Volume II : Issue 1 : Spring 2015 by GUULR

Georgetown University Undergraduate Law Review

Volume II, Issue I Spring 2015

Georgetown University Undergraduate Law Review Volume II, Issue I Spring 2015 Editorial Board and Staff Editor-in-Chief Adrienne Jackson Managing Editors Morgan Birck William Austin Baker Assistant Editors Anthony Albanese Sonia Okolie Sydney Winkler

Layout Editor Jack Ludtke

Line Editors Lauren Casale Nick Greco Sarah Hannigan

Communications Director Sonia Okolie

Faculty Advisor Honorable Thomas L. Ambro Judge, Third Circuit, U.S. Court of Appeals

Undergraduate Law Review Letter from the Editor Dear Reader, It is with great pleasure that I welcome you to the second issue of the Georgetown University Undergraduate Law Review. In our first issue we focused on exploring the important role that the law plays in our daily lives. However, amid the turmoil that occurred in the United States as a result of the deaths of Eric Garner and Michael Brown in Long Island and Missouri, respectively, we decided that it was important that this issue explore the failures—whether perceived or real—of the United States’ legal system. This issue engages some of the most controversial aspects of the legal system today—the Affordable Care Act and birth control, Title IX and sexual harassment and patent trolls— as well as the results of an ineffective legal system. It is our hope that this issue serves not as an attack on the legal system, but rather, as recognition that despite the many strengths and merits of the legal system, there are, as in any system, areas that can improve. It is our hope that this issue contributes to and expands the dialogue about the effectiveness of the law and legal system. In reflecting upon the weaknesses of the United States’ legal system, we recognize that often the perceived weaknesses are not the result of the law or legal system, but rather the result of how the laws are implemented. With this in mind, Morgan Birck, managing editor of the Georgetown University Undergraduate Law Review, collaborated with Lucas Oesterreich, editor of the McMaster University Undergraduate Journal of Law and Politics, in order to look at the protection—or lack thereof—of free speech across universities in the United States and Canada. The findings from their collaboration reveal that weaknesses of the legal system, specifically the protection of First Amendment rights, are not isolated only to the United States but prove to be an issue internationally. We would like to thank all those who have made this issue a success. This publication is the result of hours of work, work that could not have been done without the support from our friends, family, the Government Department, the Georgetown Career Center, the Georgetown Law School and the Georgetown Pre-Law Society. We would also like to thank our faculty advisor, Judge Ambro. Without his words of support and his advice, the publication of this journal would not have been possible. We hope you enjoy reading this publication as much as we enjoyed working on it. We would love to hear your comments on this publication. Please do not hesitate to reach out to us at guundergraduatelawreview@gmail.com. Enjoy,

Adrienne Jackson Editor-In-Chief

Table of Contents Across Borders: What Academia Can and Should Do in a Changing Environment of Open Expression

Lucas Oesterreich and Morgan Birck A discussion of the role of universities in academia and the obligations to protect or limit expression.

Reasonable Woman: Applying a Gender Conscious Standard to Sexual Harrassment Chandini Jha

An argument for the implementation and consistent application of the â&#x20AC;&#x153;reasonable woman standardâ&#x20AC;? in issues regarding sexual harassment.

Beyond the Law: Justifiable Vigilantism and How It Can Combat Govern- 21 ment Failure Jesse Reiff An examination and defense of justifiable vigilantism.

Undermining the Patent Trolls: Reform and the America Invents Act Dennis Mai

A closer look at the America Invents Act and its effect on defendants preventing, settling, or winning lawsuits.

A Feminist Failure: A Critique of Burwell v. Hobby Lobby Stores, Inc. Emily R. Stedge An assessment of Burwell v. Hobby Lobby Stores as an anti-feminist decision.

Across Borders:

What Academia Can and Should Do in a Changing Environment of Open Expression This article is a collaborative work between The McMaster Undergraduate Journal of Law & Politics and The Georgetown University Undergraduate Law Review

Lucas Oesterreich McMaster University Morgan Birck Georgetown University Abstract This collaborative piece discusses the role of universities in academia and the obligations to protect or limit expression, as a response to changes in student perceptions and institutional behaviors toward free speech. It emphasizes the value of universities as open forums for a diverse set of ideas, where individual students do not feel intimidated by university administrations or other students to discuss controversial topics, save hate speech. Further, it discusses the legal framework behind remedial action in the United States and Canada with regardsto charter and First Amendment applications to university actions, and identifies the ambiguities in the existing legal reality that can be improved upon by university policy. It does so using case studies from specific universities and reports that measure the usefulness of free speech policies over time and location, and argues that this topic has value for educational institutions and students across international borders.

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Across Borders: Academia and the Changing Environment of Open Expression

Introduction On October 29, 2014—coincidentally the fiftieth anniversary of its famous Free Speech Movement of the Cold War—Univeristy of California Berkeley’s administration overturned an undergraduate organization’s decision to rescind Bill Maher’s invitation to speak at their December commencement. A large portion of the student population had protested that Maher’s commentary on Islam was offensive and urged the university to reconsider its invitation on the ground that his comments qualified as hate speech. However, the administration took a strong stance against this position by citing the university’s respect and support for his right to express his opinions and its refusal to “shy away from hosting speakers who some deem provocative.”1 UC Berkeley’s decision to allow Maher to speak was a rare occurrence in a growing trend of students protesting candidates for commencement speeches based on ideological characteristics. The Foundation for Individual Rights in Education (FIRE), a watchdog for student rights in post-secondary education, found in their recent studies that the rate of these kinds of protests has doubled in the past decade.2 This could indicate a number of developments in Academic behavior, including that political issues in North America are becoming steadily more polarized or that academic perceptions of free speech are changing. Similar instances of highly publicized requests for universities to either protect or limit free expression have be1 See Press Release, Public Affairs UC Berkely, Campus Statement on Campus Speaker (Oct. 29, 2014), http://newscenter.berkeley. edu/2014/10/29/campus-statement-on-commencement-speaker/ 2 Spotlight on Speech Codes 2015: The State of Free Speech on our Nation’s Campuses, FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION (2015), http://www.thefire.org/spotlightspeech-codes-2015/

come a central element of public commentary in the United States and Canada. For instance, Brandeis University acquiesced to the student protest of Ayaan Hirsi Ali as a commencement speaker. Similarly, Secretary of State Condoleezza Rice and Attorney General Eric Holder rescinded their invitations to speak at Rutgers University and the Oklahoma Police Academy, respectively. The Chair of the IMF Christine Lagarde also rescinded her invitation to speak at Smith College in Boston, Massachussetts.3 These phenomena also concern the broader academic environment. A report by John Carpay and Michael M. Kennedy for the Justice Center for Constitutional Freedoms indicated that 301,810 Canadian students attended Universities with poor administrative “actions and practices” related to free speech, and a further 440,030 studied at universities with poor policies or actions by student unions.4 Similar policies and their subsequent implications for the student body have in some instances become the center of media attention, such as when the Dalhousie School of Dentistry suspended students for misogynistic comments on Facebook, sparking a national debate about what the scope of a university’s powers are in regard to private speech and how federal laws fit into university policy.5 Two years prior to the Dalhousie event, 3 Kathleen McCartney, President, Smith College, Announcement Regarding the 2014 Commencement Speaker (May 12, 2014), Kristin Sguelglia, Condoleezza Rice Declines to Speak At Rutgers After Students Protests, CNN (May 5, 2014), http://www.cnn.com/2014/05/04/us/condoleeza-rice-rutgers-protests/ 4 John Carpay & Michael Kennedy, The 2013 Campus Freedom Index, JUSTICE CENTRE FOR CONSTITUITIONAL FREEDOMS, http://www. jccf.ca/wp-content/uploads/2013/01/2013CampusFreedomIndex.pdf 5 Francis Willick, Dal dentistry whistleblower returns to clinic, THE CHRONICLE HAROLD (March 13, 2015), http://thechronicleherald.ca/ novascotia/1274417-dal-dentistry-whistleblower-returns-to-clinic.

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Across Borders: Academia and the Changing Environment of Open Expression feminist activists blocked the entry of paid attendees to a controversial lecture by Warren Farrell at the University of Toronto. The activists pulled the fire alarm to shut down the event when the police intervened.6 Just recently, the Canadian Center for Bio-Ethical Reform held an open debate on abortion at McMaster University that was unable to start when pro-life protestors entered and yelled prepared speeches over speakers of both sides.7 It echoed a previous disruption at the University of Waterloo, where a Conservative MP was shouted down by a man infamously dressed in a costume depicting female genitalia.8 These instances evidently vary in type, from commencement speaker protests to more forceful obstructions with varying degrees of legality. In both cases, the people limiting or protecting free speech employ many different methods and embody ostensibly different strata of legal responsibility. This is one factor that creates a need for an effective model to deal with expression issues. The variance of the kinds of parties involved is a significant factor as well, as it includes student political groups, student union groups, professors, university administration, the courts, and governments. Universities have different policies for handling disruptions, some of which differ for the student legislature and the official administration. The legislative landscape likewise varies greatly amongst North American jurisdictions, and the common law has differing precedents that form an un6 Dan Smeenk, Arrest, assaults overshadow “men’s issues” lecture, THE VARSITY (November 17, 2012), http://thevarsity.ca/2012/11/17/arrest-assaults-overshadow-mens-issues-lecture/. 7 Patrick Kim, Pro-Life Session Ambushed, THE SILHOUETTE (Nov. 19, 2014), http://www. thesil.ca/pro-life-session-ambushed. 8 Stephen Woodworth, Anti-Abortion MP, Shouted Down By Protester Dressed As Vagina, THE HUFFINGTON POST CANADA (March 15, 2013), http://www.huffingtonpost.ca/2013/03/15/ stephen-woodworth-protest_n_2883718.html?.

clear landscape for both students and university administrators to navigate in order to maintain civil liberties. These vast differences in limits, actors, and policies regarding free speech make it difficult to determine exactly what infringes on the freedom of speech in universities. This freedom of speech, guaranteed by both Canadian and American constitutions, is in theory protected to the full extent of the law. As a result of this broader legal goal, there should also exist an effective, corresponding policy model that offers clarification for students, student unions, university administrations, and governments to navigate these complicated and sometimes differing spaces of legal protection. In order to develop such a model—one that both adequately protects the free speech rights of the aforementioned parties, and prevents the propagation of dangerous or extreme hate speech—considerations must be given to the various factors and structural realities that affect the legal discussion of free speech in academia. These factors include an analysis of the role of the university as a public or private academic institution, the degrees of harm and proximate harm that can potentially result from a speech act, a clear explanation of the ambiguity in the existing legal framework, and an exploration of the multilateral policy directions that can be taken by the many parties involved in academic free speech. The uncertainty left in those listed above leaves political and legal theorists myriad questions that this paper will explore. In particular, what moral or institutional obligations do universities have to protect or limit free speech? Do constitutional or statutory protections of free expression apply to universities as well as governments? What obligations do students or student unions have to ensure an environment open to expression? How should academics respond to a changing environment of student perceptions toward appropriate content? Free speech, germane in the world out-

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Across Borders: Academia and the Changing Environment of Open Expression side of universities, continues to be especially relevant despite changing student perceptions and university behavior. In light of the recent attacks on the Charlie Hebdo magazine offices in Paris, the issue of freedom of expression and the right to free speech without the fear of violence has exploded in social and print media, and is a central topic of social discourse. “Je suis Charlie” has been an internationally vocal response, decrying the extreme violence against those who were practicing their right of freedom of expression. However, free speech on university campuses is not held to these standards of free speech in the media and the rest of the democratic world. Whether extremely controversial content should be published in a satirical cartoon publication is an interesting and important topic of free speech rooted in the idea of open dialogue, but this paper primarily concerns keep greater standard of tolerance inferred within universities, who symbolically represent a marketplace of ideas. Universities have a greater responsibility than other institutions to maintain this bias-free environment, which includes allowing for unpopular or controversial ideas to be debated in a safe, open, academic forum. Opportunities such as these allow students and teachers to approach issues from opposing political, religious, ethical, and legal views. This in turn provides students with the means to become well informed, educated members of society. As a result, free speech on campuses should be kept as open and as minimally restricted as possible. The methods with which this goal can be accomplished will depend on a number of legal and legislative considerations that these authors explore. Based on these factors, the most balanced and feasible method seems to be for universities and student unions to enact policies that attempt to maintain an environment conducive to open, even controversial, discussion that maximizes the opportunity for dissent and debate. In particular, policies simi-

lar to the University of Toronto’s Policy on the Disruption of Meetings-—which infer a greater standard of responsibility upon all the groups involved in an academic setting to maintain this environment9—should be introduced or more effectively enforced in universities where they are already in place. Universities should create policies that both protect their students from hate speech and speech that incites violence, while also making freedom of speech a priority on campuses.

The Role of Universities in Protecting of Limiting Free Speech Though the exact manner in which universities protect or limit speech varies throughout history and location, it is generally accepted that universities have a distinct and important role in the exchange of ideas. They have played important roles in public discourse and the sciences by maintaining an environment of inquiry. Dr. Stephen Toope, the President of the University of British Columbia, has offered the following conception of that role the role of the university is to encourage tough questioning, and clear expressions of disagreement, but not the ‘silencing’ of alternative views. Universities are sites for the contestation of values, not places where everyone has to agree. That means that speakers we don’t like, or even respect, should be allowed to put forward their views... [which can] then be challenged and argued over.10 9 University of Toronto Governing Council, Policy on the Disruption of Meetings, UNIVERSITY OF TORONTO (Jan. 28, 1992), http:// www.governingcouncil.utoronto.ca/Assets/Governing+Council+Digital+Assets/Policies/PDF/ ppjan281992.pdf. 10 Carpay, supra note 4.

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Across Borders: Academia and the Changing Environment of Open Expression Maintaining an environment of open knowledge is valuable for the education of the individual, as well as the betterment of society as a whole through its contributions to the economy, to technological advancement, and to the attainment of a broader goal of social justice. Harvard President Drew Faust notes that the [p]revailing discourse, familiar since at least the 1990s, emphasizes the university’s place as a paramount player in a global system increasingly driven by knowledge, information and ideas...[k]nowledge is replacing other resources as the main driver of economic growth, and education has increasingly become the foundation for individual prosperity and social mobility.11

deliberations. We, the authors, recognize that there is no clear method of attributing harm to speech, and that the proximate harm that can result from speech varies with the context and type of speech used. Many of the instances in which this will be an issue must be judged individually. Methods, used to determine whether a specific action—be it on the universities’ part or on the part of a students—should mirror the legal framework for proximate cause used in the common law. A step-by-step walkthrough for proximate cause will not be the subject of this paper, but rather how universities and students can benefit from responsive policies designed to ensure that academic environments remain welcoming to a diverse set of ideas and debates.

The Bi-Lateral Legal Reality

However, universities have an equally strong responsibility to guard themselves against becoming hotbeds for hate speech and ideas that openly encourage proximate violence against an identifiable group. Opinions that move into forceful action are not conducive to this open, academic environment, and serve to hurt rather than encourage intellectualism. Still, universities should exercise caution when determining what constitutes dangerous speech, as an overreach can result in unfair limitations, and yet an underreaching of this determination can result in the proliferation of hate speech. This is a challenge posed by the nature of ideas and opinions, and a necessary balance that offers no clear answers on where to draw the line. Offensive content scales with our own perceptions and cultures, and misjudgments in either direction can easily cause harm. It is of the utmost importance that universities recognize this delicate balance and exercise caution in their

Free speech and expression are constitutionally protected in both the United States and Canada, but there is ambiguity surrounding how these protections apply to universities. This ambiguity has led to challenges before the courts and within the administrative frameworks of many North American universities. The biggest ambiguity concerns whether universities are public or private institutions. Private universities that receive zero public assistance do exist; in fact, roughly a fifth of American post-secondary students attend such places.12 Public universities, though, receive direct funding from the government, and often rely on continued government services. The question of constitutionality thus relates to whether a university’s obligations to meet government standards increases with the amount of public resources that the university receives. Where we should draw the line, in terms of how much protection a student is entitled to relative to the dependency of

11 Drew Faust, President, Harvard University, Speech to the Royal Irish Academy: The Role of the University in a Changing World (June 30, 2010).

12 Facts About Private Colleges, ASS’N OF PRESBYTERIAN C. & U., http://www.presbyteriancolleges.org/factsaboutprivatecolleges.htm (last visited March 25, 2015).

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Across Borders: Academia and the Changing Environment of Open Expression that institution on public funding, if any at all, is As Michael Stokes Paulsen, a distincurrently unclear. guished university chair and professor at the University of St. Thomas School of Law, notes, The United States the principles stated by Chief Justice Warren should be clear, but in practice these principles In the United States, the issue of free are not always upheld. Many campuses have speech is divided between public and private introduced speech codes that limit speech beuniversities. Public universities have no free yond the legal limits of such speech as slander, speech rights of their own, as the legal protocol harassment, libel, and fighting words. These states that “at a state university, the principles speech codes are often aimed at limiting exare, or at least should be, clear: A state univerpressions that display prejudice against a cersity is, legally, an arm of the government and tain group of students, whether it is racial, is constrained by the First Amendment.”13 The ethnic, religious, or some other form of disuniversity itself thus has no rights, but it must crimination.16 The Supreme Court has not isprotect the rights of its constituents and consued a direct ruling on speech codes at public stituent groups, namely the students and prouniversities, but many U.S. district courts have fessors, as well as their organizations. Though struck down speech codes. For example, in Doe the public university may not endorse the views v. University of Michigan (1989), the U.S. Disof its students, student groups, guest speakers, trict Court for the Eastern District of Michigan and even faculty, it also may not censor their struck down a speech code at the University of views, even ones with which university officials Michigan, citing that the speech codes prohibdisagree.14 In the landmark 1957 case Sweezy v. iting hate speech were too broad and thus vioNew Hampshire, Paul Sweezy, a visiting lecturlated the First Amendment.17 Similarly, the U.S. er at the University of New Hampshire refused District Court for the Eastern District of Wisto answer questions from the Attorney General consin struck down a University of Wisconsin of New Hampshire regarding his lecture and the policy that called for student discipline for racist Progressive Party, citing his First Amendment or discriminatory comments, epithets, or other right to freedom of academic pursuit. Chief Jusexpressive behavior directed at other students.18 tice Earl Warren’s majority opinion for the UnitSimilar to Michigan’s case, the Court held that ed States Supreme Court stated, “The essentialthe policy was too broad and thus unconstituity of freedom in the community of American tional.19 In September 2004, U.S. District Judge universities is almost self-evident…Scholarship Sam Cummings struck down the free speech cannot flourish in an atmosphere of suspicion zone policy at Texas Tech University. Cumand distrust. Teachers and students must always remain free to inquire, to study and to evaluate, puses. Speech Codes, CTR FOR CAMPUS FREE to gain new maturity and understanding, other- 16 15 SPEECH (2015), http://www.campusspeech.org/ wise our civilization will stagnate and die.” 13 Michael Stokes Paulsen, Freedom of Speech at Private Religious University, 2 UNIVERSITY OF ST. THOMAS JOURNAL OF LAW AND PUBLIC POLICY 104, 104-108. 14 Id. at 105. 15 Kermit L. Hall, Free Speech on Public College Campuses Overview, FIRST AMENDMENT CENTER (Sept. 13, 2002), http://www.firstamendmentcenter.org/free-speech-on-public-college-cam-

page/cfs/speech-codes. 17 John Doe v. University of Michigan, 721 F. Supp. 852, 868 (E.D. Mich. 1989) http://www. bc.edu/bc_org/avp/cas/comm/free_speech/doe. html. 18 The UWM Post, Inc. v. Board of Regents of University of Wisconsin, 774 F.Supp. 1163 (E.D. Wisc. 1991), accessed at http://www.mit.edu/activities/safe/legal/uwm-post-v-u-of-wisconsin. 19 Id.

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Across Borders: Academia and the Changing Environment of Open Expression mings pointed out that the speech code banning “insults”, “ridicule”, and “personal attacks”, as well as a university policy requiring even casual free expression to get prior permission, was “imposing a burden on a substantial amount of expression that does not interfere with any significant interests of the University.”20 Judge Cummings also required a “free speech zone” policy at Texas Tech, allowing free speech for students in park areas, on sidewalks, on streets, and in other common areas.21 Cases like these, and the many more brought to court each year, demonstrate the legal push towards proliferating freedom of speech on campuses. Setting a precedent which establishes concrete concern for protecting free speech is a step in the right direction to demonstrate to universities what their obligations and limitations are.

from poor policies related to free speech nationally, Norfolk State University’s Code of Student Conduct prohibits “profanity by any student on property owned or controlled by the University, or at functions sponsored or supervised by the University.”24 “Profanity” is also a violation of the Student Code of Conduct at the University of West Alabama. These policies run contrary to the decision in Cohen v. California, 403 U.S. 15 (1971), which established that profanity, though vulgar, is still considered protected speech.25 Additionally, in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), the Supreme Court ruled that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”26 Norfolk State and West Alabama’s policies clearly violate both of Yet despite the number of cases struck these Supreme Court rulings, though no action down by federal courts each year, free speech has yet been taken against them. continues to be limited on public university campuses. Fifty-five percent of the U.S.’s 437 Private post-secondary education prespublic and private schools received “red-light” ents a far more troubling scenario for students. designations for policies that the Foundation The protection of the First Amendment does not for Individual Rights in Education (FIRE) says generally apply to private colleges in the Unit“clearly and substantially prohibit protected ed States. Unlike public universities, private speech.”22 This is especially problematic for schools are not considered an arm of the govpublic universities, which should be bound by ernment. Also, “although acceptance of federthe First Amendment, but whose responsibil- al funding does confer some obligations upon ities do not coincide with the direction of the private colleges…compliance with the First courts. Despite this, the situation does seem to Amendment is not one of them.”27 Most pribe improving: over fifty-four percent of public vate universities do promise freedom of speech schools received a red light rating for the year and academic freedom. Yet they still reserve the 2014, compared to seventy-nine percent in right to limit speech more than public univer2008.23 This decline is substantial and a good sities, and students who wish to attend these sign for the future of expression on universi- universities must accept these restrictions in exty campuses, but individual cases consistently change for membership to the university comarise that demonstrate that this change in trend munity. is insufficient to rectify the broader issue.

Canada

20 21 22 23

For example, despite the trend away 24 Spotlight on Speech Codes, supra note 2. Id. Id. Id.

25 26 27 note 2.

Id. Id. Id. Spotlight on Speech Codes 2015, supra

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Across Borders: Academia and the Changing Environment of Open Expression In Canada, the average university’s tuition fees constitute a mere twenty percent of total revenue, while federal and provincial transfers account for over fifty percent.28 Approximately $20,000 of education cost is paid by taxpayers per student per year, whereas private payments by these students amount to a $5,000 tuition bill.29 In Canada, most universities exhibit characteristics of both public and private institutions, though their applicability to scrutiny under the Canadian Charter of Rights does not scale with the ratio of public characteristics to private characteristics. Intuitively, it seems that the university’s public obligation to respect statutory and constitutional protections should likewise increase or decrease according to this ratio. However, the legal reality is that the Canadian Judiciary takes a different set of considerations into mind when determining whether a student is entitled to these protections. Generally speaking, universities are not considered “government” by the courts under the constitutional clause that protects private actors from unreasonable government action. Still, there exists a framework for the courts to apply constitutional protections, as if they were governments, if they are acting out the policy directions of government—a framework which makes Charter scrutiny a provincial affair as the result of the constitutional division of powers. Any constitutional argument in favor of limiting universities’ actions regarding free speech must come from the applicability of the fundamental freedoms to universities under §32 of the Charter, which binds the protections found in it to the actions of the legislature and 28 University and College Revenue, by Province and Territory, STATISTICS CANADA (Jun. 16, 2009), http://www.statcan.gc.ca/tables-tableaux/ sum-som/l01/cst01/educ47a-eng.htm 29 Josh Dehaas, Think Your Tuition Bull is Too High? Check the Government’s, MACLEAN’S MAGAZINE (June 20, 2011), http://www.macleans. ca/education/uniandcollege/think-your-tuition-billis-too-high-check-out-the-governments/

government of each province.30 Considering the amount of public funding that universities in Canada receive, the Supreme Court has addressed applications requesting judicial review over the wording of §32. In particular, these requests are for a reading that would regard universities as a part of the “government” of each province, and are thus obligated to respect Charter protections. Though the case centrally concerned a mandatory age of retirement, the decision in McKinney v. University of Guelph (1990) clarified the meaning of §32. Writing for the majority of the Supreme Court, the Right Honorable Justice La Forest wrote: The universities are legally autonomous. They are not organs of government even though their scope of action is limited either by regulation or because of their dependence on government funds. Each has its own governing body, manages its own affairs, allocates its funds and pursues its own goals within the legislated limitations of its incorporation. Each is its own master with respect to the employment of professors. The government has no legal power to control them. 31 He further clarified that this decision could be more broadly applied to any institution that was a creature of statute—a designation that does not attract Charter scrutiny in the eyes of the courts. This decision established a strong precedent for the administrative freedom of universities to enact policies as if they were entirely private institutions, regardless of how much 30 The Canadian Charter of Rights and Freedoms, sec. 32, 7 (Can.). 31 McKinney v. University of Guelph, [1990] 3 S.C.R 229(Can.)

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Across Borders: Academia and the Changing Environment of Open Expression public funding they receive. However, as would later become extremely important in a very recent case before the courts, the Supreme Court decision in McKinney v. Guelph did not comprehensively decide that universities could never be found to a part of the government for the purposes established by §32. Though this case dealt specifically with the University’s decision to impose a mandatory retirement age contrary to the will of a professor who sought judicial review, it established a precedent that—regardless of the content of the University’s decision—could still be held to a limited degree of Charter scrutiny if it met the legal criteria for “acting out” government policy. Justice La Forest notes in para. 42: [T]here may be situations in respect of specific activities where it can fairly be said that the decision is that of the government, or that the government sufficiently partakes in the decision as to make it an act of government, but there is nothing here to indicate any participation in the decision by the government and, as noted, there is no statutory requirement imposing mandatory retirement on the universities.32 This has important implications for university policies on other Charter protections, namely freedom of expression. This was used in a subsequent decision in 1997 by the RH.J. La Forest in Eldridge v. British Columbia (Attorney General), which found that the Charter did apply to a private entity, a hospital in this particular case. It was found that the private entity in question “carrie[d] out government policy,” concluding that the Charter can be applied to private entities when their actions are “inherently governmental” or for a “specific government policy or pro32

Id.

gram.”33 This case, similar to the case discussed before, did not directly concern free speech, but would have immense ramifications for it in recent decisions. This is salient to our discussion of preserving free speech in academia because the accountability of university action to the Charter is enforceable under certain qualifications. This decision has already been useful for students who believe that their right to freedom of expression has been unduly infringed by the actions of a university. In 2010, Keith and Steven Prigden were suspended by the administrative staff of the University of Calgary, for violation of the University’s non-academic misconduct code. Believing that their Charter rights to expression were violated by the university’s decision, the Prigdens sought judicial review for their suspensions. The Supreme Court of Canada used the above precedent in Eldridge to overturn the University’s decision and ordered remedial action in favor of the students. It held that the university had violated their fundamental rights, and could be held accountable according to their mandate given by the Alberta Post-Secondary Learning Act (P.S.L.A).34 This Act demonstrates a wider scope of responsibility set upon universities to obey the Charter rights and freedoms of students, but it can only be enforced when there is a statutory framework in that province, which can be demonstrably contrasted to the actions of the university. It is a framework that changes with the jurisdiction where an event takes place and will produce different outcomes based on the particularities of the statutory structure of that province.35 The decision in Prigden applied because there was a contradiction found between the university’s actions and the goals set out in the specific 33 Eldridge v. British Colombia (Attorney General), [1997] 3 S.C.R 624 (Can.). 34 Prigden v. University of Calgary, 2010 ABQB 644 (Can. LII). 35 Eldridge v. British Colombia, supra note 33.

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Across Borders: Academia and the Changing Environment of Open Expression post-secondary education legislation in Alberta. That legal framework was effective in addressing the problems outlined in this paper, but only for that jurisdiction. The respective post-secondary education set out in the Post-Secondary Education Choice and Excellence Act in Ontario, in contrast, does not include the same provisions that the P.S.L. Act does, and whether or not comparable protections to the precedent established by Prigden can be saved under other provincial legislation on post-secondary education is not guaranteed.36 The only way for an explicit answer to form under the common law system is for a similar case to be tried in every province, and for each judiciary to evaluate how—if at all—the corresponding post-secondary education legislation fits in with the particular case. This is a process which could take decades to materialize, and offers no guarantee of protection to anybody (except for students in Alberta) until it does. Even worse, it is a process which could produce different legal results for students in different provinces, and is therefore a drastically ineffective method through which to instigate meaningful change for the majority of Canadian university students.

Evaluating Constructive Policies Considering the legal realities of free speech protections in both Canada and the United States, the model that we can construct for both students and administrations to follow is unfortunately a messy series of steps and cautions. As a result, it may lead to different conclusions by different jurisdictions, based on different precedents and the specific facts of a case. This is especially true in Canada, as protections are warranted in specific instances where universities are acting as private institutions which carry out government programs. Difficulty arises when we seek to apply the precedent set in 36 Government of Ontario, Post-Secondary Education Choices and Excellence Act, SERVICE ONTARIO (2000), http://www.e-laws.gov.on.ca/ html/statutes/english/elaws_statutes_00p36_e.htm.

Prigden elsewhere, as the specific application of the P.S.L. Act is a provincial decision limited to the jurisdiction of Alberta. This legislation does not exist in the other provinces, and therefore has serious implications for students, student unions, and university administrations. Luckily, the decision to treat universities similarly to governments when they carry out governmental aims is a decision that holds true for every jurisdiction. The difficulty lies in the fact that this form of legislation varies among provincial jurisdictions. Education is a provincial responsibility set out in the division of powers section of the Constitution, courts will have to weigh the relevant legislation against the actions of a university’s administration for a finding similar to the one in Prigden. These will have different characteristics based on the educational structure of that province. As such, judicial review of any decision to apply university policy to Charter scrutiny will require an individual analysis of how to fit the specific case with the statutory framework behind the post-secondary education system of that province. This is different from the application of the Charter because it attempts to enforce a federal law according to provincial legislative specificity. Students looking for a legal solution to any perceived breach of their speech rights have an even more ambiguous framework to work with in the United States, where remedial action in private universities is often out of the question, and where even public universities have policies against certain types of expression that stand contrary to Supreme Court rulings concerning what legally requires protection. In theory, public universities in the United States should be bound to the First Amendment, and all students, student groups, and faculty should have the right to freedom of expression. The nature of these policies—and therefore the range of protections that students are afforded—varies from university to university based on their

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Across Borders: Academia and the Changing Environment of Open Expression individual policies. As a result, any action to protect students from either the university itself, or from oppressive actions by other students, should begin first with a demand for open academic environments to be reflected in administrative or union-based university policy. It is evident that in order to maintain their freedom of expression, students should push back against university policies and student groups that severely limit their academic freedom, but universities too should recognize the benefits in mirroring this kind of attitude. Those that openly protect controversial opinions and maintain an academic forum conducive to free expression can avoid the risks of potential litigation by students. When institutions understand their responsibilities clearly, they should act in a way that is consistent with them. When they do not, the case for remedial action on behalf of those affected is clear. While the ambiguities presented by the legal framework of either American or Canadian jurisdictions have the potential to harm students, it is also a powerful reminder to institutions that decisions to unduly infringe on fundamental rights may not avoid a lengthy and expensive process of judicial review, as well as negative publicity. It is a legal reality that should provide incentives to both students and administrations to take free speech laws seriously, though the financial assets available to universities may make them more patient with regard to the legal route.

a universityâ&#x20AC;&#x2122;s freedom to enact its own policy would not apply student groups disrupting an open academic environment. This too challenges the ability of controversial topics or people to be engaged with on university campuses, and in no less an important way. There is also a glaring issue with this approach in regard to the legal problem of amending the statutory framework: it would be an extremely complicated bilateral process involving at least one federal bill, and in Canadaâ&#x20AC;&#x2122;s case it would be impossible under the current division of powers. It is extremely unlikely that an amendment to the Constitution would be made to allow for educational policy to become under federal jurisdiction. While this would create an ideal way for the legislature to simplify the applicability of Eldridge to university policies, it is legally unfeasible and would have far-reaching consequences for the structure of education in Canada.

Instead, both students and universities should recognize the value in policies that protect free expression on campus, and should push to enact administrative and student union policies that mirror these attitudes. Such policies would involve provisions that reinforce laws against dangerous hate speech while including published steps to be taken by either the student body or the university during controversial discussions. This could potentially allow the university to take action against students who disrupt meetings, or perhaps allow them to hire security for certain events. It should allow Considering both academiaâ&#x20AC;&#x2122;s goal to ed- student groups to protest and engage with the ucate society and of the legal obstacles that face controversial ideas of visitors, but continue to both students and institutions, a satisfactory welcome them. It should also ensure that events solution will come from an attempt to strength- involving minority viewpoints are not forced en the protection of civil liberties through litiga- off-campus by the will of the majority. tion. The outcomes for students would be varied and expensive, and would present no compreThis kind of speech policy has been hensive model of federal level protection. At effective in practice, achieving goals of both the very least, they would be by far the slowest protecting minority and controversial speechof the solutions available. As a secondary con- es while also protecting against extreme hate sideration, an approach that consolidates the speech. The University of Toronto provides one strength of the expression protections against such model that students, student unions, and Georgetown University Undergraduate Law Review, Volume II, Issue I

Across Borders: Academia and the Changing Environment of Open Expression universities should look towards when develop- dents due to actions by other students or student ing policies of their own. Namely, their “Policy groups.38 on the Disruption of Meetings” bluntly states This is an effective policy because it that uses the opportunity presented by the legal ob[e]very member of the Universtacles to declare unequivocally its support for sity is obligated to uphold freethe rights of students. By doing so, the univerdom of speech and the freedom sity bolsters its own reputation while avoiding of individuals and groups from the myriad legal issues that come with enforcphysical intimidation and haing its role in permitting dissenting views. It is a rassment. The administration of multilateral policy approach that involves both the University has a particular student organizations and administrative ones, responsibility to require from and applies responsibility and obligations to members and visitors a standard each in meaningful ways that minimize the opof conduct which does not conportunity for one group to steamroll another out flict with these basic rights.37 of the discussion. Universities are obligated by it to provide sufficient insurances of safety for We chose the University of Toronto pol- those who wish to organize or attend controvericy as an exemplary model of university policy sial events, and the events themselves. Students for several reasons. First, it enshrines the notion are likewise obligated to maintain a level of that the university is obligated as an institution respect for ideas or speakers that they disagree of ideas to uphold the freedom of individuals with, and—given their role as members of the from harassment or intimidation and to protect university community—are required to tolerate their freedom to express their ideas freely. Sec- a diverse range of ideas in order for their memondly, it also proposes a framework for dealing bership to that community to continue. Since it with contentious speakers and events, one that avoids the strenuous and complicated route of mirrors both the university’s obligations and the litigation, this policy manages to provide both obligations of students to uphold this environ- Canadian and American universities with an ment as well. Thirdly, it is standalone legisla- ideal goal. It can be applied to any institution tion which goes into explicit details about the that is generally given special privileges to enspecific topic of controversial events, speeches, act its own policies, regardless of which side of or meetings, as opposed to policies that exist in the border its jurisdiction happens to be. And other universities like McMaster, which simply most importantly, it holds everyone involved to address disruptions with one or two lines that a higher standard of intellectual discourse – one are slapped onto broader, partly-related legis- that reflects the special role and higher standard lation. It does this via a six-step walkthrough for dissent that universities have in society. available for the benefit of both the administration and students involved, beginning with an However, legislating policy is only identification of those involved and the request half of the solution, and controversies at the to desist, and leading to more serious remedies University of Toronto surrounding free speech if the situation cannot be resolved. The latter 38 University of Toronto Governing Counincludes contacting the authorities and admin- cil, Policy on the Disruption of Meetings, UNIistering academic punishments if the university VERSITY OF TORONTO (Jan. 28, 1992), http:// cannot adequately protect the rights of their stu- www.governingcouncil.utoronto.ca/Assets/Gov37 University of Toronto Governing Council, supra note 9.

erning+Council+Digital+Assets/Policies/PDF/ ppjan281992.pdf

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Across Borders: Academia and the Changing Environment of Open Expression demonstrate that even exemplary policies will not maintain desirable academic environments without a strong commitment to enforcing them. Universities and students must be dedicated to these policies, and act in a way that acknowledges their effective force. Without this commitment, policies are nothing more than words on paper, and will remain this way until academic attitudes grow serious about protecting free expression on University campuses.

Conclusion A growing challenge is presented by changing student perceptions and institutional behaviors toward free expression in an open academic environment. Action is required in order to ensure that limits on expression do not endanger the universities’ special place in society as the encouragement of a marketplace of ideas. It is not only imperative that attitudes change within a national sphere, but also across borders. This is an issue that affects people of every ideological affiliation, and it is important to determine some form of meaningful policy. The challenges that free expression face go beyond partisanship; it is fundamentally not a rightwing or a left-wing idea. This is perhaps best illustrated by the reality of the situation facing the educational context of both authors—who are from McMaster and Georgetown University respectively—which frames the issues around the same ideological movement in different contextual realities that exemplify a similar problem. Georgetown currently has a “red-light” rating under FIRE’s standards for its Student Code of Conduct policy on incivility that states that students may be punished for “engaging in behavior, either through language or actions, which disrespects another individual including but not limited to: a fellow Georgetown student; a university official or law enforcement officer.”39 In fact, Georgetown is ranked among 39

Spotlight: Georgetown University-Speech

the top ten worst colleges for free speech.40 One issue contributing to this rating is H*yas for Choice, a pro-choice group not recognized by the Catholic, private, and firmly pro-life university. Two incidents in January 2014 and September 2014 prompted FIRE to criticize Georgetown’s policies and whether they uphold their values of free speech.41 In January, the H*yas for Choice group was forced to relocate after handing out condoms outside of a pro-life conference on campus. In September, members of the group had set up a table with information and the club’s agenda outside the front gates of the university, a location previously approved for their organization. A Georgetown Department of Public Safety officer removed the group, although it was later allowed to return. While FIRE recognizes that private universities may limit speech, Georgetown explicitly claims that all members of their community have the right to freedom of speech and expression, with no disclaimer specific to Catholic values. Because of this discrepancy, FIRE has given Georgetown an incredibly low rating on its annual report.42 This particular issue was about a pro-choice group fighting for its right to speak freely about the reasons it believed abortions should be made available to women, but actions on the part of the university were unreasonably infringing on the discussion to take place in an environment conducive to debate rather than ideological favoritism. This case is one example of harmful actions or policies taken by the university. But it is only part of the larger problem surrounding how various parties can act toward another party, and evokes the same kind of necessity for strong policies designed to mitigate infringements on freedom of speech that take place. Code Rating, FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION (2015), http://www.thefire.org/schools/georgetown-university/. 40 Id. 41 Toby Hung, Campus Reflects on Speech, THE HOYA (Mar. 6, 2015), http://www.thehoya. com/campus-reflects-on-speech/. 42 Id.

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Across Borders: Academia and the Changing Environment of Open Expression A different example of the same prob- er goal of social justice—from Georgetown to lem appears at McMaster University. Pro- McMaster and beyond. choice groups attempted to directly oppress free discussion, rather than behaving in a manner that was a reasonable demonstration of their desire for discourse—we are here referring to the decision of student activists at McMaster to effectively shut down the campus debate on abortion. Air horns and pre-written speeches were the means of oppression in this context, as opposed to the more official demeanor of an administrative decision, but the mens rea remains consistent. Instances like these demonstrate that harmful behavior that creates restrictive environments can come from either end of the political spectrum and either end of the institutional power balance. The issue at hand is not based on the content of the arguments, whether they are “for” or “against” a particular controversial topic, but based on a party’s ability to maintain an open discussion about the issue without infringing upon another party’s ability to respectfully defend their ideas. This is a phenomenon that has significant ramifications regardless of the borders that politically separate its different incarnations, since universities as broader institutions of learning occupy the same role in the United States and Canada. Regardless of the legal framework under which they operate, universities can approach their shared role as institutions of higher learning in the same way if both administrators and students push for a more effective body of policies to maintain an open academic environment. It is a challenge that changes with the specificities of the institution at hand and the culture in which it is rooted, but the core conceptual basis for a principled approach to academia is universal. This has significant value for the economic benefits that arise from the existence of an intellectually-diverse institution in society. It also has great importance for the ability of students and universities to interact meaningfully with the law, and for the broadGeorgetown University Undergraduate Law Review, Volume II, Issue I

Reasonable Woman:

Applying a Gender Conscious Standard to Sexual Harrassment Chandini Jha College of Arts & Sciences, 2016 Georgetown University Abstract This article argues in support of the adoption and consistent application of the “reasonable woman standard,” a standard that requires judges and jurors to consider a typical woman’s perspective in issues regarding sexual harassment. Shifting to this gender-specific standard would better contextualize structural sexual violence by encouraging the use of a perspective which supports those most affected by sexual harassment: women. This alternative standard recognizes the differences between men and women’s lived experiences, and thus asks decision makers to seriously consider the severity of the respondent’s behavior. The author argues that with proper application of the reasonable woman standard, more comprehensive legal protection can be afforded to women within the workplace and beyond.

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Reasonable Woman: Applying a Gender Conscious Standard to Sexual Harrassment

Introduction In her influential work “Identifying Sexual Harassment: the Reasonable Woman Standard,” Debra Debruin articulates the need for new feminist legal criteria for identifying sexual harassment in the workplace.1 By explicitly outlining gender as a relevant factor in certain types of cases, this new standard shifts the burden of proof away from a supposedly gender neutral standard to a female one that matches the majority of victims’ gender identity. Some feminist authors hope this gender-specific standard can improve the unfortunate reality that violent crimes against women have some of the lowest conviction rates in the U.S. criminal justice system, while other scholars fear the new standard will actually entrench sexist policing of women’s behavior.2 The philosophical debate around the reasonable woman standard exposes important research questions: in what types of cases should the reasonable woman standard be used, if at all? How would its imposition affect judicial reasoning? Is there a pressing need to institute this reform now? In the following paper, I will argue that the reasonable woman standard is appropriate to use in situations where it can effectively reveal the structural nature of violence, such as in workplace sexual violence. The standard intends to affect judicial reasoning by placing decision makers in the frame of mind of women in society in order to better understand their lived, gendered realities. Because the standard—properly applied—is a descriptive rather than prescriptive way of exposing structural violence, 1 Debra Debruin, Identifying Sexual Harassment: the Reasonable Woman Standard, in VIOLENCE AGAINST WOMEN:PHILOSOPHICAL PERSPECTIVES, 107, 107-19 (Stanley French et. al eds., Cornell University Press, 1998). 2 Carol Sheffield, Sexual Terrorism, in GENDER VIOLENCE:INTERDISCIPLINARY PERSPECTIVES, 111, 122 (Laura O’Toole et. al eds., NYU Press (2007).

there is a continuing need to institute this reform to empower subjects who are vulnerable to such violence. My methodology is focused on the legal rationale, in terms of the language used in articulating decisions and concepts, surrounding the reasonable woman standard. Thus, I will predominantly be examining court documents, as well as expert legal sources. Because these documents and cases take place in U.S. case law, my analysis will be confined to a nation-specific understanding of the reasonable woman standard in affecting how law is gendered. The paper will progress from a theoretical understanding of the reasonable woman standard and its application in the Ellison v. Brady case, to revealing the context-dependent limits on when the standard can be used. I choose to analyze the Ellison v. Brady case because it was a historic first in articulating the reasonable woman standard and thus has important implications in terms of conceptualizing how the legal system uses the standard.

Theory What is a Reasonable Woman? Debruin’s discussion of a new standard that explicitly instructs decision makers—judges or juries—to consider a victim’s gender identity relies on the assumption that men and women perceive differently the idea of sexual violence.3 This idea has grounding in empirical research about sexual harassment: women are most often the victims of sexual harassment in the workplace4 and often perceive a wider range of behaviors as sexual harassment than men do.5 Likewise, women face a higher likelihood 3 Debruin, supra note 1, at 107. 4 Bonnie Westman, The Reasonable Woman Standard: Preventing Sexual Harassment in the Workplace, 18 WM. MITCHELL L. REV. 795, 818 (1992). 5 Jessica Schiffman & Margie Edwards, Sexual Harassment in GENDER VIOLENCE: INTER-

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Reasonable Woman: Applying a Gender Conscious Standard to Sexual Harrassment of being sexually assaulted than men.6 Due to a greater risk of victimization, women thus view unwanted sexual advances towards them as harmful and dangerous, since they do not know if or when the behavior may escalate.7 Because men do not confront this same gendered reality, they are more likely to interpret this behavior as harmless or, if the roles were reversed, as complimentary. Indeed, such understanding reflects the idea of male privilege. Men generally are not hyper-cognizant of their bodies as sexualized objects, as their status in male-dominated workplaces as outsiders, or their sexual choices as being grounds for increased public attention and energy in the same way that women are. Structural and oppressive patterns of violence— which, for the purposes of this paper, will be defined as people and organizations participating “in oppressive practices without consciously choosing to”—disempower women and greatly affect their interpretation of sexual violence.8 Perhaps because of its greater distance from their lives, men generally do not as readily notice these structural barriers. Thus, they tend to view sexual harassment (and in some cases, even sexual assault) in a vacuum, without the context of gendered-power inequalities.

environment.9 A closer textual analysis of the standard reflects how decision makers assess what a “reasonable woman would consider severe” (emphasis added).10 This reflects the intentionality of the standard as a descriptive parameter. Rather than asking jurors or judges to decide what a reasonable woman ought to do, thus entrenching the effect of sexual violence myths that blame women for their own victimization, the standard asks them to take into account the larger structural factors that affect how women interpret information. To understand what a reasonable woman thinks, decision makers do not take on the identity of the woman in the specific case being argued before them; rather, they analyze what the typical, rational woman is likely to face in her lived experiences. Thus, it inoculates against people looking at evidence in sexual harassment cases within a vacuum, instead taking reasoning “outside the courtroom” and looking at larger, structural gender barriers in society.11

The reasonable woman standard would supplant the popularly used “reasonable person standard” in certain types of cases, begging the question of why a seemingly gender-neutral Debruin therefore advocates for a new standard that includes women needs to be re12 legal standard to help society better contextual- placed with a gender-specific standard. Debruize women’s gendered reality, in terms of sexual in skillfully articulates that in gender-oppressive harassment cases. This new standard establishes societies, “men’s identity and experiences serve as the standard of what it is to be a person.”13 a female plaintiff states a prima A seemingly inclusive, gender-neutral standard facie case of a hostile environis actually a male standard, triggering the probment sexual harassment when lems of gendered differences in understanding she alleges conduct which a reasexual violence. In practice, the gender-neutral sonable woman would consider standard places an inappropriate, male-centric sufficiently severe or pervasive burden of proof on female victims, ignoring to…create an abusive working DISCIPLINARY PERSPECTIVES, 133, 133 (Laura

O’Toole et. al eds., NYU Press (2007)). 6 Westman, supra note 4, at 818. 7 Westman, supra note 4, at 823. 8 Debruin, supra note 1, at 111.

9 Id. at 107. 10 Id. 11 Nancy J. King, Silencing Nullification Advocacy inside the Jury Room and outside the Courtroom, U. CHI. L. REV.. 433, 474 (1998). 12 Debruin, supra note 1, at 108. 13 Id. at 111.

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Reasonable Woman: Applying a Gender Conscious Standard to Sexual Harrassment their different experiences due to their gender.14 Because of this additional pressure on victims, feminist scholar Bonnie Westman suggests that “applying the reasonable woman standard in sexual harassment cases affords judges the opportunity to constructively utilize judicial wisdom,” where judicial wisdom is defined by “current social values and pragmatism.”15 Since the standard will be biased either way, judges should intervene in order to reduce the barriers traumatized victims face to gain legal protection, which is of greater societal and pragmatic concern. Judges operating under the reasonable woman standard thus promote activism to reach a fuller understanding of equity that takes into account the different realities and risks that female populations confront.

Application

sexual harassment.17 Sterling Gray repeatedly pestered Ellison with inane questions, wrote her multiple sexually suggestive letters, and made sure to transfer back to the location where Ellison worked.18 This pivotal case changed the 9th Circuit’s test to determine sexual harassment from the reasonable person standard to the reasonable woman standard, arguing that adopting the victims’ perspective ensures that courts will not ‘sustain ingrained notions of behaviors fashioned by offenders’…. ‘Congress designed Title VII to prevent the perpetuation of stereotypes and a sense of degradation which serve to close or discourage employment opportunities to women.’19

How do Courts use the Reasonable Woman In noting the “ingrained” notions of stereotypes about sexual harassment, the court acknowledgStandard? In order to analyze whether the reasonable woman standard does indeed promote the kind of equity-seeking judicial activism that better protects women, this section will consider the Ellison v. Brady case to analyze if the court’s reasoning reflected a greater awareness of the structural violence women face because of their gender, as indicated by the language of its official court decision.16 In this specific case, IRS worker Karen Ellison filed an Equal Employment Opportunity Commission complaint under Title VII, which protects against sex discrimination, due to a coworker’s continued 14 Id. 15 Westman, supra note 4, at 809. 16 See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1483 (3d Cir. 1990); Robinson v. Jacksonville Shipyards, Inc., 760 F. Supp. 1486, 1524 (M.D. Fla. 1991); Barbetta v. Chemlawn Servs. Corp., 669 F. Supp. 569, 572 (W.D.N.Y. 1987); Vermett v. Hough, 627 F. Supp. 587, 605 (W.D. Mich. 1986).

es how structural violence against women works in a manner that is seen as the norm.20 People do not question it; rather, they construct it as an embedded, inherent part of society. Further, the court recognizes these female “stereotypes and degradation” as problems that are currently happening, validating women’s structural barriers to employment as real.21 In addition to acknowledging structural violence against women, the court’s decision reveals a commitment to gender equity. The 9th Circuit describes that the reasonable woman standard does not establish a higher standard of protection for women than men… [A] gender conscious examination enables women to participate in the

17 Debruin, supra note 1, at 116. 18 Id. at 117. 19 Id. at 114. 20 Id. 21 Id.

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Reasonable Woman: Applying a Gender Conscious Standard to Sexual Harrassment workplace on an equal footing with men.”22

Cahn brings up several arguments against the reasonable woman standard, the most persuasive of which is her criticism of the standard in Thus, the court acknowledges that a fairer way rape cases.25 She explains: to pursue justice for female victims of sexual harassment is through gender equity, in order to In rape law, this [reasonable 23 achieve true “equal footing” in the workplace. woman] standard implicitly reRather than limit itself to being an impartial arquires women to conform to a bitrator of the evidence, the court used judicial certain image, developed largely wisdom to analyze gender as an important legal by men, before the legal system factor in its considerations. Indeed, this focus on will recognize their experience equity is reflected by the court’s commitment to as rape. For example, women prevention: it stated that “when employers and are still blamed for provoking or employees internalize the standard of workseducing men, unless they meet place conduct we establish today, the current the male-set standard of ‘reasongap in perception between the sexes will be able’ resistance.26 bridged.”24 Thus, the court expresses a hope that companies as institutions, and employees on an Cahn’s point is well founded in empirical eviinterpersonal level, will be more cognizant and dence on the rare two to five percent conviction 27 self-regulating of workplace sexual harassment. rate for sexual assaults. Indeed, our societal Rather than establish a barometer for “bridging conception of rape is revealed in how the media the gap” like equal amounts of complaints by often depicts rapists as deviant, crazy strangmen and women, the court hopes for societal ers, when in reality the parties often know each 28 progress to minimize the number of men and other before the assault. The underlying logic women who experience this crime. One could behind this categorization of “recognized rape” argue it was outside of the court’s purview of in the legal system is thus part of a societal, pasimply interpreting laws to create stricter rules triarchal attitude that constructs “normal” males on what constitutes sexual harassment (vis-à- raping women as impossible—thus, if a woman vis a broader, reasonable woman standard) than is attacked by an acquaintance, she must have what is explicitly legislated by federal guide- done something wrong to lead him on or is 29 lines; however, the court served a greater so- falsely accusing him of the attack. cietal good by conducting judicial activism for I argue that Cahn’s objection is based gender equity. on the improper application of the reasonable

Counterargument

woman standard. As described in the theory section, the standard is intended to judge the

Naomi Cahn, The Looseness of Legal LanDoes the Reasonable Woman Standard En- 25 guage: the Reasonable Woman Standard in Theory trench Sexism?

In contrast to Debruin, some legal feminist scholars fear that the reasonable woman standard will actually worsen sexism. Naomi 22 Id. at 119. 23 Id. 24 Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991); Westman, supra note 4, at 815.

and Practice, 77 CORNELL L. REV. 1398, 1400-03 (1992). 26 Id. at 1401. 27 Sheffield, supra note 2, at 122. 28 Susan Ehrlich, Linguistic Discrimination and Violence Against Women, in Language and Woman’s Place, 223, 223 (Robin Lakoff ed., Oxford University Press, 2004). 29 Sheffield, supra note 2, at 114, 125.

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Reasonable Woman: Applying a Gender Conscious Standard to Sexual Harrassment accused’s actions against what a reasonable woman would find objectionable, given her gendered experiences in society; it is not designed to impose a litmus test on what decision makers think a reasonable or “proper” woman should have done in the particular case being argued before them. Perhaps counterintuitively, the reasonable woman standard only applies to the respondent’s behavior. A better understanding of a reasonable woman’s standard in rape can be analyzed by asking how a typical female in society would want men to behave in sexual relationships; scholars Caroline Forell and Donna Matthews articulate this vision as allowing no penetration without a woman’s consent, as well as establishing lack of consent through verbal and nonverbal body language.30 This interpretation is better equipped to deal with the prevalence of acquaintance rape in our society, as well as expressing a fuller articulation of consent than just “saying no” or physical resistance.31 These factors could potentially empower more survivors to gain justice through the legal system and raise conviction rates for the crime.

these challenges as the natural order of society. More research, however, still needs to be done in order to address the effects of race on the standard (for example, does the standard erase the experiences of women of color by creating a white “reasonable woman” subject?) as well as how a similar gender-specific standard could be used for other identities, such as LGBTQ populations.

Conclusion In sum, the reasonable woman standard is intended to place decision makers in a typical woman’s frame of reference when evaluating whether the accused’s actions constitute sexual harassment. Thus, it recognizes that men and women have different standards of objectionable behavior, in part due to how women face increased risks of sexual violence. When the reasonable woman standard is applied in a manner in line with its theoretical underpinnings, it has great potential to help provide better legal protections to women. This is seen by court reasoning that explicitly addresses the structural barriers that women face rather than dismissing 30 Caroline Forell & Donna Matthews, A Law of Her Own: The Reasonable Woman As A Measure of Man, 223 (NYU Press 2000). 31 Id. at 222.

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Beyond the Law:

Justifiable Vigilantism and How It Can Combat Government Failure Jesse Reiff School of Foreign Service, 2017 Georgetown University Abstract Vigilantism is often associated with lawlessness and is seen by many as being contrary to the functioning of a modern, democratic justice system. However, vigilantism can restore confidence in communities in which the government fails to protect its citizens. This is a distinct possibility even in todayâ&#x20AC;&#x2122;s most powerful democracies, such as the United States. The author of this article examines the role that vigilantism can play within the parameters of the law. In doing so, this paper explores (1) what constitutes a vigilante act and the conditions under which they are justifiable, (2) the role of state failure in justifying vigilantism through an analysis of John Lockeâ&#x20AC;&#x2122;s Two Treatises of Government, (3) real-life examples of justifiable vigilantism, and (4) objections to accepting a role for vigilantism in the justice system. The author argues that juries should nullify cases involving defendants that commit justifiable vigilante acts.

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Beyond the Law: Justifiable Vigilantism and How It Can Combat Government Failure “Fiat justiticia ruat caelum.” “Let justice be done though the heavens fall.”1 In the United States, thirty-one percent of adults have very little or no faith in the criminal justice system.2 This system is meant to implement justice through the apprehension, prosecution, conviction, and punishment of criminal offenders. The high level of mistrust in the criminal justice system reflects the reality that the system is broken in many respects. Vigilantism exists as a mechanism to achieve justice and restore confidence in the community in situations where the criminal justice system fails.3 While not all acts of vigilantism can be justified, vigilantism is morally justified in circumstances in which the government neglects its chief responsibility of protecting citizens, thus leaving them with no other viable recourse to protect themselves within the parameters of the law. Therefore, juries should nullify cases involving a vigilante if the individual’s actions were prompted by government failure, the individual punished the right person, and the individual did so without excessive force as determined by the jury.

Definition of Vigilantism While vigilantism is commonly defined to encompass “any person who takes the law into his or her own hands, as by avenging a crime,”4 1 Charles Sumner, Position and Duties of the Merchant, Illustrated By the Life of Granville Sharp, in THE WORKS OF CHARLES SUMNER 506 (1875). 2 Frank Newport, Gallup Review: Black and White Attitudes Toward Police Gallup (2014), http://www.gallup.com/poll/175088/gallup-review-black-white-attitudes-toward-police.aspx. 3 Vigilantism definition, THEFREEDICTIONARY.COM, http://legal- dictionary.thefreedictionary.com/Vigilantism (last visited March 10, 2015). 4 Vigilante, DICTIONARY.COM, UNABRIDGED, http://dictionary.reference.com/ browse/vigilante (last visited Nov 15, 2014).

a more precise definition of vigilantism in terms of criminology has six components. First, vigilantism must involve planning and premeditation.5 There may be spontaneous vigilantes who apprehend and punish criminals “in the act”; however, even these vigilantes are predisposed by “specific social conditions” such as a lack of faith in the criminal justice system.6 Second, vigilantism must be undertaken by agents acting as private persons.7 This includes police officers when acting as ordinary citizens. Third, vigilantism must be without the state’s authority or support.8 Fourth, it must involve the exercise or threat of violence.9 Fifth, it must be a reaction to a real or perceived deviation from institutionalized norms (i.e., the law).10 Lastly, it aims to control crime in order to guarantee personal and collective security.11 Some ambiguity remains regarding what acts of violence constitute vigilantism. Under certain circumstances, acts that are typically protected by law—such as self-defense and the protection of a third-party—are considered vigilante acts. Meanwhile, acts that are almost always illegal—such as private retribution—may also be considered vigilantism. The purpose of vigilantism is the protection of citizens’ lives, liberties, and properties.12 Punishment, however, is a form of protection since it deters individuals from committing crimes and violating citizens’ lives, liberties, and properties.13 5 Lee Johnston, What is vigilantism?, 36 BRITISH JOURNAL OF CRIMINOLOGY 220, 222 (1996). 6 Id. 7 Id. at 224. 8 Id., at 226. 9 Id. 10 Id., at 229. 11 Id., at 230. 12 Vigilantism, WEST’S ENCYLOPEDIA OF AMERICAN LAW (2 ed. 2008), http://legal-dictionary.thefreedictionary.com/Vigilantism (last visited March 10, 2015). 13 Practice Profile: Focused Deterrence Strategies, CRIMESOLUTIONS.GOV, https://www.

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Beyond the Law: Justifiable Vigilantism and How It Can Combat Government Failure Our current legal system allows citizens to legally use force if that force falls under the justification defense. This defense has three components: the necessity component, the proportionality component, and the reasonable belief rule.14 The necessity component limits the use of force to imminent threats. The proportionality component states that a person is not justified in using force that is excessive in relation to the harm threatened.15 Lastly, the reasonable belief rule implies that the defendant subjectively and objectively believed he or she needed to use force to repel the imminent threat.16

It is the combination of these aspects of vigilantism and the role of the state (and by extension, the law) that determines whether vigilante acts are justified.

The State

According to Locke, the government has an overarching responsibility to provide for the protection of citizens’ lives, freedoms, and properties. The government protects its citizens with three major institutions, which are “established standing laws, promulgated and known to the people,”19 “indifferent and upright judges,”20 and “the force of the community at home What is common to all vigilante acts only in the execution of such laws.”21 One can is that they cannot be legitimized by the justi- imagine a country where the government passes fication defense; they lack either the tradition- bad laws or has corrupt officials. Such a governal necessity component or the traditional pro- ment neglects its charge to protect the citizens portionality component, or both components.17 and jeopardizes the “peace, safety, and public Vigilantes often respond to threats that are not good of the people.”22 imminent; however, justifiable vigilante actions Since citizens cannot turn to the state are necessary given government failure to profor protection, they must provide for their own tect their citizens and to enforce the established protection and the protection of their neighbors. order. They may also lack traditional proporAs Locke says, every man is bound not just to tionality as defined under the justification deprotect himself but “when he can, to preserve fense. Vigilantes are not merely stopping crimes the rest of mankind.”23 In this situation, people but are often punishing transgressors to ensure are effectively in what Locke refers to as the they will not transgress the law again, to deter state of nature. In this state, people assume the others from breaking the law, and to obtain retchief role of the government and become the ribution for the victim.18 As a result, vigilantes protectors of life, liberty, and possessions.24 may act with violence that exceeds that which Without a government to protect people, a citthe transgressor used but which is necessary to izen may punish a transgressor by taking away serve the ends of punishment. his or her life “or what tends to the preservation of the life, liberty, health, limb, or goods of [the crimesolutions.gov/PracticeDetails.aspx?ID=11 offender].”25 This punishment must be “propor(last visited March 10, 2015). 14 Joshua Dressler, Understanding Criminal tionate to his transgression which may serve for Law 221-222 (6th ed. 2012). 15 Id. at 222. 16 Id. 17 Id. 18 Kelly Hine, Vigilantism Revisited: An Economic Analysis of the Law of Extra-Juducial Self-Help or Why Can’t Dick Shoot Henry for Stealing Jane’s Truck?, 47 AM. U. L. REV. 1221, 1248–1250 (1998).

19 John Locke, Two Treatises of Government, IX: 124-131 (J.W. Gough et al. eds., 1966). 20 Id. 21 Id. 22 Id. 23 Id., at II:6. 24 Id. at 131. 25 Id. at II:6.

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Beyond the Law: Justifiable Vigilantism and How It Can Combat Government Failure reparation and restraint”26 both fulfilling retributive ends and the utilitarian ends of deterrence. These claims are consistent with my proposed principle of justifiable vigilantism. Should the government fail to protect citizens, it loses the monopoly on the legitimate use of force. Citizens require protection and when the government fails to provide it, are left with no other available recourse but to protect themselves and their fellow citizens or to be subject to the force of criminals. Vigilantism is thus morally justified when the government fails to protect its citizens, since vigilantes’ only options for protection are extralegal means. It must be noted that state failure “is not a circumstance in which the state has imposed good laws with appropriate punishments but where the occasional offender somehow falls through the cracks…There is a difference between outright negligence on the part of the state and a mere fallibility in an uncertain world.”27 When a prosecutor engages in plea-bargaining with a defendant such that the offender receives a sentence less than fully appropriate for his or her crime, it is not an example of outright negligence by the state. However, “when the justice system is generally a good one and where the miscarriages of justice that do take place are mostly of this [aforementioned] variety, citizens may seek some sort of remedy within the legal system, but vigilantism is not justified.”28 In order for vigilantism to be justified, state failure need not be absolute (anarchy) nor widespread, but it does need to be common enough that it is more likely than not that the government will fail to protect its citizens. This relatively low burden recognizes the importance of protecting citizens through whatever means necessary. 26 Id. at II:8. 27 Travis Dumsday, On Cheering Charles Bronson: The Ethics of Vigilantism, 47 THE SOUTHERN JOURNAL OF PHILOSOPHY 49, 62–63 (2009). 28 Id. at 63.

When the government has failed its citizens and leaves them with no other recourse, citizens who commit acts of vigilantism should not be punished, as their actions were prompted by the state’s failure to protect them. This assertion assumes that vigilantes punish a guilty person, a concern that I will address later. The vigilante must have reasonably believed the guilt of the person he or she punished and must use an amount of force that is commensurate to the gravity of the original crime.

Justifiable Examples of Vigilantism Enter at Your own Risk While the United States generally protects its citizens—making vigilantism unjustified—not all areas within the United States offer a sufficient level of protection. One such area is Detroit, Michigan. Detroit is the murder capital of the United States, with 48 homicides per 100,000 people.29 Putting this in a worldwide perspective, if Detroit were a country, it would be the fourth most dangerous country in the world.30 The high rate of crime is largely caused by the state’s failure to protect its citizens. As of 2013, the police took an average of fifty-eight minutes to respond to emergency calls.31 On August 22, 2011, the police decided that they would no longer respond to burglar alarm calls unless the caller had proof that a law 29 Gina Damron & Kristi Tanner, FBI: Detroit’s 2013 Homicide Rate Leads The Nation, DETROIT FREE PRESS (2014), http://www.freep. com/story/news/local/michigan/detroit/2014/11/10/ fbi-crime-statistics/18808185/ (last visited Nov 18, 2014). 30 CNN Staff, Which Countries Have The World’s Highest Murder Rates?, CNN (2014) http:// www.cnn.com/2014/04/10/world/un-world-murderrates/ (last visited Nov 18, 2014). 31 Carl Bialik, Detroit Police Response Time No Guide to Effectiveness, WALL ST. J. L. (2013), http://www.wsj.com/articles/SB100014241278873 23997004578642250518125898 (last visited Nov 18, 2014).

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Beyond the Law: Justifiable Vigilantism and How It Can Combat Government Failure was being broken.32 Further, the police have decided that they would close all precincts to the public after 4 p.m., and have even held rallies to remind the public and tourists to enter at their own risk.33 This is a clear admission of negligence on behalf of the state. The necessity for vigilantism in Detroit is made clear by the case of a fifteen year-old girl with Down syndrome, who was raped by a forty-three year old man in her neighborhood.34 The man kidnapped the girl while she was on her way to work, began kissing her, told her to undress, and then raped her. He then took nude pictures of her with his cell phone before allowing her to leave his apartment. When the girl arrived home she told her parents about the rape, at which point the police became involved. Here begins the story of police ineptitude. The girl had to wait seven hours at the hospital before Detroit police arrived to administer a rape kit. The police then waited five days to interview the victim about the assault and the rape kit was not sent to Michigan State Police Crime Lab until nineteen days after the incident. The suspect was not questioned until twelve days after the crime. He was released after refusing to answer the detectives’ questions. Nearly three weeks after the incident, the suspect was walking on 32 Mike Wehner, Detroit Police Won’t Respond to Burglar Alarms Unless You Have Proof Of A Crime, YAHOO! NEWS (2011), http://news. yahoo.com/blogs/technology-blog/detroit-policewon-t-respond-burglar-alarms-unless-161940643. html (last visited Nov 18, 2014). 33 Enter At Your Own Risk: Police Union Says “War-Like” Detroit Is Unsafe For Visitors, CBS DETROIT (2012), http://detroit.cbslocal. com/2012/10/06/enter-at-your-own-risk-policeunion-says-war-like-detroit-is-unsafe-for-visitors/ (last visited March 10, 2015). 34 Randy Wimbley, Teen with Down Syndrome Allegedly Raped, Accused Remains Free, MYFOXDETROIT (2013), http://www.myfoxdetroit.com/story/23061579/teen-with-down-syndrome-allegedly-raped-accused-remains-free (last visited Nov 20, 2014).

the street when a group of locals approached him and beat him with baseball bats. He was hospitalized, and after being released he moved out of the neighborhood.35 Because these citizens could not rely on the state to properly investigate or prosecute the rape, they were morally justified in taking vigilante action against the rapist. Though there was no immediate threat to the citizens who beat the rapist, he posed a future threat to other children in the neighborhood. There was also a greater threat to society, since leaving a rapist unpunished implies that rape will not be prevented in the future and suggests further that rape is even condoned by the state. Vigilante action was therefore necessary in this case for the collective security of the community.

Battered Wife Syndrome Though traditionally battered women attempt to plead not guilty by self-defense, many battered woman who kill their batterers have difficulty justifying their acts under traditional self-defense laws.36 Even if a judge allows evidence on Battered Wife Syndrome (BWS) and its psychological effects, “a narrow interpretation of the self-defense theory may preclude the use of BWS for some women. There may be a ‘technical immanency problem.’”37 This “technical immanency problem” implies that women who act against their batterer when they were not in any immediate harm did not use force legally. Battered women, however, would better be considered as justified vigilantes, meeting the six aforementioned components of vigilantism.38 First, these women are predisposed to take action against their batterer due to their 35 Id. 36 Elisabeth Ayyildiz, When Battered Woman’s Syndrome Does Not Go Far Enough: The Battered Woman As Vigilante, 4 AM. U.J. GENDER SOC. POL’Y & L.141, 143 (1995). 37 Id. at 145. 38 Id. at 146-147.

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Beyond the Law: Justifiable Vigilantism and How It Can Combat Government Failure constant abuse and the failure of the state to intervene. Second, these women are private citizens. Third, as discussed above, the state does not condone their actions because they lack the necessity component of a justification defense. Fourth, these women employ violence against their batterer. Fifth, their action is a response to the perceived deviance of the law, namely, constant physical and mental abuse. Sixth, battered women act for personal safety. The consideration of battered women as vigilantes is exemplified in the case North Carolina v. Norman, in which Judy Norman was physically abused by her husband for years. His abuse included slapping her, punching her, kicking her, putting out cigarettes on her skin, throwing hot coffee on her, breaking glass on her face, forcing her to eat dog food, and forcing her to prostitute herself.39 Norman had called the police but was told that they could not arrest her husband without a warrant. The defendant sought the help of a mental health center and social services offices. When the state failed to protect Norman, she killed her husband while he slept. For years, Norman, like a plethora of other battered women, turned to the justice system for help—“generally to no avail.”40 Thus, Norman was morally justified in taking the law into her own hands. It follows that “rather than continue waiting for the state, all the while receiving beating after beating, the battered woman, by killing her abuser, repairs the moral order herself.”41

acquit defendants such as Norman. If the state fails citizens, it has no right to impose a sentence on them. Norman would not have to resort to such force except for the failure of the state; therefore, the jury should legally excuse her act. While killing an abuser may seem extreme or disproportionate, this extremity was justified by Norman’s lack of options that would equally protect her safety.

Objections to Vigilantism Loss of Rule of Law

One argument against vigilantes is Locke’s claim “that ill-nature, passion, and revenge will carry [an individual] too far in punishing others; and hence nothing but confusion and disorder will follow.”42 Locke is concerned that vigilantes will be overwhelmed by fervor when punishing criminals, resulting in the loss of order and rule of law. Considering that justified vigilantes only act when the government has failed to protect them and their fellow citizens, one can argue that the rule of law has already dissipated, and that justified vigilantes are the only ones attempting to maintain it. Vigilantism is not a system of revenge but a reaction to a perceived deviance from institutional norms—namely the law. As Travis Dumsday, professor of Philosophy and Religion at Concordia University of Alberta, writes, “Vigilantism is consistent with respect for the law, to at least some extent: after all, the vigilante might claim to respect the law even more than the sitBattered women such as Norman are ting government officials, since he takes it serimorally justified in killing their batterers; how- ously enough to want to see it enforced.”43 ever, under state law they are guilty of their charges since their actions do not fall under an Bias in the Pursuit of Criminals exception such as self-defense. I argue that, in Another concern about vigilantism is spite of being guilty, juries should nullify or “that self-love will make men partial to them39 State of North Carolina v. Judy Ann Laws Norman, 324 N.C. 253, 378 S.E.2d 8, 1989 N.C. 158. (1989). 40 Ayyildiz, supra note 33, at 145. 41 Id. at 148.

selves and their friends,”44 thus raising the pos42 Locke, supra note 20, at II:13. 43 Dumsday, supra note 24, at 59. 44 Locke, supra note 20, at II:13.

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Beyond the Law: Justifiable Vigilantism and How It Can Combat Government Failure sibility that vigilantes will be unduly biased in the pursuit of criminals. While the criminal justice system is formally unbiased, it achieves discriminatory results by granting law enforcement officials discretion on whom to stop, search, arrest, and charge as well as by banning defendants from offering evidence of deliberate jury or prosecutor bias.45 An examination of incarceration rates reveal that this discretion allows for biased results. The National Institute on Drug Abuse reports that white students use cocaine at seven times the rate of black students, use crack-cocaine at eight times the rate of black students, use heroin at seven times the rate of black students, and use marijuana at just about the same rate as black students46; African Americans, however, constitute eighty to ninety percent of all drug offenders sent to prison.47 By policing only one race and failing to arrest and prosecute a majority of drug dealers and drug users, the government has failed to protect all of its citizens equally. Vigilantes, therefore, may be able to create less discriminatory results in the criminal justice system by punishing the individuals that the criminal justice system refuses to arrest, prosecute, and punish.

Deterrent Purposes of Punishment Another criticism about vigilantism is that it undermines the deterrent purposes of punishment because vigilantes themselves are breaking the law,48 although evidence fails to support this claim. The risk of receiving punishment, not the punishment itself, deters indi45 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 39 (2012). 46 Id. at 99. 47 Id. at 99. 48 Makubetse Sekhonyane & Antoinette Louw, Violent Justice Vigilantism and the State’s Response, 2 http://dspace.africaportal.org/jspui/bitstream/123456789/31466/1/Mono72Full.pdf?1 (last visited March 10, 2015).

viduals from committing crimes.49 This is made clear by Valerie Wright of The Sentencing Project, whose research determines that it is the certainty of punishment—not the severity—that has the greater deterrent effect on crime.50 In a situation of justifiable vigilantism where the government has failed its citizens, the government poses no threat of punishment and criminals will be undeterred by the government to commit crimes. The deterrent purposes of punishment are already undermined in such circumstances. Vigilantes pursuing criminals and doling out punishment will restore, to at least some extent, the certainty of punishment, and therefore its deterrent ends.

Risk to the Innocent Since there is no process for proving guilt, some criticize vigilantism and claim that it leads to harming innocents. While the importance of protecting the innocent is formally recognized in the criminal justice system, studies have indicated that at least 4.1 percent of all defendants sentenced to the death penalty are innocent.51 Other studies have indicated that between 2.3 percent and 5 percent of all prisoners in the U.S are innocent.52 A study by 49 News Release, Does Punishment Deter?, THE NATIONAL CENTER FOR POLICY ANALYSIS, 2 (Aug. 17, 1998) http://www.ncpa.org/pdfs/ bg148.pdf. 50 Valerie Wright, Deterrence in Criminal Justice: Evaluating Certainty vs. Severity of Punishment, THE SENTENCING PROJECT (2010) http://www.sentencingproject.org/doc/deterrence%20briefing%20.pdf (last visited March 10, 2015). 51 Ed Pilkington, U.S. Death Row Study: 4% of Defendants Sentenced to Die Are Innocent, THE GUARDIAN (2014), http://www.theguardian.com/ world/2014/apr/28/death-penalty-study-4-percent-defendants-innocent (last visited Nov 18, 2014). 52 How Many Innocent People Are There in Prison?, INNOCENCE PROJECT, http://www. innocenceproject.org/Content/How_many_inno-

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Beyond the Law: Justifiable Vigilantism and How It Can Combat Government Failure Northwestern University found that juries gave wrong verdicts in at least one out of every eight cases; the study also suggests that both judges and juries are far more likely to send an innocent person to jail than to let a guilty person go free.53 These statistics indicate that vigilantes and juries have approximately the same chance of punishing the guilty. Vigilantes may in fact be less likely to mistakenly punish an innocent person than the criminal justice system would. When a jury mistakenly convicts an innocent person, that person may appeal their case but there is no direct repercussion on the jury members. Vigilantes, on the other hand, face the risk of being held criminally liable for punishing an innocent, making it more likely that vigilantes would be prudent in doling out punishments. Vigilantes, in this way, are “answerable for [their action] to the rest of mankind.”54

Democratic Process

ent while waiting for democratic reforms to be implemented. This necessitates vigilante action. That said, Dumsday validly asserts that vigilantism should be used as a measure of last resort, and that the justice system should be depended upon once the necessary reforms have been enacted.57 Acts of vigilantism can bring about increased government protection for citizens. People v. Goetz—also known as the “subway vigilante” case—is exemplary of how vigilante action can spur reform and increased protection.58 Bernhard Goetz was a New York City man who shot four young men on the subway in 1984 after they allegedly tried to mug him. This incident is vigilantism and not self-defense because Goetz was prompted by his prior muggings and the rampant crime in New York to take action against anyone who threatened him. The situation was so dire that in 1979 there were 250 felonies committed every week in the subway, and within the first two months of that year there had been six murders.59 As a result of this inadequate policing there were massive criminal justice reforms in the late 1980s and 1990s, most notably “the broken windows” approach, which suggests that small disorders could lead to greater amounts of crime.60 For example, if the New York City police tolerated graffiti on the subway, it suggested to criminals that other crimes would also be tolerated, leading to more

The last criticism often brought up against vigilantism is that it undermines the democratic process.55 Some are concerned that by engaging in vigilante action as opposed to seeking help democratically we may neglect the democratic process. Dumsday compellingly argues “it is the duty of citizens in a democracy to press for appropriate reforms even as they take whatever steps are needed to protect themselves and one another.”56 Consequently, even though citizens must press for democratic reforms, they 57 must be able to protect themselves in the pres- 58 cent_people_are_there_in_prison.php (last visited Nov 18, 2014). 53 Bruce Spencer, Estimating the Accuracy of Jury Verdicts, JOURNAL OF EMPIRICAL LEGAL STUDIES (Forthcoming), accessed at http://www. ipr.northwestern.edu/publications/docs/workingpapers/2006/IPR-WP-06-05.pdf . 54 Locke, supra note 20 at II:13. 55 Edward Stettner, Vigilantism and Political Theory, in VIGILANTE POLITICS 68–69 (H. Jon Rosenbaum & Peter C. Sederberg eds., 1976). 56 See Dumsday, supra note 39, at 61.

Id. The People of the State of New York, Appellant, v. Bernhard Goetz, Respondent., 68 N.Y.2d 96, 99 (1986), accessed at https://scholar.google.com/scholar_case?case=8047552572288725205&q=goetz+case&hl=en&as_sdt=20006. 59 Christina Sterbenz, New York City Used to Be a Terrifying Place, BUSINESS INSIDER (2013), http://www.businessinsider.com/new-york-cityused-to-be-a-terrifying-place-photos-2013-7. 60 David Francis, What Reduced Crime in New York City, THE NATIONAL BUREAU OF RESEARCH, http://www.nber.org/digest/jan03/w9061. html. (last visited Nov 30, 2014).

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Beyond the Law: Justifiable Vigilantism and How It Can Combat Government Failure crime. After the Goetz incident, the New York City Transit Authority began a program to eradicate graffiti from subway trains with this new approach in mind.61 While one cannot conclude that these measures directly led to the decline of crime in New York City in the 1990s, one can conclude that Goetz’s vigilante action contributed to democratic reform.

Conclusion Vigilantism is not a perfect system of achieving justice; however, neither is the criminal justice system. When the government fails to protect its citizens through policing, prosecution, and sentencing of criminals, citizens are morally justified in protecting themselves and their fellow citizens through vigilante justice. So long as vigilantism is seen as contrary to the rule of law, it cannot be properly understood. The government should be more concerned about correcting the situations that create vigilantism than vigilantes themselves. As Thomas Jefferson once said, “To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property…thus absurdly sacrificing the end to the means.”62 Though vigilantes are seen as contrary to the law, when justified, they are in fact the ones maintaining it.

61 Constance L. Hays, Transit Agency Says New York Subways Are Free of Graffiti, N.Y. TIMES (May 10, 1989), http://www.nytimes. com/1989/05/10/nyregion/transit-agency-says-newyork-subways-are-free-of-graffiti.html. 62 Timothy Lenz, Republican Virtue and the American Vigilante, 12 Legal Studies Forum (2 ed.) 117, 132 (1988).

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Undermining the Patent Trolls: Reform and the America Invents Act Dennis Mai College of Arts & Sciences, 2015 Georgetown University Abstract The American patent system has long incentivized the threat or use of legal action to extract profits from productive and beneficial companies. This abuse by â&#x20AC;&#x153;patent trollsâ&#x20AC;? ultimately imposes a net social cost that harms innovation and economic growth. To combat this trend, Congress passed the America Invents Act (AIA) in 2012, implementing the largest set of patent reforms in 60 years. The author discusses the impact of several key provisions in the AIA, and argues that defendants will have a better chance at preventing, settling, or winning lawsuits under the AIA in the long run. Although restrictions on the availability of data will continue to limit further analysis concerning the effectiveness of these reforms, critical markers do indicate that the AIA has achieved some forms of measurable success in its first years of implementation.

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Undermining the Patent Trolls: Reform and the America Invents Act

Introduction

IV considers counterarguments and evidence that point to the legislation’s ineffectiveness. America’s economic success over the Finally, Section V concludes by arguing that the past 200 years has been a constant source of AIA is theoretically able to combat patent trolls, national pride. Yet, the contributions of the but further data is required to definitively conAmerican legal system to this achievement are firm the success of these legal reforms. frequently overlooked. In particular, the strong protection of innovative ideas through patents Background Information on Patent filed with the United States Patent and Trade- Laws and Patent Trolls mark Office (USPTO) has proven crucial. Unfortunately, the American patent system has Patents as Property also incentivized the use or threat of legal acPatents are considered a form of inteltion by Non-Producing Entities (NPEs)—who lectual property, and all property comes with stockpile patents—to extract profits from oth- a bundled set of rights that determine what an er productive and beneficial companies.1 This owner can do with that property—which inabuse by “patent trolls” ultimately imposes a cludes the right to exclude others. Barring spenet social cost that harms innovation, economic cific situations such as an emergency, owners growth, and as a result, American society.2 To have a right to determine who does and who combat this trend, Congress passed the Amer- does not use his or her property. Applied to patica Invents Act (AIA) in 2012, implementing ents, this means that patent owners have a right the largest set of patent reforms in 60 years.3 to exclude others from using their ideas, particTo evaluate the effectiveness of this legislation, ularly in the pursuit of profit.4 this paper examines key provisions of the AIA that were designed to reduce the capability of This right to exclude others has definpatent trolls to file and win harmful law suits. itive private and social benefits, but also includes some less obvious social costs. The The paper will proceed in five sections. problem arises when exclusion from property Section I provides background information on rights prevents a more socially efficient outpatent trolls and relevant law before examining come. In effect, that exclusion by patent owners their economic incentives. Section II analyzes prevents more productive firms from utilizing the historical increase in patent litigation prior the patented idea to produce goods and services to the AIA and evaluates the economic effects that would be beneficial to society.5 of patent trolls. Section III then examines the economic effects of AIA reforms, while Section Patent Trolls 1 Collen Chien, Of Trolls, Davids, Goliaths, and Kings, 87 N.C.L. Rev. 1571,1571-1572, 1574 (2008-2009) 2 Id. at 1571. 3 Office of the Press Secretary, President Obama Signs America Invents Act, Overhauling the Patent System to Stimulate Economic Growth, and Announces New Steps to Help Entrepreneurs Create Jobs, THE WHITE HOUSE (Sep. 16, 2011), https://www.whitehouse.gov/the-press-office/2011/09/16/president-obama-signs-america-invents-act-overhauling-patent-system-stim

Patent trolls, or Non-Producing Entities (NPEs), abuse property exclusion in order to make financial gains. They develop a portfolio of diversified patents from firms and individuals who, for various reasons, including bankruptcy or an inability to commercialize their ideas, choose to sell their patents rather than use 4 Robert Cooter & Thomas Ulen, Law & Economics 124-138 (2008). 5 Id. at 124-138.

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Undermining the Patent Trolls: Reform and the America Invents Act them.6 After stockpiling these patents—many of questionable validity—patent trolls will aggressively threaten other productive companies with lawsuits over patent infringements. This legal coercion produces their primary sources of revenue: royalties, out of court settlements, and court winnings. In order to maximize their sources of income, NPEs are likely to engage in as many lawsuits as possible, leading some to estimate that patent trolls contribute to over twenty-five percent of patent lawsuits.7 Furthermore, patent trolls target firms with limited legal defenses and positive cash stocks in order to maximize their earnings.8 In essence, patent trolls are to intellectual property law what ambulance chasers are to tort law. By acquiring a vast number of patents, trolls thrive by rent seeking from legitimate producing entities based on the threat of lawsuits, settlements from lawsuits, or actual winnings from lawsuits. NPEs utilize other legal tactics to boost their chances of success. First, patent trolls engage in forum shopping: they find courts that are particularly sympathetic to ruling in favor of patent violations in order to gain an advantage.9 Second, NPEs were permitted by the Patent Act of 1952 to join unrelated defendants into a single case by asserting that they had infringed the same patent.10 Through economies of scale, 6 Gerard N. Magliocca, Blackberries and Barnyards: Patent Trolls and the Perils of Innovation, 82 NOTRE DAME L. REV 1809, 1810-1817 (2007). 7 Chien, supra note 1, at 1604. 8 Lauren Cohen, Umit Gurun, & Scott D. Kominers, Patent Trolls: Evidence From Targeted Firms abstract (Harvard Business School, Working Paper No. 15-022, 2014). 9 Daniel Nazer & Vera Ranieri, Why Do Patent Trolls Go to Texas? It’s Not for the BBQ, ELECTRIC FRONTIER FOUNDATION (Jul. 9, 2014), https://www.eff.org/deeplinks/2014/07/whydo-patent-trolls-go-texas-its-not-bbq. 10 Scott W. Doyle, Jonathan R. DeFosse, Michel E. Souaya, & Kyle Noonan, The Impact of the America Invents Act on Litigation by Non-Prac-

patent trolls could reduce the costs of pretrial proceedings while benefitting their bottom line. These unrelated individual firms, however, do not benefit from a joint lawsuit. In fact, these joint suits severely reduce the defendants’ ability to have the case moved to a more favorable forum.11 Traditionally, cases can be moved to different courts if the defendant can justify the relocation. For example, alternative courts may be in a district that oversees the production plant in question or the headquarters of the defendant. Regardless of the reason, some of these courts may provide advantages to the defendant in the event that their case goes to trial. With multiple defendants, however, no court is clearly more appropriate for all parties involved, leaving NPEs with all the advantages.12 Although many agree that patent trolls impose unnecessary costs on society, there are others who view their role in patent litigation as conferring benefits. Pointing to the disparity in resources between large corporations and small businesses, defenders of patent trolls argue that these NPEs can actually even the playing field.13 This suggests that patent trolls defend the intellectual development of individuals and compensate these innovators for their discoveries through royalties or legal winnings—a reason commonly cited to explain why individuals and firms choose to sell their patents. ticing Entities, SHEARMAN & STERLING LLP 1 (May 9, 2013), http://www.shearman.com/~/media/ Files/NewsInsights/Publications/2013/05/TheImpact-of-the-America-Invents-Act-on-Litigat__/ Files/View-full-memo-The-Impact-of-the-AmericaInvents__/FileAttachment/TheImpactoftheAmericaInventsActonLitigationbyNon__.pdf. 11 Dongbiao Shen, Misjoinder or Mishap? The Consequences of the AIA Joinder Provision, 24 BERKELY TECH. L.J. 545, 550 (2014). 12 Id. at 550. 13 Thank Heavens for Those Patent Trolls, FORBES (Feb. 10, 2014), http://www.forbes.com/ sites/realspin/2014/01/24/thank-heavens-for-thosepatent-trolls/.

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Undermining the Patent Trolls: Reform and the America Invents Act While the debate over the costs and benefits of NPEs continues, additional data in this paper will indicate that the stockpiling of patents for the sole purpose of aggressive litigation remains an unsavory, parasitic practice that harms society.

Litigation Costs

The most direct economic costs imposed by patent trolls fall on individual companies for litigation; one study estimated that patent trolls cost companies $29 billion a year.18 These costs are particularly damaging to small Increased Litigation and Cost Analysis and midsized companies who may sacrifice innovation in order to cover litigation costs, with History and Theory substantially negative effects.19 For the lucky As the previous section noted, the chal- larger companies, such lawsuits will only affect lenge of patent trolls has increased over time; stock prices when reported during accounting one of the driving factors behind this growth re- periods. For smaller companies, these legal acchange business mains the tech boom. In fact, up to eighty-nine tions disrupt or fundamentally 20 percent of all patent lawsuits now involve soft- practices and operations. ware.14 As expected, not all of these patents are Innovation Costs commercially viable for the person who holds them, leading to an expansion of the secondMoving beyond corporate damages, the hand patent market. In addition, the accelerat- total cost of patent troll lawsuits to the American ed stockpiling of patents by NPEs may also be economy is estimated to be $80 billion a year.21 due to the ongoing state of patent warfare in the Other estimates show that ninety percent of commercial world. In order to discourage pat- these losses harm society as a result of foregone ent litigation by other large firms, productive technologies and innovations.22 With scarce and companies are now stockpiling their own pat- limited resources, companies that face extenents, contributing to an increase in the number sive patent litigation from NPEs will have to of filed patents.15 Thus, some of these patents divert cash flows to legal defenses, royalties, or are sold and end up in the hands of patent trolls, about-npes/litigations/. Rebecca J. Rosen, Study: Patent Trolls who use them to extract money from legitimate 18 Cost Companies $29 Billion Last Year, THE ATproducing companies on the ground of patent 16 LANTIC (Jun. 29, 2012), http://www.theatlantic. infringement. The problem has only grown worse; it is now estimated that patent infringe- com/technology/archive/2012/06/study-patentment suits involving patent trolls have grown trolls-cost-companies-29-billion-last-year/259070/. 19 Id. by twenty-two percent per year since 2004.17 14 Richard Finger, Voicing Both Sides Of The Patent Troll Debate, FORBES (Sep. 10, 2013), http://www.forbes.com/sites/richardfinger/2013/09/10/voicing-both-sides-of-the-patenttroll-debate/. 15 James Bessen, Patent trolling was up 11 percent last year, The Switch, WASHINGTON POST (Jan. 31, 2014), http://www.washingtonpost. com/blogs/the-switch/wp/2014/01/31/patent-trolling-was-up-11-percent-last-year/. 16 Finger, supra note 14. 17 Litigations Over Time, PATENT FREEDOM (Feb. 7, 2014), https://www.patentfreedom.com/

20 James Bessen, The Evidence Is In: Patent Trolls Do Hurt Innovations, HARVARD BUISNESS REVIEW (July 2014), https://hbr.org/2014/07/theevidence-is-in-patent-trolls-do-hurt-innovation. 21 Brad Plumer, Innovationâ&#x20AC;&#x2122;s Down, But Patent Trolls are Thriving, THE WASHINGTON POST (Sep. 21, 2011), http://www.washingtonpost.com/ blogs/wonkblog/post/innovations-down-but-atleast-patent-trolls-are-thriving/2011/09/21/gIQABGdKlK_blog.html. 22 Executive Office of the President, Patent Assertion and U.S. Innovation, THE WHITE HOUSE (Jun. 2013), https://www.whitehouse.gov/ sites/default/files/docs/patent_report.pdf.

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Undermining the Patent Trolls: Reform and the America Invents Act settlement costs. This likely means that funds 2012.27 Within this legislation, two elements are will be drawn from research and development, critical to limiting the power of patent trolls: the reducing innovation that would benefit society. Joinder Provision and the newly outlined PTO Proceeding.28

Redistribution as a Counterargument

Supporters of patent trolls argue that this cost is merely a redistribution of profits to the rightful owners of the patents.23 Based on this logic, supporters of patent trolls point out that rather than reducing innovation and increasing litigation, patent trolls serve as a “market intermediary.”24

The first and most obvious section is the Joinder Provision, which prevents defendants from being grouped in a single lawsuit based on the accusation that they had infringed the same patent.29 This relies on the insight that patent trolls gain much of their reduced cost advantage from grouping unrelated defendants together in large lawsuits. By reducing their risk of loss, increasing their expected returns, and lowering their costs for pretrial proceedings through obtaining evidence through discovery, patent trolls maintain significant advantages. The Joinder Provision denies them this opportunity by forcing them to separate defendants into different cases.30 This change in cost structure may affect how trolls decide to litigate and will certainly make it more costly for them to litigate in general.

While some patent owners will seek the assistance of a NPE to collect money for their innovation, only a small percentage—at most nine percent—of the costs will return to the plaintiff innovators.25 Other costs such as lawyers’ fees and filing costs account for only a small percent of the total cost.26 This means that most of the loss is not transferred to individuals seeking patent assertion for innovative purposes, but are losses borne by companies and society in the form of decreased sales and The Joinder Provision also makes it easlost innovation. ier for defendants to change venues to a friendlier court, whether it is in the district of their The America Invents Act of 2012 incorporation, headquarters, or a production faAnalysis from a Theoretical Perspective: cility.31 This was originally difficult as a reason-

America Invents Act (AIA) of 2012

As the issue of patent trolls increased over time, Democrats and Republicans united to draft reforms that would form the core of the AIA, which was eventually signed into law in 23 Magliocca, supra note 6, at 1818. 24 James F. McDonough III, The Myth of the Patent Troll: An Alternative View of the Function of Patent Dealers in An Idea Economy, 56 EMORY L.J. 189, 190 (2006). 25 James Bessen, Jennifer Ford & Michael Meurer, The Private and Social Costs of Patent Trolls 1, 19 (Boston University School of Law, Law and Economics Research Paper No. 11-45, 2011). 26 Id.

27 Office of the Press Secretary, supra note 2. 28 James Morando, Jeff Fisher & Alex Reese, The America Invents Act: Key Provisions Affecting Inventors Patent Owners, Accused Infringers and Attorneys, AMERICAN BAR ASSOCIATION 1,1 (N.D.), https://apps.americanbar.org/litigation/committees/intellectual/roundtables/1111_outline.pdf. 29 Morando et al., supra note 29, at 1. 30 Wes Klimczak, IP: How the AIA Has Affected Patent Litigation, INSIDE COUNSEL (Jun. 18, 2013), http://www.insidecounsel. com/2013/06/18/ip-how-the-aia-has-affected-patent-litigation 31 This can be seen with regards to Asian companies. Edmund J. Walsh & Hunter Keeton, Death Knell for Patent Trolls, WOLF GREENFIELD (May 2012), http://www.wolfgreenfield.com/files/ walsh_keeton_patent_trolls.pdf ; Christopher

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Undermining the Patent Trolls: Reform and the America Invents Act able change to another venue was impossible to justify with multiple defendants.32 Evidence has shown that this provision has been successful as defendants who are able to move the case stand a better chance of winning if the case is brought to trial.33 By changing venues, defendants reduce the patent trolls’ traditional advantages associated with forum shopping. This increases risks for NPEs and reduces their expected returns on any given suit.

validity of patents.

This new post-grant review approach is not without its limitations. Unfortunately, the process of finding prior art is difficult and tedious.36 Firms may find that it is easier simply to settle out of court than it is to challenge the

be too costly for them to target small companies for patent litigation.

Effects of the America Invents Act

Following its initial passage, the effects of the AIA were questioned as many noted that the absolute number of patent lawsuits increased.37 This is likely the result of the AIA’s Joinder Provision. Now that patent trolls cannot group defendants together, they are forced to file individual lawsuits against each defendant 38 Apart from the Joinder Provision, the they wish to accuse of patent infringement. AIA also implements a post-grant review, This has understandably increased the number which changes how existing patents may be of patent troll lawsuits in the system. challenged.34 As a result, defendants may now But benefits of the Joinder Provision are challenge the patents held by NPEs. By intro- becoming apparent. Because patent trolls have ducing prior art into this process, defendants a much harder time combining small companies can invalidate the troll’s patents. This novel ap- into their large lawsuits as their relationship with proach of whittling away the stockpile patent other defendants is weaker, some small compatrolls use to extort money makes it harder for nies are no longer worth suing.39 This is an inditrolls to sue defendants, thus reducing expected cation that the AIA has effectively changed the returns for NPEs.35 incentive structure of patent trolls as it may now

Dillon, The AIA’s Impact on Patent Legislation, FISH & RICHARDSON 3-7 (May 10, 2012), http:// www.fr.com/files/Uploads/Documents/4%20-%20 The%20AIAs%20Impact%20on%20Patent%20Litigation%20-%20Dillon.pdf. 32 Id. at 8. 33 Timothy J. Maier, A Joined up Approach?, INTELLECTUAL PROPERTY MAGAZINE 42, 42 (Jul.-Aug. 2013), available at http://www. maierandmaier.com/documents/Timothy-J-MaierIPM-July-August-2012-A-Joined-Up-Approach. pdf. 34 Cheryl Milone, A Powerful New Weapon Against Patent Trolls, FORBES (Nov. 15, 2012), http://www.forbes.com/sites/forbesleadershipforum/2012/11/15/a-powerful-new-weapon-against-patent-trolls/. 35 Id. 36 Id.

Despite these initial results, many of the effects of the AIA will not be known for some time. Patent litigation takes years to complete, and since the AIA was passed in 2012, much of the data is still unavailable or will never become available due to private bargaining between parties in settlements.

Counterarguments Despite reforms that aim to reduce patent litigation by trolls, many believe they have been unsuccessful. In particular, opponents argue that the AIA’s Joinder Provision is ineffective in increasing costs for patent trolls because courts are still willing to consolidate pre-trial hearings for the sake of efficiency.40 It is also 37 Shen, supra note 11, at 546. 38 Id. at 545-546, 557. 39 Chien, supra note 1, at 3. 40 Doyle et al., supra note 10, at 1. http://

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Undermining the Patent Trolls: Reform and the America Invents Act argued that certain courts are better equipped and suited to deal with patent cases.41 This sort of specialization in courts is defeated by the AIA’s Joinder Provision, which allows cases to be moved. Consequently, the benefits of specialization are lost when courts that are less efficient in dealing with patent litigation combine cases for pretrial hearings.

of sufficient data since the passing of the AIA makes it difficult to analyze the true effects of the law’s provisions. Not all companies threatened by lawsuits report this information, and the cases themselves take years to complete with few public disclosures of settlements, meaning that researchers will not be able to obtain a large amount of useful data.

From an economic perspective, the AIA’s Joinder Provision may have successfully reduced the number of multi-defendant cases and has reduced trolls’ ability to forum shop, but it has not been successful in reducing patent litigation volume. NPEs, for the most part, do not intend to take a patent case to trial. Since courts are willing to join defendants together for pre-trial hearings, patent trolls still reduce costs in litigation processes.42 Furthermore, the reduction in the number of multi-defendant trials has reduced incentives for defendants to cooperate with one another against a patent case.43 Though joining multiple unrelated defendants is a serious disadvantage, multiple defendants named in a suit may have an incentive to cooperate with one another to win lawsuits against trolls, this cooperation may no longer be the case under the Joinder Provision.44

Despite these challenges, much of the data that has been released suggests that patent lawsuits have increased in some areas.45 Opponents point to this as evidence that the AIA has failed. However, this is a gross oversimplification that does not do the AIA provisions justice. In reality, the AIA provisions are more oriented for the long-run. It is not surprising that the number of patent lawsuits have increased as NPEs must now file suits independently. The question becomes whether the defendants are more likely to win their case, or at least settle for less cost, due to the changes from the AIA. Definitive data to prove this is not available at this time, and may never become publicly available.

www.shearman.com/~/media/Files/NewsInsights/ Publications/2013/05/The-Impact-of-the-America-Invents-Act-on-Litigat__/Files/View-fullmemo-The-Impact-of-the-America-Invents__/ FileAttachment/TheImpactoftheAmericaInventsActonLitigationbyNon__.pdf. 41 Holly Lance, Not So Technical: An Analysis of Federal Circuit Patent Decisions Appealed from the ITC, 17 MICH. TELECOMM. & TECH. L. REV. 243, 257 (2010). 42 Dongbiao, supra note 37, at 562. 43 Id. at 546-547. 44 Id. at 586.

45 Maya M. Eckstein, Elizabeth L. Brooks & George B. Davis, The (Unintended) Consequences of the AIA Joinder Provision, HUNTER & WILLIAMS LLP, http://www.hunton.com/files/Publication/c4abf2b5-ac78-4b18-8c65-8e02608284d8/ Presentation/PublicationAttachment/0f8412f9-9d41 -444d-8b47-90e694a54abe/AIPLA_Joinder_Paper. pdf. 46 Steven Seidenberg, AIA Provides New Ways to Challenge Issued Patents, INSIDE COUNSEL (Nov. 28, 2012), http://www.insidecounsel. com/2012/11/28/aia-provides-new-ways-to-challenge-issued-patents.

Further, the ability of defendants to challenge the validity of patents is an overlooked provision of the AIA that may have incredibly Conclusion and the Need for Further important effects on the ability of patent trolls Research to sue.46 Again, data on the success of this provision will take time to be released. The postThe effects of the AIA on patent trolls grant review of patents may take between eighare only starting to be quantifiable. The lack

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Undermining the Patent Trolls: Reform and the America Invents Act teen to thirty-six months to complete.47 At the current time, it is difficult, if not impossible, to say whether this provision has had success or not.

theory remains valid and the limited data has indicated that the AIA has had at least some success, though perhaps more can and should be done in the interim.

In conclusion, the number of patent lawsuits post-AIA is not particularly useful in determining the legislationâ&#x20AC;&#x2122;s success. Rather, it should be noted that patent trolls are suing fewer small companies.48 This is an indication that the AIA may have altered NPE incentive structures and made small companies no longer worth suing. In addition, the AIA has leveled the playing field by enabling companies to change the venue of their case more easily.49 Do defendants have a better chance at preventing, settling, or winning lawsuits under the AIA? Theoretically, yes. The Joinder Provision reduces the expected returns for patent trolls and simultaneously increases their litigation costs. Further, the post-grant review method of challenging patents may dismantle illegitimate patents and diminish the stockpiles of patent trolls.50 However, data to prove this may not be available for some time, if at all. Whether the AIA succeeds in curbing the behavior and power of patent trolls remains to be seen, but the 47 Ken Bressler & Chris Hu, How to Defend Against Patent Trolls Without Breaking the Bank, 20 IP Litigator 1, 9 (2014), accessed at http://www. blankrome.com/sitefiles/Defending_Against_Patent_Trolls.pdf . 48 Although smaller companies are sued less often, when sued, the suits have a much greater impact on the company. Dennis Crouch, Patent Trolls by The Numbers, PATENTLYO (Mar. 14, 2013), http://patentlyo.com/patent/2013/03/chien-patenttrolls.html. 49 This can be seen with regards to Asian companies. Edmund J. Walsh & Hunter Keeton, Death Knell for Patent Trolls, WOLF GREENFIELD (May 2012), http://www.wolfgreenfield.com/files/ walsh_keeton_patent_trolls.pdf. 50 Id.

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A Feminist Failure:

A Critique of Burwell v. Hobby Lobby Stores, Inc. Emily R. Stedge Deitrich School of Arts and Sciences, 2017 University of Pittsburgh Abstract In the 2014 Supreme Court case Burwell v. Hobby Lobby Stores, Inc., the Supreme Court ruled against Sylvia Burwell, deciding that closely held corporations should be exempt from providing health insurance for four types of contraceptives that Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corporation deemed sinful due to their religious beliefs. The author argues that this controversial decision is distinctly anti-feminist and employs a feminist lens to reject the courtâ&#x20AC;&#x2122;s decision; the decision disregards women and the effect that this ruling would have on them, and thus is not a feminist legal practice. Using this case, the author shows the inequalities that still exist within our legal system in terms of women and gender equality.

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A Feminist Failure: A Critique of Burwell v. Hobby Lobby Stores, Inc.

Introduction On June 30, 2014, the United States Supreme Court made a decision regarding the case brought against Sylvia Burwell, the Secretary of Health and Human Services, by Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corporation, two closely held corporations whose businesses are grounded in the religious beliefs of their owners. The case concerns the mandate in the Affordable Care Act (ACA) that requires businesses to provide health insurance that covers contraceptives with no copay for employees. Due to the religious beliefs of the two corporations in question, they wished to be exempt from providing health insurance for four types of contraceptives that they believe are sinful because of how the contraceptives prevent pregnancy. In a 5-4 decision, the court ruled that these corporations could be exempt due to the infractions of their religious freedoms under the Religious Freedoms Restoration Act of 1993.1

Court’s decision, determining that the effect this case would have on women was disregarded in the decision and is therefore not a feminist method of legal practice. I will analyze the decision as such in order to raise consciousness of the disparities in our legal system when it comes to women’s issues. Upon establishing my critique of the case using Bartlett’s methods, I will analyze how her methods serve as a stepping-stone to the greater idea of “feminist jurisprudence,” as described by Robin West in Jurisprudence and Gender.3

Feminist Practical Reasoning What Constitutes Feminist Practical Reasoning?

Bartlett’s method of feminist practical reasoning weighs facts about certain parties in given legal doctrine, determining who has, or should have, a greater relevance to the rule or case at hand.4 Additionally, it is skeptical of the The controversial majority decision concept of communities, as they encourage the leaves much room for criticism, especially when current structures of power in society.5 using Katharine Bartlett’s Feminist Legal Methods. The methods entail three major processes, Women Should Have Greater Relevance to the first of which utilizes feminist practical rea- the Case soning to explore who has interests in the case Women are significantly left out of the at hand, as well as asserting that certain comCourt’s decision, and this exclusion has an munities within our society, encouraged by the enormous impact on the case. According to legal system, uphold potentially negative power Bartlett’s methods, feminist practical reasonstructures. The second method is analyzing a siting determines whose interests are in need of uation to see where women have been left out, more consideration given facts about whose inif they have been left out, and how to correct terests are considered by certain rules or legal this exclusion. Finally, the third method aims to doctrine.6 The case has made clear the interests bring awareness to the exclusion of women by of Hobby Lobby and Conestoga—religious, as sharing stories and examples in a process which well as financial, freedom from the ACA.7 HowBartlett calls “consciousness-raising.” 2 ever, women’s interests in receiving insurance I will use these methods to reject the 1 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 1 (2014) 2 Katharine T. Bartlett, Feminist Legal Methods, 103 HARV. L. REV. 829, 829-888 (1990); Id. 863.

3 Robin West, Jurisprudence and Gender, 55 U. CHI. L. REV. 1, 58 (1988). 4 Bartlett, supra note 2, at 857. 5 Bartlett, supra note 2, at 855. 6 Bartlett, supra note 2, at 857. 7 Burwell, 573 U.S. at 1.

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A Feminist Failure: A Critique of Burwell v. Hobby Lobby Stores, Inc. coverage for contraceptives are not covered by the case. Furthermore, the case does not explore facts regarding the scope of the case’s impact on women, as well as other employees.

Supreme Court). Ideas used in this case uphold the ideas of these communities and make it difficult for current power structures to shift and bring about certain rights for women. Let us first discuss the religious community’s implications A woman’s interest in receiving insur- with regard to the four types of contraceptives ance coverage for contraceptives is the ability in question and how these implications have afto afford the health care she needs. According to fected power structures in the United States. Planned Parenthood’s website, the morning after pill and Ella can cost up to $65, an intrauterOwners of Hobby Lobby and Conesine device (IUD) can cost up to $1,000, and a toga firmly believe that conception marks the birth control implant can cost up to $800. Many beginning of life, a belief that is widely held by women who become unintentionally pregnant religious communities in the United States.10 are low-income, and would not be able to pay They believe that forms of contraception that $1,000 up front for an IUD.8 Her interests are interfere with an already fertilized egg are in not grounded in religion, or in disrespecting her fact forms of abortion. This belief stems from company’s religious beliefs, but in being able to Food and Drug Administration (FDA) labels on receive the best form of health care. Addition- these contraceptives falsely warning against the ally, the Court’s decision affects the interests of possibility of interference with a fertilized egg not only the thousands of women who work for that have not been updated since the 1960s.11 In Hobby Lobby and Conestoga, but also the 80 reality, these contraceptives do a combination million women who work for closely held U.S. of two things: make it harder for sperm to reach businesses that can theoretically use this case an egg and prevent the release of an egg.12 Howto exempt themselves from providing insurance ever, according to an investigation by the New for certain contraceptives. Even more troubling York Times, studies have shown that the four is that, due to the gender pay gap, women al- forms of contraception in question do not inready have less money to spend on health care terfere with the implantation of an already fercompared to their male counterparts.9 tilized egg. Due to the decision’s assumption, though, these four forms of contraception can The Case Upholds Ideas of Communities still be misconstrued as abortifacient drugs.

that Encourage Current Power Structures

Furthermore, the male community and Two large communities found in this power structure grow stronger with this decicase are the religious community (corporations) sion. The four forms of contraception at hand as well as the male community (majority of the have the same effect on women’s sexual repro8 The Morning-After Pill – Emergency duction as a vasectomy would have on a male— Contraception – Cost & Info, PLANNED PARENTHOOD, (2014) http://www.plannedparenthood.org/ health-info/morning-after-pill-emergency-contraception. 9 Donna Barry, Laura E. Durso, Chester Hawkins, Amelia Esenstad & Hanna Hussey. Infographic: The Ripple Effect of the Hobby Lobby Decision. CENTER FOR AMERICAN PROGRESS, (Sept. 9, 2014), https://www.americanprogress.org/ issues/religion/news/2014/09/09/96460/infographic-the-ripple-effect-of-the-hobby-lobby-decision/.

10 Burwell, 573 U.S. at 12. 11 Pam Belluck, No Abortion Role Seen for Morning-After Pill, N.Y. TIMES, June 6, 2012 at A1. Available at Abortion Qualms on Morning-After Pill May Be Unfounded, http://www.nytimes. com/2012/06/06/health/research/morning-after-pills-dont-block-implantation-science-suggests. html?pagewanted=all&_r=0 (last visited Nov. 18, 2014). 12 The Morning-After Pill, supra note 8.

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A Feminist Failure: A Critique of Burwell v. Hobby Lobby Stores, Inc. the contraceptives prevent eggs from being released and a vasectomy prevents sperm from being released.13 However, both corporations still offer insurance coverage for vasectomies, despite the procedure having the same effect on conception as the forms of female contraception that they refuse to cover.14 Moreover, when comparing the main themes of the majority decision with the main themes of the dissent (supported by all three female members of the Court), the majority decision focuses solely on the effects of the ACA on Hobby Lobby and Conestoga as well as the RFRA, whereas the dissent focuses more on the widespread impact the decision will have, not just on women but on all employees of companies who use this case as a precedent.15

Asking the Woman Question Have Women Been Left Out? Bartlett’s second method is intended to draw attention to gender implications in practices that might seem gender neutral prior to being analyzed.16 In order to do so, one must ask if women have been left out in some way and in what way they have been left out. The method’s purpose is to point out and ascertain how women have been disadvantaged culturally and legally and how legal doctrine does not take into account experiences that are exclusive to 13 Vasectomy – Procedure, Cost & Effectiveness. PLANNED PARENTHOOD, http://www. plannedparenthood.org/health-info/birth-control/ vasectomy (last visited Nov. 18, 2014). 14 Frequently Asked Questions, HOBBYLOBBYCASE.COM, http://www.hobbylobbycase.com/ faq/ (last visited March 13, 2015). 15 Burwell, 573 U.S. at 1-49; Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 1 (2014) (Ginsburg, R. dissenting); Burwell v. Hobby Lobby Stores, Inc., 573 U.S. __, 1 (2014) (Breyer and Kagan, JJ. dissenting). 16 Bartlett, supra note 2, at 837.

women.17 In the case of Burwell v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corporation v. Burwell (573 U.S. __(2014)), women have been minimally taken into account.

In What Ways Have Women Been Left Out? The case was decided using the Religious Freedoms Restoration Act (RFRA). The Court analyzed the situation at hand solely on the basis of whether the corporations had genuine religious beliefs to back their request.18 The effect the decision will have on women is mentioned only sparingly, the first of which establishes how Health and Human Services (HHS) plan to provide contraceptives to women who work for religious non-profits who are already exempt from providing insurance for certain contraceptives.19 The case explains that the method of acquiring insurance, in which the non-profit fills out paperwork with their insurance company in order for the company to cover contraceptives, can and should be used in the case of religious for-profit businesses.20 This is a sound rationale; however, the Court made it moot when three days following the decision, they issued an emergency order that established a new burden of religious rights for non-profits in Wheaton College v. Burwell.21 In that case, the college claimed that filling out the paperwork required for the insurance to cover its workers’ contraceptives was against its religious freedom, and the action would then lead to what some religious people consider abortions.22 Responding to the college’s request, the Id. at 829. Burwell, 573 U.S. at 31. Burwell, 573 U.S. at 3. 20 Burwell, 573 U.S. at 2-4. 21 Wheaton College v. Burwell, 134 U.S. __, 1 (2014). 22 Dara Purvis, Hobby Lobby in A Nutshell, PENN ST. NEWS (July 21, 2014), http://news.psu. edu/story/321075/2014/07/21/hobby-lobby-nutshell-dara-purvis-explains-supreme-court-decision (last visited Nov. 18, 2014). 17 18 19

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A Feminist Failure: A Critique of Burwell v. Hobby Lobby Stores, Inc. Supreme Court decided: If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.23 Due to the Court’s order following the decision, women have been left out of the decision altogether: their contraceptives are no longer being covered by company insurance under the ACA.24 Furthermore, the decision includes a statement regarding why it would not be a smart solution for the corporations to get rid of their insurance plans and simply have employees acquire insurance through government exchanges. The majority states that employees highly value benefits such as health insurance and that to eliminate those benefits and not provide additional compensation would be a “disadvantage in retaining and attracting skilled workers.”25 With that said, let us say a woman who works for Hobby Lobby goes to her doctor to 23 Wheaton College, 134 U.S. at 1 (2014). 24 Purvis, supra note 22. 25 Burwell, 573 U.S. at 34.

receive contraceptives. Her doctor informs her that the best form of contraception for her is a copper IUD, which is no longer covered by her insurance. According to Planned Parenthood’s website, copper IUDs can cost up to $1,000 up front, and Hobby Lobby is not providing her with additional compensation to cover the contraceptives. She now has to pay for the contraceptive out of pocket,26 or instead she may decide to leave her job at Hobby Lobby for a job where her insurance will cover her contraceptive method. The question becomes: Are the women who are affected by the decision viewed as less “skilled” than women and men who are not affected?27 If the fear is that eliminating all health insurance and requiring employees to acquire insurance through government exchanges would cause skilled workers to leave the company, then this fear should be present when regarding female employees whose insurance no longer covers certain contraceptives. Otherwise, this statement from the case is discriminatory and excludes women as valued workers. The case also fails to take into consideration the health effects that women can endure as a result of lack of access to contraceptives. The case focuses on the financial stress placed on corporations who do not comply with the ACA and the religious stress of complying.28 However, nothing is mentioned about the stress placed on women who find themselves with an unplanned pregnancy. According to Studies in Family Planning, there is an increased risk of maternal depression, as well as increased abortion rates in women who become unintentionally pregnant.29 26 The Morning-After Pill, supra note 8. 27 Burwell, 573 U.S. at 34. 28 The Morning-After Pill, supra note 8, at 32. 29 Jessica D. Gipson, Michael A. Koenig & Michelle J. Hindin, The Effects of Unintended Pregnancy on Infant, Child, and Parental Health: A Review of the Literature, STUD. IN FAM. PLAN., 18, 28 (2008).

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A Feminist Failure: A Critique of Burwell v. Hobby Lobby Stores, Inc. Additionally, the contraception debate can be financially stressful for women as well—not just big, multi-million dollar corporations. Approximately sixty percent of unintended pregnancies are found in women who are unmarried and low income.30 According to the United States Department of Agriculture, it costs a middle-income couple $245,000 to raise a child from birth until they are eighteen, or $1,134 per month.31 According to the University of California Davis, the average full-time, minimum wage worker makes $15,080 per year, or $1,256 per month.32 The financial stress of raising a child in a low-income household, as well as the mental and physical stress of unintended pregnancy, were ignored in the Court’s decision.

ness-raising elevates Bartlett’s method from merely being a way to analyze a legal document to being a gateway to enact a larger change in policy. By bringing light to the discrepancies in the legal field when it comes to women, one can place pressure for reform on those who can implement it.

Method Critique The Larger Picture for Feminist Legal Methods

Conclusions drawn about a legal matter using Bartlett’s legal methods can stand on their own as an example of consciousness-raising, or can be applied to a larger feminist idea imagined by Robin West in Jurisprudence and Gender. The concepts realized by using feminist Consciousness Raising legal methods can be used to illustrate West’s implications for jurisprudence and how such What Is Consciousness-Raising? findings can impact society as a whole. West’s Bartlett describes consciousness-raising implications involve how the Rule of Law leads as “making known the exclusion of women.”33 to women’s economic impoverishment and igThe aim of consciousness-raising is to promote nores women’s need for independence and also knowledge through shared female experience.34 examines how women have managed under a For example, this paper itself is a form of con- legal system that does not view them as equal.35 sciousness-raising, as it reveals how women To justify my use of Bartlett’s methods, I will have been excluded in the decision, as well as demonstrate how the findings in the Hobby discusses the impact of the decision. Conscious- Lobby decision illustrate West’s larger idea of a feminist jurisprudence by answering her call 30 Emily Monea & Adam Thomas, The for feminists to develop ways of assessing the High Cost of Unintended Pregnancy, 45 CTR. ON current legal world through a feminist lens and CHILD AND FAM. BRIEF 2 (2011). the impact this can have on society. 31 News Release, U.S. Department of Agriculture, Parents Projected to Spend $245,340 to Raise a Child Born in 2013, According to USDA Report (Aug. 27, 2014), http://www.usda.gov/wps/ portal/usda/usdahome?contentidonly=true&contentid=2014/08/0179.xml (last visited Nov. 18, 2014). 32 What Are the Annual Earnings for a FullTime Minimum Wage Worker? UC DAVIS FOR POVERTY RES., in Frequently Asked Questions, http://poverty.ucdavis.edu/faq/what-are-annualearnings-full-time-minimum-wage-worker (last visited Nov. 18, 2014). 33 Bartlett, supra note 2, at 866. 34 Id. at 864.

The Rule of Law Doesn’t Value Intimacy, Leading to Women’s Impoverishment. West establishes that liberalism values autonomy, whereas feminism values intimacy— what West describes as a need for nurturance or a need to “care for the ‘other’ with which we are connected”; however, only the former is represented in the Rule of Law.36 West forwards the 35 West, supra note 3, at 58-60. 36 Id. at 15 & 37

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A Feminist Failure: A Critique of Burwell v. Hobby Lobby Stores, Inc. idea that intimate, motherly, and nurturing qualities and actions are not accounted for by liberal legalism, nor are they rewarded by the economy.37 In fact, given what was found by Bartlett’s methods, women must pay for these actions within our current economy and society itself. By showing that raising a child, especially one resulting from an unplanned pregnancy, is costly, Bartlett’s methods act as a stepping-stone to realizing how the law weakens women’s ability to be economically independent. Specific to the Hobby Lobby decision is the impact contraceptives have on a woman’s ability to achieve independence. The precedent set in the case hinders women’s ability to access certain forms of birth control, a decision made without regard to women’s interests in the case. This demonstrates that the role of being a mother—as well as the impact that role or the prevention of that role has on a woman financially—is not protected by the Rule of Law in our society. If it were, the Court would have taken into account articles such as Jennifer J. Frost and Laura Duberstein Lindberg’s “Reasons for using contraception: Perspectives of US women seeking care at specialized family planning clinics,” which demonstrate that women mainly use birth control because they cannot afford a baby or because it allows them to take better care of themselves, their finances, their education, and their jobs.38 The Court would also have remembered its statement in Planned Parenthood of Southeastern PA v. Casey, in which they attributed women’s ability to equally participate in the nation, socially and economically, to control of their own reproductive lives.39 The control of a woman’s reproductive life has 37 Id. at 58 38 Women’s Access to Preventative Health Care: It’s Their Decision, Not Their Boss’, PLANNED PARENTHOOD 3, available at http:// plannedparenthoodaction.org/files/9213/8507/0429/ PPFA_WhitePaper_FINAL.pdf (last visited March 11, 2015). 39 Id.

been handed over to her boss, and along with it, her potential role as a mother. She has lost the right to achieve intimacy on her own terms, demonstrating that the law does not protect this right, thus excluding intimacy from the Rule of Law. As Bartlett’s methods point out, women have been left out of the Hobby Lobby decision, a case that is merely a piece of women’s exclusion from the legal system. The implications of the case are far reaching, as ninety percent of the United States’ companies are closely held and can potentially cite the precedent in this case to also exempt them from providing not just the four contraceptives discussed in the case, but also any contraceptive that they see as inhibiting their religious freedom.40 This decision greatly affects the political agenda regarding women’s reproductive freedom, with the threat of further restrictions setting women back on all fronts of society. West cites the political barrier as the most pressing obstruction to women’s freedom, with male power at the forefront of this barrier.41 The analysis of communities and current power structures in Bartlett’s method of feminist practical reasoning meets this barrier head on, calling out the perpetuation of male power within the legal system.

Rule of Law Doesn’t Recognize Invasion or Individuation West shows the Rule of Law does not protect women against the danger of invasion— invasion being something that intimacy necessitates, whether it be through sexual or fetal invasion. Protection is needed when this invasion is unwanted, whether by rape or unwanted pregnancy.42 The specific danger that occurs from an unwanted fetus involves the integrity of a woman’s body along with her ability to remain an 40 Purvis, supra note 22. 41 West, supra note 3, at 71. 42 Id. at 59.

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A Feminist Failure: A Critique of Burwell v. Hobby Lobby Stores, Inc. individual.43 Bartlett’s methods show that the Court’s ruling makes it difficult for women who cannot afford emergency contraception without insurance to be able to avoid fetal invasion. The financial and mental costs of pregnancy deeply affect women’s interests in access to free contraception through their company’s insurance. An expecting mother may have to leave her job if her doctor advises that she is unable to complete the activities her job requires due to her pregnancy. Similarly, a new mother may have to rework her entire schedule in order to fulfill her duties as a mother. If a woman does not want this change in her life, the Rule of Law should protect her from fetal invasion and the likely loss of her desire for individuation. The Hobby Lobby decision not only takes away a woman’s protection from fetal invasion, but it also forces upon women an identity that coincides with her employer’s religious identity rather than her own; this in turn hinders her ability to be an individual.44 A woman cannot distinguish herself from her employer under strict, religiously backed decisions the employer makes. By only regarding the religious interests in the Hobby Lobby case, the court has deemed a woman’s interests irrelevant, inhibiting her ability to achieve a reproductive identity that is distinct from that of her employer. West says that it is crucial to understand how the right to abortion works to construct the image of the female, and how denying this right depreciates women by not valuing what they value.45 Feminist practical reasoning shows that by placing emphasis on what religious groups value rather than what women value in this case, the court has erred in assuming the four contraceptives at hand can cause abortions. This plays into a larger trend of religious groups, which predominantly sway towards favoring men, 43 Id. at 60. 44 Burwell, 573 U.S. at 1-49. 45 West, supra note 3, at 67 & 68.

dictating women’s reproductive rights through politics and the law and thus devaluing individuation, as well as influencing the Rule of Law to not protect women from invasion.46

How Have Women Performed Under Our Current Legal System? In an effort to be seen as equal to their male counterparts, women in our society have long been fighting against a legal system that did not allow them to vote, work in certain fields, or have control over their reproductive systems. Landmark decisions such as Roe v. Wade, as well as the enactment of the Nineteenth Amendment, have been huge gains for women as well as society.47 Unfortunately, women are still not protected to the full extent of the law or held as equals in society. Women still make less than men for equal work and continue to have difficulties in prosecuting men who sexually assault them. Women are still fighting for right to work accommodations while pregnant, as evident by Young v. UPS, a case recently argued in front of the Supreme Court in which Peggy Young claimed UPS discriminated against her due to her pregnancy. UPS offers work accommodations (i.e., light-duty work) to three classes of workers, but not to pregnant women, which can be construed as discrimination under the Pregnancy Discrimination Act of 1978.48 We live in 46 According to Stopler, the patriarchal nature of most leading religions is “legitimated, perpetuated, and supported by liberal democratic states to the serious detriment of all women.” The relationship between the inherently patriarchal church and the state thus promotes male values over a female’s. Gila Stopler, The Liberal Bind: The Conflict between Women’s Rights and Patriarchal Religion in the Liberal State, 31 RELIGION AND POL. (Special Issue) 191, 194 (2005). 47 Roe v. Wade, 410 U.S. 113, 167 (1973), accessed at https://www.law.cornell.edu/ supremecourt/text/410/113#writing-USSC_ CR_0410_0113_ZO; U.S. CONST. amend. XIX. 48 Young v. United Parcel Service, Inc., 707 F.3d 437, 440-442 (4th Cir. 2013), cert. denied 12

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A Feminist Failure: A Critique of Burwell v. Hobby Lobby Stores, Inc. a society that denies women access to contra- communities in our society in order to change ceptives yet refuses them financial and personal the system that perpetuates it. assistance once they have become pregnant. Our society holds the opinions and values of religious and male communities higher than those of others. I explored the male and religious communities using Bartlett’s feminist practical reasoning, and examined how the Hobby Lobby decision sways towards these communities and perpetuates current power structures within society. This finding illustrates how women have lived under what West describes as a legal system that is blind to women’s needs and desires.49 The Court ruled in favor of a community whose teachings can primarily be seen as sexist. In many religions, male dominance is encouraged alongside female humility, which preserves distinct gender roles in society.50 Furthermore, religious teachings show favorable attitudes towards women who fulfill their “God-given roles,” which include motherhood.51 The male and religious communities work hand in hand: the religious community favors the male community that often holds a majority in major leadership positions, making the male community less likely to disagree with the religious community, as shown in the all-male majority of the Supreme Court in the Hobby Lobby case. This relationship is dangerous to both our legal system and to society as a whole, as it upholds the current legal structure that gives men greater recognition.52 This revelation begins to carve out a solution to women’s exclusion from legal doctrine—we must recognize intertwining levels of oppression within the U.S. 1226 (2013). 49 West, supra note 3, at 61. 50 Małgorzata Mikolłajczak and Janina Pietrzak, An Ambivalent Sexism and Religion: Connected Through Values, 70 SEX ROLES 387, 387 (2014). 51 Id. at 388.

52 West, supra note 3, at 60.

Conclusion

The issue of a legal system that does not value women’s values in its rules and decisions is complex and far-reaching. However, through using feminist legal methods to dissect a recent decision that maintains this disregard for women’s needs, we can illustrate the disparities in our legal system and how they contribute to what Robin West describes as a “masculine jurisprudence.”53 It is important to recognize that cases such as Hobby Lobby v. Burwell have immense power in defining our society and the legal system within it. It is even more important to ask whether this power is being used responsibly or for the people who matter most. Katharine Bartlett’s feminist legal methods lay the groundwork for a collective analysis of legal doctrine, structures, and systems that is crucial in imagining the post-patriarchal world Robin West says is needed in order to take direction in creating a feminist jurisprudence.54 Once one has established that a practice of law is not feminist, one can move on to holding the system accountable for its indiscretions, which can be attributed to the power currently given to the male and religious communities. Bartlett suggests that in order to tackle the oppression of women in society, we need to share experiences and findings through consciousness-raising in order to bring attention to the troubling relationship between men, religion, and our legal system, and the oppression of women within those three social institutions that can be found in the Hobby Lobby decision.55

53 Id. at 58. 54 Id. at 72. 55 Bartlett, supra note 2, at 829-888.

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