorship to discontinue. Her fans, however, put significant pressure on the court and on Spears’ father, leading him and his team to give up their fight against the termination of the conservatorship. Spears’ conservatorship was ultimately terminated, by a different judge from the one who imposed it, due to the judge’s belief that the lack of an initial declaration of capacity did not necessitate a further declaration of capacity to end the conservatorship.30

The court’s decision has the potential to set precedent for future conservatorship disputes, as it encourages courts to examine the intentions of a conservator and be more mindful of complaints made by a conservatee. Had the “Free Britney” movement not put pressure on the court and Spears’ conservators, the courts would have likely continued to depend on the

terminated automatically upon the death of the conservatee. For this reason, the legal mechanism of terminating a conservatorship is seldom used

28 See Sam Levin, Britney Spears’ Father Agrees to Step Down as Conservator ‘When the Time Is Right', THE GUARDIAN (Aug. 12, 2021), https://bit.ly/3NAlFvP. Vivian Thoreen, Mr. Spears’ attorney, repeatedly questioned the voracity of Ms. Spears’ claims in court.

29 See Reporter’s Transcript of Proceedings at 19, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L.A. Super. Ct. Jun. 23, 2021). Spears claimed that previous psychiatric evaluations were improperly influenced by her conservat ors to prevent her conservatorship from being terminated. For this reason, she refused to sit down for another evaluation.

30 Douglas Morino et al., After Nearly 14 Years, Britney Spears' Conservatorship Ends , THE NEW YORK TIMES (Nov. 12, 2021), https://ny ti.ms/3LARq5U.

presumption of incapacity to allow the conservatorship to continue. By extension, judges could have affirmed the incapacity of other conservatees on similar terms, potentially leading to many instances of abuse being overlooked. An outside determinant of incapacity, free from i nfluence from an abusive conservator, would reduce the likelihood in which a court inappropriately rests on the presumption of incapacity.

IV. CONSERVATORSHIP REFORM: CEMENTED RIGHTS FOR CONSERVATEES

A. Right to Select Counsel

The majority of rights afforded to conservatees hinge on the conservatee’s capacity. Thus, in order for a conservatee to hire their own attorney, they must be deemed capable of doing so. If they are not deemed capable, then another avenue is used to appoint an attorney, often resulting in court appointment.31 This all-or-nothing approach to determining how a conservatee is represented is problematic and necessitates a middle -ground approach to the selection of counsel. At the inception of her conservatorship, Britney Spears was deemed to “[lack] the capacity to retain counsel.”32 Therefore, Samuel Ingham was appointed by the court to represent Spears. 33 Spears vocalized many issues with Ingham, such as his failure to make her aware of her rights.34 Furthermore, Ingham was allegedly apprehensive to allow Spears to testify to her experience, 35 leading Spears to express her desire to replace Ingham as her attorney. 36 Spears attempted to appoint her own counsel on several occasions but was prevented from doing so by her father, whose attorneys argued she lacked the capacity to appoint a qualified attorney.37 It was only after intense pressure from the “Free Britney”

31 See Zammiello, supra note 3, at 610.

32 Associated Press, Lawyer for Britney Spears Fails to Get Dad Fired as Conservator , DAILY NEWS (Feb. 5, 2008), https://bit.ly/3qSU539.

33 Zammiello, supra note 3, at 610.

34 Nicole Chenoweth, Britney Spears Begged Lawyer Sam Ingham ‘Four Times a Week to End Corrupt & Evil Conservatorship’ as She Wants Him Fired , THE SUN (Jun. 26, 2021), https://bit.ly/3J0KugH. It is alleged that Ms. Spears asked her attorney upwards of four or five times per week to petition the court for termination of the conservatorship but was always given an excuse as to why he could/should not do so.

35 See Id.

36 Id.

37 See Associated Press, Lawyer Tries to Break Conservatorship of Spears , THE HOLLYWOOD REPORTER (Feb. 26, 2008), https://bit.ly/3j0g4k9.

movement, coupled with Ingham’s resignation as counsel, that the court intervened and allowed Spears to hire Mathew Rosengart, a former federal prosecutor, to be her attorney. 38 Therefore, this ruling confirms that conservatees have the right to choose their own counsel, given that they have the capacity to do so.

This, however, should not signify that a conservatee’s incapacity should allow their conservator to prevent them from selecting their own attorney, especially when abuse is alleged. Therefore, the court should not consider the conservator’s perception of the conservatee’s capacity wh en deciding whether to permit them to hire their own counsel. Instead, an independent medical authority, appointed by the court without the advice of the conservator, should evaluate the conservatee’s capacity to retain counsel. If the medical authority determines that the conservatee does have the capacity to retain counsel, their request should therefore be granted. Conversely, if it is determined that the conservatee is incapable of appointing their own counsel, an independent guardian ad litem could be appointed by the court, without the advice of the conservator, to assist the conservatee in selecting counsel. Therefore, the conservatee is still allowed to competently select an attorney, free from the influence of potentially ill -intentioned conservators. This would give the conservatee more access to the court system, increase the conservatee’s confidence in the court, and make a conservatee’s fight against conservatorship abuse easier.

B. Right to Assist in Selection of Conservator

A conservator has the responsibility of overseeing and controlling large parts if not all of an individual and one’s estate.Thus, a conservator should have the trust and confidence of both the court and the conservatee. The conservatee has the right to nominate a conservator, given that they have the capacity to “form an intelligent preference.”

39 Britney Spears did not choose her father to serve as her conservator; rather, the court appointed him after they imposed the conservatorship upon her. 40 This appointment would generally seem logical, as Mr. Spears was someone who had been around Ms.

38 Joe Coscarelli, Britney Spears Can Hire a New Lawyer of Her Choice, Judge Rules , THE NEW YORK TIMES (Jul. 14, 2021), https://nyti.ms/37ff8q2.

39 Petition for Suspension and Removal of James P. Spears as Conservator of the Estate at 18, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L.A. Super. Ct. Dec. 13, 2021).

40 Zammiello, supra note 3, at 593.

Spears for her entire life, and understood the complexities and demands of her career.

Nevertheless, Spears’ relationship with her father did not alone qualify him to be the most adequate conservator. Indeed, in 1998, ten years prior to the imposition of the conservatorship, Spears’ father declared bankruptcy. 41 This bankruptcy filing should have raised questions about his qualifications as a fiduciary: since he was not able to adequately control his family’s finances in 1998, it was unlikely that he would be able to adequately control Spears’ estate, which was much larger and more complex than that of the Spears family. Spears could not make her concerns known to the court, as she was institutionalized at the time and deemed not capable of expressing an intelligent preference. Therefore, her father was appointed as a conservator, and the arrangement was later made permanent. 42

As years passed, Mr. Spears’ inadequacies as both a financial fi duciary and guardian over Ms. Spears became evident. In 2019, after a domestic violence restraining order was imposed against Spears by her ex -husband Kevin Federline,43 “the relationship between [Ms. Spears] and Mr. Spears has dwindled to nothing but fear and hatred of Mr. Spears by the conservatee.”44 Indeed, since Ms. Spears herself could not select a new conservator, she resorted to refusing to perform as long as her father served as her conservator.45 No conservator-conservatee dynamic ought to exist that is grounded in a conservatee’s fear of their conservator.

For this reason, there should be no way in which a conservator can stop their conservatee from publicly airing concerns about the way they are being treated. Currently, the court’s presumption of incapacity functionally allows for abusive conservators to prevent their conservatee from complaining about them, by allowing them to allege that the conservatee’s statements cannot be trusted due to their presumed incapacity. Even in the light of incapacity, there

41 Petition for Suspension and Removal of James P. Spears as Conservator of the Estate at 6, In re Conservatorship of Britne y Jean Spears, No. BP 108870 (L.A. Super. Ct. Dec. 13, 2021).

42 Zammiello, supra note 3, at 588.

43 See Petition for Suspension and Removal of James P. Spears as Conservator of the Estate at 8, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L. A. Super. Ct. Dec. 13, 2021). Federline sought a restraining order against Mr. Spears after Mr. Spears engaged in a physical altercation with one of Ms. Spears’ minor children.

44 Declaration in Support of Removal of James P. Spears as Conservator of the E state at 3, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L.A. Super. Ct. Sept. 29, 2021).

45 Reporter’s Transcript of Proceedings at 19, In re Conservatorship of Britney Jean Spears at 32, No. BP 108870 (L.A. Super. Ct. Jun. 23, 2021).

should still be a manner in which a conservatee can be involved in the selection of a successor conservator, should one be desired.

Once again, an independent medical evaluation of the conservatee should be conducted to compare the conservatee’s state to an objective definition of capacity. If the conservatee is found to be able to make competent decisions, their nominee for successor conservator should be appointed to the position. If the conservatee is deemed incapacitated, guardian ad litem could once again be appointed to help the conservatee vet a pool of qualified fiduciaries to serve as their conservator. In no instance should the alle ged abusive conservator be able to stop the conservatee from nominating a successor if their allegations are substantiated.

C. Right to Discovery and Prosecute Abusive Conservators

Under a conservatorship, the conservator becomes a surrogate identity for the conservatee. Therefore, the conservator’s lawyer is ultimately representing the conservatee. But since the conservatee is represented through the conservator, the attorney-client privilege remains between the conservator and their lawyer. Thus, any communications they make regarding the conservatee, including any plans for abuse, often do not see the light of day. An archive of privileged communications, however, would remedy this issue.

Britney Spears’ conservators largely believed that through their al leged abuse, they would be able to take advantage of Ms. Spears for what could have been the rest of her life.46 For this reason, her conservators continued to fight in court to keep the conservatorship in place, and specifically keep her father in place.47 When Ms. Spears began stating her intentions to investigate and sue her conservators, however, they began to change course. 48 Following the appointment of Mathew Rosengart as Spears’ attorney, Ms. Spears

46 See Zammiello, supra note 3, at 588. Many conservatorships terminate only upon the death of the conservatee; the legal mechanism for terminating a conservatorship is rarely used.

47 Liz Calvario, Britney Spears Refuses to Perform as Dad Remains Co -Conservator of Her Estate, ENTERTAINMENT TONIGHT (Nov. 10, 2020), https://et.tv/3J3hNjf. Mr. Spears’ attorneys claimed that he should be “commended” for his role as Ms. Spears’ conservator.

48 Reporter’s Transcript of Proceedings at 19, In re Conservatorship of B ritney Jean Spears at 14, No. BP 108870 (L.A. Super. Ct. Jun. 23, 2021).

petitioned the court to remove her father as her c onservator, as opposed to terminating the conservatorship outright.49

In response, her conservators petitioned to terminate the conservatorship a complete shift from their previous arguments.50 Rosengart recognized this action to not be an indication that her conservators had changed their presumption of Ms. Spears’ capacity, but rather as an attempt to avoid suspension as conservator.51 Indeed, should a conservator be suspended, the attorney-client privilege is transferred to the new conservator.52 Therefore, all confidential information regarding the conservatorship is transferred as well. 53 The threat of this transfer was of great concern to Ms. Spears’ conservators, as it meant that their privileged communications between one another and their lawyers which they thought would not see the light of day could be in possession of the new conservators.54 This would allow Ms. Spears and her attorneys to have access to the documents, which they could then use to build a case against her conservators. Thus, promoting Ms. Spears’ attorneys to take an offensive approach by choosing to delay the termination of the conservatorship in favor of suspending her father as conservator first, so that Ms. Spears had the opportunity to sue her father in the future, should she desire.55 A conservatee should not have to continue to remain under an unnecessary conservatorship purely so that they may get justice for what they deserve.

Therefore, this necessitates a way in which privileged communications are preserved, even after the termination of a conservatorship. Since the conservator’s lawyers are the conservatee’s lawyers as well, attorney -client

49 See Petition for Suspension and Removal of James P. Spears as Conservator of the Estate at 14-15, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L.A. Super. Ct. Dec. 13, 2021).

50 See James P. Spears’s Petition for Termination of Conservatorship of the Person and Estate of Britney Jean Spears, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L.A. Super. Ct. Sept. 7, 2021).

51 Conservatee’s Objections to James P. Spears’s Petition for Order Allowing and Approving Payment to Conservator and Attorneys for Conservator at 2, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L.A. Super. Ct. Sept. 29, 2021).

52 Id.

53 Id.

54 Id.

55 Ashley Cullins, In Britney Spears’ Conservatorship, Who Holds Attorney -Client Privilege Is Key, THE HOLLYWOOD REPORTER (Oct. 20, 2021), https://bit.ly/38skaQd. Had the conservatorship been terminated outright, those documents would likely have been lost, since the conservatorship would cease to exist, and Ms. Spears would not have been able to use them against her father.

privilege should be positioned accordingly. Therefore, communications between conservators and their attorneys should be archived and made available to the conservatee following the termination of the conservatorship. By result, a conservatee can understand the inner workings of the surroga te operation of their life. This would also allow a conservatee to investigate their conservator in the event of suspected abuse. Furthermore, this archive would incentivize conservators to act in the conservatee’s best interest, as they know that any abusive actions they take would be documented and could have negative repercussions in the future.

D. Right to Independently Request Termination of Conservatorship

When Britney Spears began publicly airing her grievances about her conservatorship, she was made aware of her ability to petition the court to terminate her conservatorship.56 Prior to, under the representation of Samuel Ingham, Spears believed that she was trapped in her conservatorship and that only upon her father’s impetus could the conservatorship be terminated. Once aware of this right, Spears asked Ingham to do so “four or five times a week,” but was always given an excuse as to why he would not.57 Since Ms. Spears was a conservatee, she could not independently seek legal remedies, as those rights were transferred to her conservator. 58 Instead, she would have had to petition the court to end the conservatorship through her lawyer, who had previously been unwilling to do so. Under this circumstance, conservatees without adequate legal counsel are left stranded in their conservatorship, as they do not have anyone in the courtroom who can adequately advocate for their rights. Therefore, there ought to be a way in which conservatees in this situation may independently ask the court to modify or terminate their conservatorship. Specifically, a process should exist in which a conservatee who alleges abuse by their conservator can have their voice heard and their allegations independently investigated. If a conservatee alleges abuse, even outside of the courtroom, an independent investigator should be appointed by the court not the conservator to investigate the claims made by the conservatee. Should the claims be found to be substantiated, the court should remove the conserv ator from their position and take legal action against the conservator if necessary.

56 Reporter’s Transcript of Proceedings at 19, In re Conservatorship of Britney Jean Spears at 16, No. BP 108870 (L.A. Super. Ct. Jun. 23, 2021).

57 Chenoweth, supra note 33.

58 Zammiello, supra note 3, at 593.

Furthermore, if a conservatee believes that they are of a capacity in which conservatorship is no longer necessary, but their conservator does not agree, they should be able to bypass any inadequate legal representation and independently request termination of the conservatorship. An independent professional appointed by the court could then evaluate the conservatee, free from influence by the conservator, and independently determine whether the existence of a conservatorship continues to be in the conservatee’s best interest. Ultimately, in matters of alleged abuse, the conservatee should have the ability to bypass their conservator and/or legal representation when speaking to the court in order to ensure due process for the conservatee.

V. CONCLUSION

Britney Spears is not the only conservatee facing abuse in the United States. Indeed, many other high-profile cases of conservatorship abuse have come to light following the “Free Britney” movement. Star Trek actress Nichelle Nichols, for example, was placed under a conservatorship in 2018 after her son alleged that she was being financially exploited by her former manager.59 Many believe, however, that Nichols is not in need of a conservatorship, rather, she merely needs “support in managing her affairs.”60 Furthermore, it has been alleged by a colleague that her conservator -son is taking advantage of her, isolating her from friends and family, moving her across the country, and selling her property. 61 Those attempting to advocate for Nichols in the courtroom have, however, been largely shut out of the process.62

Furthermore, talk show host Wendy Williams has recently been the subject of a borderline guardianship dispute with her bank. The bank, using her Grave’s Disease and hyperthyroidism as justification, 63 has frozen her assets and asked the court to impose guardianship on her.64 This has resulted in her defaulting on “several billing and financial obligations,” and is at risk

59 Mikki Kendall, ‘Free Nichelle’: Protesters Want to Liberate Star Trek Actor Nichelle Nichols from Conservatorship , THE GUARDIAN (Jan. 26, 2022), https://bit.ly/35JxVJb.

60 Id.

61 Id.

62 See Id.

63 Andrea Park, Wendy Williams Reveals Graves’ Disease Diagnosis, Takes Hiatus , CBS NEWS (Feb. 22, 2018), https://cbsn.ws/3O1vUtk.

64 Jennifer Maas, Wendy Williams Denies Mental Health Allegatio ns After Wells Fargo Freezes Her Bank Accounts, VARIETY (Feb. 14, 2022), https://bit.ly/3uXA24H.

of defaulting on others, such as mortgage payments and employee payroll.65 Had Williams not received adequate legal representation, as was the case for Britney Spears and Nichelle Nichols, the probability of her entering an abusive guardianship would have been much higher. These instances only scratch the surface of the multitude of abusive guardianships and conservatorships across the country that necessitate a change from the topdown.

When done correctly, guardianships, conservatorships, and other forms of supported decision-making are extremely beneficial to incapacitated or otherwise vulnerable individuals. For example, actress Amanda Bynes was placed under a conservatorship in 2013 following a mental health and substance abuse crisis.66 Under the conservatorship, Bynes was given access to the mental health and substance abuse care that she needed, and subsequently experienced significant improvement in her mental health and quality of life.67 The “Free Britney” movement led many to re-examine Bynes’ conservatorship, believing that it was no longer necessary. As such, Bynes filed to terminate the conservatorship in February of 2022, and the petition was granted a month later. 68 Bynes’ conservatorship is an example of a conservatorship done correctly, with it being implemented in a time of need for the conservatee, free from abuse, and terminated when it was no longer needed. In this conservatorship, the conservatee benefited greatly from the arrangement and was not taken advantage of in the process.

Abusive conservatorships operate in patterns that are often easy to recognize and are capable of being halted through common-sense legislation. For this reason, the federal government ought to modify the Uniform Probate Code (UPC), which establishes rules and regulations regarding conservatorship and guardianship, to ensure due process for conservatees who have fallen victim to abuse; likewise, state probate codes should follow suit. These reforms should give as much power to the conservatee as possible, place more monitoring responsibility on the court, and disincentivize abuse.

In order to give more rights to the conservatee, the UPC should be modified to establish a streamlined process of as signing counsel to a conservatee. Furthermore, procedure should allow for a conservatee to bypass their conservators and/or counsel in instances of abuse. To place more

65 Id.

66 Tom Tapp, Amanda Bynes’ Conservatorship Ends After 9 Years; Former Child Star Now in Control of Her Own Life , DEADLINE (Mar. 22, 2022), https://bit.ly/ 3x3IIcw.

67 Id.

68 Id.

monitoring responsibility on the court, permanent conservatorships should be abolished; thus, requiring courts to regularly re-examine the necessity of conservatorships. Furthermore, this would place conservators under more scrutiny, therefore, reducing the likelihood of judicial complacency and increasing transparency with the court. In order to disincentivize abuse, conservatorship abuse should be criminalized comparably to elder or child abuse, so that the threat of criminal prosecution deters conservators from acting in an abusive manner. Moreover, all documents pertaining to a conservatorship, including privileged communications, should be archived and made available to a conservatee upon the termination of a conservatorship or to an investigator in the event of alleged abuse.

As Mathew Rosengart said, conservators should be “burdened by , rather than benefit from, [a] conservatorship.” 69 These aforementioned reforms would do just that, by increasing transparency throughout the process and disincentivizing abuse by conservators, as they would be less likely to act in an abusive manner out of fear of punishment for their actions. Ultimately, the conservatorship and guardianship system have the potential to greatly benefit vulnerable individuals. Steps must be taken, however, to ensure that individuals do not capitalize on those vulnerabilities so that conservatorships exist for the sole purpose of benefiting conservatees, not conservators.

* * *

This Note was edited by Andrew Falduto

69 Petition for Suspension and Removal of James P. Spears as Conservator of the Estate at 7, In re Conservatorship of Britney Jean Spears, No. BP 108870 (L.A. Super. Ct. Dec. 13, 2021).

CROSSING THE FINAL PICKET LINE: HOW THE LEGAL SYSTEM IS DISREGARDING LABOR UNIONS’ BOUNDARIES

Amy Herd*

The right of workers to unionize and collectively bargain with their employers is imperative to maintaining democracy in the workplace and in the United States. From their golden age between the years of 1935 to 1947 to the present, unions have provided employees with invaluable benefits, including but not limited to substantial raises, more affordable health care, and job security. The disregard for labor unions’ boundaries is not a new phenomenon, but the recent waves of attacks handed down in the form of U.S. Supreme Court rulings have made a jarring dent in the capability of the labor movement to adequately service and protect workingclass citizens.

This Note contextualizes this “judicial war” against labor unions in the United States by first providing an introductory history of unions. This Note proceeds to examine Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018) and Cedar Point Nursery v. Hassid (2021), two of the most recent Supreme Court cases concerning labor unions, and the various judicial positions on these cases as articulated in the majority and dissenting opinions. Furthermore, this Note analyzes how the Roberts Court’s rulings in these cases overturn and deviate from precedent and contends that this divergence could be detrimental to th e labor movement. This Note reasons that by reversing decades of pro -labor precedent, the Supreme Court will bring about a series of harmful social implications and consequences for all workers. This Note ultimately argues that by continuing a trend of anti-labor judicial sentiment, the Supreme Court sets a dangerous precedent for the erosion of workers’ rights that must be reformed or overturned before deleterious consequences arise.

* B.A. Candidate for Political Science and Philosophy, Fordham College at Rose Hill, Class of 2025. I am grateful for the opportunity to write for the Fordham Undergraduate Law Review and give my thanks to the Editorial Board, for this Note could not have been published without their guidance and contributions. I owe a debt of gratitude to Mrs. Jennifer Stockdale, who encouraged me to follow my passion in the law. Lastly, to my friends, my partner Daniel and best friend Morgan, and to my parents: thank you for your steadfast support. This Note would not have been possible without you.

I. INTRODUCTION

A labor union is defined as an organized group of workers who unite to make decisions about conditions affecting their work.1 Labor unions are most common in blue-collar professions work that typically requires manual labor and is paid hourly; although white-collar workers are also able to unionize.2 Belonging to a union provides a plethora of benefits for employees: members work together to negotiate and enforce contracts with their management that guarantee decent wages, affordable health care, job security, and a stable schedule. 3 They are crucial for workers seeking to counteract unfair or unethical treatment in the workplace, and for workers who want to negotiate for better conditions. In 2021, out of the roughly 124 million full-time workers in the United States, about fourteen million were unionized a membership rate of 10.3%.4 This rate is down from 10.8% in 2020, but is consistent with the rate in 2019.5 In 1983 the first year with comparable union data membership totaled at 17.7 million workers, with a

1 What is a Union?, UNION PLUS, https://www.unionplus.org/page/what -union.

2 Ann C. Foster, Differences in Union and Nonunion Earnings in Blue-Collar and Service Occupations, U.S. BUREAU OF LAB STAT. (June 25, 2003), https://www.bls.gov/opub/mlr/cwc/differences -in-union-and-nonunion-earnings-in-bluecollar-and-service-occupations.pdf.

3 What Unions Do , AFL-CIO, https://aflcio.org/what-unions-do.

4 Economic News Release: Union Members Summary , U.S. BUREAU OF LAB. STAT. (Jan. 20, 2020), https://www.bls.gov/news.release/union2.nr0.htm.

5 Id.

resulting membership rate of 20.2%. 6 The rate of decline of workers belonging to labor unions has been steady over the last few decades, with recent years producing some of the lowest membership rates in history. Despite decreasing membership numbers, labor unions still hold the majority of the American public’s approval 65% in 2020.7 Accounting in part for the decline of unions is a series of recent Supreme Court decisions that hinder unions’ abilities to fund themselves, organize, and collectively bargain with their employers.

This Note will provide a brief history of labor unions in the United States, including their origin in Philadelphia, their “golden age” during the years of 1935-1947, their subsequent loss of influence and membership, and where unions stand today. This Note will proceed to introduce and explain t wo of the most recent and relevant Supreme Court cases regarding labor unions’ rights: Janus v. American Federation of State, County, and Municipal Employees, Council 31 (AFSCME) (2018) and Cedar Point Nursery v. Hassid (2021). This Note will then examine the relationship between the decisions of these cases and past union-related cases. Ultimately, this Note argues that these decisions continue a trend of anti -labor judicial sentiment and negate the success of pro-labor union rulings, thereby setting a dangerous precedent that will bring about the end of the movement for workers’ rights unless these new precedents are swiftly reformed or done away with altogether.

II. A HISTORY OF UNIONS IN THE UNITED STATES

The origins of unions and the labor movement in the United States can be traced back to the formation of the Federal Society of Journeymen Cordwainers in Philadelphia in 1794. 8 Facing struggles such as the prospect of cheap labor and the demands of the Industrial Revol ution, workers began to coordinate in order to demand safer conditions and shorter work days. 9 However, the legality of labor combinations as they were called at the time was uncertain in the U.S., until the Massachusetts Supreme Judicial Court passed down a landmark decision in Commonwealth v. Hunt (1842).10

6 Id

7 Megan Brenan, At 65%, Approval of Labor Unions in U.S. Remains High, GALLUP (Sep. 3, 2020), https://news.gallup.com/poll/318980/approval -labor-unions-remains-high.aspx.

8 History.com Editors, Labor Movement, HISTORY (Mar. 31, 2020), https://www.history.com/topics/19th -century/labor.

9 Id.

10 Commonwealth v. Hunt, 45 Mass. 111 (1842).

Chief Justice Lemuel Shaw ruled that labor combinations could not be classified as criminal conspiracies and were thus legal, provided they employed lawful means for lawful ends. 11 Following the Commonwealth ruling, unions grew to be city and nation-wide. In 1866, workers began advocating for a shorter workday. In 1867, several thousand Chinese railroad workers went on strike to protest unequal pay. 12 Still, a majority of workers did not participate in unions until the twentieth century, when events such as World War I and the Great Depression began to push together workers who toiled long hours in factories, often in nearly unlivable conditions.13 The Great Depression was a wake-up call for the working class, during which they turned to local trade unions for protection. 14

A. The Golden Age of Unions

The “golden age” of unions in the U..S lasted from 1935 to 1947, following the institution of the 1935 National Labor Relations Act (NLRA) as part of the New Deal.15 By passing the NLRA, Congress effectively made it clear that it was the policy of the U.S. to protect workplace democracy and encourage the negotiation of wages and other conditions of employment by an organized body of employees, more commonl y known as collective bargaining:16

Employees shall have the right to self -organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for t he purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment.17

11 Id. at 130.

12 Railroad Chinese Labor Strike, June 24th, 1867 , MUSEUM OF CHINESE IN AMERICA, https://www.mocanyc.org/collections/stories/railroad -chinese-labor-strike-june-24th-1867/.

13 Gerald Friedman, Labor Unions in the United States , ECONOMIC HISTORY ASS’N ENCYCLOPEDIA (Mar. 16, 2008), https://eh.net/encyclopedia/labor -unions-in-the-unitedstates/.

14 Id.

15 Labor Unions During the Great Depression and New Deal , LIBRARY OF CONGRESS, https://www.loc.gov/classroom-materials/united-states-history-primary-sourcetimeline/great-depression-and-world-war-ii-1929-1945/labor-unions-during-greatdepression-and-new-deal/.

16 Definition of Collective Bargaining , MERRIAM WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/collective%20bargaining.

17 National Labor Relations Act, 7 U.S.C. § 157 (1935).

Massive strikes were the foundation of the strategy that made the golden age so successful for labor unions.18 One well-known example of the strikes’ success is the story of aggrieved autoworkers. Before 1935, working conditions in auto plants were deplorable, with employers coercing their employees into working at extremely fast rates for steadily declining wages.19 It was not until these workers organized a series of sit -down strikes that employment conditions improved.20

Throughout their “golden age,” unions’ strength allowed workers to rapidly reduce income inequality.21 One factor that made it possible for unions to have great influence was the option to have a “closed shop,” meaning that everyone who was a part of a certain workplace was required to hold membership with that workplace’s union as a prerequisite for being hired by the employer.22 This period of prosperity was not destined to last, as new obstacles and political alliances made labor unions’ work exceedingly difficult.

B. Loss of Influence and Membership

The “golden age” of unions came to an end in 1947 when Northern corporate elite allied with members of Congress. 23 These tycoons subsequently pooled their money and influence into outlawing one of the most effective strike mechanisms: the solidarity strike. The elite’s efforts proved successful, for the passage of the Taft-Hartley Act of 1947 gutted the National Labor Relations Act.24

18 Jane F. McAlevey, A Collective Bargain: Unions, Organizing, and the Fight for Democracy, ECCO 10 (2020).

19 Ford workers faced horrible con ditions in their workplaces during the 1930s. Breakdowns on plants that they could not control resulted in workers’ pay being stopped along with a longer shift if the repairs took a certain amount of time. Personal belongings were confiscated if they were taken into the workroom. If a man was one minute late to his shift, he was docked fifteen minutes of pay, and workers often had to decide whether to go to the plant doctor for injuries for fear of being labeled as “careless,” an accusation for which he would be fired. See Carl M. Mydans, Why Ford Workers Strike , THE NATION (Oct. 25, 1933), https://socialwelfare.library.vcu.edu/eras/great -depression/ford-workersstrike-1933/.

20 McAlevey, supra note 18, at 11.

21 Id. at 84.

22 Id. at 84-5.

23 Id. at 11.

24 Labor Management Relations Act, 29 U.S.C. § 141 (1947).

The Taft-Hartley Act once again made it legal for employers to utilize paid work time for campaign efforts against unionization, instituted a ban on sympathy strikes and boycotts, ended both wildcat strikes strikes that are started by workers without their union’s approval25 and the closed shop. Furthermore, the Act required union leaders and their members to sign affidavits affirming that they were not affiliated with the Communist Party or any socialist parties.26 The Act also gave states the option to make union membership voluntary through right-to-work laws, which make it illegal for nonunion members to pay union dues as a requirement for their employment.27

World War II introduced another series of hardships for unions in the United States, as the government placed restrictions on them to ensure that they did not interfere with the wartime effort. 28 However, the end of World War II brought about a revitalization of union activity; workers of many industries went on strike once again, and membership reached a high point between the 1940s and the 1950s.29 As the years went on, unions expanded to include lower-paid workers eliminating some of the exclusivity they had maintained previously. 30 This surge continued through the Civil Rights Movement and into 1979, when union membership in the U.S. peaked at twenty-one million. At this time, 23.4% of wage and salary workers, 23.3% of nonagricultural workers, and 21.2% of employed workers were unionized.31 Additionally, reforms were passed outlawing child labor and mandating equal pay; hard-fought improvements were finally being won. 32 However, the Reagan and Clinton administrations did little to capitalize on the momentum of previous decades. During his time in office, President

25 Definition of Wildcat Strike, MERRIAM WEBSTER DICTIONARY, https://www.merriamwebster.com/dictionary/wildcat%20strike.

26 McAlevey, supra note 18, at 59.

27 Employer/Union Rights and Obligations , NAT’L LAB. REL. BOARD, https://www.nlrb.gov/about-nlrb/rights-we-protect/your-rights/employer-union-rights-andobligations.

28 Marcia Fishman et al., Southern Labor Archives: Work n' Progress Lessons and Stories, GEORGIA STATE UNIVERSITY LIBRARY, https://research.library.gsu.edu/c.php?g=115684&p=750822 .

29 Brantly Callaway & William J. Collins, Unions, Workers, and Wages at the Peak of the American Labor Movement, 4 (NAT’L BUREAU OF ECON RSCH., Working Paper No. 23516, 2017).

30 Id

31 Gerald Mayer, Cong. Rsch. Serv., RL32553, Union Membership Trends in the United States 22 (2004).

32 Id.

Ronald Reagan oversaw the firing of 13,000 striking air traffic controllers, thereby setting a dangerous precedent for the treatment of organized workers in the future.33 Reagan’s three management representative appointees to the National Labor Relations Board oversaw its departure from its original goal of collective bargaining, and the Department of Labor seemingly ignored the union-busting firms that emerged during Reagan’s presidency. 34 Following the Reagan administration, President Bill Clinton discontinued his support for union-strengthening efforts after his victory in 1992, in an attempt to garner the support of big businesses, such as Walmart and Tyson. 35

C. Labor Unions’ Contemporary Situation

The effects of anti-union campaigning manifest clearly, evidenced by the 10.3% union membership rate in 2021. 36 In recent decades, the composition of the United States’ economy has shifted such that the majority of workers are in food and service industries, where union rates are consistently lower.37 Food and beverage industries specifically have one of the lowest membership rates in the U.S., with only 3.4% of workers belonging to a union in 2021.38 Research suggests relatively simple reasoning for this statistical anom aly: after inexpensive fast food chains with the money to combat unionization became staples, membership rates at restaurants dropped due to the ineffectiveness of their unions.39 The introduction of right-to-work laws in twenty-eight states has also drastically reduced both membership and funding for unions.40 Furthermore, employers have become increasingly aggressive

33 Joseph A. McCartin, The Strike That Busted Unions, THE NEW YORK TIMES (Aug. 2, 2011), https://www.nytimes.com/2011/08/03/opinion/reagan -vs-patco-the-strike-thatbusted-unions.html.

34 Id

35 Michael Pierce, How Bill Clinton Remade the Democratic Party by Abandoning Unions: An Arkansas Story , LAWCHA (2016), https://www.lawcha.org/2016/11/23/bill -clintonremade-democratic-party-abandoning-unions-working-class-whites.

36 News Release: Union Members 2021, U.S. BUREAU OF LAB STAT (Jan. 20, 2022), https://www.bls.gov/news.release/pdf/union2.pdf.

37 Hannah Weiss, Unions Are Disappearing. Do We Care? , WAKE FOREST J. BUS. & INTELL PROP L. (2020).

38 U.S. BUREAU OF LAB STAT, supra note 518.

39 Kristin Schwab, Unions Are Gaining Momentum at Restaurants. They’ve Been Here Before, MARKETPLACE (2021), https://www.marketplace.org/2021/09/28/unions -aregaining-momentum-at-restaurants-theyve-been-here-before/.

40 David Cooper et al., So-Called Right-To-Work Is Wrong for Montana: Research Shows RTW Law Would Not Boost Jobs and Could Lower Wages for Both Union and Nonunion

in their efforts to combat organization by employing union -busting tactics such as the incorporation of anti-union rhetoric into communications, the hiring of specialized consultants trained in resisting unionization efforts, and even illegal means, such as threatening to fire employees for involvement with union activities.41 Several Supreme Court cases, particularly Janus v. AFSCME (2018) and Cedar Point Nursery v. Hassid (2021), have exacerbated this crisis.

III. SCOTUS’ RECENT RULINGS ON LABOR UNIONs

Labor unions have faced and overcome many challenges since the 1794 Federal Society of Journeymen Cordwainers in Philadelphia. Unfortunately, in the judiciary, the battle for workers’ rights has become increasingly difficult, as the Supreme Court continues to hand down anti-union rulings that overturn or deviate from pro-labor precedent.

A. Janus v. American Federation of State, County, and Municipal Employees, Council 31 (AFSCME)

Janus v. American Federation of State, County, and Municipal Employees, Council 31 (AFSCME) was argued on February 26, 2018, and the Supreme Court delivered their opinion on June 27, 2018.42 The origins of the case date back to 1977, in which Abood v. Detroit Board of Education upheld a challenge to a Michigan law regarding th e “agency shop” arrangement, which allowed a public employer to require that both unionized and nonunionized workers pay union fees, as the employer benefited from the collective bargaining agreement. 43 Similarly, in Illinois, the governor brought forth a lawsuit challenging Abood on the grounds that it was a violation of nonmembers’ free speech rights under the First Amendment. 44 The district court initially dismissed the complaint, as did the Seventh Circuit of the U.S. Court of Appeals, resulting in the case’s appeal to the Supreme Court.45 The central question was as follows: “Should the Court’s decision in Workers, ECON. POL’Y INST. (Feb. 25, 2021), https://www.epi.org/publication/so -calledright-to-work-is-wrong-for-montana/.

41 Weiss, supra note 36.

42 Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448 (2018).

43 Id. at 2456.

44 Id.

45 Id.

Abood v. Detroit Board of Education be overturned on the grounds that its holding is inconsistent with First Amendment principles?” 46 The Court came to a 5-4 decision in favor of the plaintiff, Mark Janus.47 Justice Samuel Alito authored the majority opinion, claiming that the agency shop arrangement violated the free speech rights of nonmembers:

Under Illinois law, public employees are forced to subs idize a union, even if they choose not to join and strongly object to the positions the union takes in collective bargaining and related activities. We conclude that this arrangement violates the free speech rights of nonmembers by compelling them to subsidize private speech on matters of substantial public concern.48

Justice Elena Kagan wrote the dissenting opinion, and was joined by Justices Sotomayor, Ruth Bader Ginsburg, and Stephen Breyer. 49 In her opinion, Justice Kagan faulted the majority for disrupting the balance established by Abood regarding public-sector labor relations, as well as for disregarding the principle of stare decisis.50 Justice Kagan also noted that the decision would be consequential for over twenty states that had statutory schemes built off the Abood decision, and warned that these changes would directly affect the lives of tens of millions of Americans. 51

B. Cedar Point Nursery v. Hassid

Cedar Point Nursery v. Hassid was argued on March 22, 2021 and the Court delivered their opinion on June 23, 2021. 52 The petitioner, Cedar Point Nursery grows strawberries for producers in Dorris, California.53 On October 29, 2015, the United Farm Workers (UFW) union organizers entered the nursery without providing prior notice of intent, as the California Agricultural Labor Relations Act (ALRA) requires. 54 This protest disrupted the normal work day, and some workers left their work stations to join the protest, although a majority did not.55 Subsequently, Cedar Point Nursery filed a

46 Id. at 2463

47 Id. at 2448.

48 Id. at 2459-60.

49 Id. at 2487.

50 Id.

51 Id. at 2487.

52 Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021).

53 Id. at 2069.

54 Id.

55 Id. at 2070.

charge against UFW with the Agricultural Labor Relations Board on the grounds that the late delivery of their intent to enter the nursery had violated the ALRA access regulation, providing that it “appropriated without compensation an easement for union organizers to enter their property and therefore constituted an unconstitutional per se physical taking.”56 The Fifth Amendment affirms, vis-à-vis the Takings Clause, that no private property can be taken for public use “without just compensation.” 57 UFW filed a countercharge, upon which Cedar Point then sued the Board in the United States District Court for the Northern District of California. 58 The Northern California District Court held that the ALRA access regulation did not constitute a per se physical taking, because it did not grant permanent public access to Cedar Point Nursery. 59 Cedar Point then appealed to the Ninth Circuit of the U.S. Court of Appeals, which agreed with the lower court that the access regulation did not violate their Constitutional rights. 60 The case was then appealed to the Supreme Court. The central question was as follows:

A California regulation grants labor organizations a “right to take access” to an agricultural employer’s property in order to solicit support for unionization. Agricultural employers must allow union organizers onto their property for up to three hours pe r day, 120 days per year. The question presented is whether the access regulation constitutes a per se physical taking under the Fifth and Fourteenth Amendments. 61

The Roberts Court came to a 6-3 decision in favor of Cedar Point Nursery.62 Chief Justice Roberts penned the majority opinion, while Justice Breyer delivered the dissenting opinion along with Justices Sonia Sotomayor and Elena Kagan. Justice Breyer argued that the regulation does not appropriate growers’ property:

The Court holds that the provision’s “access to organizers” requirement amounts to a physical appropriation of property. In its view, virtually every government -authorized invasion is an “appropriation.” But this regulation does not “appropriate” anything; it regulates the employers’ right to exclude others. At the same time, our prior cases make clear that the regulation before us allows only a temporary invasion of a landowner’s property and that this kind of temporary invasion amounts to a taking only if it goes “too far.”63

56 Id. at 2067.

57 Id. at 2071.

58 Id. at 2070.

59 Id 60 Id.

61 Id. at 2069.

62 Id. at 2063.

63 Id. at 2081

The Cedar Point decision is another grim step in the judicial struggle against workers’ and unions’ rights, as it limits the extent to which unions can occupy property for the purposes of protest and demonstration. As found in Justice Breyer’s dissent, the regulation only temporarily affected growers’ right to exclude others from their property, thus, the Court’s classification as a “taking” is inappropriate. Similarly to Janus, the ruling of the Court in Cedar Point sets a dangerous precedent for the limitation and erosion of workers’ rights.

IV. SOCIAL IMPLICATIONS AND CONSEQUENCES OF THE SUPREME COURT’S DECISIONS

Upon evaluating Janus v. AFSCME and Cedar Point Nursery v. Hassid , it is evident that the decisions perpetuate the recent trend of an anti -labor Supreme Court, therefore overturning previous pro-labor precedent. By steadily restricting freedoms, the Court has made it increasingly difficult for workers to advocate for better benefits, wages, and conditions in their workplaces.

A. Inconsistent with Precedent

Union history is colored with judicial battles, some of which were successful, while others were not. A particular sequence of cases, starting with Labor Board v. General Motors Corp. (1963) and ending with Janus v. AFSCME, concerns the legality of the agency shop arrangement. In Labor Board v. General Motors Corp., the Warren Court ruled that the agency shop arrangement did not in itself constitute an unfair labor practice under Section 8(a)(3) of the National Labor Relations Act, and is not prohibited by Sections 7 or 8.64 Abood challenged the practice of requiring public employees to pay union dues to cover collective bargaining costs. 65 This decision reaffirmed the validity of the agency shop “insofar as the service charges are used to finance expenditures by the union for collective bargaining, contract administration, and grievance adjustment.” 66 However, by passing down the Janus decision in 2018, the Court overturned Abood as well as Labor Board. 67 The Court found that Abood had not sufficiently considered the

64 Labor Board v. General Motors Corp., 373 U.S. 734 (1963).

65 Abood v. Detroit Board of Education , 431 U.S. 209, 211 (1977).

66 Id. at 225-6.

67 Janus, 138 S. Ct. at 2456.

principles of the First Amendment in its ruling.68 The union movement widely views fees as necessary due to the presence of right -to-work laws banning agency fees in twenty-eight states.69 Therefore, this ruling which overturns the pro-union precedent is especially devastating due to the massive loss of funding unions experienced as a result.70 Additionally, because employees in the twenty-eight right-to-work states are not required to join unions nor pay dues to receive their benefits, unions’ membership rates decreased, along with their influence.71 Thus, the ruling of Janus is critical for those who seek to diminish the influence of unions. Overturning the pro-union precedent established by Labor Board and Abood renders the outlook for workers who are already struggling to improve the conditions of their employment.

The Cedar Point decision overturns precedent set by Loretto v. Teleprompter Manhattan CATV Corp. (1982). The Court held that, regardless of whether an action results in public benefit or impacts the owner economically, the Manhattan Teleprompter’s minor (albeit permanent) occupation of Loretto’s property constituted a regulatory taking of property.72 This taking must be compensated under both the Fifth and Fourteenth Amendments.73 Chief Justice Roberts concluded in Cedar Point that any time a regulation allows third parties to physically invade property, that third party “takes” the property under the Fifth Amendment therefore the state must either compensate property owners or cease activities.74 Justice Breyer noted in his dissent that the Court’s holding did not fit with Supreme Court precedent. Historically, the Court held that a temporary “physical appropriation” of property can be classified as a “per se taking.” 75 However, as Justice Breyer notes:

It is important to understand, however, that, technically speaking, the majority is wrong. The regulation does not appropriate anything. It does not take from the owners a right to invade (whatever that might mean). It does not give the union organizations the right to exclude anyone. It does not give the government the right to exclude anyone. What

68 Id

69 Dylan Matthews, The Supreme Court Decision Gutting Public Sector Unions, Explai ned, VOX (June 27, 2018), https://www.vox.com/2018/6/14/17437832/janus -afscme-supremecourt-union-teacher-police-public-sector.

70 Id.

71 Id

72 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 421 (1982).

73 Id

74 Cedar Point, 141 S. Ct. at 2072.

75 Id. at 2074.

does it do? It gives union organizers the right temporarily to invade a portion of the property owners’ land. It thereby limits the landowners’ right to exclude certain others. The regulation regulates (but does not appropriate) the owners’ right to exclude. 76

The Roberts Court’s deviation from precedent in Cedar Point Nursery represents another important point in the recent trend of anti -union Supreme Court rulings. Because the precedent set forth in Janus was overturned, and the precedent in Cedar Point Nursery v. Hassid was disregarded, the labor movement finds itself in an almost crippled state. However, the consequences do not extend only to unions with the restriction of legal freedoms comes a series of consequences for workers who now find themselves caught in the social implications of the recent Supreme Court decisions.

B. Social Implications

The loss of freedoms for labor unions harms workers. Historically, workers are better off when they belong to a strong union.77 A worker covered by a union contract will earn approximately 11.2% more than a peer with similar education and experience in a non-unionized workplace.78 Even nonunionized workers benefit from strong unions, as they will be able to effectively negotiate with employers for higher wages and greater benefits.79 Women belonging to unions consistently report increases to their wages, along with Black and Hispanic workers. 80 Statistically, these groups make less than their white-male counterparts working in the same industries. 81 Deunionization, however, exacerbates problems related to income inequality between men and women, as well as working -class versus upper-class citizens.82

76 Id. at 2083.

77 Celine McNicholas et al., Why Unions Are Good for Workers Especially in a Crisis like COVID-19: 12 Policies That Would Boost Worker Rights, Safety and Wages, ECON POL’Y INST. (Aug. 25, 2020), https://www.epi.org/publication/why -unions-are-good-for-workersespecially-in-a-crisis-like-covid-19-12-policies-that-would-boost-worker-rights-safety-andwages/.

78 Id

79 Id.

80 Id

81 Eileen Patten, Racial, Gender Wage Gaps Persist in U.S. Despite Some Progress , PEW RESEARCH CENTER (July 1, 2016), https://www.pewresearch.org/facttank/2016/07/01/racial-gender-wage-gaps-persist-in-u-s-despite-some-progress/.

82 Id.

With workers’ rights being curtailed by the Court, de-unionization is now much more prevalent. Without the ability to form a strong union and collectively bargain or without the ability to form a union at all working class citizens in the U.S. are left with few resources to advocate for themselves and their co-workers. Because of the rulings in Janus and Cedar Point Nursery, it is likely that unions will be weakened, and consequently, income inequality will continue to increase while workers see fewer benefits from their employers. The social implications of these rulings and the subsequent precedent set are alarming, and the impact on workers will be grim. If there are more anti-union rulings in the future, the consequences for the labor movement and workers in the United States could be disastrous.

V. CONCLUSION

The rulings of the Roberts’ Court in Janus v. AFSCME and Cedar Point Nursery v. Hassid were yet another blow to unions across the United States. If not quickly addressed or eliminated entirely, these results will set a dangerous legal precedent that may bring about the end of the movement for workers’ rights. The rulings in Janus and Abood concluded that the agency shop arrangement violated the First Amendment. This ruling severely limits the funding available to labor unions. By also overturning precedent set by Loretto v. Teleprompter in Cedar Point, the Court imposed limitations on unions’ rights to occupy property for protest. This respective overturning and reversal of precedent call into question the future of unions and union -related case rulings.

If decades of pro-union Court precedent are not enough to salvage the limited freedoms of unions, optimism does not lend itself to the outlook for the labor movement in the United States. The judicial war against unions is especially tragic when considering how unions have, in a bygone er a, been vital to securing better working conditions, especially for female workers and workers of color. Unions must continue to campaign for workers as union workers’ past victories do not diminish the necessity of their continued work today. It is imperative that the rulings of Janus and Cedar Point be overruled. Otherwise, unions’ progress in the United States will regress. In the midst of a tense judicial war between the law and labor unions, as well as the courts and the workers, the law and the courts must side with the unions and workers if America is to be the “land of liberty and justice for all.”

* * *

This Note was edited by Kevin James

CONVERSION THERAPY LEGISLATION: A CALL TO EXPAND LEGISLATION TO COVER RELIGIOUS ORGANIZATIONS

Dylan Ayer*

LGBTQ+ Americans have had legal battles with the United States government for generations. Their rights and freedoms are frequently stigmatized and considered controversial because of the L GBTQ+ community’s complex relationship with religion. Conversion therapy is a legal, unsupported, and damaging practice that attempts to change an LGBTQ+ individual’s sexuality to heterosexual. This practice is conducted by religious, “pro-mental health,” and psychological organizations. This Note argues that current conversion therapy legislation is insufficient in addressing the harmful effects of the practice, evidenced by how it is banned in only twenty states specifically in mental health and psycholog ical organizations. All religious institutions can still legally practice conversion therapy regardless of the emotional, social, psychological, and physical destruction it breeds. This Note examines the genesis of conversion therapy

medically, religiously, and psychologically – and aims to display its harmful long-term effects and methods, while addressing the shortfalls of current conversion therapy legislation. This Note further analyzes historical conversion therapy court cases and conversion therapy’s relation to the First Amendment, specifically the freedom of religion. This Note argues that current conversion therapy legislation is inadequate, for it does not restrict religious organizations from participating in conversion therapy, whereas the practice should be illegalized entirely. Moreover, the constitutional rights to the freedom of speech and expressive conduct do not protect religious organizations in practicing conversion therapy, as these rights are not always absolute.

* B.A. Candidate for Political Science, Fordham College at Rose Hill, Class of 2025. I would like to kindly thank Caroline Morris for providing me incredible feedback and support on this Note. Thank you also to my Senior Editor, Ahan Dhar, the FULR Editorial Board, and to my friends and family who supported me on this unforgettable journey.

I. INTRODUCTION

Conversion therapy, also known as “reparative therapy” or “Ex -Gay therapy,” is a physically and psychologically abusive practice, created to “cure” LGBTQ+ individuals 1 Minors who identify as lesbian, gay, bisexual, transgender, queer/questioning, or anything other than heterosexual (LGBTQ+) are, under certain circumstances, forced into conversion t herapy by their parents or guardians.2 Conversion therapy is predominantly practiced by religious organizations, in addition to psychological and mental health organizations.3 Based in psychoanalytic theory, religious values, and homophobia, these programs use physically and emotionally violent techniques in attempt to change an individuals’ sexuality to heterosexual (“straight”).4 The most common tactics include isolation, shaming, lectures

1 Marie-Amélie George, Expressive Ends: Understanding Conversion Therapy Bans , 68 ALA L. REV. 793, 795 (2016 -2017).

2 Id

3 Id

4 Jonathan Sacks, “Pray Away the Gay” An Analysis Of The Legality Of Conversion Therapy By Homophobic Religious Organizations , 13 RUTGERS J. L. & RELIGION 67, 70 (2011).

on gender stereotypes, hypnosis, and induced vomiting.5 Strategies also include measures as drastic as electric shock therapy, substance injections, surgical interventions, forced consumption of same-sex pornography, and beatings.6 Conversion therapy is widely unsupported, with no scientific evidence nor justification to substantiate its legitimacy. Rather, credible organizations, like the American Psychological Association, have denounced conversion therapy as scientifically unsound since 1998.7

Conversion therapy has been addressed at the state level in the United States: twenty states, including the District of Columbia, have banned conversion therapy.8 Consequently, forty-six percent of LGBTQ+ Americans live in states that ban conversion therapy. 9 Existing legislation prohibits licensed therapists and mental health counselors from practicing conversion therapy.10 These laws, however, neither discuss nor ban religious institutions from practicing conversion therapy. 11

This Note will first outline conversion therapy in reference to its treatment, effects, and relevant legislation. This Note will then analyze the shortcomings of the current conversion therapy legislation and examine the coverage of conversion therapy in the courts. Because legislative bans only apply to psychological and mental health providers, as opposed to religious organizations, this Note argues that present-day legislation is insufficient in fully dismantling the practice. This Note will affirm that, since not every right is absolute, the First Amendment right to the freedom of religion does not permit the religious-based violence created by conversion therapy. Additionally, the First Amendment does not protect conversion therapy under freedom of speech. Ultimately, this Note argues that the emotional and physical well-being of minors needs to be legislatively protected against the practice of conversion therapy.

5 Id.

6 Id.

7 George, supra note 1, at 801.

8 Conversion “Therapy” Laws, MOVEMENT ADVANCEMENT PROJECT, https://www.lgbtmap.org/equality-maps/conversion_therapy

9 Id

10 George, supra note 1, at 795.

11 Id.

II. A BACKGROUND ON CONVERSION THERAPY: A DETRIMENTAL AND UNSUCCESSFUL ‘TREATMENT’ THAT WARRANTS REGULATION

A. Conversion Therapy as an Unsuccessful and Unsupported ‘Treatment’

Homosexuality is not a new concept for the medical community. Before 1973, homosexuality was classified as a mental illness. 12 The medical community conducted lobotomies, castrations, hysterectomies, vasectomies, and other surgical interventions in attempt to remove the “gay” from patients.13 On December 15, 1973, the American Psychiatric Association (APA) declassified homosexuality as a mental illness.14 Despite this, the APA still openly supported conversion therapy, which legitimized the practice in medical establishments.15 Fortunately, in 1998, the American Psychological Organizations publicly announced their opposition towards conversion therapy.16 They later expanded upon this statement in 2013:

The American Psychological Association does not believe that same -sex orientation should or needs to be changed, and efforts to do so represent a significant risk of harm by subjecting individuals to forms of treatment which have not been scientifically validated and by undermining self -esteem when sexual orientation fails to cha nge. No credible evidence exists that any mental health intervention can reliably and safely change sexual orientation; nor, from a mental health perspective does sexual orientation need to be changed.17

As affirmed by extensive neurological research, no one has experienced change in sexuality because of conversion therapy. 18 Thus, it would be extremely reprehensible for the medical community to support a practice with no scientific evidence, credibility, or justification.

12 Id. at 801.

13 Sacks, supra note 4, at 70.

14 Allison Turner, #FlashbackFriday - Today in 1973, the APA Removed Homosexuality From List of Mental Illnesses, HUMAN RIGHTS CAMPAIGN (Dec. 15, 2017), https://www.hrc.org/news/flashbackfriday -today-in-1973-the-apa-removed-homosexualityfrom-list-of-me.

15 George, supra note 1, at 802.

16 Id. at 801.

17 American Psychological Association, Resolution on Approp riate Affirmative Responses to Sexual Orientation Distress and Change Efforts , APA (2013), https://www.apa.org/about/policy/sexual-orientation

18 Id.

B. The Harmful Effects of Conversion Therapy

In 2009, the APA conducted a study that examined the brains of minors who underwent conversion therapy.19 This investigation recorded mental illness and mental disorders as the most common effect of the practice, including social withdrawal, substance abuse, self-blame, self-hatred, depression, suicidality, helplessness, hopelessness, guilt, anxiety, and stress.20 Furthermore, after undergoing conversion therapy, minors were more prone to difficulties in emotional and sexual intimacy, engagement in fatal sexual behavior, and the deterioration of familial relationships.21

Familial rejection is a common and devastating outcome of conversion therapy, as parents or guardians are often those who compel their children to participate in this practice. Conversion therapy can reinforce worthlessness and can lead to overall self-destruction. For example, LGBTQ+ teens who encounter rejection from their family are 5.9 times more likely to experience extreme depression, and 8.4 times more likely to attempt suicide.22 Similarly, these affected youth are 3.4 times more likely to consume illegal drugs and engage in unprotected sex.23 Thus, conversion therapy is statistically and psychologically proven to hold harmful effects on the very patients it is allegedly intended to benefit. Therefore, the medical community cannot continue to support a practice which puts minors on the pathway to lasting, psychological damage.

C. Religious Institutions’ Current Use of Conversion Therapy

Unlike psychological organizations, religious institutions can legally conduct conversion therapy in all fifty states as of May 2022. 24 And yet, religious conversion practices are utilized more frequently and in more violent capacities than the methods of a psychologist or other mental health professional.25 Psychological practice is based on psychoanalytic therapy, in

19 Movement Advancement Project, LGBT Policy Spotlight: Conversion Therapy Bans , MOVEMENT ADVANCEMENT PROJECT (2017), https://www.lgbtmap.org/file/policyspotlight-conversion-therapy-bans.pdf

20 Id.

21 Id

22 Id.

23 Id

24 George, supra note 1, at 795.

25 Id. at 819.

which therapists and mental health counselors use hypnosis to deceive a patient’s brain into thinking that their non-heterosexuality is a phase, rather than a genuine sexual or romantic desire.26 However, religious entities believe that the patient must submit to “the word of the lord” to “cure” homosexuality.27 For example, boys and young men are forced to participate in typical “masculine” activities, including wrestling, football, g oing to the gym, and fishing.28 Likewise, male participants are required to dress in “masculine” clothing, including khaki shorts and collared shirts.29 If patients refuse, they are physically beaten with various weapons including rulers, belts, or human fists.30 Girls and young women, on the other hand, are required to conduct typical “feminine” activities, such as applying makeup, manicures, pedicures, and hairdressing.31 They are furthermore required to dress in “feminine” clothing at all times, including tight skirts, dresses, heels, and crop tops.32 Girls often face physical assault if they refuse. 33

Furthermore, all participants are mandated to form relationships with members of both sexes. 34 Same-sex relationships are strictly monitored to ensure that the patients remain platonic and do not advance to anything sexual or romantic; otherwise, participants are separated and physically beaten. 35 Small-group discussions which heavily revolve around religious principles are also mandatory, in which homophobic and genderstereotypic Bible and Torah verses are preached. 36 Further, participants are coerced into sharing all non-heterosexual thoughts, inclinations, and experiences they have had.37 Priests, ministers, and other religious officials, along with the rest of participants, shout and shame each participant for their sinful and homosexual behavior.38

26 Id. Sacks, supra note 4, at 72.

27 George, supra note 1, at 795; Sacks, supra note 4, at 72.

28 Id. 29 Id 30 Id. 31 Id 32 Id. 33 Id. 34 Id 35 Id. 36 George, supra note 1, at 820.

After sharing, participants engage in group and personal prayer to redir ect sinful activity.39 Occasionally, participants reenact their non-heterosexual behavior or scenes of sexual abuse from same-sex pornography in front of the group, and there are accounts that support allegations that participants must strip naked in this process.40 Finally, minors are, at times, presented with same-sex pornography, and beaten with rulers on their wrists, stomachs, and backs if they show any signs of sexual attraction. 41 These tactics are abusive and should be federally addressed.

III. SHORTFALLS OF CURRENT LEGISLATION: AN ARGUMENT TO EXPAND LEGISLATION TO BAN THE USE OF CONVERSION THERAPY IN RELIGIOUS ORGANIZATIONS

Current legislation regarding the practice of conversion therapy evidently provides insufficient protection to vulnerable LGBTQ+ populations. Twenty states, including the District of Columbia, have laws that ban licensed psychological and mental health practitioners from administering conversion therapy to minors.42 Importantly, these bans do not restrict religious institutions from practicing conversion therapy, 43 despite how physically violent and psychologically damaging their practices are toward minors.

Conversion therapy legislation varies from state to state. 44 For instance, Maryland and Rhode Island have banned government funding for conversion therapy.45 Nevada, New Hampshire, and Washington have passed legislation

42 Movement Advancement Project, supra note 8. The twenty states (including Washington, D.C.) that have banned conversion therapy for minors are California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Nevada, New Jersey, New Hampshire, New Mexico, New York, Oregon , Rhode Island, Utah, Vermont, Virginia, and Washington. George, supra note 1, at 795.

43 Id

44 Tiffany C. Graham, Conversion Therapy: A Brief Reflection on the History of the Practice and Contemporary Regulatory Efforts , 52. CREIGHTON L. REV. 419, 424 (20182019).

45 Id. Approximately $650 million per year is spent on conversion therapy, and “efforts to change LGBTQ people’s sexual orientation and gender identities cost the U.S. an estimated $9.23 billion each year.” Nico Lang, Conversion Therapy Costs U.S. Over $9 Billion a Year, Study Finds, NBC (Mar. 7, 2022), https://www.nbcnews.com/nbc -out/outnews/conversion-therapy-costs-us-9-billion-year-study-finds-rcna19040.

banning conversion therapy, except in religious institutions.46 Functionally, these exceptions encourage religious organizations to advertise conversion therapy because of funding, tax exemptions, and political leverage that psychological and mental health organizations do not have. In fact, Nevada’s legislation states that licensed psychological practitioners can continue to practice conversion therapy, only if they struggle to meet the cost of living.47 This law is dangerous because it wrongfully creates the opportunity for therapists to falsify information and claim that they have a financial need in order to continue their conversion therapy practice.

Some states have passed legislation designating punishments if an organization is caught breaking the law. 48 In New York, for example, an institution practicing conversion therapy can be subject to fines of up to $10,000 or 500 hours of community service.49 These penalties are associated with New York’s professional misconduct penalties.50 Michigan, Minnesota, North Carolina, North Dakota, Puerto Rico, and Wisconsin obtained partial conversion therapy bans, or have begun to discuss potential bans.51 North Carolina ensures no taxpayer’s dollars will contribute to conversion therapy, and Minnesota has begun its process to ban conversion therapy practice from mental health and psychological providers.52 The majority of the laws express a desire to protect minors psychologically and physically. 53 Despite the progress made regarding legislation targeting conversion therapy, current laws are still not sufficient in addressing the harmful effects of the pract ice on a federal level.

46 Graham, supra note 59, at 424.

47 Id. at 425.

48 John J. Lapin, The Legal Status of Conversion Therapy , 22 GEORGETOWN J. GENDER & L. 251, 255 (2021).

49 Id

50 Id.

51 Movement Advancement Project, supra note 8.

52 Id.

53 Id.

IV. RECONCILING BANNING RELIGIOUS ORGANIZATIONS FROM PRACTICING CONVERSION THERAPY WITH THE FIRST AMENDMENT RIGHT TO THE FREE EXERCISE OF RELIGION

A. Limits to the Freedom of Religion

The First Amendment to the U.S. Constitution guarantees the right to the freedom of speech and religion.54 The First Amendment states that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”55 This right is critical because it protects individuals’ abilities to practice their religion without fearing discrimination at least theoretically. Although the freedom of religion is significant, it is not absolute.

While religion is an incredibly personal however controversial topic, the Court has placed limits on the extent of the Free Exercise Clause’s protections.56 For example, in Reynolds v. United States (1878), the U.S. Supreme Court ruled that the Free Exercise Clause does not protect the practice of human sacrifice, even when religion requires it.57 This case demonstrates that certain rights are not always absolute an idea that should be extended to religious institutions’ practice of conversion therapy.

Because the freedom of religion is not an absolute and unqualified right, this constitutional guarantee does not necessarily prohibit the federal government and state governments from passing legislation that bans the use of conversion therapy in religious institutions.

B. The First Amendment Does Not Protect Conversion Therapy

There are also precedents which support the contention that the right to free speech does not protect conversion therapy. In Pickup v. Brown (2013), U.S. District Judge Kimberly J. Mueller held that a ban on conversion therapy neither restricted a mental health providers’ constitutional right to free speech

54 Freedom Forum Institute, What Does “Free Exercise” of Religion Means Under the First Amendment, FREEDOM FORUM INST. (2022), https://www.freedomforuminstitute.org/about/faq/what -does-free-exercise-of-religionmean-under-the-first-

amendment/#:~:text=The%20free%2Dexercise%20clause%20of,the%20freedom%20to%2 0practice%20religion

55 U.S. CONST. amend I.

56 Id.

57 Id.

nor its right to “expressive conduct that amounts to symbolic expression.”

58 Under the First Amendment, expressive conduct recognizes that speech extends to actions.59 Judge Mueller stated that, for example, “giving or receiving health care is not a statement in the same sense as wearing a black armband or burning a flag,” the latter of which is protected by the First Amendment, since it is expressive conduct. 60 According to Judge Mueller, giving or receiving health care, on the other hand, is not expressive conduct, because it does not make a statement, and is therefore, not protected by the First Amendment’s right to freedom of speech. 61

By extension, practicing conversion therapy would not be protected under the First Amendment right to the freedom of speech, similar to the lack of protection giving or receiving health care receives. 62 Like freedom of religion, the freedom of speech is not absolute, and governments and courts can intervene to protect children from experiencing harm. All conversion therapy bans can be classified as content neutral, 63 which permits “intermediate scrutiny” from the government because these bans technically violate constitutional rights.64 Nevertheless, if the law is not significantly related to a government interest and limits speech due to content, the law is potentially evaluated under “strict scrutiny.”65 Since the freedom of speech is evidently not absolute, the First Amendment does not protect religious institutions practicing conversion therapy.

V. CONCLUSION

In 2018, the Williams Institute conducted a study that revealed 700,000 LGBTQ+ individuals between the ages of eighteen and fifty -nine experienced conversion therapy; half of whom were adolescents at the time.66

58 Clay Calvert et al., Conversion Therapy and Free Speech: A Doctrinal and Theoretical First Amendment Analysis, 20 WM & MARY J. RACE, GENDER, & SOCIAL Justice 525, 533, 552 (2013-2014).

59 Katrina Hoch, Expressive Conduct, THE FIRST AMENDMENT ENCYCLOPEDIA, https://www.mtsu.edu/first-amendment/article/952/expressive-conduct.

60 Clay Calvert et al., supra note 94, at 552.

61 Id.

62 Id

63 Lapin, supra note 65, at 253.

64 Id

65 Id.

66 Graham, supra note 59, at 420.

The same study also predicts that 6,000 lives have been saved because of the current conversion therapy bans.67

Although further change is imperative, legislatures have nonetheless made sufficient progress towards a total ban on conversion therapy. Many state legislatures have passed laws to rectify this harmful practice. 68 In 2021, twenty states, including the District of Columbia, have conversion therapy bills. In 2015, the Obama Administration aimed to ban conversion therapy for minors, as they viewed conversion therapy as a threat to America’s youth; it was the first time an American president mentioned conversion therapy i n his agenda.69

Sexuality is not a choice; rather, it is an immutable characteristic that cannot be changed by conversion therapy. Current bans are insufficient because they do not cover conversion therapy in any institution, seemingly providing an exception for religious institutions. However, constitutional guarantees do not necessitate this exception, and because conversion therapy is harmful to thousands of Americans, this exception should not be provided. It is therefore dire that legislation is passed at the federal level to bans conversion therapy in all institutions, including religious ones.

* * *

This Note was edited by Ahan Dhar

67 Id

68 Movement Advancement Project, supra note 20.

69 Jack Drescher et al., The Growing Regulation of Conversion Therapy , 102 J. MEDICAL REGULATION 7 (2016).

INACCESSIBILITY IN THE MTA: A NON-VICTIMLESS CRIME

Sasya Koneru & Ethan Dubinsky***

Within New York City’s five boroughs, the New York subways, buses, and Staten Island Railway fall under the Metropolitan Transportation Authority (MTA). Despite being responsible for one of the nation’s most critical pieces of transit infrastructure, the MTA consistently fails to address key accessibility issues that arise in the nearly 120-year-old subway system. Despite New York being a city focused on increasing equality, decreasing socio-economic disparities, and providing for equal opportunity, there is a severe lack of focus on making the subway easil y accessible by those with disabilities.

This Note examines the implications of this negligence, and how the MTA fails to comply with the Americans with Disabilities Act. Through an examination of two of the city’s boroughs Manhattan and The Bronx this Note reveals the startling realities of a correlation between income and subway accessibility by neighborhood. Additionally, this Note compares the New York City Subway to neighboring systems that address accessibility in a more efficient manner, such as the Boston T and the Washington, D.C. Metro. Finally, this Note concludes with the implications of the subway’s inaccessibility and viable solutions that allow for better compliance with the Americans with Disabilities Act.

* Sasya Koneru: B.A. Candidate for Political Science on the Pre -Law Track, Fordham College at Rose Hill, Class of 2025. I am grateful for the opportuni ty to publish a note in my freshman year. I have grown so much in my writing and researching capabilities. I appreciate the guidance of the Fordham Undergraduate Law Review from the past two semesters. This Note allowed me to venture out of my comfort zone and discuss prevailing issues. I thank my family and friends for encouraging me through this process and especially Ethan Dubinsky, who chose a crucial idea for this note.

** Ethan Dubinsky: B.S. Candidate for Finance, with a concentration in Financial Technology, Fordham University Gabelli School of Business Class of 2025. I have enjoyed being able to venture out of my comfort zone and write a law review Note for the Fordham Undergraduate Law Review. Being originally from Manhattan, I have always had an affinity for New York City and a love for advocating on behalf of equal opportunity within it. The New York City Subway has always been a topic of conversation and interest for me and writing this Note has been extremely formative and a fun project during my freshman year. I am grateful for the Editorial Board’s contributions and help, and for the courageous work of my partner, Sasya Koneru.

I. INTRODUCTION

The New York City Subway System, operated by the Metropolitan Transportation Authority (MTA), is the largest functional subway system in the United States. Bridging four boroughs of New York City Manhattan, The Bronx, Queens, and Brooklyn the system is essential to the commute of New Yorkers and visitors 1 Opened in 1904 as a private entity, much of the subway system was built before the passage of the Americans with Disabilities Act (ADA) of 1990, and therefore, had yet to be modernized for accessibility.2 With mixed-use of elevated subway stations (mostly in the outer boroughs) and underground subway stations, no stations are ground level.3 Subsequently, the lack of accessibility in an overwhelming majority of stations creates a significant barrier to access. In Manhattan and The Bronx, minimal efforts to create a fully accessible subway system as defined by the ADA have directly impacted th e disabled and the city’s working poor.

The ADA outlines specific laws that all transportation companies must follow to be inclusive of people with disabilities. As a publicly-owned private entity, the MTA must adhere to these guidelines to provide a necessary good that in many other systems is considered baseline. Focusing on

1 Minh T. Nguyen, Understanding the Ba sics, NYC SUBWAY GUIDE (2021), https://www.nycsubwayguide.com/subway/basics.aspx.

2 History.com Editors, New York City Subway Opens, A&E TELEVISION NETWORKS (Oct. 26, 2021), https://www.history.com/this-day-in-history/new-york-city-subway-opens.

3 James Nevius, The Elevated Era, CURBED NEW YORK (June 27, 2018), https://ny.curbed.com/2018/6/27/17507424/new -york-city-elevated-train-historytransportation.

accessibility in Manhattan and The Bronx, New Yorkers disrupted by the MTA’s neglect overwhelmingly affects the poor, regardless of borough. This Note analyzes how the MTA has failed two of the city’s most vulnerable groups and argues that legal action must be taken to prosecute the MTA, in order to hold the corporation accountable and bridge wealth inequality within the greater New York City area.

The D.C. Metro and Boston T are exc eptional examples of a functional public transit system. Functional public transportation is necessary in all states, and especially in cities. Failure to provide adequate public transportation primarily impacts the impoverished, as their inability to travel out of their borough affects their career, social, and emotional health. This Note establishes a reasonable proposal for the MTA to improve basic transportation guidelines in accordance with the ADA standards and develops a justifiable timeline to fix said problems.

II. A BRIEF OVERVIEW OF THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act of 1990 is a civil rights statute that bans discrimination against those with disabilities, as defined within the statute.4 The Act further establishes accessibility standards in public areas5 and mandates that companies offer reasonable accommodations to disabled employees.6 The National Council on Disability advocated for the passage of the ADA in 1986 and produced the initial version of the la w, which was submitted to both the House and Senate in 1988.7 In 2008, the Americans with Disabilities Act was modified and signed by President George W. Bush.8 Such impairments, according to the Equal Employment Opportunity Commission, include deafness, blindness, autism, cancer, missing limbs, and mobility impairments necessitating the use of a wheelchair. 9 Other mental or physical health disorders may also constitute impairments, depending on an

4 Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101 -12213 (1990).

5 Id. at § 12141-12150.

6 Id. at § 12112.

7 Robert Burgdorf, Introduction of 1988 ADA Bill and Making Headway in the 100th Congress, BURGDOF ON DISABILITY RIGHTS (2022), https://adachronicles.org/making-theamericans-with-disabilities-act/drafting-and-introduction-of-the-original-ada-bill-part-17/.

8 ADA, 42 U.S.C. §§ 12101 -12213 (2018).

9 Lisa Guerin, Mental Disabilities and the ADA , MH SUB I, LLC (2022), https://www.nolo.com/legal-encyclopedia/mental-disabilities-the-ada.html.

individual’s symptoms during an “active episode” of the illness in the absence of mitigating remedies.10

A. Accessibility in Manhattan

Inaccessibility in the MTA is defined, within this Note, as stations with no elevator or ramp access between street level and train platform level. Within Manhattan, subway accessibility is stratified greatly by neighborhood and associated wealth.11 Higher-income areas are significantly more likely to have accessible subway stations compared to their low-income counterparts; this correlation is not without major social implications for the city.12 Out of the fifteen accessible subway stations in the borough serviced by Bronxbound trains, only three stations are in neighborhoods with a median income less than $100,000.13 According to the New York University Furman Center for Real Estate and Urban Policy, these three stations include 125th Street (and Lexington Avenue) on the 4, 5, and 6 trains, 135th Street (and Malcolm X Boulevard) on the 2 and 3 trains, and Canal Street (at Chinatown) on the N, Q, R, W, J, Z, and 6 trains. 14 This lack of accessibility poses a massive threat to the working poor in New York, who are clearly underrepresented in transportation accessibility.

Conversely, the neighborhood with the most accessible subway stations is the Upper West Side, which has the second highest median income ($139,070 in 2019) after Greenwich Village ($164,860 in 2019). 15 Greenwich Village has only one less accessible subway station than the Upper West Side, while poorer neighborhoods such as Harlem are likely to have less than

10 The ADA and Public Transportation , LEGAL AID AT WORK (Dec. 10, 2018), https://legalaidatwork.org/factsheet/the -ada-and-public-transportation/

11 Julia Burstein, Elevators, Inaccessibility, and the Impact of Income on New York’s Subway System, COLUMBIA UNIVERSITY MAILMAN SCHOOL OF PUBLIC HEALTH (Apr. 28, 2022), https://cdn.ymaws.com/www.safestates.org/resource/resmgr/student_showcase__april_2022/Safe_States_Presentation_ -_J.pdf.

12 Id.

13 Local Housing Solutions, RWJF & NYU FURMAN CENTER (2021), https://localhousingsolutions.org/lab/.

14 Mitchell L. Moss et al., New Report: Subway Ridership 1975 -2015, NYU WAGNER (2022), https://wagner.nyu.edu/rudincenter/2017/04/new -report-subway-ridership-19752015.

15 Andy Kiersz, Here's A Block-By-Block Look At Who's Making How Much Across NYC's 5 Boroughs, BUSINESS INSIDER (2022), https://www.businessinsider.com/new -york-cityincome-maps-2014-12.

one accessible subway station per neighborhood.16 Indeed, East Harlem, Central Harlem, and Chinatown have only one accessible subway station with Bronx-bound trains, which inhibits the disabled within poorer neighborhoods to commute easily from the areas in which they live.17

B. Accessibility in The Bronx

In The Bronx, the median income of residents was $42,140 in 2019, 18 which is 40% less than the citywide median household income of $70,690.19 Additionally, in 2019, the poverty rate in The Bronx was 26.4%, compared to 16% in New York City entirely.20 Taking into consideration the trend of the MTA not developing accessible stations, it is unsurprising that the IND Sixth Avenue Lines, better known as the B and D trains, or the IND Concourse Lines in The Bronx, only have three accessible stations in the entire borough.21 These stations include 161st Street, Yankee Stadium in the South Bronx, Bedford Park Boulevard in the Bedford Park neighborhood, and Kingsbridge Road in Fordham Manor. Fordham University’s nearest subway station, located at Fordham Road and Grand Concourse on the B and D lines, is not accessible at all, as there are no ramps or elevators. 22 Station inaccessibility poses a dire threat to Fordham University’s current and prospective students with disabilities, especially considering that the Metro North station near campus is not accessible as well. 23 However, even

16 MTA Accessible Stations, THE MTA (April 7, 2022), https://new.mta.info/accessibility/stations.

17 Id.

18

The Bronx Neighborhood Profile , FURMAN CENTER FOR REAL ESTATE & URBAN POLICY (2022), https://furmancenter.org/neighborhoods/view/the -bronx.

19 MTA announces historic investment in accessibility projects , MASS TRANSIT MAGAZINE (2022), https://www.masstransitmag.com/technology/facilities/shelters -stations-fixturesparking-lighting/press-release/21249977/mta-headquarters-mta-announces-historicinvestment-in-accessibility-projects.

20 Accessibility Statement, Office of the MTA Inspector General (2022), https://mtaig.state.ny.us/Pages/Accessibility -Statement.aspx.

21 Jacqueline Neber, These are the NYC Subway Stations with Elevators, NYMETROPARENTS (2022), https://www.nymetroparents.com/article/nyc -subwaystations-with-elevators.

22 Christopher Alavarez & Jose Martinez, MTA Looks to Ramp Up Subway Accessibility With Fewer Costly Elevators, THE CITY. (Aug 17, 2021), https://www.thecity.nyc/2021/8/17/22629915/mta -looks-to-ramp-up-subway-accessibilitywith-fewer-elevators.

23 Elevator and Escalator Status, The MTA (2022), https://new.mta.info/elevator -escalatorstatus.

if the station were accessible, the Metro North provides access to only two neighborhoods in Manhattan: East Harlem and Midtown East.24 Therefore, a disabled-friendly Bus Service would need to run along the highly congested Fordham Road.25 Additionally, the 4 train only provides access to the east side of Manhattan, completely prohibiting a disabled individual from accessing the west side without convoluted transfers or going further downtown before returning uptown.

III. MTA VIOLATIONS OF THE ADA

Title II of the Americans with Disabilities Act governs public programs, services, and activities: this includes city buses, commuter trains, subway stations, Amtrak, and paratransit services. The non-emergency services the ADA lists are hotel shuttles, private buses, vans, and taxis. The rights under Title II of the ADA, which protect those with disabilities against discrimination in public transportation, are defined by rules issued by the United States Department of Transportation (DOT).26 Given that the MTA fits within these parameters, the MTA must adhere to Title II for ADA compliance.27 Being that the MTA is responsible for subway stations in New York, although some stations have made more accessible renovations, there are nonetheless numerous stations that have yet to follow suit.

A. MTA Overview

The MTA’s accessibility features fail to provide equitable transportation for individuals using wheelchairs. While the ADA requires supporting features such as lifts, ramps, signs, and security equipment ( i.e., straps to secure wheelchairs onboard) to be kept in excellent working order by public transportation companies,28 not every subway station has the bare minimum of elevator access. Thus, signifying that there is a pressing need to be proactive about inaccessibility within the MTA. Additionally, there are a plethora of issues within existing station elevators, particularly with respect

24 Metro-North Railroad, The MTA (2022), https://new.mta.info/agency/metro -northrailroad.

25 4 Train (Lexington Avenue Express) Line Map, THE MTA (2022), https://new.mta.info/maps/subway -line-maps/4-line.

26 The ADA & Accessible Ground Transportation , ADA NAT’L NETWORK (2018), https://adata.org/factsheet/ADA-accessible-transportation.

27 Id.

28 Id.

to signage (travel-alternative information), lack of braille, unsanitary conditions which consequently affect commuters in wheelchairs using station elevators.

To combat the inequitable accessibility in subway stations, in December 2021, the MTA launched a project that targeted ADA upgrades at twenty-six stations, in which the MTA will spend $5 billion between 2020 and 2024 to complete several projects.29 One of the first projects initiated by the MTA will focus on “rehabilitating existing elevators at five stations” and “accessibility upgrades including new elevators at 8 stations.”30 The MTA should be determined to follow ADA protocol and, for greater accessibility, to show their commitment to people with disabilities by working to make elevators safer for wheelchair users.

B. The Paratransit System

Wheelchair users and other people with disabilities often use the paratransit system, which is a pre-scheduled pick-up and drop-off service for people with disabilities who are unable to utilize standard buses or trains . While seemingly accommodating, this system exemplifies the MTA’s violations of the ADA standards, given its strict membership and lack of accessibility; as the paratransit systems are not comparable to the level of service offered to non-disabled people who use public transportation.31 People must call to schedule rides for infrequent service routes along both the bus and subway.

Although the ADA mandates that services be provided to people with disabilities who meet the ADA paratransit standards, these services are not available to everyone with a disability.32 There is an application process for people who wish to utilize these services. Within these applications, the paratransit provider will assess how an individual will board, ride, and depart the city bus to gauge if their impairment hinders them from performing all

29 New York City Transit, MTA Announces Historic Investment in Accessibility Projects Initiating Vital Improvements for Commuters , THE MTA (Dec. 10, 2021), https://new.mta.info/press-release/mta-announces-historic-investment-accessibilityprojects-initiating-vital.

30 Id.

31 ADA & Paratransit, NAT’L AGING & DISABILITY TRANSP CENTER (2022), https://www.nadtc.org/about/transportation-aging-disability/ada-and-paratransit/.

32 Who Can Apply for ParaTransit , WESTCHESTER COUNTY (2022), https://disabled.westchestergov.com/who-can-apply.

the aforementioned actions.33 The application process is extensive, and takes nearly twenty-one days for a business to reach a decision. 34 For the riders whose applications are accepted, the fare they pay is $5.00, compared to the average MTA trip of $2.75, as there is a lack of readily available paratransit vehicles.35 Paratransit fare rates have been a frequent obstacle for those who ride with the system, as the MTA does not provide similar discounts to paratransit riders as to general subway and bus users.

The selectivity and length of the paratransit process exemplifies the MTA’s violation of the ADA, as the MTA fails to provide proper accommodations to all who are in need in a timely and adequate manner. However, the paratransit system has been working toward fruitful changes through the purchase of new vehicles and introduction of NEXTEL phones for constant communication on vehicle whereabouts.36 The MTA’s efforts demonstrate a commitment for improvements; however, financial leniency would greatly help paratransit users.

C. Legal Action Against the MTA

In February 2022, the legal firm Jenner and Block filed a lawsuit against the MTA on behalf of paratransit users on the basis of unfair fare discounts.37 The New York Supreme Court is processing this case surrounding the fees associated with Access-A-Ride, which is a part of the paratransit system.38 Whereas the MTA offers “substantial fare discounts, including half fares for people with disabilities and seniors, as well as 30-day and 7-day unlimited fares, for bus and subway riders,” these programs are not available for users of the Access-A-Ride paratransit system.39 The ideal resolution that the

33 Id.

34 ParaTransit Application Process, WESTCHESTER COUNTY (2022), https://disabled.westchestergov.com/paratransit-eligibility/paratransit-application.

35 ParaTransit Fares, WESTCHESTER COUNTY (2022), https://transportation.westchestergov.com/fares.

36 MTA Paratransit System Makes Dramatic Improvements in Cus tomer Service On-Time Performance and Ridership Up, Complaints Down , OFF OF THE GOVERNOR (Nov. 18, 2005),

https://msa.maryland.gov/megafile/msa/speccol/sc5300/sc5339/000113/001000/001017/un restricted/20052401e.ht.

37 Jenner & Block, LLP, Access-A-Ride Paratransit Users Sue the New York MTA for Equal Fare Discounts, JDSUPRA (Feb. 18, 2022), https://www.jdsupra.com/legalnews/access-a-ride-paratransit-users-sue-the-9757544/.

38 Id.

39 Id.

plaintiffs proposed is requiring the MTA to offer the same fare discounts to Access-A-Ride users as they do to subway or MTA train users. Specifically, the suit argues for similar discounts and the inclusion of thirty-day and sevenday unlimited fares.40 These discounted fees would allow people with disabilities who may be low-income or hold other intersectional identities access to transportation in an equitable environment.

In addition, several lawsuits have been filed against the MTA for not adhering to New York City’s Human Rights Law. By law, the MTA is required to update their services in subway stations. Subway systems which do not meet certain standards have previously been sued by people with disabilities. In July 2020, a successful lawsuit required the MTA to add elevators in three LIRR stations by 2023; this ruling has been described as “a move that could force more future accessibility projects.” 41 This case sets a precedent for future lawsuits to win and push the MTA to adhere to ADA guidelines.

After reviewing the MTA’s violations, this Note proposes the introduction of a bill that makes permanent changes to the transit system, which would effectively make it significantly more accessible to disabled populations by 2050. With such legislation, all elevators should be inspected and approved for accessibility, including current signage, braille, and odors. This also includes updating ramps for wheelchair users and tactile paving near subways. Furthermore, the MTA must decrease paratransit fares, reduce these lower costs based on age and disability, and offer the same discounts as those for non-disabled riders of New York subways and buses. The MTA should begin working on poorer neighborhoods in The Bronx its most disadvantaged borough and progress outward. Implementation of this proposed bill will be beneficial in promoting economic growth within these often-marginalized communities since people with disabilities will no longer need to pay more for transportation.

40 Id.

41 Clayton Guse, MTA Settles Lawsuit with Disability Advocates, Agrees to Install Elevators in 3 LIRR Stations , DAILY NEWS (July 13, 2020), https://www.nydailynews.com/new-york/ny-mta-disability-lawsuit-lirr-elevators20200713-3ot47jnuuvcxjpszkojaod2frm -story.html.

IV. COMPARABLE CITY TRANSPORTATION SYSTEMS

A. DC Metro

The metro system in Washington, District of Columbia, is a model transportation system for accessibility within the United States. Serving the capital, the D.C. Metrorail has full accessibility throughout the entire subway system.42 A disabled individual may use every station easily, which decreases the effect of economic stratification on the working poor. Whether the station is located in poorer areas of Washington, D.C., such as the Brentwood neighborhood, or in the wealthy Montgomery County, Maryland suburbs, such as Bethesda, a disabled individual can access and partake in the economic benefits of the Washington Metro.43

Some stations, such as Forest Glen in Silver Spring, Maryland, exclusively have elevators due to their depth. This further removes the stratification between the abled and disabled. 44 Though elevator outages happen as they would in every system with elevators the Washington Metropolitan Area Transportation Authority (WMATA) offers MetroAccess, a door-to-door paratransit service to shuttle passengers to and from stations and their homes. Though the Washington Metro may have fewer stations overall, it is also significantly younger than the New York City Subway and costs significantly less to run.45

B. Boston T

Though the Boston T system (also known as the MBTA or Massachusetts Bay Transportation Authority) is not nearly as accessible or accommodating as the Washington Metro, it is significantly more disability -friendly than the New York City subway. The MBTA comprises five main lines, which includes the Red Line, Orange Line, Mattapan Trolley, Blue Line, and Green

42 Accessibility: WMATA, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY (2022), https://www.wmata.com/service/accessibility/.

43 Id

44 Forest Glen, WMATA, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY (2022), https://www.wmata.com/rider -guide/stations/forest-glen.cfm.

45 Fiscal Year 2019 Q4, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY (2019), https://www.wmata.com/about/records/upload/FY2019 -Q4-ManagementReport_FINAL.pdf.

Line.46 The Green Line, which represents the bulk of the city’s historic streetcar system, is divided into four branches: the B, C, D, and E. The three main heavy rail subway lines, including the Mattapan Trolley Line, have near if not full accessibility. The Orange Line and Red Line are fully accessible, while the Blue and Mattapan Lines are accessible in eleven out of twelve and seven out of eight stations, respectively.47 The Green Line, however, is more reminiscent of the struggles faced by the New York City Subway: only 75% of underground/elevated stations and 45% of street -level stops are accessible.48

However, the MBTA has concrete plans to build a 100% accessible Green Line, which has already taken form in a new Green Line extension (to Cambridge, MA and Somerville, MA).49 MBTA’s plan includes making high priority stations accessible (such as Symphony and Hynes Convention Center in Downtown Boston), as well as widening and raising platforms on the D line where feasible. 50 Though the T is far from being considered an entirely wheelchair accessible transportation system, the Boston T outperforms the New York City Subway in making accessibility a priority. Further, Boston has the oldest subway system in an ableist United States, which shows that age of infrastructure does not dictate accessibility.51

V. CONCLUSION

Increasing accessibility and increasing economic opportunity for the disabled go hand-in-hand. If the disabled can access affordable, efficient, and safe public transportation, there is a highe r likelihood that they may partake in jobs and spend their money within the local economy. However, the New York City Subway’s lethargic and frankly unprioritized approach to increasing accessibility has directly correlated with a stagnant system that is

46 Subway, MASSACHUSETTS BAY TRANSP. AUTHORITY (2022), https://www.mbta.com/schedules/subway.

47 System-Wide Accessibility Improvements, MASSACHUSETTS BAY TRANSP AUTHORITY (2022), https://www.mbta.com/projects/system -wide-accessibility-improvements.

48 Subway Access Guide, MASSACHUSETTS BAY TRANSP. AUTHORITY (2022), https://www.mbta.com/accessibility/subway -guide.

49 Accessibility on the MBTA , MASSACHUSETTS BAY TRANSP AUTHORITY (2022), https://www.mbta.com/accessibility.

50 Accessible Technology, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY (2022), https://www.mbta.com/projects/accessible-technology.

51 Rebecca Beatrice Brooks, History of the Boston Subway: The First Subway in America, HIST. OF MASSACHUSETTS (2022), https://historyofmassachusetts.org/boston -first-subwayamerica/.

increasingly hostile to the economically destitute. Despite fares consistently rising throughout the past decades, the Metropolitan Transportation Authority has failed to increase capital funding for elevator installation in even its most popular, non-ADA compliant stations. The U.S. Census Bureau estimates that 56% of the New York City population uses the public transportation system. 52 Given the breadth of New Yorkers who are dependent upon the MTA, the agency must step up to serve its customers, and furthermore must stand by laws such as those imposed by the ADA that are created for the common good. Disabled individuals deserve to be treated with respect and given equal opportunities. Implementation of this new system will begin with helping communities of poorer socioeconomic status and people with disabilities, as the MTA cannot become and must be proactive about being inclusive.

Much of the MTA subway system was established before the creation of the Americans with Disabilities Act and yet, after more than thirty years since the initial passage of the Act, has failed to enact updates that meet accessibility standards. The subway system breaks many ADA rules with faulty elevators, no tactical bumps, outdated signage, and so on. Given that people with disabilities often rely on public transportation to take part in society, law firms like Jenner & Block have successfully sued the MTA for failing to accommodate transportation. These rulings maintain that as a public entity, the MTA must adhere to Title II of ADA rules.

For the betterment of New York City, the MTA must improve accessibility on public transportation: it is crucial that people with disabilities have proper arrangements for transportation or the paratransit system. Although improving the hundreds of subway stations within the system will undoubtedly be costly and time consuming, the proposed 2050 goal simultaneously provides a reasonable timeline while still placing pressure on the MTA to begin work immediately. The MTA should receive sufficient funding from the city’s allocated funds to fix the many problems this Note has outlined.

Under this plan, all four boroughs with adaptations to the Staten Island Railway following, completing the fifth borough would have sufficient elevators featuring up-to-date signage and braille. All yellow warning zones near the platforms would have twelve inches of tactile bumps and the paratransit system would provide discounts to level the cost. The MTA could then distinguish itself as an example for other systems, similar to the

Washington Metro, to stop perpetuating ableist systems that assume only able-bodied individuals use the subway. This project could become a reality if the people of New York City lobby the politicians and demand equal accessibility.

This Note was edited by Olivia Lilley

PROTECTING THE RIGHT TO VOTE FOR MINORITY COMMUNITIES: ON THE IMPORTANCE OF THE COVERAGE FORMULA AND PRECLEARANC E

Nadia Blouin*

The Voting Rights Act (VRA) of 1965 was passed in response to voter suppression, primarily in southern states that had enacted Jim Crow la ws which violated the Fifteenth Amendment of the U.S. Constitution’s guarantee of the right to vote. Such means of discrimination included literacy tests and poll taxes, which prevented many minority groups from voting. Under the VRA, jurisdictions with previous records of voter discrimination were subject to Section 4(b) the coverage formula. Section II of this Note describes how if a jurisdiction met the criteria for the coverage formula, the federal government would then approve any new voter registratio n laws introduced in that jurisdiction. This Note further indicates that this was outlined under Section 5 of the VRA, also known as preclearance.

The U.S. Supreme Court ruled in Shelby County v. Holder (2013) that the coverage formula was outdated and unconstitutional. This meant the federal government had no means to enforce preclearance and previously covered jurisdictions were no longer subject to federal oversight of voting reform. However, this decision has been detrimental to minority voter turnout amid modern methods of voter suppression. This Note explains the coverage formula and preclearance, the means by which the VRA gave the federal government increased oversight to ensure the protection of voting rights. Ultimately, this Note argues that Shelby removed necessary mechanisms of federal oversight that were intended to protect minority communities from infringements of the right to vote.

* B.A. Candidate for Political Science at Fordham College at Rose Hill, Class of 2025. I would like to thank the FULR Editorial Board for their endless support throughout the writing process, as well as my family and friends, who have always been my biggest sources of encouragement. I would also like to thank my Understanding Historical Change professor, Father Anderson, who inspired me to write this Note through his eye-opening class centered on the American Civil Rights movement.

I. INTRODUCTION

Following the Civil War, Congress sought to protect the rights of newly freed slaves through the passage of several constitutional amendments, which included the right to vote and equal protection under the law. However, many southern states did not enforce these amendments, and soon imposed “Jim Crow”.1 These laws “would seek the elimination of Black voters from the polls through legal processes for amending or rewriting state constitutions and their sections on voting requirements.” 2 Jim Crow Era discrimination included poll taxes and literacy tests, which “primarily disenfranchised Blacks in the South.”3 Jim Crow laws also segregated nearly every aspect of public southern life, including schools, parks, churches, and restrooms. 4

To address this discrimination and disenfranchisement, Congress passed the Voting Rights Act of 1965 (VRA), which strengthened the power of the federal government to uphold the right to vote guaranteed by the Fifteenth Amendment.5 The VRA accomplished this through the coverage formula and preclearance, which gave the Department of Justice more oversight in state and local voting rights laws.6 However, the U.S. Supreme Court ruling in Shelby County v. Holder (2013) declared the coverage formula unconstitutional, decreasing the federal government’s influence over state and local voting rights legislation.

1 Thomas Popelka, Encyclopedia of U.S. Political History, CQ PRESS (2010), https://go.gale.com.

2 Id

3 Renita Miller, Voting and Political Representation in America: Issues and Trends, ABCCLIO (2020), https://go.gale.com.

4 Popelka, supra note 1.

5 Congress and the Voting Rights Act of 1965, U.S. NAT’L ARCHIVES AND RECORDS ADMIN. (June 19, 2019), https://www.archives.gov/legislative/features/voting -rights-1965.

6 Id.

This Note provides background on the Voting Rights Act of 1965, following an explanation of the coverage formula and preclearance. Furthermore, this Note will examine and analyze the Supreme Court’s decision in Shelby County v. Holder. Ultimately, this Note will argue that the coverage formula and preclearance requirement codified by the VRA, and as deemed unconstitutional by the Supreme Court in Shelby County v. Holder, are still necessary because they protect minority voters.

II. BACKGROUND

Although the Fifteenth Amendment to the U.S. Constitution gave all American citizens the right to vote regardless of “race, color, or previous condition of servitude,”7 voter discrimination in the form of literacy tests and poll taxes continued to disenfranchise voters of minority groups in the south as the state and local governments had jurisdiction over voting laws.8 Poll taxes were outlawed through the Twenty -Fourth Amendment, stating that the right to vote “shall not be denied . . . by reason to pay poll tax or other tax;” yet, other voter qualifications, such as literacy tests, remained in effect.9 In the south, literacy tests were “used to prevent African Americans from registering to vote,” while in other areas, they disqualified “immigrants and the poor” because they had little education. 10 The passage of the VRA intended to protect the voting rights of previously disenfranchised groups from restrictive tests and devices through a unique preclearance and coverage formula.

A. Voting Rights Act of 1965

The VRA “aimed to increase the number of people registered to vote in areas where there was a record of previous discrimination.”11 States were no longer allowed to employ a “voting qualification or prerequisite to voting” meant to “deny or abridge” an American citizen’s right to vote “on account of race or color.”12 This included certain tests and devices, the most

7 U.S. CONST. amend. XV, § 1.

8 Congress and the Voting Rights Act of 1965, supra note 4.

9 U.S. CONST. amend. XXIV, § 1.

10 Literacy Tests, NAT’L MUSEUM OF AM HISTORY BEHRING CENTER, https://americanhistory.si.edu/democracy-exhibition/vote-voice/keeping-vote/state-rulesfederal-rules/literacy-tests.

11 Id.

12 Voting Rights Act of 1965, Pub. L. No. 89 -110, § 2, 79 Stat. 437.

prominent being literacy tests, with the intention to to disenfranchise voters.13 Federal examiners were appointed by the attorney general to “enforce the guarantees of the Fifteenth Amendment” if a court found “that violations of the Fifteenth Amendment justifying equitable relief” had “occurred in such State or subdivision.”14 The coverage formula and preclearance were instrumental in enforcing these requirements.

B. Coverage Formula

Under the VRA, jurisdictions with previous records of voter discrimination and low voter turnout would be subject to Section 4(b), known as the coverage formula.15 Section 4(a) explains that certain provisions under the coverage formula ensure that the right to vote is protected from tests or devices,16 and covered jurisdictions would be determined by the coverage formula in Section 4(b).17 To determine applicable jurisdictions, the attorney general determined if any “test or device” preventing voting had been used as of November 1, 1964, and “the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November 1964.” 18 If a jurisdiction met these requirements, it would fall under the scope of the coverage formula and as a result, would require preclearance.

C. Preclearance

Jurisdictions falling under the coverage formula would be subject to Section 5 of the VRA, known as preclearance. This prohibited jurisdictions under the coverage formula to pass new voting laws unless either the attorney general or the District Court of the District of Columbia approved the new law. The law stated that:

[If a] state of political subdivision . . . shall enact or seek to administer any voting qualification or prerequisite to voting . . . such State or subdivision may institute an action in the United States District Court for the District of Columbia for a

13 Id. § 3(b).

14 Id. § 3(a).

15 Id. § 4(b).

16 Id. § 4(a).

17 Id. § 4(b).

18 Id. § 4(b).

declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.19

Following this process, “any action… shall be heard and determined by a court of three judges.”20 In essence, preclearance allowed the federal government to approve new voting laws in jurisdictions under the coverage formula.

III. SHELBY COUNTY V. HOLDER

Congress intended preclearance (Section 5 of the VRA) to last for five years, but Congress continued to extend it, with the last instance occurring in 2006, which intended to provide voter protection for an additional twentyfive years.21 However, the 2013 Supreme Court case Shelby County v. Holder called the constitutionality of preclearance and the coverage formula into question.

A. Facts of the Case

Shelby County, Alabama, was under the jurisdiction of the coverage formula. Shelby County purported that Section 4(b) and Section 5 of the VRA were “facially unconstitutional” since they were no longer responsive to current conditions.22 Shelby County sought declaratory judgment, including a permanent injunction against the VRA’s enforcement.23 The District Court upheld the VRA, ruling that the evidence Congress provided in the 2006 renewal of Section 5 was sufficient. 24 Ultimately, the Court of Appeals for the D.C. Circuit affirmed the ruling of the lower court.25

The constitutionality of Sections 4(b) and 5 are centered around the powers given to Congress under the Fourteenth and Fifteenth Amendments, and whether Congress exceeded its powers.26 Under the Tenth Amendment, “powers not delegated to the United States by the Constitution… are reserved

19 Voting Rights Act of 1965, Pub. L. No. 89 -110, § 5, 79 Stat. 437.

20 Id.

21 About Section 5 of the Voting Rights Act, U.S. DEP’T OF JUSTICE (Nov. 9, 2021), https://www.justice.gov/crt/about-section-5-voting-rights-act.

22 Shelby County v. Holder, 570 U.S. 5 29, 529 (2013).

23 Id.

24 Id.

25 Id.

26

Voting Rights Act of 1965, Pub. L. No. 89 -110, § 5 & 4(b).

to the States”27 and Article Four of the Constitution guarantees states the right to self-govern.28 Shelby called into question what powers are delegated to the federal government and what powers are reserved to the states. Ultimately, the Court needed to examine the powers Congress under the Fourteenth and Fifteenth Amendments, and whether Section 5 enforceable through Section 4(b) violated the Tenth Amendment and Article Four of the Constitution.29

B. Court Ruling

In a five-to-four decision, the Court ruled in favor of Shelby County, reversing the decision of the Court of Appeals. The Court found that Congress’ renewal of Section 5 did not consider current conditions and instead “reenacted a formula… having no logical relation to the present day.”30 The Court declared Section 4(b) unconstitutional, meaning that it could “no longer be used as a basis for subjecting jurisdictions to preclearance,” effectively rendering preclearance unenforceable. 31 Because the Court found that Section 5 was no longer relevant, it held that Congress had abused its powers and violated the Tenth Amendment and Article Four of the Constitution.

IV. IMPLICATIONS OF SHELBY COUNTY V. HOLDER

Shelby removed federal oversight from jurisdictions with previous records of voter discrimination. Before Shelby, the VRA, using preclearance, made “a massive difference for Black registration and turnout throughout the South,” as was its intended goal. 32 Between 1964 and 1968, the enactment of the VRA saw a sixty-seven percent increase in Black voter registration in states that had previously enacted literacy tests. 33 This continued in the following decades as preclearance led to voter participation increases th at “persisted for over 40 years, bolstering turnout by 4 -8 percentage points in

27 U.S. CONST. amend. X.

28 U.S. CONST. art. 4, § 4.

29 Shelby, 570 U.S. at 530.

30 Id. at 532.

31 Id. at 557.

32 Elizabeth U. Cascio & Ebonya Washington, Valuing the Note: The Redistribution of Voting Rights and State Funds following the Voting Rights Act of 1965, 129 Q. J. OF ECON

379, 379 (2014).

33 Id.

recent elections.”34 This included the 2012 election, one year before the Shelby decision, in which minorities were seventeen percent “more likely to vote . . . as a result of preclearance coverage.”35 Before Shelby, estimates conclude that preclearance blocked more than “3,000 proposed electoral changes found to be discriminatory.”36 The initial and long term effects of the VRA through the enforcement of the coverage formula an d preclearance emphasize its effectiveness and its positive impact on increasing minority voter turnout. Further, the lack of preclearance following Shelby has already resulted in discriminatory effects.

Empirically, the lack of federal oversight after Shelby has caused a decline in voter turnout, specifically among minority groups. After the Shelby decision, “minority participation dropped by 2.1 [percentage points]” in states previously subject to preclearance, while “white turnout remained unchanged.”37 This is most notable in jurisdictions formerly subject to preclearance. The six states originally covered were Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, while Alaska, Arizona, and Texas were added in 1975.38 Of the six initial states, the disparity in turnout among Black and white voters grew by “between 9.2 and 20.9 percentage points across five of the six states” from 2012 to 2020.39 In South Carolina, turnout among Black voters was higher than that of white voters during the 2012 election, a year before Shelby, while during the 2020 election, “white turnout was more than 15 percentage points higher than Black turnout.”40 This quantitative research displays the discriminatory effects of the Shelby decision on minority voter turnout. While voter turnout for minority communities remains higher than it was after the original passage of the VRA, the empirical evidence highlights a clear decline after the Shelby decision. Especially in the states originally subject to preclearance,

34 Desmond Ang, Do 40-Year-Old Facts Still Matter? Long -Run Effects of Federal Oversight under the Voting Rights Act , 11 AM. ECON. J.: APPLIED ECON. 1, 4 (2018).

35 Id.

36 Nicholas Fandos, House Passes a Voting Rights Bill, but a G.O.P. Blockade Awaits in the Senate, THE NEW YORK TIMES (Aug. 24, 2021), https://www.nytimes.com/2021/08/24/us/politics/house -democrats-voting-rights-bill.html.

37 Id. at 40.

38 Jurisdictions Previously Covered by Section 5, U.S. DEP’T OF JUSTICE (Nov. 29, 2021), https://www.justice.gov/crt/jurisdictions-previously-covered-section-5.

39 Kevin Morris et al., Racial Turnout Gap Grew in Jurisdictions Previously Covered by the Voting Rights Act, BRENNAN CENTER FOR JUSTICE (Aug. 20, 2021), https://www.brennancenter.org/our -work/research-reports/racial-turnout-gap-grewjurisdictions-previously-covered-voting-rights.

40 Id.

minority voters are becoming increasingly vulnerable, lacking the necessary protections of the federal government.

New laws that create barriers to voting accessibility continue to disenfranchise minority voters. Without preclearance, “more than half of states” previously subject to it “have enacted laws making it harder to vote.”41 In this era of voter suppression, it is important to note that these new laws have largely contributed to this disturbing decline in minority voter turnout. Previously covered jurisdictions, such as Texas, Florida, and Georgia, have reduced the number of available ballot boxes, making it more difficult for voters to participate before Election Day. 42 In 2021, Texas passed a law that “makes it harder for voters with disabilities and language access barrier to obtaining assistance, constrains election workers’ ability to stop harassment by poll watchers, and bans 24-hour and drive-thru voting.”43 These examples merely scratch the surface of the voting rights infringements that have begun to take place after the Shelby case, emphasizing the negative effects of the lack of preclearance.

The right to vote has and will continue to be one of the most important ways in which Americans can make their voices heard in government. Shelby has led to a severe lack of accountability for voting -related legislation, allowing states to pass laws stripping Americans of their basic civil rights. This issue reflects a deeply rooted problem stemming back to the Jim Crow era, one that must be fixed to resolve this unfavorable reflection on American democracy.

V. POTENTIAL SOLUTIONS

The increase in voter suppression laws and overall voter discrimination following Shelby presents an alarming issue. Preventing one’s voice, or in this case, one’s vote, from being heard undermines one of the most basic rights supposedly guaranteed to all American citizens. Importantly, lawmakers have been working to mitigate the effects of Shelby with new voting rights legislation currently debated in Congress.

A. John Lewis Voting Rights Advancement Act

41 Id.

42 Nick Corasaniti, Voting Rights and the Battle Over Elections: What to Know , THE NEW YORK TIMES (Dec. 29, 2021), https://www.nytimes.com/article/voting -rights-tracker.html.

43 Voting Laws Roundup: Dec. 2021, BRENNAN CENTER FOR JUSTICE (Dec. 21, 2021), https://www.brennancenter.org/our -work/research-reports/voting-laws-roundup-december2021.

In 2021, lawmakers attempted to address voter suppression through the introduction of the John Lewis Voting Rights Advancement Act, otherwise referred to as H.R. 4. 44 This bill sought to restore federal oversight of voting rights and provide the Department of Justice the authority to challenge methods of voter suppression, with a specific emphasis on protecting minority voters.45 The bill passed in the House of Representatives in August of 2021, but failed to pass in the Senate.46 Even so, this legislation emphasizes a crucial step in the right direction concerning voting rights. Notably, H.R. 4 expands upon the VRA and reinstitutes the preclearance requirement, which has proven necessary in securing equal access to the ballot. 47 Section 4 of H.R. 4 expands upon the VRA in its amendment of Section 3(c) of the VRA by changing “violations of the Fourteenth or Fifteenth Amendment” to “violations of the Fourteenth or Fifteenth Amendment, violations of this Act, or violations of any Federal law that prohibits voter discrimination on the basis of race, color, or membership in a language mi nority group.”48 Section 5 of H.R. 4 also replaces the original coverage formula deemed unconstitutional by Shelby. The new coverage formula would be in effect for ten years in states that have had “voting rights violations during [the] previous 25 years,” such as those mentioned in Section 3(c). 49 In essence, Section 5 updates the original coverage formula, which would allow preclearance to be enforceable.

While H.R. 4 would have provided important amendments to the VRA, it would have added new provisions that would nullify recent voter suppression laws. Section 6 of H.R. 4 adds “practice-based” coverage that would institute different preclearance processes in cases of the violation of specific voting practices.50 These practices include changes to the methods of election, jurisdiction boundaries, redistricting, voter documentation requirements (mainly proof of identity), multilingual voting materials, and consolidation of voting locations.51 These new areas under the scope of preclearance directly combat many of the aforementioned voter suppression laws that were

44 John Lewis Voting Rights Advancement Act, H.R. 4, 117th Cong. (2021).

45 Id.

46 Id.

47 Id

48 Id. § 4(a).

49 Id. § 5(b).

50 Id. § 6.

51 Id.

enacted post-Shelby, specifically those in Texas, Florida, and Louisiana. These laws have reduced ballot boxes,52 decreased voting hours, and increased difficulty in assisting those with disabilities and language barriers all of which have produced the decline in minority voter turnout exacerbated by the Shelby decision.53 If passed, this bill would have implemented important federal oversight necessary to protect the right to vote, specifically for minority communities.

B. The Freedom to Vote Act

The Freedom to Vote Act is another piece of legislation aimed at mitigating the negative effects of Shelby. This bill targeted accessible voting and election security, both of which were affected by new voter suppression laws.54 The bill was introduced in the Senate on September 14, 2021, but was not passed.55 The main focus of the bill was to proactively expand voter registration, accomplished through “automatic registration by state motor vehicle authority” that would register eligible individuals to vote through an opt-out, rather than opt-in, system.56 Similarly, the bill would have ensured access to “absentee registration forms, absentee ballot applications, and absentee ballots that are available electronically,” which would “promote access to voter registration and voting for individuals with disabilities.”57 It also would have made Election Day a federal holiday, facilitating voter access to polling stations.58 While indirectly related to the voter suppression tactics targeted by the VRA, this bill would have established important protections for voters, as it also combats many of the restrictive laws recently enacted.

VI. CONCLUSION

The Supreme Court’s decision in Shelby removed federal oversight of voting rights legislation in areas with extensive re cords of discrimination by dismantling the coverage formula and preclearance, thus, removing key protections minority voters depend on. Prior research emphasizes the

52 Corasaniti, supra note 37.

53 Voting Laws Roundup , supra note 38.

54 Freedom to Vote Act, S. 2747, 117th Cong. (2021).

55 Id.

56 Id. § 1002.

57 Id. § 1101.

58 Id.

significant progress in enfranchisement made under the VRA, which is in significant jeopardy of regression in many states without federal oversight. However, expansive legislation introduced in Congress has the potential to restore necessary protections for preventing voter suppression, specifically concerning minority communities.

As Justice Ruth Bader Ginsburg famously wrote in her Shelby dissent, “throwing out preclearance when it has worked and is continuing to work… is like throwing away your umbrella in a rainstorm because you are not getting wet.”59 However, there are still ways to reverse this damage and protect the right to vote. Justice Ginsberg’s words should be heeded; it is time to put the umbrella back up and guarantee the civil liberties that all Americans are entitled to.

* * *

This Note was edited by Kevin James

59 Shelby, 570 U.S. at 590 (Ginsburg, J., dissenting ).

FORDHAM UNDERGRADUATE LAW REVIEW