When the Law is Not on Your Side: Queerness, Safety, and Resistance in the Dominican Republic
Isabella Rivera Volquez University of Chicago
Abstract
This paper explores the effect of the new Dominican Código Penal [“Penal/Criminal Code of Law”], drafted and approved in 2021, on the queer community. I draw on content posted on the internet and social media sites, namely Twitter and Instagram, to assess the relationship between law and religion, queer people’s actual and perceived safety, and what future organizers are working towards in the Dominican Context. It particularly focuses on the work of RD Es De Todes, a queer collective that emerged in response to the new Penal Code. My findings demonstrate that the law is shaped by the government’s relationship with the Church and are indeed repressive and detrimental to the lives of queer people and should thus be repealed. In addition, it shows that the Dominican LGBTQ movement is demanding the protection of queer people and other vulnerable populations and advocating for equal rights. This study contributes to sociological literature on gender and sexuality in the Dominican Republic and overlaps with social movement research.
Introduction
In 2021, the Dominican Congress wrote a completely new Código Penal [“Penal Code”, translated by me] for the first time in 137 years. Reflecting the strong Catholic, heteronormative, and patriarchal culture of Dominican society, the code criminalizes abortion, does not recognize sexual orientation or gender as a motive for homicide or torture, and makes exceptions for
discriminatory behavior based on religious values. The Penal Code, which officials are calling ‘progressive’, fails to represent the entirety of the Dominican population and address situations that endanger the lives of gender non-conforming and non-heterosexual folks. Despite this, Dominican LGBTQ+ individuals still exist and participate in most areas of Dominican society, both on the island and in communities abroad, and are protesting these injustices both online and in-person. What does this new wave of protests and organizing say about the relationship between the law and religion? What effect does this dynamic have on queer people’s actual and perceived safety? What is the kind of society that queer organizers are working towards?
To investigate these questions, I selected and analyzed digital content responding to the drafting and eventual approval of the Penal Code, and I argue that the Dominican government is deliberately attacking the livelihoods of queer people to preserve normative notions of family and life as well as protect economic and political interests. Moreover, I demonstrate that the extent to which queer people are safe is dependent on the other identities that they hold, such as their race, occupation, and socioeconomic status, and that organizers are taking an intersectional approach to building community and increasing the visibility of and protections for queer people in the Dominican Republic. This study does not include first-hand accounts of violence or the queer experience outside of those that were posted online, thereby only featuring snapshots of people’s lives and experiences.
First, I detail the theoretical framework of this case study, which relies on literature defining the concept of Dominican national heterosexuality, state-sanctioned and interpersonal violence against queer people (both in the context of the D.R and others), and social movement theory. I go on to describe my data collection and selection process, as well as my method of
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analysis. I then discuss my research findings and draw some broader conclusions, keeping the limitations of my study in mind.
Theoretical Framework
A. Dominican National Heterosexuality
In Dominican culture, family is of the utmost importance. Getting married, having children, and passing on the family name is not only an aspiration for some, but an expectation for all, leaving little room for anything or anyone that might deviate from that ideal. The Dominican constitution states that marriage is a union between a man and a woman, delegitimizing queer people, queer relationships, and queer families. The fixation on national morality and the sanctity of the family are products of Dictator Rafael Trujillo’s “maternalist[ic] discourse of nation-as-family”i and his promises to protect women, children, and the Dominican home. Manley demonstrates that even in resisting Trujillato, female activists drew on this discourse and amplified traditional family values to establish that the regime was directly violating the home and emphasizing their specifically maternal contributions in society. This reinforces the gendered framework that women’s maternal role in the home is crucial to the operation of Dominican society; thus, they must not only be protected, but their participation in that role must also be maintained.
Existent literature on gender and sexuality in the Dominican Republic focuses on Catholic influence on mainstream perceptions of queerness. The Catholic Church and Evangelical Christianity were intertwined with the ideas of public (national) morality and the sanctity of the family that the Trujillo regime upheld. The dictator signed a political agreement with the Vatican that solidified the relationship between the government and the Church in 1954. In Streetwalking, Ana-Maurine Lara refers to the Dominican Republic as a Catholic-Hispanic
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nation-state, which “references the explicit, long-term relationship between the Spanish colonial Dominican nation-state and the Roman Catholic Church”.ii This relationship not only directly affects policy and public morality. The colonization of the island itself has had everlasting consequences for what is both implicitly and explicitly considered a person. Lara explains that Catholic colonial universalism, meaning that the correct embodiment of Christianity is the measure of universal personhood,iii has dire consequences for those who fail to meet those standards.
It is useful to contextualize current state-sanctioned violence against gender and sexual minorities in the Dominican Republic in this backdrop of the literal struggle to protect the idea of the heterosexual nuclear family. Because queer people threaten this normative idea of the family, failing to disincentivize discrimination and violence against queer people using moral and religious justifications attempts to protect the sanctity of the home as well. This ties into the concept of “gender panic”, anxieties that cause people to attempt to protect the binary logic that gender-segregated spaces are predicated on and reproduce.iv Thinking about gender and sexual panic/anxieties is useful in the Dominican context because it gets at a phenomenon behind the fixation to preserve the sanctity of the family by excluding queer folk from the public sphere.
The transformation of normative gender constructs in the Dominican Republic and thus, deviation from universal Catholic ideals of personhood has been mostly centered on the growth of tourism and the service economy. In their 2018 study, Padilla & Castellanos reframe the debate by focusing on the social processes that are shaping the local gendered responses to neoliberalism--moving beyond tourism to the Dominican LGBT movement--and how they are related to increased access to global media . The findings that the LGBT movement and global media has threatened notions of normative masculinity and that certain kinds of men are at the
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center of anxieties about the gendered and sexed fate of the nation, have important implications for the socio-symbolic significance of the new Dominican Penal Code, RD Es De Todes, and the material consequences for queer Dominicans. This is especially relevant because “as the D.R becomes further embedded within globalized economic structures, it is also further consolidating its Catholic Hispanic territorial and ethno-racial claims,” leaving those who challenge them even more vulnerable.v The recent anti-LGBTQ policies in the Penal Code exemplify this, calling for further investigation into the Catholic Church’s law-making power.
My research findings support the literature on the consequences of the deep-rooted relationship between the Church and the Dominican Government, as well as the Dominican fixation on the sanctity of the nuclear family and traditional family values. Moreover, my investigation of the Catholic Church’s law-making power in relation to recent exclusionary policies will shed light on current mainstream beliefs about queer people and their impacts on queer people.
A. Violence and the State
Theorists have explored how Christian coloniality shapes a modernity that relies on perpetuating sexual terror, xenophobic racism, homophobia, and transphobia. Ana-Maurine Lara develops this concept of sexual terror, which “refers to the modes of violence that permeate the social body, striking against those whose desires, feelings, and erotic dispositions do not conform to Christian colonial morality”, by building on the theorization of racial terror embedded in the U.S South. In assessing the material and perceived safety of LGBTQ+ Dominicans, it is important to understand exactly how sexual terror is employed and the effects it has on queer Dominicans. Sexual terror is present in the nation’s laws and policies, for example. Lara finds that “while protective laws are often ignored or not enforced, repressive laws are enforced quite
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heavily against and through those deemed undesirable”vi which is not only evident in the ways laws are written but also affects the lived experiences of shows in the experiences of queer folks. My research applies the notion of sexual terror to the case of the new Dominican Penal Code and its consequences in the present context, particularly in how it emboldens law enforcement and civilians to be violent towards queer folks, thus threatening their sense of safety.
Jacqueline Polanco’s Musings Over the Moon provides insight into a variety of lesbian experiences and the pain that results from being oppressed and discriminated against--stories which were previously lacking from queer Dominican literature and scholarship. However, accounts of Dominican trans people’s experiences in relation to safety and violence are nonexistent in both Dominican literature and sociological work. By using testimonial evidence of violence and discrimination, I aim to amplify the voices of queer people in the Dominican Republic, specifically trans women, thereby filling this gap.
The issue of security and state-sanctioned violence in the Dominican Republic has been studied, although not directly in relation to queer folks. According to Lilian Bobea (2011), the Dominican Republic suffers from institutional deficits such as the lack of transparency, excessive use of force against civilians, and the absence of public policies that regulate the state. This article identifies a culture of insecurity in Dominican society which fosters distrust amongst citizens across different socioeconomic status and of law enforcement, resulting in poor communities to focus on self-protection and rich communities to privatize security. Police are known to be abusive and corrupt, and their involvement in criminal activities has been documented.vii There is a belief that police will not only fail to protect citizens but will use lethal force and harsh penalties to punish minor infractions, specifically those committed by poor people and members of marginalized communities. My research will contribute to these findings
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by detailing the exact ways in which police are abusing their power to discriminate against and inflict violence on queer people in the Dominican Republic and how this affects the material safety and security of queer folks.
The idea of transformational politics is particularly useful in theorizing about relative degrees of safety and security depending on the intersection of identities in the context of queer Dominicans. Cathy Cohen argues truly radical or transformative politics are based on one’s relation to power which results from queer activism.viii The article thinks through non-normative and marginal positions beyond the queer/hetero divide, using literature about queer theory and queer politics as a starting point. Cohen envisions a politics that rejects cultural norms of acceptable sexual behavior and identification and instead embraces political strategies that promote self-definition and full expression of these identities. I will be using a transformational politics framework in examining activist’s effort to push back against the Dominican Penal Code, and how intersectional identities are recognized within these efforts and the broader LGBTQ+ movement in the country.
B. Social Movements
Social movements provide a way to explore the relationship between action and social structures. Whether that be regulatory actions executed by institutions or resistance from activists and marginalized people, social movements shed light on how social structures are upheld, how those impact lived experiences of entire groups of people, and where people envision these social structures to evolve. Thus, understanding social movements is crucial in understanding how LGBTQ+ Dominicans are affected by the sociopolitical climate of their country and the change their collective efforts are trying to affect.
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The definition of social movements is constantly evolving, especially with the rise of social media and online activism. Gemma Edwards outlines four conceptual distinctions of social movements as follows: (1) that social movements are collective, organized efforts at social change rather than individual efforts; (2) social movements exist over a ‘period of time’ by engaging in a ‘conflictual issue’ with a ‘powerful opponent’; (3) the members of a social movement share a ‘collective identity’; (4) social movements pursue change by employing protest. However, these debates are far from resolved. New contexts through which to look at protest call into question the distinctions between individual and collective efforts at change, and whether protest events are necessary for movements especially since the social media context makes acts of “protest” more individualized. I seek to answer these questions through an analysis of LGBTQ+ activism online, particularly through twitter hashtags and the social media pages of social movement organizations.
With the rise of social media, social movements have incorporated the usage of these platforms in their efforts to spread awareness of their issue, recruit participants, and organize.
Caren, Andrews, and Lu review research on how the media environment has impacted participation, mobilization, and the impacts of activism in relation to Black Lives Matter, Occupy Wall Street, and Far Right Movements, finding that “social media platforms are now a regular part of the activist tool kit and are central to the hybrid media environment.”ix The Black Lives Matter movement, for instance, used social media platforms as spaces for pro-movement messaging, expressions of solidarity, and reactions to police brutality. Moreover, the BLM movement was born out of a hashtag, which concretized and continues to hold social meanings that are then useful in organizing both on and offline. Bonilla and Rosa find that hashtag-driven activism functions as a site for discovery and deliberation of grievances as well as for
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constructing counternarratives on social issues,x challenging mainstream media’s gatekeeping role.
Nevertheless, scholarship on online far-right activism demonstrates that social media platforms do not inherently support oppressed communities but rather can be used to further oppress underrepresented communities and support existing structures of powerxi due to the way algorithms function and create echo-chambers. This is something that is important to keep in mind as I study RD Es De Todes. Because most of my data comes from social media sites, more specifically Instagram and Twitter, this article is useful in looking at how these platforms both facilitate and limit people’s participation in protesting the Penal Code, sharing their stories, and organizing in a hybrid media environment. Caren, Andrews, and Lu suggest that future research should explore questions of social media access, effects of online activism, and the algorithm, all of which my research will touch on.
Literature on the framing of social problems and frame alignment processes is also useful. Frame alignment means that the activities, goals, and ideology of a social movement organization are congruent and complementary to individual interests, values, and beliefs.xii The concept of domain specific frame transformation is a particularly relevant strategy employed as a way to change the relationship between two or more categories. These transformations seem to be necessary in movements “that seek dramatic changes in status, treatment or activity, of a category of people” by reframing these as inexcusable, immoral, or unjust.xiii Reframing effects of social structures is one of the principal ways in which to mobilize participation in movements working to effect change.
Existent literature on collective action related to the LGBTQ+ movement in the Dominican Republic is focused on physical/in-person demonstrations and protests. In contrast, my research
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looks at social media activism and the utilization of social media affordances to advance the cause and mobilize both online and in-person participation in the movement. My research fills gaps on how the LGBTQ+ movement in the D.R operates in the digital age through analyzing the work of RD Es De Todes, thus showing ways in which individualized collective action can be effective in resisting oppressive policies and promoting anti-violence sentiments and the safety of queer folks.
Current discourse surrounding the new Dominican Código Penal provides a useful case study for the material and perceived realities of queer life in the country, particularly in relation to the question of safety. My research develops a comprehensive snapshot of the livelihoods of queer people in the Dominican Republic through an analysis of policy, the relationship between church and state, and online activism.
Data and Methods
To investigate whether queer people feel safe in the Dominican Republic, I focused on content that centered on the response to the drafting and eventual approval of the new Código Penal [“Penal Code”, translated by me], which removed protections for LGBTQ+ people and other marginalized groups. The data I collected was content posted on social media, published in Dominican news outlets, and published on the internet more broadly. More specifically, I analyzed a collection of tweets, Instagram posts, blog posts, newspaper articles, statements, and a podcast episode to gauge who felt affected by these new legislations, what people feel is at stake for them, the potential consequences for the lives and safety for the LGBTQ+ community and other marginalized communities, and the power dynamics between the government and religious institutions.
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Initially, I selected the tweets from hashtags that I had seen on my feed before starting this project and knew were trending in response to the Penal Code: #DontCometoDR and #DRIsNotLGBTQFriendly. From looking at tweets containing these hashtags, I noticed they used other hashtags, this time in Spanish - #YoNoVotePorLaIglesia, #UnCodigoNoUnTollo, and #FuriaPájara [#Ididntvoteforthechurch, #ACodeNotAMess, and #GayFury, translated by me]. I included 11 tweets written and posted by Dominicans living in the Dominican Republic because I felt that would provide me with the most insight as to what the situation is for queer people there. I included some tweets by Dominicans living in the United States that provided accurate information about the Dominican Government’s actions and the response by Dominican activists but excluded those that expressed personal feelings about those actions given that their livelihood is not directly affected due to their geographic location.
These tweets eventually led me to find the twitter of RD Es De Todes [DR is for Everyone, translated by me], a queer collective that formed in direct response to the Dominican Government’s attacks on the rights of anyone who is queer, racialized, disabled, poor, or a woman. After finding their twitter (@rdesdetodes), I went to their Instagram page where they had links to their website which contains blog posts, press releases, the mission of the organization, and their list of demands to the senate to modify the Penal Code. RD Es De Todes’ Instagram posts provide updates and developments about the Penal Code and associated protests, which also proved useful to contextualize queer people’s experience and organizing. Through their Instagram, I also found out about “Wilferland”, a podcast hosted by an openly gay couple living in the Dominican Republic, that created an episode featuring RD Es De Todes.
My research method is qualitative content analysis. I believe that a qualitative method is fitting to my research question because the content provides a concrete and documented timeline
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of events and responses to those events that illustrate the protections that queer people have and reveal how they are affected physically, mentally, and materially by them. My strategy to code this data was simple manual coding, using different color highlighters for each of the themes I located in the texts. The themes that emerged from the data were law, religion, gender, coalitionbuilding/collective action, violence, fear, and inclusivity/intersectionality. Moreover, I added annotations of things that came to mind when I noticed certain themes in their respective colors, as well as key words. I decided to not translate any sources from Spanish to English before coding them to maintain the essence of the meaning they are trying to convey. However, I code these Spanish-language texts in English to facilitate the process of analyzing them since my analysis will ultimately be written in English. After coding these texts, I translated them from English to Spanish myself, without the help of a translation service. For the podcast episodes and any additional audio content, I transcribed sections of the audio manually. I selected these sections based on their relevance to my research question, meaning that they were either referring to the dynamics between social institutions (law, religion, medicine, etc.), how queer people are treated in Dominican society, or to the socio-legal protections that are or are not afforded to them.
To supplement my qualitative data on state-sanctioned violence and fear, I utilized quantitative data in the form of statistics about safety and violence against LGBTQ+ people in the Dominican Republic. This data came from the first “National Survey for Lesbian, Gay, Bisexual, Trans and Intersex People” ever conducted, funded by the United States Agency for International Development (USAID) and the Embassy of the United Kingdom’s “Being LGBTI in the Caribbean” program implemented by the United Nations. The Institute for Research in
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Gender
and Family Studies at the Universidad Autónoma de Santo Domingo (IGEF-UASD) analyzed the survey results in the report.
As a white lesbian Dominican immigrant to the U.S, this topic is close to my heart. However, I have not lived in the Dominican Republic for over 11 years and have not participated in Dominican politics by voting or doing activism, so my first-hand knowledge of the current situation is limited to the data I am collecting. While my inability to physically be in my field of study may be a limitation to this study, I believe that this distance allows me to maintain an appropriate level of objectivity while collecting and analyzing my data. Overall, my research on the content created and posted by Dominican activists and citizens provides much insight into mainstream attitudes towards queerness in the Dominican Republic and how that is impacting the safety and livelihood of LGBTQ+ people.
Results
First, I will explore what the Penal Code and its new problematic policies reveal about the relationship between the Catholic Church and the Dominican state and discuss the implications it has on the Dominican state, especially the lives of LGBTQ+ folks. Then, I will talk about queer people’s vulnerability to violence and stigma and how that affects their sense of safety and comfort living true to their identities. Lastly, I will discuss RD Es De Todes’ demands to Congress and organizing efforts to paint a picture of what queer people are doing about the current situation and their vision for the future.
A. Church as State: Religion’s Law-Making Power
The language of the Penal Code’s addition to Article 186 on discrimination, which states, “there will be no discrimination when the service provider or employer bases the refusal by the objection of religious, ethical, moral conscience, or institutional requirements” [translation by
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Mitú] reveals an explicit relationship between law-making and religion in the Dominican Republic. One of the key actors in creating this exclusionary Penal Code is Representative Isabel de la Cruz, an avid defender of women’s and children’s rights, who introduced the last-minute changes to articles about discrimination, torture, and homicide by removing protections and additional penalties for motives based on gender identity and sexual orientation. This addition was accompanied by the removal of the clause that criminalized discrimination based on sexual orientation and gender. Because the relationship between the church and state is directly impacting legal protections of the Dominican queer community, it is crucial to understand how this relationship operates and the consequences of it.
A women’s and children’s rights activist pushing for this kind of legislation is not surprising in this context, considering the idea of the sanctity of the Dominican family and the notion of catholic universalisms. The failure of queer people to embody Catholic standards of personhood makes them a threat to the familial values embedded in Dominican culture. This creates gendered and sexed panics surrounding the fate of the nation. Thus, queer people’s existence and behavior should be prevented through deterrence, meaning discrimination, exclusion, and intimidation.
This last-minute change to the Penal Code appears to have been a strategic move on behalf of the Dominican government. The LGBTQ+ community had their guard down as they thought they had made great progress since the initial draft of the Penal Code had recognized sexual orientation and gender identity as reasons for discrimination and criminalized conversion therapy and thus were more focused on advocating for abortion rights. Israel Armando Jose Rosado, a Dominican lawyer, posted an article detailing the implications of Isabel de la Cruz’ actions, concluding that:
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La igualdad y el respeto, que no solo son valores rectores del estado, sino derechos constitucionales se han visto afectados puesto que, la objeción de conciencia primará frente a la defensa de estos derechos. [Equality and respect, which are not only guiding values of the state, but constitutional rights will be threatened since moral and religious conscience will prevail over the defense of these rights]
Legally defining discrimination by excluding instances of mistreatment based on religious and moral prejudices prioritizes those belief systems over the actual physical and emotional harm caused to whole groups of people. Moreover, Israel’s statement implies that there is both a lack of separation of church and state, and that potentially the notion of church or religion is valued over the state and the law. Ultimately, these changes communicate that in the Dominican Republic, gender identity and sexual orientation are not identity categories for which one can be vulnerable to oppression and violence while simultaneously attempting to erase these categories and illegitimatize them.
Activists perceive the Dominican government’s motivations behind these changes to be political and economic interests intertwined with religious institutions, namely the Catholic Church. In the Wilferland RD Es De Todes episode, Host Fernando Acevedo and El Editor Cuir
cite evidence to support that the Penal Code currently reflects the government’s anti-gay agenda:
[05:02] – El Editor Cuir
Por ejemplo, aquí hay una práctica que hay muchas instituciones que hacen las mal llamadas terapia de conversión de sexualidad. [For example, lots of institutions
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practice the badly called conversion therapy] Ósea, hay un documental, vienen gente de los Estados Unidos…son los mismos que están metiendo esa presión dentro del Senado y dentro del Congreso. [There’s a documentary, there are institutions that come from the U.S and practice it here… they are the same ones that are applying pressure in Congress and the Senate]
[05:24] - Fernando
Es muy bueno que tú mencione eso. Ósea, literalmente hay una agenda. [It’s good that you mention that. There is literally an agenda] Ellos tienen una agenda para permitir ese tipo de negocio [The government has an agenda to allow that kind of business]
The fact that conversion therapy is permitted by the law and is not included in the Code’s torture article is not to be distinguished from the fact that the Catholic Church and associated domestic and U.S institutions profit from these programs. Economic interests are placed above the undeniable severe pain and suffering caused to LGBTQ+ folks subjected to these therapies,xiv although they are advertised as promoting a social and moral good. This goes hand-in-hand with the cultural fixation on the “sexually pure” Dominican family and the anxieties that queer people provoke around the sexed and gendered fate of the nation.xv In this way, queer people are looked upon as a threat, and their humanity becomes almost irrelevant.
On top of not recognizing the harm that conversion therapy does to queer folks, it legitimizes the principle behind conversion therapy – that being queer is a choice, and that if one tries hard enough, one can be cisgender and heterosexual, as God wills everyone to be. This is because the existence and participation of queer people in the public sphere directly poses a
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threat to the power of these institutions, as “institutionalized rejection of difference is an absolute necessity in a profit economy which needs outsiders as surplus people.”xvi Evidently, weaponizing gender and sexuality by making queer existence as unsafe as possible is key to maintaining the white supremacist, patriarchal, and heteronormative standards that serve as the backbone to the Dominican government and Catholic Church.
In the same way that religion uses the law to reinforce definitions of gender and sexuality that serve its institutions, the law uses religion to do the same. In the podcast “Wilferland,” El Editor Cuir and Maffel Santana from RD Es De Todes focused on the fact that changes to the legal definition of discrimination allows for members of private institutions to discriminate based on gender, sexual orientation, race, and religion if it goes against the moral, ethical, and religious values of that institution. To illustrate what this looks like, one of the hosts describes a hypothetical situation:
[01:55] – Fernando
si yo no te quiero dar una mesa en mi restaurant porque tú vienes con tu novio [if I don’t want to seat you at my restaurant because you came with your boyfriend] y evidentemente ustedes los dos son pájaros, se nota [and evidently you are both gay, it’s obvious]. Yo tengo todo el derecho a negarte la entrada a mi negocio [I have every right to refuse you entrance to my business]
[02:03] – El Editor Cuir
Si, bueno, a ver, no todo el derecho, pero no está penalizado por la ley. [Well, not every right, but that is not penalized by the law] Ósea, tú no coge cárcel como tú cogerías con cualquier otra forma de discriminación en principio [You won’t be put in jail like you
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would for any other act of discrimination on principle], pero ahora ni siquiera solamente maricón ósea cualquier persona se pudiera agarrar de ahí para discriminar por sexo, por género o por raza, por religión [but this is now not only the case for discrimination against gay people but anyone can use this to discriminate on the basis of sex, gender, race, and religion].
El Editor Cuir makes the point that the new code would protect anyone from being penalized for discriminating against the gay couple, given that he justifies his actions with religious beliefs or moral values. The effects of this discrimination law illustrate the idea that “heteronormativity is more than ideology, or prejudice, or phobia against gays and lesbians; it is produced in almost every aspect of the forms and arrangements of social life.”xvii The addition of exemptions based on moral, ethical, and religious values not only excuses but almost encourages this discriminatory behavior. Not only that, but because heteronormativity is related to whiteness, ability, and class, these heteronormative legislations can put the rights and lives of all marginalized people at risk.
C. State-Sanctioned Violence and Fear of Coming Out
In assessing the safety of members of the LGBTQ+ community in the Dominican Republic, it is crucial to bring attention to the violence and stigma queer people are subjected to, both by the state and their loved ones. Lara’s notion of sexual terror describes most of this violence and exclusion and affects how queer people feel they can live their lives.
In 2020, the United Nation’s first ever National Survey for LGBTQ+ people in the Dominican Republic found that queer people were exposed to violence and discrimination from
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a very young age, with 96.7% having been victims of violence due to their sexual orientation or gender identity. Most people who experienced violence during adolescence identify as men (both cis and trans), and these acts of violence take the form of offensive comments, sexual violence, and physical aggression. About 45% of study participants reported suffering detention, interrogation, or unjustified aggression by law enforcement, demonstrating that the state is not only complicit but an active perpetrator of violence against queer people (Encuesta Nacional LGBTI 2020).xviii The fact that this is the first time a survey of this kind has ever been conducted goes to show that the experiences of LGBTQ people have been kept in the shadows for too long, and even more violence and abuse has gone undetected.
The trending hashtags #DontCometoDR and #DRIsNotLGBTQFriendly in response to the modifications to the Penal Code that takes away the few protections that LGBTQ+ and other marginalized people have in the Dominican Republic, included tweets with anecdotal evidence of state-sanctioned violence against queer people, especially trans women and people of color. One Dominican Twitter user states: MariAngeles una chica trans trabajadora sexual, fue apresada por una patrulla de la PN, obligada a hacerle felación a toda la patrulla, le robaron el dinero de la noche, la violaron y amenazaron. [MariAngeles, a trans sex worker, was arrested by a National Police patrol. They forced her to perform oral sex to all members of the patrol, stole the money she made that night, raped her, and threatened her] Un Código Penal incluyente, no excluyente. #YoNoVotePorLaIglesia #UnCodigoNoUnTollo [An inclusive, not exclusive Penal Code. #IDidntVotefortheChurch #ACodeNotAMess]
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By citing an instance of law enforcement’s sexual abuse of a trans sex worker and using the hashtag #IDidntVotefortheChurch, this tweet draws a connection between the protections that the law provides (or rather, does not provide) LGBTQ+ people and the Catholic Church’s power and ideology. The violation of this person, both permitted and enacted by the law, is used to exemplify the need for policy that prevents police from abusing marginalized people, or at least penalizes their behavior. Moreover, it sheds light on the lived experience of trans and gendernonconforming people in the Dominican Republic, particularly sex workers, who seek clients on the streets and thus are more vulnerable to police and civilian violence. Sex work is a common occupation for trans women in the country. It’s important to contextualize this with the fact that the law permits workplace and employment discrimination, which can affect their ability to secure a job outside of sex work.
While a queer person’s occupation may make them more vulnerable to violence, it is most definitely not the only reason law enforcement targets them. A dark skin bisexual undergraduate student majoring in biology tweeted about his recent traumatic encounter with police, who gave him no explanation during his arrest. In the tweet thread, he recounted what led up to his arrest, what officers said to him, and his experience in jail:
A las 10:00pm yo salí del gimnasio, que queda cerca de casa. Ahí me interceptó una patrulla y pidió mi cédula [I left the gym, which is close to my house, at 10pm. Then, the police stopped me and asked for my ID] Yo no andaba con ella de manera física y cuando iba a mostrársela, dijo "súbase a la patrulla... maricón este que anda encuero" (andaba en ropa de gym) [I didn’t have it with me, but when I was going to show him a picture of it, he said “get in the car… fag walking around naked” (I was wearing gym clothes)]
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El policial, claramente homófobo, escucha que en una de las celdas hay unos hombres diciendo que me van a abusar sexualmente, otra celda no dijo nada. ¿Adivinen en cual me pusieron? [The clearly homophobic officer hears that in one of the cells there are men yelling that they’re going to sexually abuse me, and in the other cell no one says anything. Guess which one they put me in?]
Dentro de la celda…uno de los que estaba voceando improperios, me manoseo e intento abusar de mi. Tuve que ponerle tema para que dejaran de manosearme [In the cell, one of the men who were yelling groped me and tried to abuse me. I had to make conversation so that they would stop groping me]
The circumstances of the young man’s arrest point to profiling, considering that police stopped him for no reason other than to check his documentation, and refused to check his proof of ID or his actual ID that his mother had once she caught up to the patrol car he was in. The language the officer used while making the arrest, labeling the young man as un “maricón”, in addition to refusing to take his identification and detaining him in a jail cell with men who had expressed they wanted to hurt him shows that the officer deliberately put him in a vulnerable position for being (or simply appearing to be) LGBTQ+. Police may have also targeted him because of his race, as asking for documentation is often a tool of oppression against undocumented folks, majority of which are Haitian and are assumed to be dark-skinned. This supports Bobea’s (2011) point that police persecute members of marginalized communities and are perhaps engaging in
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racial profiling, making queer people of color even more vulnerable. While this young man was released from jail within two hours, he recalls that there were several others still there in similar situations as him, confirming that this is not an isolated incident.
In in-person protests planned by RD Es De Todes along with other organizations against the Penal Code, queer folks provide testimony of their fears surrounding being queer in their country and how these fears prevent them from living authentically. Monica, a DominicanTaiwanese activist who goes by @LaMenteOpen on social media, attended one of the protests and read a speech on behalf a 24-year-old closeted queer woman, which was filmed and posted on the Instagram page. The woman expressed her fear of coming out, being subjected to violence, and being rejected by her family – which is in fact the reason she did not show up to the protest and share her story herself. This testimony, along with the examples of state violence detailed above, speak to Dominican queer people’s sense of and actual safety and vulnerability at the hands of the state and in their daily lives. It appears that Dominican society is structured in a way that people’s queerness, in addition to other facets of their identity that make them “different”, make it unsafe for them to live openly and authentically.
D. RD is for Everyone: Building Community and Fighting for Inclusion
RD Es De Todes’ vision is “to be a participatory and collaborative group of reference in decision-making spaces for the visibility and inclusion of people’s rights in the laws and public policies of the Dominican Republic”. Created in direct response to the drafting of the new exclusionary Penal Code, the collective seeks to act as representation for the interests of queer people since those in elected positions are not fulfilling that role. Although there are several key organizers behind the scenes, running the Instagram account and holding meetings, they utilize social media to garner support and invite anyone who is interested to have a voice in the
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conversation and a role in the decision-making process of the collective. The democratic nature of the collective, as well as their active presence on social media, makes it representative of the current situation, opinions, and activities of queer Dominicans in opposition to the approval of the Penal Code.
RD Es De Todes focuses on including all differences from their language norms and politics, by using the gender neutral ‘todes’ in their name and in everyday conversations to center non-binary people. The collective also fights to expand definitions of hate crimes and decriminalize abortion for people who do not have access to resources or are targeted for their race and/or nonnormative gender identity. In doing so, they reject the idea that heterosexuality is “the central ‘dividing line’ between those who would be dominant and those who are oppressed.”xix Like Cohen, RD Es De Todes suggests that organizing should be rooted “in our shared marginal relationship to dominant power which normalizes, legitimizes, and privileges,”xx and perhaps that identity categories must be destabilizedxxi to include a more expansive definition of queerness.
The collective’s use of social media platforms, particularly Instagram and Twitter, has allowed them to challenge socially accepted and legitimized views about the current situation concerning queer people, such as that discrimination doesn’t exist or that if it does, it is morally correct. Using posts to show examples of how LGBTQ+ people are mistreated in the country and label them as unacceptable, the collective challenges socially accepted and legitimized views. This consequently generates a new understanding of the proposed law to exempt people from being persecuted if they discriminate against others on the basis of their moral, ethical, and religious beliefs on non-normative sexual orientations and gender identities. By demonstrating how these instances are unacceptable, the status of queer people and social practice of
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discriminating against them “is reframed as inexcusable, immoral, or unjust.”xxii Moreover, it shows discrimination and violence is indeed a very real and pervasive social problem in Dominican society. This is a “fairly self-contained but substantial change in the way a particular domain of life is framed,”xxiii especially how the mistreatment of queer people is viewed. However, RD Es De Todes is not working to transform the structures that enable this oppression. While listening in on a Zoom meeting where leaders of RD Es De Todes and other organizations were planning their next protest, I witnessed an exchange between a member of RD Es De Todes and one of the leaders of a feminist group that revealed the politics they are taking up. The member was suggesting taking a more forceful and aggressive method of protest, feeling frustrated with the peaceful demonstrations the leaders were interested in. The leader responded by bringing up the point that the goal is to negotiate with Congress – she said, “We’re not talking about revolution, we’re talking about reform”. Her argument was that if they want to help people with multiple policies, they cannot attack those in power directly because they want to ensure those same people remain willing to negotiate with them. This exchange illustrates the collective’s focus on the inclusion of LGBTQ+ people in Dominican society, to make it a place where queer people can feel safe and live healthy and full lives. Their commitment to working with, and not against, the Dominican Government to reform the laws and guarantee the rights of vulnerable populations does not nullify the revolutionary power of the collective. Through their Instagram account, RD Es De Todes keeps the public updated on the Penal Code, advertises workshops for how to safely come out of the closet and self-care, organizes both virtual and in-person protests, and mobilizes folks to show up in any way they can. Folks who are closeted or concerned about their safety can anonymously participate on social media and contribute to the change they want to see. At protests, they have
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performers such as drag queens and queer reggaeton artists such as Tokischa and provide space for people to give testimony about their experiences as a queer person in the country through Instagram. Although their focus on reform makes these moments of visibility “hard to recognize as worldmaking…[,understanding] them only as a self-expression or as a demand for recognition would be to misrecognize the fundamentally unequal material conditions whereby the institutions of social reproduction are coupled to the forms of hetero culture.” (Berlant & Warner, 561). As of right now, RD Es De Todes’ efforts may be focused on immediate reform and relief, but they are simultaneously building a world where queer people exist publicly, without shame or fear.
Conclusion
In this paper, I examine how the Dominican Government, Catholic Church, queer individuals, and the Dominican LGBTQ+ social movement perceive queerness, how this affects the safety of queer people, as well as what they imagine the future should be like for queer Dominicans living on the island. In support of previous research, I find that repressive laws, particularly anti-LGBT policies, are indeed heavily enforced and color the experiences of queer folks in a negative way. The Dominican Government and Catholic Church are outwardly and tangibly homophobic, forming the basis of a culture that puts queer people’s physical and emotional wellbeing at risk. This research is limited by its method – time constraints did not allow for the recruitment of participants for an interview study; thus, no complete first-hand accounts of queer individuals were included. The data of this study is constrained to the information posted online by those who have access to the internet and smartphones or computers, which excludes folks living in underserved or rural communities, particularly undocumented folks of Haitian ancestry living in the D.R. Nevertheless, the relatively accessible
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nature of social media allowed for the voices of a diverse group of queer people and organizers to be heard and centered in my results. Overall, my research provides insight into mainstream attitudes towards queerness in the Dominican Republic and how they are impacting the safety and livelihood of LGBTQ+ people. From the perspective of Dominican law, religious institutions, and mainstream society, gendered individuals and their sexuality are only legitimate if their identities and behaviors prescribe to white supremacist, patriarchal, and heteronormative standards. By implementing exclusionary policies along the lines of gender and sexuality in a supposedly ‘progressive’ Penal Code that will be valid for many years to come if approved, the Dominican government attempts to illegitimate and erase the existence of increasingly visible marginalized peoples in the public sphere. This creates a hostile and often unsafe environment for queer people, racialized individuals, disabled people, women, and poor people. However, the presence of RD Es De Todes, alongside organizations fighting for reproductive rights and against violence, are creating spaces where queer people feel safe and seen and are encouraging queer people to report and speak up against homophobic and transphobic violence.
This study is useful in outlining the areas of life in which queer Dominicans require more support to thrive, specifically mental health, sex education, labor protections, and legal protections more generally. Although the Penal Code was officially rejected on December 16, 2021, my findings demonstrate that these laws and mainstream attitudes are indeed repressive and detrimental to the lives of queer people. Moreover, it calls attention to the fundamentally problematic relationship between the Dominican Government and Catholic Church, suggesting that a separation of church and state is not only beneficial but crucial to the improvement of the conditions of the LGBTQ community. There is still much to explore in terms of how exactly RD
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Es De Todes is building coalitions and knowledge, what other queer Dominican collectives are doing, and the consequences on the safety and livelihood of queer people because of this new movement. Future studies could further investigate the impact of conversations about and the development of the Penal Code’s discrimination, hate crime, and abortion laws on the queer community and Dominican society more broadly.
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References
Berlant, Lauren and Michael Warner. 1998. “Sex in Public.” Critical Inquiry 24(2):547-566.
Bonilla Y, Rosa J. 2015. “#Ferguson: digital protest, hashtag ethnography, and the racial politics of social media in the United States”. American Ethnology. 42(1):4–17
Bobea, Lilian. 2011. "Democratizing Violence: The Case of the Dominican Republic" Western Hemisphere Security Analysis Center. 34. https://digitalcommons.fiu.edu/whemsac/34
Caren, Neal, Kenneth T. Andrews, and Todd Lu. 2020. “Contemporary Social Movements in a Hybrid Media Environment.” Annual Review of Sociology, Vol 46 (January): 443–65.
Cohen, Cathy J. 1997. “Punks, Daggers, and Welfare Queens.” GLQ: A Journal of Lesbian & Gay Studies 3:437-465.
Edwards, Gemma. 2014. “Introduction: Conceptualizing Social Movements” in Social Movements and Protest. Cambridge University Press. 1-8.
Horn, Maja. 2018. “Introduction: Critical Currents in Dominican Gender and Sexuality Studies in the United States”. Small Axe 22(2):64–71.
“Informe de Resultados Encuesta Nacional LGBTI 2020 En La República Dominicana.” United Nations. Accessed May 13, 2023. https://dominicanrepublic.un.org/es/141724-informede-resultados-encuesta-nacional-lgbti-2020-en-la-rep%C3%BAblica-dominicana.
Lara, Ana-Maurine. 2018. “Strategic Universalisms and Dominican LGBT Activist Struggles for Civil and Human Rights”. Small Axe 22(2): 99–114.
doi: https://doi.org/10.1215/07990537-6985795
Lara, Ana-Maurine. 2021. Streetwalking: LGBTQ Lives and Protest in the Dominican Republic. Rutgers University Press.
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Lorde, A. 1990. “Age, Race, Class, and Sex: Women Redefining Difference”. Paper delivered at the Copeland Colloquium, Amherst College. Pdf.
Manley, Elizabeth. 2012. “Intimate Violations: Women and the ‘Ajusticiamiento’ of Dictator
Rafael Trujillo, 1944—1961.” The Americas 69(1):61–94. Retrieved January 13, 2022 (doi:10.1353/tam.2012.0050)
Padilla, Mark, and Daniel Castellanos. 2008. “Discourses of Homosexual Invasion in the Dominican Global Imaginary”. Sexuality Research and Social Policy 5:31-44.
Polanco, Jacqueline J. 2006. Divagaciones Bajo La Luna: Voces e Imágenes De Lesbianas Dominicanas. Santo Domingo:
(http://proxy.uchicago.edu/login?url=https://www.proquest.com/books/divagacionesbajo-la-luna-voces-e-imágenes-de/docview/2352558538/se-2?accountid=14657).
Snow. David A., et al. 1986. “Frame Alignment Processes, Micromobilization, and Movement Participation.” American Sociological Review 51(4): 464-481.
Westbrook, Laurel, and Kristen Schilt. 2013. “Transgender People, Gender Panics, and the Maintenance of the Sex/Gender/Sexuality System.” Gender & Society 28(1):32-57.
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Specific Personal Jurisdiction Principles Still Apply to Cyberspace
Ziqing (Timothy) Wang Johns Hopkins University
Introduction
Section one of the Fourteenth Amendment states that no state shall “deprive any person of life, liberty, or property, without due process of law.”xxiv While the “due process” clause of the Fifth Amendment served as a legal restriction on the federal government, that of the Fourteenth Amendment constrains states. Since its ratification, there have been debates on the interpretation of the state-binding “due-process” clause.xxv One of the critical discussions is the courts’ in personam jurisdiction (whether the court possesses the power to adjudicate cases against a party that is within its jurisdictional reach). The determination of personal jurisdiction is important as it often influences the application of substantive law, the trial of related cases, and the rights and obligations of the related parties.
In 1878, the Supreme Court (SCOTUS), in Pennoyer v. Neff, specified the restriction on the scope of courts’ personal jurisdiction. In delivering the court’s opinion, Justice Stephen Field suggested that “state possesses exclusive jurisdiction and sovereignty over persons and property within its territory,” but not “jurisdiction and authority over persons or property without its territory.”xxvi The Pennoyer case held that the courts’ jurisdictional authority over defendants is
International Shoe Co. On the Internet - Traditional
bounded by the physical territory of the forum state. However, with the developments of the industrial age, an increasing number of manufacturing and businesses were conducted nationally, putting heavy pressure on the strict territorial restriction set by the Pennoyer case. SCOTUS also realized the need to adapt the personal jurisdiction standard to the changing nature of the economy.xxvii In 1945, in International Shoe Co. v. Washington, the Court held that personal jurisdiction over parties beyond forum state territory is constitutional if they have “minimum contacts” with that state.xxviii The introduction of the minimum contacts doctrine provides a standard by which courts may exercise personal jurisdiction for parties beyond their forum state boundary. Today, in an even more interconnected internet era, courts’ personal jurisdiction again faces challenges. Whether courts should continue their ruling based on the old doctrine or develop a new test to suit the changing contexts remains a vital question.
This paper argues that, when it comes to specific personal jurisdiction in cyberspace, courts should not rely upon a universal test based on the nature of the defendant’s website. Future determination of the courts’ in personam jurisdiction related to the internet should continue to be dictated by the minimum contacts doctrine, which is fact-specific. The paper will be divided into three parts. Part I will introduce the principle of minimum contacts on specific personal jurisdiction. The paper will explain the differences between general and specific personal jurisdiction and how minimum contacts come into play. Part II will present courts’ innovations to determine personal jurisdiction in the internet realm. A specific focus will be put on Inset Rule and the Zippo Sliding Scale test. The paper will also address the deficiencies of each. Finally, Part III argues for a return to the principles of minimum contacts. Specific factors based on the doctrine to determine the court’s personal jurisdiction on the internet will be discussed.
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I. Specific Personal Jurisdiction and Minimum Contacts Doctrine
A.General Personal Jurisdiction vs. Specific Personal Jurisdiction
In personam (over a particular person) jurisdiction is defined as the power of the court over persons (parties) before it may issue judgments.xxix In the process of exercising personal jurisdiction, the courts distinguish between two types: general personal jurisdiction and specific personal jurisdiction. The two types describe different applicable conditions and scopes of jurisdiction.
General jurisdiction refers to jurisdiction in which the court does not need to differentiate the causes of action that the plaintiff declares against the defendant.xxx Once the general jurisdiction is established, the court has the power to rule without the need to review the nature of the specific claim presented (meaning that the defendant may be sued for any cause of action regardless of its nature). In general, courts have general jurisdiction over the individuals in the forum state, which includes those within the state territory and citizens of the state (the forum state is the individual’s domiciliary state by choice).xxxi General jurisdiction over corporations is largely determined by their place of incorporation or the location of their headquarters.xxxii
For parties foreign to the forum state, general jurisdiction requires “continuous and systematic” activities of the party in the forum state.xxxiii In Helicopteros Nacionales v. Hall, for example, even though the defendant company conducted transactions, negotiated a contract, and trained employees in the forum state, the court did not automatically have general jurisdiction over it.xxxiv Thus, evidence that the defendant regularly conducts business in the forum state may not be enough unless those contacts are “continuous and systematic.” While SCOTUS defined the standard for courts to have general jurisdiction over the party, it did not provide a universal test for lower courts to apply. Other SCOTUS rulings on general jurisdiction have tended to be
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fact specific. In Perkins v. Benguet Consolidated Mining Co., the Court determined the presence of general jurisdiction based on the quantum of business activities conducted by the defendant in the forum (dividend payment, machine purchase, business correspondence, etc.) to assess whether the contacts were “continuous and systematic.”xxxv Finally, a court may also have general jurisdiction over a party that voluntarily submits to the court.xxxvi
Specific jurisdiction is defined as “the power to adjudicate with respect to issues deriving from, or connected with, the very controversy that establishes jurisdiction to adjudicate.”xxxvii In comparison with general jurisdiction, specific jurisdiction requires the plaintiff to establish a much lower standard to show “minimum contacts” between the defendant and the forum state.xxxviii However, its applicability is also strictly restricted, as there must be a relationship between the contact and the claim. The court may hear only claims arising from the connection between the defendant and the forum. The internet cases that this paper seeks to investigate generally raise questions about this category of jurisdiction. Before stepping into the internet era, the paper will first discuss the International Shoe Co. case and the traditional minimum contacts doctrine, which sets out the restraints placed on personal jurisdiction.
B International Shoe Co. v. Washington and Minimum Contacts Doctrine
Approaching the 20th century, due to the development of the industrial age and the transportation technologies it brought, the US economy became more interconnected, with most of its commerce happening across state and national borders.xxxix Manufacturing, commercial, and industrial enterprises, in the form of corporations, increasingly operated trans-state and transnationally, putting heavy pressure on the territorial sovereignty principle set out by Pennoyer. Domestic parties may enter into disputes with foreign companies, which often need to be resolved through legal actions. As a result, loosening the territorial restrictions on personal jurisdiction became inevitable.
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In 1945, the SCOTUS ruling in International Shoe Co. v. Washington provided the resolution. In delivering the opinion of the Court, Chief Justice Stone suggested that if a party is “not present within the territory of the forum” but has “certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice,’” then specific jurisdiction over the party does not violate the due process requirement.xl The appellant International Shoe Co was a Delaware Corporation with Missouri as its principal place of business,xli so the company was not automatically subject to Washington state courts’ jurisdiction based on territory. The company had no office in Washington, nor did it conduct a significant amount of business in the state (the company had no contracts there), and thus did not have a substantial connection with the forum state for it to justify general jurisdiction.xlii However, because salespersons (compensated by commission from sales) resided in the state, there were sufficient contacts between the International Shoe Co. and Washington to make the company subject to the personal jurisdiction of the state court.xliii Since the cause of action directly arose from the company’s activity in question (the employment of sales staff for whom state unemployment compensation fund payments were made), specific jurisdiction over it did not conflict with due process.
Since International Shoe Co., SCOTUS rulings on personal jurisdiction have applied the minimum contacts doctrine.xliv However, the Supreme Court has never provided a standardized test to decide if the party’s connection with the forum state is substantial enough to meet the minimum contact requirement. Without a mechanical list of judging criteria, lower courts have the liberty to interpret the qualification of minimum contacts on their own. The “minimum contacts” doctrine is flexible in its applicability, which facilitates the plaintiff's litigation and
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enables the defendant to effectively bear legal liabilities. It should serve as a binding principle for later cases on personal jurisdiction.
II. Specific Personal Jurisdiction on the Internet
While the minimum contacts doctrine effectively regulates personal jurisdiction issues in the context of the modern economy (inter-state and international commerce), the development of internet technologies brought new challenges. US courts have started to realize the upsurge and prevalence of the internet since the 1990s. The number of computers with internet capabilities was about 300 worldwide by 1981, and that number increased to more than 9 million by 1996 (60% of them located in the US) with 40 million internet users.xlv While the trend of the internet age is recognized by the Court, why does the internet require special attention regarding personal jurisdiction issues?
The invention of the internet introduces human civilization to cyberspace, a unique medium that does not have any physical territory and is available to internet users around the world.xlvi
People can share resources globally through the internet, and businessmen can use it to conclude transactions at any time despite being in different locations. The cyber-world marks a revolution in global interconnectivity and has become another realm besides the physical world. Due to the decentralized and borderless nature of the internet, the legal regulation of virtual society cannot be as effective as that in the real world. Therefore, internet-related legal disputes (e-commerce disputes, cyber torts, etc.) will likely occur from time to time. When these cases enter the litigation process, the first thing to consider is the issue of personal jurisdiction standards in the internet context.
Consider the following examples. In McGee v. International Life Ins. Co., SCOTUS confirmed the lower courts’ finding of minimum contacts between the company and California
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based on the reinsurance certificate mailed to the petitioner's son in that state.xlvii International Life purposefully sent the document to California, thereby intentionally building some connection with the forum.xlviii In the physical world, factors (domicile, place of incorporation, transactions, mail, etc.) to determine courts’ jurisdiction over a party are more tangible and thus can be easily traced and identified. The physical presence of those factors makes the determination of minimum contacts relatively simple.
Now hypothetically consider the same example in the internet age, with International Life sending the document via a Microsoft Outlook email. In this case, the company never specifically intended for the email to be delivered to California, as the recipient could have read the message anywhere. The internet breaks down the boundaries of physical space, and its nature renders parties’ location, citizenship, and commercial activities… uncertain.xlix It is thus more difficult to determine the connection between the party and forum in virtual space.
E. Inset Systems Inc. v. Instruction Set, Inc. and its problem
Starting from 1996, a huge wave of litigation arose over the issue of personal jurisdiction over parties in internet transactions among the lower courts.l Since no precedents have been provided by SCOTUS, the decisions in those cases have largely been based on each court’s own standard. One early trend that requires particular attention is the courts’ effort to determine personal jurisdiction according to people’s ability to access the defendant’s website.li In Inset Systems Inc. v. Instruction Set, Inc., the Connecticut court subjected the defendant (a Massachusetts corporation) to its personal jurisdiction because its website’s advertisement could be reached by the internet users in the forum state.lii The court suggested that “the advertisement is available continuously to any Internet user” and thus decided that this constituted minimum contacts between the defendant and Connecticut.liii
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The Connecticut court ruling is quite astonishing. The court held that a single URL accessible to Connecticut citizens was a sufficient basis for exercising personal jurisdiction in cases of internet commerce. According to the logic of the court’s ruling in the Inset case, if the content is intentionally published on the Internet, meaning that the consequences caused by the content can occur anywhere, the publisher would have demonstrated minimum contacts with every forum in the world. This would put all website owners under the specific jurisdiction of every single court in every village, town, city, and country that has internet access.liv Despite the absurdity of the Inset case’s legal implications, several other courts’ rulings followed Inset’s principle to subject the party to their specific personal jurisdiction.lv The Inset Rule would endlessly increase the scope of courts’ potential jurisdiction, making one wonder whether such a ruling is consistent with the “traditional notions of fair play and substantial justice” and the demands of “due process.”lvi
B. Zippo Manufacturing Co. v. Zippo Dot Com, Inc. and the Sliding Scale Test
The overly simplistic approach of the Inset case expanded the scope of courts’ jurisdiction extensively. In Zippo Manufacturing Co. v. Zippo Dot Com, Inc., the U.S. District Court for the Western District of Pennsylvania sought to revise the “Inset principle” by proposing a sliding scale that differentiates websites according to their level of interactivity.lvii Using this sliding scale, “the likelihood that personal jurisdiction can be constitutionally exercised is directly proportionate to the nature and quality of commercial activity that an entity conducts over the Internet.”lviii
On one end of the scale are passive websites, which parties use to publish information (telephone number, address, services provided, etc.), and are accessible to whoever is interested.lix Since the publisher cannot anticipate who is going to view the website, it does not purposefully build a connection with the state, and personal jurisdiction over it is thus 44
unjustified. On the other end of the scale are “active” websites, which parties use to solicit or to conduct business transactions and to initiate contracts.lx Specific personal jurisdiction may be exercised over the owners of those websites, as they actively transmit information, offers, and files to the users who are residents of a physical state.lxi
Other websites occupy the middle of the scale: mostly websites with interactive features. In those cases, the courts must examine the degree of interactivity and commercial nature of the website to determine whether specific jurisdiction is proper.lxii The Zippo sliding scale continues to be used to decide the presence of minimum contacts based on the nature and operations of the defendant’s website, yet, unlike the Inset rule, it proposes a metric that limits courts’ jurisdiction authority in the internet realm based on whether the defendant purposefully availed itself of the opportunity to do business in the forum. The scale could serve as a helpful reference when deciding the courts’ power to adjudicate.
In Zippo, the defendant (a Californian company)’s website provided premium subscription services that request customers’ information and credit card payments. After the online payment, the defendant provided its subscribers with news that is available for views and downloads.lxiii
According to the Zippo court, such a website is highly interactive. Zippo dot com directly sold its news service to and entered into agreements with consumers over the internet, which placed the website at the “active” end of the sliding scale, and thus its publisher was subject to court jurisdiction.
One detail of the Zippo case that is worth mentioning is that its adoption of the Zippo sliding scale test to evaluate the nature of the defendant’s website played only a supplemental role in the confirmation of jurisdiction.lxiv Although the Pennsylvania District Court did not use
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its own invention as a major tool to justify personal jurisdiction, the test became a prevalent reference for later cases.lxv
C. The Zippo Test’s Applications and Problems
From Inset to Zippo, US lower courts’ rules for determining jurisdiction in the internet context have experienced reasonable progress. The flexibility of the Zippo test, by analyzing the specific connection between the defendant’s internet activities and the forum, could help limit the unrestrained personal jurisdiction under Inset. However, despite the Pennsylvania District Court’s effort to conduct a fact-specific inquiry (following the International Shoe standard), later cases have improperly used the Zippo sliding scale as the sole test for the court’s personal jurisdiction authority.
There has been criticism of the minimum contacts doctrine, arguing that the flexible test has led to “ambiguity and incoherence” in the determination of personal jurisdiction.lxvi Several scholars concur with such sentiment, arguing that a universal test should be adopted to determine personal jurisdiction in internet cases.lxvii Several court rulings follow the trend by using the Zippo sliding scale as a universal test to determine their jurisdiction over a defendant. In Mink v. AAAA Development, the court held that the defendant's website was only used to publish information about products, services, address, phone number, and email.lxviii The actual business transactions were conducted through mail-in order and not through the website.lxix Therefore, according to the Zippo sliding scale, the defendant’s website is passive, and the court does not have jurisdiction over it based only on the website.lxx In Mid City Bowling Lanes & Sports Palace, Inc. v. Ivercrest, the court found a lack of personal jurisdiction since the defendant’s website was passive (the website only featuring advertisements, addresses, and phone numbers, with no interactive feature).lxxi Both cases relied mainly on Zippo, which only seeks to determine whether the contents of the website establish contact with the forum
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Although it is not within the Zippo court’s original intention to create a universal test for later rulings on personal jurisdiction, the test has inherent flaws, which encourages potential universal application. The problem with the Zippo sliding scale lies in its two ends. The two poles of the sliding scale explicitly categorize websites into active and passive ones, and justify personal jurisdiction without much room for flexibility. The scale errs in the same manner as Inset, which allows universal jurisdiction based only on the nature of the website.
The rigid application of the Zippo scale completely ignores factors beyond the nature of the website, which could lead to incorrect determination of personal jurisdiction. In Barrett v. Catacombs Press, a defamation case, the court relied part of its decision on the Zippo test. Since the defendant “maintain[ed] a website without any contract to sell goods or any active solicitation,” the nature of the website was passive and therefore not enough to trigger personal jurisdiction.lxxii In this case, the use of the Zippo sliding scale is inappropriate, since even though the website was passive (information-only without interactive features), defamatory material could still be published on the website. The technical nature of the website is irrelevant to the potential harm that could be done through defamation speech. The Court adopted the Zippo test since it is an internet-related case, yet the case, in essence, is a defamation lawsuit. Thus, the qualification of personal jurisdiction in Barrett v. Catacombs Press should rely on the Calder test, the SCOTUS-developed personal jurisdiction test for defamation cases.lxxiii Moreover, the general application of the Zippo test in internet-related cases could have consequences beyond the legal realm. Some scholars warned that the adoption of the sliding scale will hinder the development of e-commerce, which runs against Congress’s intention for internet growth.lxxiv
Some courts have already recognized the problem of the Zippo scale and have chosen to examine factors beyond the nature of the website to determine whether they have personal
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jurisdiction over the defendant. In Millennium Enterprises v. Millennium Music, LP., although the defendant’s website was interactive, which would render its owner subject to the court’s personal jurisdiction under the Zippo sliding scale, the court decided that it could not exercise jurisdiction over the defendant.lxxv The court held that to determine whether it had jurisdiction over the defendant required “something more” than the Zippo test, since the defendant did not pursue “deliberate actions” in the forum state, and contacts between the party and the forum were not substantial enough to qualify as minimum contacts for jurisdiction.lxxvi Millennium Enterprises exposed one of the Zippo test’s major flaws, which is its sole focus on the nature of the website. Complete reliance on the Zippo test will lead to ignoring important factors to determine minimum contact. In determining specific jurisdiction, “the defendant's conduct and connection with the forum state” matters more.lxxvii
One criticism against the Zippo test that this paper seeks to defend is the test’s middle ground (the scale, rather than the end). Some scholars blamed the “ambiguity of the classification” of those interactive websites that are neither active nor passive and ask for clear guidance for tests on those websites.lxxviii However, it is exactly the flexibility inherent in the Zippo test’s middle ground that should be most appreciated. The scale encourages courts to examine the website’s interactivity and commercial nature, which is more fact specific. The Zippo test should not be treated as a panacea for internet jurisdiction but as a reference in the factual investigation to determine minimum contacts.lxxix
III. A Return to the Old Principles: Minimum Contacts Still Apply Today
Seeing the profound social and economic impact brought by the internet over the past years, lower courts have actively sought to establish tests to determine internet personal jurisdiction. While the minimum contacts doctrine successfully resolved the legal challenges brought by
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earlier changes in the economic environment, courts in the internet age hope another test would achieve a similar purpose. These courts may think that the minimum contacts doctrine is outdated and use either the Inset rule or the Zippo test as a replacement. However, the minimum contacts doctrine does not apply only to physical interstate commerce.lxxx Minimum contacts set by SCOTUS in the International Shoe is a constitutional interpretation of when personal jurisdiction does not violate the due process of law. The invention of the minimum contacts doctrine is consistent with the earlier personal jurisdiction framework (set by Pennoyer), and it refined, rather than undermined, the “legitimate scope of state authority.”lxxxi The Inset principle and improper use of the Zippo test would significantly increase the potential scope of jurisdiction of the state courts, which contradicts the principle of the Fourteenth Amendment.
The minimum contacts doctrine continues to serve as the fundamental principle in determining personal jurisdiction in internet cases. Internet jurisdiction tests originating from the lower courts should not serve as the only source to determine the court’s power to adjudicate, as their constitutionality is not verified. Since its creation, the minimum contacts doctrine has intentionally been left vague. That flexibility encourages fact specific inquiry, by carefully examining “the quality and nature of the activity in question” based on “fair and orderly administration of the laws.”lxxxii To better demonstrate minimum contacts’ application to the internet, the remaining part of the paper will be devoted to important considerations when assessing the contact between the party and forum to determine personal jurisdiction authority.
A. Foreseeability
Foreseeability refers to whether “the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.”lxxxiii The determination of foreseeability of one’s action in relationship with the forum is an integral step of “due process” analysis.lxxxiv In World-Wide Volkswagen Corp. v. Woodson, the Court decided
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that although the petitioner could foresee that its product (automobiles) might be used in and could cause harm in the forum, since its business activities (through either salesperson or advertising) were not “reasonably calculated to reach” the forum, personal jurisdiction was not supported.lxxxv The SCOTUS’s foreseeability analysis provides two critical guidelines. First, foreseeability, by itself, is not enough to justify specific jurisdiction. Secondly, foreseeability can support jurisdiction if the party can foresee that its activities in relation to the forum could lead to the need to defend itself in a legal suit.lxxxvi
The foreseeability principle from World-Wide Volkswagen was ignored in the Inset ruling and is inconsistent with rigid applications of the Zippo test. In Volkswagen, the petitioner, an automobile dealer, could foresee its presence in all states due to the mobile nature of its product (a car could travel across states), yet that was not sufficient justification for jurisdiction everywhere. Similarly for a website: one may foresee that people may access a website across the global internet network, but to determine jurisdiction, courts should focus not on the technical nature of the activity in question but on the defendant’s specific actions in and connections with the forum.
The Zippo case provides a useful reference for analyzing foreseeability on the internet. In Zippo, the defendant owned a website with business features, yet the design of the website does not determine foreseeability. What supported the personal jurisdiction over the defendant is that the content accessed by the forum’s residents was a direct result of the subscription they ordered from the website.lxxxvii In that case, the defendant could reasonably foresee itself bearing potential legal liabilities in the forum. The court has also provided a hypothetical counterexample: it would not have jurisdiction over the defendant if the subscriber were foreign to the forum, even if he or she accesses the website within the forum territory.lxxxviii
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B. Purposeful Availment
The assessment of purposeful availment is based on whether the party deliberately “avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws.”lxxxix When determining “purposeful availment,” the connection between the party’s activity and the forum still needs to be substantial enough to amount to minimum contacts. Thus, the court must pursue a fact-specific inquiry into the nature and quality of the defendant’s action. In Burger King Corp. v. Rudzewicz, the Court suggested that a forum citizen merely having a contract with a foreign party is not enough to justify personal jurisdiction over that party. Justice Brennan’s opinion explained that additional analysis is required to confirm the existence of minimum contacts, looking at factors like “prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing.”xc
Some courts have already chosen to determine the presence of minimum contacts in cases involving the internet by looking at purposeful availment requirements. In CompuServe, Inc. v. Patterson, the Sixth Circuit Court of Appeals carefully analyzed the business activities of the defendant and their connection with the forum.xci The defendant had subscribed to a system headquartered in Ohio (the forum state), uploaded his product (software) to the system for sale, entered a written contract with the company (thus governed by the Ohio law), and continuously sent and advertised his product through the system.xcii His ongoing online activities in the forum state were significant enough to constitute minimum contacts and therefore to justify personal jurisdiction authority of the district court over him. The ruling of CompuServe perfectly demonstrates the need to examine specific facts in order to determine purposeful availment.
Purposeful availment was the “sine qua non” (necessary requirement) for the presence of minimum contacts and thus specific power to adjudicate.xciii In determining purposeful availment
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in internet cases, the middle section of the Zippo scale provides useful references. It offers flexible guidance to investigate the relationship between internet activities and purposeful availment. Whether a party’s internet activity constitutes purposeful availment is determined by the degree of interactivity (the quality) and its commercial nature (the nature). Determining minimum contacts in the internet context using part of the Zippo scale as a reference is consistent with the past SCOTUS ruling in Burger King. Finally, courts may also take into account the party’s behavior offline when determining whether it has purposefully availed itself of the privilege of doing business in the forum.
C. Calder Effects
Another possible way of identifying minimum contacts is the Calder Effects Test, which focuses on the actual consequences of the party’s forum-related activities. In SCOTUS’s ruling in Calder v. Jones, the Court found that the forum state court had personal jurisdiction over the defendant based on the effects of his conduct in the forum.xciv This rule applies when: the defendant’s actions (1) expressly aim at the forum, and (2) the defendant’s activity inflicts harm, and the “brunt” of the harm was suffered in the forum.xcv
The Calder effects test has already been adopted in internet related cases to determine personal jurisdiction. In EDIAS Software Intern. v. BASIS Intern., the Arizona district court held that it has jurisdiction over the defendant since the defendant intentionally propagated defamatory messages within Arizona through a website, email, and a forum.xcvi Moreover, the plaintiff alleged that it suffered from the economic effects of the defamatory speech in the forum state.xcvii The Calder effect standard was reasonably applied in this case. In future internet-related defamation and intentional tort cases, Calder should serve as the binding precedent.
D. Additional Considerations: Reasonableness and Relatedness
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Decisions on specific jurisdiction must not undermine “traditional notions of fair play and substantial justice.”xcviii To guarantee these, besides the considerations above, the determination of specific jurisdiction must also ensure reasonableness and relatedness. For reasonableness, there are generally five factors to evaluate: (1). The “judicial system's interest in obtaining the most efficient resolution of controversies”; (2). the burden on the defendant; (3). the interests of the plaintiff (“in obtaining convenient and effective relief”); (4). the interest of the forum state to adjudicate; and (5). the shared interests of states (“in furthering fundamental substantive social policies”).xcix
For relatedness, the court should follow the requirement of specific jurisdiction.c
Conclusion
The internet age has broken through the boundaries of human civilization, bringing countless changes to our society. However, with the numerous social transformations the internet brings, the standard to determine a court’s specific jurisdiction over people or entities posting material on the internet should not be one of them. During the early years, some lower courts overestimated the internet’s impact on the determination of personal jurisdiction. As a result, many courts improperly adopted tests like the Inset principle and the Zippo sliding scale to justify universal jurisdiction. The applications of these tests that solely focus on the technical nature of the internet significantly expand the potential scope of state jurisdiction, jeopardizing the fundamental principles set by the due process clause of the Fourteenth Amendment. This paper advocates a return to the traditional minimum contacts doctrine in determining specific jurisdiction in the internet context. To determine if a party’s conduct constitutes minimum contacts with the forum, courts should conduct fact-specific inquiries to examine whether the conduct foreseeably subjected the party to challenge within the forum state, whether it
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purposefully availed itself of the privilege of doing business in that state, and whether the effects of its conduct were felt there. When minimum contacts are found, the court also needs to ensure the reasonableness and relatedness of the contact to justify specific jurisdiction. These considerations are faithful to the constitutional principles as they have been applied in previous SCOTUS rulings. Over the past years, the courts have already applied the minimum contacts doctrine to evaluate the defendant’s internet-related activities when deciding whether there is personal jurisdiction. The traditional doctrines continue to be applicable in the internet age. In the future, the SCOTUS could decide an internet-related personal jurisdiction case to confirm that these principles continue to apply under the internet context, preventing improper justifications of personal jurisdiction and safeguarding the due process of law.
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References
Barrett v. Catacombs Press, 44 F. Supp. 2d 717 (E.D. Pa. 1999).
Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).
Calder v. Jones, 465 U.S. 783 (1984)
CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996).
EDIAS Software Intern. v. BASIS Intern. Ltd., 947 F. Supp. 413 (D. Ariz. 1996).
Hanson v. Denckla, 357 U.S. 235 (1958).
Helicopteros Nacionales v. Hall, 466 U.S. 408 (1984)
International Shoe Co. v. Washington, 326 U.S. 310 (1945)
Lea Brilmayer, Jennifer Haverkamp, Buck Logan, Loretta Lynch, Steve Neuwirth & Jim O’Brien, A General Look at General Jurisdiction, 66 Texas L. Rev. 721 (1988)
McGee v. International Life Ins. Co., 355 U.S. 220 (1957)
Mehren, Arthur T. von, and Donald T. Trautman. “Jurisdiction to Adjudicate: A Suggested Analysis.” Harvard Law Review 79, no. 6 (1966): 1121–79. https://doi.org/10.2307/1339200.
Mid City Bowling Lanes & Sports Palace, Inc. v. Ivercrest.
Mink v. AAAA Dev. LLC.
Pennoyer v. Neff, 95 U.S. 714 (1878)
Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952)
Reno v. ACLU, 521 U.S. 844 (1997)
Stein, Allan. “Styles of Argument and Interstate Federalism in the Law of Personal Jurisdiction.”
Texas Law Review 65, no. 4 (March 1987).
“The Fourteenth Amendment Due Process Clause.” National Constitution Center – constitutioncenter.org. Accessed May 7, 2023
https://constitutioncenter.org/the-constitution/articles/amendment-xiv/clauses/701
“The Interstate Commerce Act Is Passed.” U.S. Senate: The Interstate Commerce Act Is Passed, December 12, 2019.
https://www.senate.gov/artandhistory/history/minute/Interstate_Commerce_Act_Is_Passed.htm.
U.S. Constitution, amend. 14, sec. 1.
World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980). Zippo Mfg. Co. v. Zippo Dot Com, Inc , 952 F. Supp. 1119 (W.D. Pa. 1997).
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C. Public Sector Unionism
An important piece of context behind the Abood to Janus jurisprudential story is that the cases in question revolve around public sector employers instead of private corporations. Privatesector unionization movements began to gain governmental legitimacy and First Amendment protections starting as early as the National Labor Relations Act of 1935 (NLRA), also known as the Wagner Act cxxiv This landmark piece of legislation created the arbitration body National Labor Relations Board (NLRB), ensures the free selection of an exclusive bargaining representative,cxxv and delineates unfair labor practices.cxxvi The foundational point of contention for public sector unions has always been the idea of exclusivity, in which “the labor organization is the exclusive representative of the employees in the unit it represents and is entitled to act for and negotiate collective bargaining agreements covering all employees in the unit.”cxxvii
Alongside exclusive representation, the auxiliary principle of the right to fair representation mandates that unions “[have] the duty to represent all employees—whether members of the union or not—fairly, in good faith, and without discrimination.”cxxviii
As collective bargaining between unions and private corporations developed in the 1960s, it served as an established model for public sector unions to adhere to. While public-sector unionism tried to follow in the footsteps of its private-sector siblings, it was inherently subject to a heightened level of public scrutiny. For decades, collective action within public workforces was seen as near impossible.cxxix This fraught history of public sector unions and their delicate status within recent jurisprudence has greatly informed the acceptable amount of latitude that right-to-work groups and conservative Supreme Court judges have to limit the possibility of collective bargaining in the public sphere of work.
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A. Abood: A Well-Reasoned Perspective on Fair Share Fees
A clear analysis of the controlling precedent created by the Burger Court regarding fair share fees in Abood v. Detroit Board of Education (1977) is necessary to understand how devastating and poorly justified Alito’s rulings were in Janus and its preceding cases. The case revolved around the constitutionality of a Michigan statute that allowed unions in the state to function under an agency shop arrangement. The Abood appellants, the first in the nation to launch a constitutional complaint against the validity of fair share fees in public sector unions, consisted of a group of Detroit teachers headed by D. Louis Abood. They filed in Michigan state court against the Detroit Board of Education and against the local teachers’ union they refused to join.cxxx
1. The Grievances
The teachers based their challenge around the idea that their fair share fees were being used in violation of their First Amendment rights to “not speak” and the protections they were guaranteed against compelled speech. Specifically, they argued that “they [had] been prohibited, not from actively associating, but rather from refusing to associate” with the political beliefs of the union because their service fees helped the union express political views unrelated to its purpose as a collective bargaining representative.cxxxi The appellants also revolved their challenge around the idea that their public sector government employment “directly implicated constitutional guarantees” in a way that private employment does not.cxxxii The latter argument was easily debunked by the Burger Court, which held that “the differences between public- and private-sector collective bargaining simply do not translate into differences in First Amendment rights.”cxxxiii Regarding the First Amendment’s freedom of association and compelled speech, the
The Pre-Janus Era
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Court ruled that the “governmental interests advanced by the agency shop provision outweighed the plaintiffs' First Amendment objections.”cxxxiv In a well-justified defense of a union’s exclusive right to bargain effectively, the Burger Court and Justice Potter Stewart set the tone for future discussions around First Amendment rights and how they apply in the context of public sector unionization.
2. The Compelling Interest of Labor Peace
As the first Supreme Court case on the topic of public sector fair share fees, Abood established a base of fundamental precedent regarding how employees’ First Amendment protections comport with the rights of unions. The most far-reaching of these general foundational principles is the idea of labor peace, which serves as an important context behind the anti-fair share fee arguments Justice Alito used in the lead-up to his complete overturn of Abood. Within the specific environment of teachers’ unions, Justice Potter Stewart, who wrote the opinion of the court, explained the governmental interest in labor peace by stating that exclusive representation and the agency shop are necessary to prevent “confusion and conflict” between rivaling unions.cxxxv The labor peace concept required a full buy-in into the union’s collective bargaining efforts by union members and non-members alike, in order to respect exclusivity. Although those principles were widely accepted as compelling for decades, this paper will illustrate how the means of achieving those state interests were devastated by recent Supreme Court rulings.
3. The Impact of Abood’s Holding
Apart from the compelling interest and labor peace discussions, the Abood court took meaningful action to create a path forward for public sector unionization that maintained the use
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of fair share fees. Although Abood’s chosen structure of union reimbursement would swiftly be dismantled by Justice Alito, it once represented the basis on which thousands of government employment contracts were constructed. This aspect of Abood’s precedent signifies another important concept—reliance interests—and begins this paper’s discussion about the key aspects of stare decisis that Justice Alito dismissed during his years-long plan of overruling Abood
The chosen balancing test method that the Abood court used to resolve fair share fees’ compelled speech problems depended on the clear earmarking of non-members’ dues exclusively for collective bargaining purposes. This was seen as an adequate solution since negotiating and administering the collective-bargaining agreement and adjusting grievances and disputes fell within "the reasons accepted by Congress [for authorizing] union-shop agreements.”cxxxvi To begin, the court contextualized its decision by clearly holding that a union may use dues for political expression.cxxxvii However, they are only constitutionally allowed to use dues “paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.”cxxxviii The Abood court took care to objectively clarify their reasoning and acknowledge the concerns of the appellants in an attempt to strengthen their ruling against the test of time and inevitable conservative pushback.
Abood’s holding was sensible enough that “despite the hostility the Abood decision has received over the years, the case was never overturned until Janus, 41 years later.”cxxxix This suggests that even though Abood faced conservative disapproval throughout the years, it took a uniquely ideological conservative court and the right political climate to execute Alito’s partisan takedown of fair share fees.
The crux behind Abood’s constitutionality was Justice Stewart’s statement that “using funds that nonconsenting members or nonmembers paid for ideological activities not germane to
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collective bargaining is a violation of those employees' First Amendment rights.” cxl Expanding on the specific First Amendment protection, he states that “the government may not compel an individual to affirm certain ideological or political beliefs as a ‘condition of retaining public employment.’”cxli Essentially, the court delineated the following standard for public sector fair share fees: if an expenditure of the union was germane to collective bargaining purposes, it was chargeable to a non-union member. The court also purposefully left room for this principle to evolve through clarification by future Supreme Court cases. This is a logical move that reflects how valid precedent should become entrenched over time as the “decision’s age and subsequent decisions reaffirming it [increases] its precedential weight.”cxlii In the Abood/Janus paradigm, these subsequent decisions, such as Chicago Teachers Union v. Hudson (1986) and Lehnert v. Ferris Faculty Ass'n (1991), further refined the specific expenses that qualified as germane and chargeable to non-union members. To defend his reversal of stare decisis, Justice Alito had to delegitimize all the specific precedential holdings set by Abood and its complementary cases.
Post-Abood Developments: Reliance Interests and the State of Stare Decisis
1. An Introduction to Reliance
After Abood’s landmark ruling came into effect, public-sector employers across the country began to bargain with unions under a new agency-shop regime. Over time, countless contracts would be signed under the assumption that the Abood ruling would be settled law under the Supreme Court’s doctrine of stare decisis. This phenomenon is well-documented as a core basis behind the entire idea of ‘binding law’ in American jurisprudence. In Payne v. Tennessee (1991), Justice William Rehnquist outlined the foundations of stare decisis as being “the
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evenhanded, predictable, and consistent development of legal principles [which] fosters reliance on judicial decisions and contributes to the actual and perceived integrity of the judicial process.”cxliii The reliance aspect of stare decisis can be further specified in the idea, explicated in Hilton v. South Carolina Public Railways Commission (1991), that “stare decisis has added force when the legislature … and citizens … have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response.”cxliv
The application of stare decisis in the Abood-to-Janus timeline was aptly described by Michael Kimberly, co-director of Yale Law School’s Supreme Court Clinic and co-author of a union-side Supreme Court amicus brief in Friedrichs v. California Teachers Association (2016):cxlv
“Abood is an old and very well-established precedent, and overruling it would significantly disrupt the legal ecosystem that has grown up around it… As it stands, 23 states and the District of Columbia have enacted statutes in reliance on Abood. These states’ entire collective bargaining schemes would have to be revised, statutorily and in practice, if Abood were overruled. Contracts entered into based on unions’ ability to provide specified services, funded through agency fees, would have to be renegotiated. And government employees’ existing reliance on unions’ abilities to negotiate effectively and to provide contractually required services would be eliminated.”cxlvi
As Kimberly alludes to, abiding by precedent is not only a doctrinal value of the American legal system but also a logistical necessity. Specifically, Justice Alito overlooked a clear jurisprudential truth: “Regardless of whether one takes a strict or lax view of stare decisis,
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there are sound policy rationales for adherence to Supreme Court precedent, at least to some extent. The doctrine remains functionally desirable because it promotes stability … conserves judicial resources and adds predictability to the everyday affairs of citizens.” cxlvii Even if justices do not agree with previous precedent-setting decisions, they are still discouraged from embarking on major reversals of settled law simply because of the disruption that would ensue within American society. Furthermore, this old stare decisis school of thought, typically referred to as the strong stare decisis tradition, carried a high level of societal and jurisprudential value and thus should have been maintained by the court. Thus, this paper views Justice Alito’s recent adoption of a destabilizing weak stare decisis tradition within Janus through a critical lens.cxlviii
2. Pre-Janus Interpretations of Stare Decisis: An Exploration of Casey
An examination of prior courts’ adherence to strong stare decisis principles helps illustrate the disruptive consequences of moving toward a weaker stare decisis model and overturning precedent in cases like Abood. To accomplish this, this section will analyze Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) as a model of the strong stare decisis tradition and apply the general principles delineated within that case to the Abood/Janus paradigm. Furthermore, stare decisis scholars such as University of Akron School of Law Associate Professor Michael Gentithes generally view Casey as “the acme of the strong stare decisis tradition.”cxlix This assessment is in large part attributed to Casey’s creation of “a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case.”cl
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Generally, these considerations are practical methods that push the court to respect and adhere to precedent—even if badly reasoned—unless the justifications for overruling it can pass the muster of the Casey factors. Before considering the merits of overruling precedent, Casey states that the court must discuss whether the ruling in question: (1) “defies practical workability,” (2) falls under a reliance that would make overruling more costly, (3) qualifies as a remnant of abandoned doctrine due to being superseded by newly developed related principles of law, (4) revolves around facts that have changed to the point of “robbing the old rule of significant application or justification.”cli Within Casey, these factors create a philosophy of strong stare decisis that provides future courts with a well-crafted comprehensive outline criteria to guide exceptional cases of overturning precedent.
3. On the Merits of a Strong Stare Decisis Regime
As outlined in Casey, the strong stare decisis model presents a more logical solution to maintaining social order while still providing the possibility for reversing prior precedent in situations in which it is truly necessary. Instances of precedent being “fundamentally incompatible with contemporary society” within American jurisprudential history, such as Plessy v. Ferguson (1896), are still respected under a post-Casey understanding of strong stare decisis clii Overall, the main priorities of a Justice Alito-endorsed lax understanding of stare decisis, such as the ability to overturn completely outdated settled law, can be achieved within a more effective Casey-style structural interpretation of the doctrine. Furthermore, strong stare decisis also reduces the ability of Justices who are ideologically opposed to a certain precedent to manipulate the doctrine and “achieve varying political ends.”cliii As Justice Steven Breyer stated forcefully in his Franchise Tax Board of California v. Hyatt (2018)cliv dissent, the dangerous
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stunt of overruling precedent when “five Members of a later Court come to agree with earlier dissenters on a difficult legal question” leads to overwhelming negative consequences such as “a public that is increasingly uncertain about which cases the Court will overrule and which cases are here to stay.”clv
Prototyping Janus: Analyzing Justice Alito’s Legal Maneuvers
A. Co-opting the Language of Stare Decisis
To overturn a previous ruling under stare decisis principles, a court needs to rely on a body of evidence that indicates a shift away from old behavior in general society, case law, and jurisprudential inclination. Under the strong stare decisis doctrine, this evolution would indicate abandoned doctrine and non-applicability of prior fact. However, to stay true to the ideals of strong stare decisis, there needs to be a genuine and wholesale societal shift, on both sides of the political spectrum, toward a single set of new values and principles. When Justice Samuel Alito began on his mission to overturn Abood and public sector fair share fees by extension, he did so in a pretextual manner that “invoked stare decisis at seemingly random points” in an “inconsistent—and often incoherent—approach.”clvi Specifically, over almost a decade, Alito incrementally weakened various aspects of Abood to develop a contradictory body of law around the issue of fair share fees, thus artificially manufacturing the “abandoned doctrine” tenet of strong stare decisis. clvii
B. Knox v. SEIU (2012): The Beginning of the Modern Anti-Abood Era
Janus was by no means the first case to criticize Abood. As mentioned in Part A, Justice Alito manipulated the stare decisis doctrine by essentially crafting his own table of authorities through dissents and majority opinions that criticized fair share fees and their applications in
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several cases leading up to 2018. Janus was actually “the third case to come before the Supreme Court in five years involving public-sector unions’ ability to collect ‘fair share’ (or ‘agency’) fees.”clviii By writing the opinions in this series of pre-Janus cases, Alito developed a base of personally handcrafted precedent on which he launches his ultimate argument against fair share fees. Attorneys Alan Klinger and Dina Kolker encapsulate his strategy by stating that “the prior criticism of Abood that Justice Alito references in [Knox] and Harris was, of course, planted by Justice Alito himself.”clix
The majority ruling in Knox v. Service Employees International Union, Local 1000 (2012) attacks the post-Abood case Chicago Teachers Union v. Hudson (1986)clx and its fair share fee clarification tool: the Hudson notice. This transparency feature can be summarized as “a notice to service fee payers of the "fair share" amount and means of challenging the amount.”clxi By focusing on this point, Alito and his conservative colleagues in the Court began defying stare decisis and destabilizing settled law in a piecemeal fashion. He would soon target Abood’s other accessory and clarificatory cases and eventually use the dicta from Knox and others to launch an offensive against fair share fees as a whole.
Knox centered around California Local 1000 of the SEIU and its failure to send a fresh Hudson notice to non-members when imposing a special increase to non-members' fair-share fees. Additionally, the claims against the public sector union were exacerbated because the fees were to be used for political purposes.clxii Among the many Abood-skeptical messages Alito inserted within Knox, the most blatant was his declaration that “because a public-sector union takes many positions during collective bargaining that have powerful political and civic consequences, the compulsory fees constitute a form of compelled speech and association that imposes a ‘significant impingement on First Amendment rights.’"clxiii In this broad statement,
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Alito charges public sector unions with the idea that their collective bargaining activities are inherently political and thus, using non-members' fair share dues for it equates to compelled speech. This is a complete affront to Abood, which he refers to as “something of an anomaly.”clxiv
Alito continues to allege this First Amendment infringement by stating that “overcoming the free-rider problem was an insufficient justification for permitting such an incursion into those First Amendment rights, even when it comes to economic uses of agency fees.”clxv Essentially, Alito is stating that the government’s interest, in this case, is not compelling enough for the specific means of sending a Hudson notice and making available the option to opt out of the fee.clxvi With this claim established, Justice Alito took a minor step with major consequences: he created an opt-in principle by holding that public sector unions “may not exact any funds from nonmembers without their affirmative consent."clxvii In his dissent, Justice Breyer swiftly summarizes the deep offense of stare decisis that Alito committed through his ruling: “[This optin requirement] runs directly contrary to precedent. No party asked that we do so. The matter has not been fully argued in this Court or the courts below.”clxviii In his testimony, Breyer exposes the covert legal operation Alito has undertaken, twisting stare decisis in his favor and engaging in pretextual arguments regarding labor law technicalities to fulfill the larger mission of overturning Abood.
C. Harris v. Quinn (2014): Alito Reveals His Intentions
After taking the successful first step toward his ultimate goal in Knox, Alito did not rest on his laurels and instead continued to deprioritize stare decisis in subsequent fair share fee cases —the next one being Harris v. Quinn (2014).clxix Within the Harris case, Justice Alito left “the question whether Abood should be overruled [for another day]”clxx but would establish dicta that would, in conjunction with Knox, “express substantial misgivings” about the core idea of fair
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share fees.clxxi The case centered around home care personal assistants (PA), a subcategory of public workers that were “jointly employed by Illinois and by individuals with disabilities.” clxxii On the substance of the case, Justice Alito held that because PAs were not “full-fledged public employees”clxxiii and thus, the state did not have a compelling enough interest to force non-union members in that industry to pay fair share fees. The dicta of the case revolved around more antiAbood rhetoric by Justice Alito, including the statement that “the Abood Court’s analysis is questionable on several grounds.”clxxiv These statements completely disregarded any respect for stare decisis principles and were meant to create the opportunity for another case to swiftly dismantle Abood. Alito’s master plan achieved success when he cited himselfclxxv in Janus: “[Through Harris,] we have therefore refused to extend Abood to situations where it does not squarely control.” Harris’ prohibition of fair share fees for a subset of public workers served as a proof of concept. Going into Janus, Justice Alito knew he was able to effectively wield enough legal power to sidestep the requirements of stare decisis and implement conservative legal theory into reality.
D. Friedrichs v. California Teachers Association (2016): The Dress Rehearsal
There was a Janus before Janus. In 2016, a group of California public school teachers brought a case against the California Teachers Association to the Court with the same overarching goal of striking down Abood and fair share fees.clxxvi In a complaint full of sweeping generalizations, the essence of the grievance was that their First Amendment rights were being compelled because their fair share fees were being used to fund an inherently political system of collective bargaining.clxxvii Although the Court was ready to overturn Abood through Friedrichs, Justice Antonin Scalia died before they could rule on the case, and thus the lower court ruling
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was affirmed by a 4-4 judgment.clxxviii If this case had gone through, it might have represented a complete rejection of stare decisis because of one simple fact: “[Friedrich’s] argument is not new, it was already dealt with and disposed of 40 years ago in the Supreme Court’s decision in Abood.”clxxix
Janus and the Defeat of Stare Decisis
Following in the footsteps of Friedrichs, conservative political groups and right-to-work foundations such as the Liberty Justice Center and the National Right to Work Legal Defense Fund began to formulate Janus v. American Federation of State, County, and Municipal Employees, Council 31 (2018) as the final blow to public sector fair share fees. The case used similar rhetoric to Friedrichs and centered around Mark Janus, an Illinois Department of Health and Family Services employee challenging an Illinois statute allowing fair share fees. In 2018, through a 5-4 ruling divided along ideological lines, the Supreme Court finally reversed Abood and held that states and public sector unions were prohibited from collecting fair share fees from non-consenting non-union members.clxxx
A. The Fourth Standard: Exacting Scrutiny within the First Amendment
In Janus, Justice Alito did not only manipulate the fundamental principles of stare decisis but also bent First Amendment jurisprudence to work in his favor, doing so specifically through the traditional levels of judicial review. In determining a statute’s constitutionality, courts usually look to the rational basis, intermediate scrutiny, or strict scrutiny tests. clxxxi This standard of review is adjusted depending on the presence of fundamental rights or classes of individuals historically subject to discrimination.clxxxii In Janus, the court was divided along ideological lines on which level of scrutiny should be used to analyze the alleged “compelling of subsidization of speech,” which Justice Alito deemed “actually more dangerous than laws
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stopping one from speaking.”clxxxiii Alito based his campaign for heightened scrutiny in Janus on weak legal foundations, most notably West Virginia State Board of Education v. Barnette (1943). Barnette, although also discussing political speech, has a wildly dissimilar set of facts. The case centers around public school children saluting the flag and has no connection to employment contracts.clxxxiv Kagan emphasized this point in her dissent and rightfully painted a more coherent connection between Janus and other workplace speech cases including the trifecta of Pickering,clxxxv Connick,clxxxvi and Garcetti. clxxxvii At their core, these three public sector workplace speech cases developed a standard of review applicable to Janus that is “deferential to the government and sometimes is seen as akin to rational basis review.”clxxxviii Essentially, while Kagan contextualized this First Amendment case using the vital context of public employment, Alito de-emphasized this important detail and instead aligned Janus with other landmark free speech cases.
Despite strong and logical points leveraged in Kagan’s dissent, the conservative Court sided with Alito in applying heightened scrutiny in Janus. However, this paper posits the following two considerations: (1) Alito would not be able to convince allies on the Court for a strict scrutiny analysis, as Janus did not fit the case facts necessary,clxxxix and (2) Alito’s procorporate ruling in Janus still would not be fully secure under intermediate scrutiny and its lower significant governmental interest requirement.cxc To solve this, Alito argued for a rarely used fourth level of analysis called “exacting scrutiny”cxci that was used in vastly different contexts in Knox and United States v. Alvarez (2012),cxcii a case regarding the Stolen Valor Act. Using this standard allowed Justice Alito the freedom to state that the majority “did not need to use strict scrutiny because the agency-fee requirement could not survive what Alito called a ‘more permissive standard.’”cxciii
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The following table describes the levels of judicial review with “exacting scrutiny” added:
TABLE 1. Levels of Scrutiny in Janus v. AFSCME
Interest Means of Achievement
Strict Compelling Narrowly tailored and least restrictive
Exacting Compelling Narrowly tailored, but not reaching least restrictive means. Instead, alternative means of serving that interest do not exist that are "significantly less restrictive of associational freedoms.”cxcv
Intermediate Significant or important
Substantially related
When used?
Content-based laws, viewpoint-based laws, and statutes targeting a specific religion.cxciv
Restrictions on speech in campaign finance, election law, and compelled disclosures.cxcvi
Rational Legitimate Rationally related
When statute negatively affects certain protected classes, equal protection challenges to gender classifications, some First Amendment cases, e.g. mass media, adult entertainmentcxcvii
Cases with no fundamental rights/suspect classifications.cxcviii
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The issue with Alito’s adaptation of exacting scrutiny in Janus arises from the faulty jurisprudential definition of the principle and the difficult applicability of the standard in the context of Janus. At the time of the case, the principle of exacting scrutiny was most recently
implanted—by Justice Alito himself—into Knox and Harris. The mention of the standard in Harriscxcix was justified by its presence in Knox, cc which derived the principles behind the standard from the commercial speech compelled advertising case United States v. United Foods (2001)—which revolved around the promotion of mushrooms.cci Furthermore, Alito had engaged in a completely theoretical analysis of United Foods, as the case did not even include the word “exacting”.ccii When compared to the traditional three levels of scrutiny developed through decades of jurisprudence, any discerning spectator would undoubtedly notice that Justice Alito’s application of exacting scrutiny in Janus was a feat of mental gymnastics. Furthermore, exacting scrutiny was even more unclear due to its synonymity with strict scrutiny within Alvarez.cciii In warping exacting scrutiny’s meaning and purpose to fit his needs in Janus, Alito once again manipulates legal principles as he did in Knox and Harris to promote his ideological goals, empowered by the conservative majority in the Janus Court. In Janus, Alito and his majority’s lax adjustment of First Amendment judicial review standards played an integral part in their successful manipulation of stare decisis and the consequent debilitation of public sector unions.
B. Poorly Reasoned: The Triumph of the Weak Stare Decisis Tradition
After grounding Janus within the context of “exacting scrutiny,” Justice Samuel Alito simply needed to justify his ideological dismantlement of the previously reliable strong stare decisis tradition to achieve Abood’s reversal. Alito did so in a mechanical fashion, revolving around the claim that Abood was poorly reasoned based on the Burger Court’s misinterpretation of precedential cases Railway Employees v. Hanson (1956) and Machinists v. Street (1961). cciv Michael Gentithes states that “by discussing ‘the quality of Abood’s reasoning’ in depth and before the other factors, Janus strongly suggested that a precedent’s reasoning should be the primary discussion point when determining whether to overrule a prior decision.”ccv Sticking to
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the idea of strong stare decisis, the responsible method of interpreting precedent would not accept Alito’s subjective assertion of poor reasoning in any compelling cause for reversal. Instead, it would simply be seen as a cause to warrant consideration of reversal and would need much more substantial evidence of untenability. According to Justice John Paul Stevens, in his Citizens United (2010) partial dissent: “To do any meaningful work in supporting the rule of law, [stare decisis] must at least demand a significant justification, beyond the preferences of five Justices, for overturning settled doctrine.”ccvi
C. Calling for Backup: Addressing Alito’s Conservative Supporters Republican think tanks and organizations with vested corporate interests immediately began attempting to justify the result in Janus and the dire consequences that would certainly tear through American labor. One prominent example, the Heritage Foundation, simply assumed that the 1977 Abood ruling was a constitutional misinterpretation without much explication: “The court is more open to correcting errors in past constitutional cases, such as Abood, than in other categories of cases.”ccvii This comment is shockingly ideological and is accompanied by no fact pattern that would suggest any constitutional error in Abood. Heritage Senior Legal Fellow Thomas Jipping also applauded Alito’s exploitative approach to rebuking stare decisis in Knox, Harris, Friedrichs, and Janus, which “could be useful in the future when other precedents might be up for reversal or retention.”ccviii The CATO Institute’s Ilya Shapiro goes even further in twisting the truth, declaring that Janus “advances noble [stare decisis] objectives by providing both judges and practitioners with a stable, logical system for determining when adherence to the Constitution mandates abandoning erroneous precedent.”ccix As proven in Sections II.B, II.C, and III.B, the weak stare decisis the current conservative court is moving toward specifically promotes a lax model of the doctrineccx that is inherently less stable in its explicit endorsement of
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overturning precedent. Jipping and Shapiro’s lackluster arguments defending Janus are just two examples of Alito’s weaponization of stare decisis. Conservatives across the nation, as seen in this Section, are beginning to use the “piecemeal” modelccxi to “unleash judges, now and in the future, to intervene in economic and regulatory policy,” as Justice Kagan warned in her Janus dissent.ccxii
D. Mission Accomplished: Janus’ Damaging Consequences
The majority’s shift in Janus toward considering poor reasoning as a major precedent reversal factor marked the Supreme Court’s transition into an uncertain future of weak stare decisis jurisprudence. As Justices continue to use Janus as the “precedent on precedents,”ccxiii
America will begin to see two worrying societal phenomena: (1) further politicization of the court at the expense of jurisprudential stability and (2) a steep decline in the legitimacy of the Court. These two trends are already occurring—with destructive consequences. Dobbs v. Jackson Women's Health Organization (2022)ccxiv was the result of Justice Alito once again manipulating jurisprudential truths, emboldened by a conservative majority driven by “politics rather than principle.”ccxv Furthermore, during an era where public confidence in governmental institutions is generally tumbling, confidence in and approval of the Supreme Court has plummeted. According to Gallup, “25% of Americans have confidence in the Supreme Court in 2022, down from 36% in 2021”--the lowest numbers Gallup has seen in nearly fifty years.ccxvi
Conclusion
The piecemeal invalidation of Abood’s public sector fair share fee by Justice Samuel Alito, and the ideological reconfiguration of the Supreme Court and its principles that came along with it, expose sobering realities about American jurisprudence. Through the Abood to
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Janus timeline, the stabilizing force of a strong stare decisis tradition has been whittled away and replaced by a weaker, more uncertain, and easily politicized interpretation of precedent. In addition, conservative elements in the judiciary are increasingly exploiting the First Amendment in a wide variety of cases that implicate speech to achieve political goals. Justice Samuel Alito’s cunning legal maneuvers in Janus as well as in Knox, Harris, and Friedrichs demonstrate that a singular person can force his opinions on the entirety of public sector unions and the nation at large. Given our current conservative supermajority within the Supreme Court,ccxvii it is difficult to see a reversal back to a more stable status quo anytime soon. However, by carefully analyzing each step in the inconsistent and chaotic journey Alito took to arrive at Janus, the next destructive Supreme Court scheme may be easier to detect.
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References
Abood v. Detroit Bd. of Ed., 431 US 209 (Supreme Court 1976).
LII / Legal Information Institute. “Agency Shop,” September 2021. https://www.law.cornell.edu/wex/agency_shop.
Andrew Strom. “Janus and the Court’s Decision to Overrule Roe v. Wade,” May 5, 2022. https://onlabor.org/janusand-the-courts-decision-to-overrule-roe-v-wade.
80
Calvert, Clay. “Is Everything a Full-Blown First Amendment Case after Becerra and Janus? Sorting out Standards of Scrutiny and Untangling ‘Speech as Speech’ Cases from Disputes Incidentally Affecting Expression.”
Michigan State Law Review 2019, no. 1 (2019): 73–138.
Justia Law. “CASE - Janus v. AFSCME, 585 U.S. ___ (2018).” Accessed November 1, 2022.
https://supreme.justia.com/cases/federal/us/585/16-1466/.
Citizens United v. Federal Election Com’n, 558 US 310 (Supreme Court 2010).
Connick v. Myers, 461 US 138 (Supreme Court 1983).
Counsel, United States National Labor Relations Board Office of the General. Basic Guide to the National Labor Relations Act. The Office, 1997.
David Hudson. “Compelled Speech.” Accessed December 14, 2022.
https://www.mtsu.edu/first-amendment/article/933/compelled-speech.
———. “Strict Scrutiny.” Accessed December 13, 2022. https://www.mtsu.edu/first-amendment/article/1966/strictscrutiny.
Labor Notes. “Debate: How Should Unions Deal With Free Riders?,” May 4, 2018.
https://www.labornotes.org/exclusiverep.
Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (Supreme Court 2021).
“Exclusive Representative’s Rights and Obligations | FLRA.” Accessed December 11, 2022.
https://www.flra.gov/exclusive_representation.
Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485 (Supreme Court 2019).
Friedrichs v. California Teachers Association, 136 S. Ct. 1083 (Supreme Court 2016).
Garcetti v. Ceballos, 547 US 410 (Supreme Court 2006).
Gentithes, Michael. “Janus-Faced Judging: How the Supreme Court Is Radically Weakening Stare Decisis.” William & Mary Law Review 62, no. 1 (October 1, 2020): 83.
Harris v. Quinn, 134 S. Ct. 2618 (Supreme Court 2014).
Hemel, Daniel, and David Louk. “Is Abood Irrelevant?” University of Chicago Law Review Dialogue 82 (2016 2015): 227–50.
Hilton v. South Carolina Public Railways Comm’n, 502 US 197 (Supreme Court 1991).
81
Hudson, David L. “Exacting Scrutiny.” Accessed December 14, 2022.
https://www.mtsu.edu/first-amendment/article/1959/exacting-scrutiny.
Ilya Shapiro. “Janus: Why It Was Proper (and Necessary) to Overturn Old Precedent | Cato at Liberty Blog,” June 28, 2018. https://www.cato.org/blog/janus-why-it-was-proper-necessary-overturn-old-precedent.
Ilya Somin. “Dobbs, Abortion, and Stare Decisis.” Reason (blog). Accessed December 14, 2022.
https://reason.com/volokh/2022/06/25/dobbs-abortion-and-stare-decisis/.
Inc, Gallup. “Confidence in U.S. Supreme Court Sinks to Historic Low.” Gallup.com, June 23, 2022.
https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx.
LII / Legal Information Institute. “Intermediate Scrutiny.” Accessed December 14, 2022.
https://www.law.cornell.edu/wex/intermediate_scrutiny.
Economic Policy Institute. “Janus and Fair Share Fees: The Organizations Financing the Attack on Unions’ Ability to Represent Workers,” February 21, 2018. https://www.epi.org/publication/janus-and-fair-share-fees-theorganizations-financing-the-attack-on-unions-ability-to-represent-workers/.
Justia Law. “Janus v. AFSCME, 585 U.S. ___ (2018).” Accessed December 14, 2022.
https://supreme.justia.com/cases/federal/us/585/16-1466/.
Janus v. American Federation of State, 138 S. Ct. 2448 (Supreme Court 2018).
Jipping, Thomas. “In Janus v. AFSCME, Supreme Court Throws Out Bad Precedent on ‘Compelled Speech.’” The Heritage Foundation. Accessed November 30, 2022. https://www.heritage.org/courts/commentary/janus-vafscme-supreme-court-throws-out-bad-precedent-compelled-speech.
Klinger, Alan M., and Dina Kolker. “Public Sector Unions Can Survive Janus.” ABA Journal of Labor and Employment Law 34, no. 2 (2020 2019): 267–88.
Knox v. Service Employees Intern. Union, 567 US 298 (Supreme Court 1000).
Knox v. Service Employees Intern. Union, 567 US 298 (Supreme Court 2012).
Litt, David. “A Court Without Precedent.” The Atlantic, July 24, 2022.
https://www.theatlantic.com/ideas/archive/2022/07/supreme-court-stare-decisis-roe-v-wade/670576/.
Matthews, Dylan. “6 Excerpts That Explain the Supreme Court’s Big Anti-Union Ruling.” Vox, June 27, 2018.
https://www.vox.com/2018/6/27/17509460/supreme-court-janus-afscme-public-sector-union-alito-kagandissent.
82
Michael Kimberly. “Symposium: The Importance of Respecting Precedent.” SCOTUSblog (blog), December 20, 2017. https://www.scotusblog.com/2017/12/symposium-importance-respecting-precedent/.
Millsap, Adam A. “Right-To-Work Laws Are Good For Workers.” Forbes. Accessed December 11, 2022.
https://www.forbes.com/sites/adammillsap/2019/10/23/right-to-work-laws-are-good-for-workers/.
Montgomery, Peter. “Justice Samuel Alito’s Deep Roots in the American Right.” The American Prospect, July 10, 2014. https://prospect.org/api/content/4ff98e7c-7c25-57e8-9fe1-53e437bab8ae/.
Payne v. Tennessee, 501 US 808 (Supreme Court 1991).
Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 US 563 (Supreme Court 1968).
Pizzini, Johannah C. “Janus v. American Federation of State, County, and Municipal Employees: An Unprecedented Departure from Precedent Casenotes.” Loyola Law Review 65, no. 2 (2019): [xi]-502.
Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (Supreme Court 1992).
US Legal. “Protection of Core Political Speech – Civil Rights.” Accessed December 14, 2022.
https://civilrights.uslegal.com/freedom-of-speech-and-expression/protection-of-core-political-speech/.
Quach, Michelle. “The Janus Decision and the Future of Private-Sector Unionism.” Hastings Business Law Journal
16, no. 1 (2020): [i]-138.
LII / Legal Information Institute. “Rational Basis Test.” Accessed December 13, 2022.
https://www.law.cornell.edu/wex/rational_basis_test.
National Labor Relations Board. “Right to Fair Representation.” Accessed December 11, 2022.
https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/right-to-fair-representation.
National Right to Work Foundation. “Right to Work Frequently-Asked Questions.” Accessed December 11, 2022.
https://www.nrtw.org/right-to-work-frequently-asked-questions/.
National Right to Work Foundation. “Right to Work States,” 2022. https://www.nrtw.org/right-to-work-states/.
Roe v. Wade, 410 US 113 (Supreme Court 1971).
Ross Runkel. “When Union Fees Go up, Must a ‘Hudson Notice’ Go Out?” SCOTUSblog (blog), January 5, 2012.
https://www.scotusblog.com/2012/01/when-union-fees-go-up-must-a-“hudson-notice”-go-out/.
Sachs, Benjamin I. “Agency Fees and the First Amendment.” Harvard Law Review 131, no. 4 (2018 2017): 1046–77.
83
LII / Legal Information Institute. “Suspect Classification.” Accessed December 13, 2022.
https://www.law.cornell.edu/wex/suspect_classification.
Tang, Aaron. “Life after Janus.” Columbia Law Review 119, no. 3 (2019): 677–762.
Teachers v. Hudson, 475 US 292 (Supreme Court 1986).
Terence Pell. “Symposium: The Free Speech Right of Public Employees Not to Pay Union Dues.” SCOTUSblog (blog), December 21, 2017. https://www.scotusblog.com/2017/12/symposium-free-speech-right-publicemployees-not-pay-union-dues/.
Thomas Newman. “‘Dobbs’ and the Doctrine of Stare Decisis.” New York Law Journal. Accessed December 14, 2022. https://www.law.com/newyorklawjournal/2022/09/06/dobbs-and-the-doctrine-of-stare-decisis/.
Tilghman, James. “Restoring Stare Decisis in the Wake of Janus v. AFSCME, Council 31.” NYLS Law Review 64, no. 2 (January 1, 2020): 135–48.
Todd Lyon. “SCOTUS Hands Significant Defeat To Both Public Sector Unions And National Labor Movement.”
Fisher Phillips, June 27, 2018. https://www.fisherphillips.com/news-insights/scotus-hands-significantdefeat-to-both-public-sector-unions-and-national-labor-movement.html.
Totenberg, Nina. “The Supreme Court Is the Most Conservative in 90 Years.” NPR, July 5, 2022, sec. Reproductive rights in America. https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative.
LII / Legal Information Institute. “Union Security Agreement,” September 2021. https://www.law.cornell.edu/wex/union_security_agreement.
United States v. United Foods, Inc., 533 US 405 (Supreme Court 2001).
US v. Alvarez, 567 US 709 (Supreme Court 2012).
West Virginia Bd. of Ed. v. Barnette, 319 US 624 (Supreme Court 591).
Willis, Jabari A., and Mark R. Bresee. “US Supreme Court Requires Unions to Receive Consent from NonMembers for Special Fee Assessments and to Provide Extra ‘Hudson Notice’ for Special Fees,” June 29, 2012. https://www.aalrr.com/EdLawConnectBlog/us-supreme-court-requires-unions-to-receive-consentfrom-non-members-for-special-fee-assessments-and-to-provide-extra-hudson-notice-for-special-fees.
84
i Elizabeth Manley, “Intimate Violations: Women and the ‘Ajusticiamiento’ of Dictator Rafael Trujillo, 1944-1961.” The Americas 69(1):61-94. Retrieved January 13, 2022 (doi:10.1353/tam.2012.005)
ii Ana-Maurine Lara, Streetwalking: LGBTQ Lives and Protest in the Dominican Republic (Rutgers University Press, 2021), 57.
iii Id, 107.
iv Laurel Westbrook and Kristen Schilt, “Transgender People, Gender Panics, and the Maintenance of the Sex/Gender/Sexuality System.” Gender & Society, (2013) 28(1):32-57.
v Id, 72.
vi Id, 59.
vii Lilian Bobea, “Democratizing Violence: The Case of the Dominican Republic,” Western Hemisphere Security Analysis Center, (2011) 34, https://digitalcommons.fiu.edu/whemsac/34
viii Cathy J. Cohen, “Punks, Daggers, and Welfare Queens,” GLQ: A Journal of Lesbian & Gay Studies, (1997) 3:437-465.
ix Neal Caren, Kenneth T. Andres, and Todd Lu, “Contemporary Social Movements in a Hybrid Media Environment.”
Annual Review of Sociology, (2020) Vol 46 (January): 443-65.
x Bonilla Yarimar and Rosa Jonathan, “#Ferguson: digital protest, hashtag ethnography, and the racial politics of social media in the United States,” American Ethnology, (2015) 42(1):4-17.
xi Caren, 452.
xii David A. Snow, et al., “Frame Alignment Processes, Micromobilization, and Movement Participation,” American Sociological Review (1986) 464.
xiii Id. 474
xiv “Informe de Resultados Encuesta Nacional LGBTI 2020 En La República Dominicana”
xv Mark Padilla and Daniel Castellanos, “Discourses of Homosexual Invasion in the Dominican Global Imaginary,” Sexuality Research and Social Policy, (2008) 5:31-44.
xvi Audre Lorde, “Age, Race, Class, and Sex: Women Redefining Difference,” Paper delivered at the Copeland Colloquium, Amherst College (1990) 1.
xvii Lauren Berlant and Michael Warner, “Sex in Public,” Critical Inquiry (1998) 24(2):561.
xviii “Informe de Resultados Encuesta Nacional LGBTI 2020 En La República Dominicana.”
xix Cohen, 448.
xx Id. 458
xxi Id. 459
xxiixxi Snow, 475
xxiii Id.
xxiv U.S. Const. amend. XIV §1.
xxv Legal discussion on Due Process Clause interpretation includes “Bill of Rights” Incorporation, procedural due process, substantive due process, etc. See Chapman, Nathan, and Kenji Yoshino. “The Fourteenth Amendment Due Process Clause.” National Constitution Center. https://constitutioncenter.org/theconstitution/articles/amendment-xiv/clauses/701.
xxvi Pennoyer v. Neff, 95 U.S. 714 (1878)
xxvii In his opinion, Justice Black pointed out that the trend of the expanding scope of court jurisdiction is “attributable to the fundamental transformation of our national economy over the years,” due to a rise in cross-state business transactions. McGee v. International Life Ins. Co., 355 U.S. 220 (1957).
xxviii International Shoe Co. v. Washington, 326 U.S. 310 (1945).
xxix Merriam-Webster Legal Dictionary. The thesis of this paper is on the criteria for whether a court can exercise personal jurisdiction. In rem jurisdiction and quasi in rem jurisdiction will not be discussed in this paper.
xxx Brilmayer, Lea, Jennifer Haverkamp, Buck Logan, Loretta Lynch, Steve Neuwirth, and Jim O'Brien. “A General Look at General Jurisdiction.” Texas Law Review 66, no. 4 (March 1988): 721–84.
xxxi See, Pennoyer v. Neff (states have jurisdiction power over parties within states’ territory); Skiriotes v. Florida, 313 U.S. 69 (1941) (states have jurisdiction over its citizens regardless the question of territorial limit).
xxxii Brilmayer et al. “A General Look at General Jurisdiction.” (Place of incorporation justifies general jurisdiction for three reasons. First, the corporation intentionally build contact with the state to “obtain the benefits of that state's substantive and procedural laws.” Secondly, the corporation is constantly present in its place of incorporation. Finally, the “incorporation process itself provides notice of the potential for judicial jurisdiction.”).
xxxiii Helicopteros Nacionales v. Hall, 466 U.S. 408 (1984).
xxxiv Id.
xxxv Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437 (1952)
xxxvi Appearances in the forum state for any purposes (other than to challenge the court’s jurisdiction) could be considered as volunteer submission. See, Western Loan & Savings Co. v. Butte & Boston Min. Co., 210 U.S. 368 (1908); Houston v. Ormes, 252 U.S. 469 (1920).
xxxvii von Mehren, Arthur, and Donald Trautman. “Jurisdiction to Adjudicate: A Suggested Analysis.” Harvard Law Review 79, no. 6 (April 1966): 1121–79.
xxxviii International Shoe Co. v. Washington
xxxix United States Senate. “The Interstate Commerce Act Is Passed.” https://www.senate.gov/artandhistory/history/minute/Interstate_Commerce_Act_Is_Passed.htm
xl International Shoe Co. v. Washington
xli Id.
xlii “That continuous activity of some sorts within a state is not enough to support the demand that the corporation be amenable to suits unrelated to that activity.” Id.
xliii Id.
xliv McGee v. International Life Ins. Co. (International Life Insurance company, a Texas company, holds no office and does not conduct any business in California. However, the company “mailed a reinsurance certificate to petitioner's son in California”, which qualifies as a minimum contact with the forum and the company is thus subject to Californian court’s specific jurisdiction).
xlv Reno v. ACLU, 521 U.S. 844 (1997).
xlvi The uniqueness of internet as a medium is also recognized by SCOTUS. See, Id.
xlvii McGee v. International Life Ins. Co.
xlviii Id.
xlix Again, referring to the hypothetical example, the detailed information regarding the account may be concealed in the server of Microsoft, and Microsoft may choose not to disclose the information for the sake of consumers’ data privacy. Microsoft Corp. v. United States, 829 F.3d 197, 202 (2d Cir. 2016). To resolve the issue of the proposed example, some scholars proposed to use the IP address as the identification of the location. See, Kleven, Adam. “Minimum Virtual Contacts: A Framework for Specific Jurisdiction in Cyberspace.” Michigan Law Review 116, no. 5 (2018): 785–810. https://doi.org/10.36644/mlr.116.5.minimum. For many internet jurisdiction cases this paper examines, the court continue use the party’s domicile when making decisions. See, Part II; Part III.
l Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161 (D. Conn. 1996); Heroes, Inc. v. Heroes Found., 958 F. Supp. 1 (D.D.C. 1996); Maritz, Inc. v. Cybergold, Inc., 947 F. Supp. 1328 (E.D. Mo. 1996); Bensusan Restaurant Corp. v. King, 937 F. Supp. 295 (S.D.N.Y. 1996).
li See, Inset Systems, Inc. v. Instruction Set, Inc.; Heroes, Inc. v. Heroes Found
lii The court justifies its ruling through a comparison of traditional advertisement and digital advertisement. The fact that online advertisement can be re-accessed and available to greater number of people makes the connection between the defendant and the forum more substantial. See, Inset Systems, Inc. v. Instruction Set, Inc.
liii Id.
liv This happens because website is not bounded by geographical space, but a borderless virtual world. See, Hy Cite Corp. v. Badbusinessbureau.com, L.L.C., 297 F. Supp. 2d 1154, 1159 (W.D. Wis. 2004).
lv Heroes, Inc. v. Heroes Found.; Telco Communications v. An Apple a Day, 977 F. Supp. 404 (E.D. Va. 1997).
lvi Few years after the Inset ruling, several court decisions undermine Inset case’s universal jurisdiction. See, Rannoch, Inc. v. Rannoch Corp., 52 F. Supp. 2d 681, 686 (E.D. Va. 1999); Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714, 719-20 (E.D. Va. 2000); Digital Control, Inc. v. Boretronics, Inc., 161 F. Supp. 2d 1183, 1186 (W.D. Wash. 2001).
lvii Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997).
lviii Id.
lix Id.
lx Id.
lxi Id.
lxii Id.
lxiii Id.
lxiv Ironically, the Pennsylvanian court decided its jurisdiction authority mainly following the minimum contact doctrine. The court argued that the defendant intentionally sent information to Pennsylvania citizens for potential commercial gain. The defendant also conducted e-commerce with internet users of the forum state, which constitutes “purposeful availment.” The action of the defendant is enough to establish minimum contact with the forum, and since the cause of action arises out of those specific services it provided to forum state citizens, specific jurisdiction is valid. See, Id.
lxv See, Mink v. AAAA Dev. LLC, 190 F.3d 333, 336-37 (5th Cir. 1999); Mid City Bowling Lanes & Sports Palace, Inc. v. Ivercrest, 35 F. Supp. 2d 507 (E.D. La. 1999); Quick Technologies, Inc. v. Sage Group PLC, 313 F.3d 338 (5th Cir. 2003).
lxvi McMunigal, Kevin. “Desert, Utility, and Minimum Contacts: Toward a Mixed Theory of Personal Jurisdiction.” 108 Yale Law Journal 189 (1998). https://doi.org/10.2307/797473.
lxvii
Some suggests that to “have more than one way” to determine the minimum contacts on internet “does not make sense.” See, Reid, Amanda. “Operationalizing the Law of Jurisdiction: Where in the World Can I Be Sued for Operating a World Wide Web Page?” Communication Law and Policy 8, no. 2 (2003): 227–65. https://doi.org/10.1207/s15326926clp0802_03. Some proposes a universal framework for the internet jurisdiction determination. Bales, Richard, and Suzanne Van Wert. “Internet Web Site Jurisdiction.” Journal of Computer & Information Law 20, no. 1 (2011): 21–56.
lxviii Mink v. AAAA Dev. LLC.
lxix Id.
lxx Id.
lxxi Mid City Bowling Lanes & Sports Palace, Inc. v. Ivercrest.
lxxii Barrett v. Catacombs Press, 44 F. Supp. 2d 717 (E.D. Pa. 1999).
lxxiii Calder v. Jones, 465 U.S. 783 (1984)
lxxiv Scholars fear that the fixed use of Zippo test may lead to a decrease in the use of the website to reduce the likelihood of being sued in other states. See, Bales and Van Wert. “Internet Web Site Jurisdiction.”
lxxv The court argues that the potential interactivity is “not insubstantial”, and the website would “suffice for personal jurisdiction under the middle category in Zippo.” See, Millennium Enterprises v. Millennium Music, LP, 33 F. Supp. 2d 907 (D. Or. 1999).
lxxvi Id.
lxxvii Id.
lxxviii See, Reid. “Operationalizing the Law of Jurisdiction: Where in the World Can I Be Sued for Operating a World Wide Web Page?”; Bales and Van Wert. “Internet Web Site Jurisdiction.”
lxxix Will be more explicitly discussed in Part III.
lxxx In fact, the need to accommodate change in commercial environment was never explicitly mentioned in International Shoe. See, International Shoe Co. v. Washington. The attention towards changing economic context was mentioned in McGee. See, McGee v. International Life Ins. Co.
lxxxi Stein, Allan. “Styles of Argument and Interstate Federalism in the Law of Personal Jurisdiction.” Texas Law Review 65, no. 4 (March 1987).
lxxxii International Shoe Co. v. Washington.
lxxxiii World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980).
lxxxiv Id.
lxxxv Id.
lxxxvi Id.
lxxxvii Zippo Mfg. Co. v. Zippo Dot Com, Inc.
lxxxviii Id.
lxxxix Hanson v. Denckla, 357 U.S. 235 (1958).
xc Burger King Corp. v. Rudzewicz, 471 U.S. 462 (1985).
xci CompuServe, Inc. v. Patterson, 89 F.3d 1257 (6th Cir. 1996).
xcii Id.
xciii Id. (Citing Southern Mach. Co. v. Mohasco Industries, Inc., 401 F.2d 374 (6th Cir. 1968)).
xciv Calder v. Jones
xcv In Calder v. Jones, the petitioner (in Florida) published magazine with its largest circulation in California (the forum). Thus, the action expressly aims at the forum. The circulation of the petitioner’s publishment has caused emotional distress of the respondent and damaged her professional reputation in the forum. Thus, the activity inflicted harm, and the “brunt” of the harm was suffered in the forum. As a result, the California court does have personal jurisdiction authority over the petitioner. See, Id.
xcvi EDIAS Software Intern. v. BASIS Intern. Ltd., 947 F. Supp. 413 (D. Ariz. 1996).
xcvii Id.
xcviii International Shoe Co. v. Washington.
xcix World-Wide Volkswagen Corp. v. Woodson. (Referring McGee v. International Life Ins. Co.; Kulko v. Superior Ct., 436 U.S. 84 (1978).).
c For the discussion on specific jurisdiction, see Part I A. In Best Van Lines v. Walker, although the defendant accepts donations through the website, potentially constituting minimum contact with the forum, the plaintiff’s claim does not arise from the donation feature. Since the activity in question is unrelated to the cause of action in this lawsuit, the court does not have personal jurisdiction over the defendant. See, Best Van Lines v. Walker, 490 F.3d 239 (2d Cir. 2007).
ci Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. To Be an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 399 (2006)
cii Janus v. American Federation of State, 138 S. Ct. 2448 (Supreme Court 2018) (Kagan, J., dissenting).
ciii Roe v. Wade, 410 US 113 (Supreme Court 1971); Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (Supreme Court 1992).
civ Planned Parenthood of Southeastern Pa. v. Casey, 505 US.
cv Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (Supreme Court 2021).
cvi See generally David Litt, “A Court Without Precedent,” The Atlantic, July 24, 2022, https://www.theatlantic.com/ideas/archive/2022/07/supreme-court-stare-decisis-roe-v-wade/670576/; Ilya Somin, “Dobbs, Abortion, and Stare Decisis,” Reason (blog), accessed December 14, 2022, https://reason.com/volokh/2022/06/25/dobbsabortion-and-stare-decisis/; Thomas Newman, “‘Dobbs’ and the Doctrine of Stare Decisis,” New York Law Journal, accessed December 14, 2022, https://www.law.com/newyorklawjournal/2022/09/06/dobbs-and-the-doctrine-of-staredecisis/.
cvii See infra Section I.A and I.B (defining and critically examining the concept of fair share fees)
cviii “Union Security Agreement,” LII / Legal Information Institute, September 2021, https://www.law.cornell.edu/wex/union_security_agreement.
cix “Agency Shop,” LII / Legal Information Institute, September 2021, https://www.law.cornell.edu/wex/agency_shop.
cx “Janus and Fair Share Fees: The Organizations Financing the Attack on Unions’ Ability to Represent Workers,” Economic Policy Institute, February 21, 2018, https://www.epi.org/publication/janus-and-fair-share-fees-the-organizationsfinancing-the-attack-on-unions-ability-to-represent-workers/.
cxi “Agency Shop.”
cxii “Janus and Fair Share Fees.”
cxiii “Debate: How Should Unions Deal With Free Riders?,” Labor Notes, May 4, 2018, https://www.labornotes.org/exclusiverep.
cxiv U.S. Const. amend. I
cxv “Protection of Core Political Speech – Civil Rights,” US Legal, accessed December 14, 2022, https://civilrights.uslegal.com/freedom-of-speech-and-expression/protection-of-core-political-speech/.
cxvi David Hudson, “Compelled Speech,” accessed December 14, 2022, https://www.mtsu.edu/first-amendment/article/933/compelled-speech.
cxvii Terence Pell, “Symposium: The Free Speech Right of Public Employees Not to Pay Union Dues,” SCOTUSblog (blog), December 21, 2017, https://www.scotusblog.com/2017/12/symposium-free-speech-right-public-employees-not-pay-uniondues/.
cxviii Todd Lyon, “SCOTUS Hands Significant Defeat To Both Public Sector Unions And National Labor Movement,” Fisher Phillips, June 27, 2018, https://www.fisherphillips.com/news-insights/scotus-hands-significant-defeat-to-both-public-sectorunions-and-national-labor-movement.html.
cxix Peter Montgomery, “Justice Samuel Alito’s Deep Roots in the American Right,” The American Prospect, July 10, 2014, https://prospect.org/api/content/4ff98e7c-7c25-57e8-9fe1-53e437bab8ae/.
cxx “Union Security Agreement.”
cxxi “Right to Work Frequently-Asked Questions,” National Right to Work Foundation, accessed December 11, 2022, https://www.nrtw.org/right-to-work-frequently-asked-questions/.
cxxii “Right to Work States,” National Right to Work Foundation, 2022, https://www.nrtw.org/right-to-work-states/.
cxxiii Adam A. Millsap, “Right-To-Work Laws Are Good For Workers,” Forbes, accessed December 11, 2022, https://www.forbes.com/sites/adammillsap/2019/10/23/right-to-work-laws-are-good-for-workers/.
cxxiv Aaron Tang, “Life after Janus,” Columbia Law Review 119, no. 3 (2019): 677–762.
cxxv See infra note 9, at 13. The traditional strategy for unions to support exclusive representation relates to the idea that the singular union serving the bargaining unit would maintain more leverage and operate with confidence knowing that there would be no possibility of competition between representatives.
cxxvi United States National Labor Relations Board Office of the General Counsel, Basic Guide to the National Labor Relations Act (The Office, 1997).
cxxvii “Exclusive Representative’s Rights and Obligations | FLRA,” accessed December 11, 2022, https://www.flra.gov/exclusive_representation.
cxxviii “Right to Fair Representation,” National Labor Relations Board, accessed December 11, 2022, https://www.nlrb.gov/about-nlrb/rights-we-protect/the-law/employees/right-to-fair-representation.
cxxix Fred Glass, “26. The Rise of Public Sector Unionism,” in 26. The Rise of Public Sector Unionism (University of California Press, 2016), 349, https://doi.org/10.1525/9780520963344-029. Even Franklin Delano Roosevelt “justified the exclusion of public workers from the National Labor Relations Act because of ‘the special relationship and obligations of public servants to the public itself and the government.’”
cxxx Abood v. Detroit Bd. of Ed., 431 US 209 (Supreme Court 1976).
cxxxi Abood v. Detroit Bd. of Ed., 431 US at 234.
cxxxii Abood v. Detroit Bd. of Ed., 431 US at 236.
cxxxiii Abood v. Detroit Bd. of Ed., 431 US at 232.
cxxxiv Daniel Hemel and David Louk, “Is Abood Irrelevant?,” University of Chicago Law Review Dialogue 82 (2016 2015): 232.
cxxxv Abood v. Detroit Bd. of Ed., 431 US at 224.
cxxxvi Abood v. Detroit Bd. of Ed., 431 US at 220.
cxxxvii Abood v. Detroit Bd. of Ed., 431 US at 235.
cxxxviii Abood v. Detroit Bd. of Ed., 431 US at 235–36.
cxxxix Michelle Quach, “The Janus Decision and the Future of Private-Sector Unionism,” Hastings Business Law Journal 16, no. 1 (2020): 125. Quach also states that the Court has moved toward major criticisms of Abood by arguing that ‘its rationale has becoming troubling and problematic over time.” See infra Section II.B.2 for a discussion regarding the use of time as a factor in stare decisis considerations.
cxl Johannah C. Pizzini, “Janus v. American Federation of State, County, and Municipal Employees: An Unprecedented Departure from Precedent Casenotes,” Loyola Law Review 65, no. 2 (2019): 478. (Quoting Abood v. Detroit Bd. Of Ed., 431 US at 235)
cxli Pizzini, 478. (Quoting Abood v. Detroit Bd. Of Ed., 431 US at 235)
cxlii Michael Gentithes, “Janus-Faced Judging: How the Supreme Court Is Radically Weakening Stare Decisis,” William & Mary Law Review 62, no. 1 (October 1, 2020): 91.
cxliii Payne v. Tennessee, 501 US 808 (Supreme Court 1991).
cxliv Hilton v. South Carolina Public Railways Comm’n, 502 US 197 (Supreme Court 1991).
cxlv See infra Section III.D (Friedrichs was seen as a prototype of Janus and a ‘warning sign’ for unions, according to Justice Alito, that should have alerted unions as to the impending end of public sector fair share fees and ignited preemptive change to union funding models).
cxlvi Michael Kimberly, “Symposium: The Importance of Respecting Precedent,” SCOTUSblog (blog), December 20, 2017, https://www.scotusblog.com/2017/12/symposium-importance-respecting-precedent/. The amicus brief he authored on behalf of several constitutional law scholars was in support of the unions in Friedrichs and is of particular interest due to the assertion that “if anything has changed [since Abood], moreover, it is that the burden on employees’ speech interests has lessened.” This line of argumentation’s success debilitates the claim of the Janus majority that evolving times requires a reconsideration of Abood
cxlvii James Tilghman, “Restoring Stare Decisis in the Wake of Janus v. AFSCME, Council 31,” NYLS Law Review 64, no. 2 (January 1, 2020): 142.
cxlviii Gentithes, “Janus-Faced Judging,” 87.
cxlix Gentithes, 97.
cl Planned Parenthood of Southeastern Pa. v. Casey, 505 US at 854.
cli Planned Parenthood of Southeastern Pa. v. Casey, 505 US at 855.
clii Tilghman, “Restoring Stare Decisis in the Wake of Janus v. AFSCME, Council 31,” 137.
cliii Tilghman, 138.
clivSee infra Section IV.D, which analyzes how the post-Janus cases of Franchise Tax Bd. of California v. Hyatt (2018) and Knick v. Township of Scott (2019) leverage the Roberts Court’s transition away from Casey-esque strong stare decisis principles and toward a weak view of the doctrine to overrule decades-long principles entrenched in American society.
clv Franchise Tax Bd. of California v. Hyatt, 139 S. Ct. 1485 (Supreme Court 2019) (Breyer, J., dissenting).
clvi Tilghman, “Restoring Stare Decisis in the Wake of Janus v. AFSCME, Council 31,” 138.
clvii See supra Section II.B.2 for a full description of the four factors Casey outlined in its adoption of strong stare decisis principles.
clviii “Janus and Fair Share Fees.”
clix Alan M. Klinger and Dina Kolker, “Public Sector Unions Can Survive Janus,” ABA Journal of Labor and Employment Law 34, no. 2 (2020 2019): 283.
clx Teachers v. Hudson, 475 US 292 (Supreme Court 1986).
clxi Jabari A. Willis and Mark R. Bresee, “US Supreme Court Requires Unions to Receive Consent from Non-Members for Special Fee Assessments and to Provide Extra ‘Hudson Notice’ for Special Fees,” June 29, 2012, https://www.aalrr.com/EdLawConnectBlog/us-supreme-court-requires-unions-to-receive-consent-from-non-members-forspecial-fee-assessments-and-to-provide-extra-hudson-notice-for-special-fees.
clxii Ross Runkel, “When Union Fees Go up, Must a ‘Hudson Notice’ Go Out?,” SCOTUSblog (blog), January 5, 2012, https://www.scotusblog.com/2012/01/when-union-fees-go-up-must-a-“hudson-notice”-go-out/.
clxiii Knox v. Service Employees Intern. Union, 567 US 298 (Supreme Court 2012).
clxiv Knox v. Service Employees Intern. Union, 567 US at 11.
clxv Knox v. Service Employees Intern. Union, 567 US at 10.
clxvi Quach, “The Janus Decision and the Future of Private-Sector Unionism,” 1054.
clxvii Knox v. Service Employees Intern. Union, 567 US 298 (Supreme Court 1000).
clxviii Knox v. Service Employees Intern. Union, 567 US at 13.
clxix Harris v. Quinn, 134 S. Ct. 2618 (Supreme Court 2014).
clxx Dylan Matthews, “6 Excerpts That Explain the Supreme Court’s Big Anti-Union Ruling,” Vox, June 27, 2018, https://www.vox.com/2018/6/27/17509460/supreme-court-janus-afscme-public-sector-union-alito-kagan-dissent. (Quoting Janus v. American Federation of State, 138 S. Ct. at 7 slip op., at 7.)
clxxi Hemel and Louk, “Is Abood Irrelevant?,” 228.
clxxii Hemel and Louk, 233. (Quoting Harris v. Quinn, 134 S. Ct. 2618 at 2636-37)
clxxiii Benjamin I. Sachs, “Agency Fees and the First Amendment,” Harvard Law Review 131, no. 4 (2018 2017): 1055.
clxxiv Harris v. Quinn, 134 S. Ct. at 2.
clxxv With this in mind, Alito’s use of the pronoun “we” is instructive and reflects some adept political maneuvering, as the majority opinions of Knox and Harris were both written by him.
clxxvi Friedrichs v. California Teachers Association, 136 S. Ct. 1083 (Supreme Court 2016).
clxxvii “Janus and Fair Share Fees.”
clxxviii Sachs, “Agency Fees and the First Amendment,” 1046.
clxxix “Janus and Fair Share Fees.” (The exact wording of the argument already ruled against in Abood: “The appellants’ second argument is that in any event collective bargaining in the public sector is inherently ‘political’ and thus requires a different result under the First and Fourteenth Amendments.” Abood v. Detroit Bd. of Ed., 431 U.S. 209, 227 (1977))
clxxx Janus v. American Federation of State, 138 S. Ct.
clxxxi “Rational Basis Test,” LII / Legal Information Institute, accessed December 13, 2022, https://www.law.cornell.edu/wex/rational_basis_test; “Janus v. AFSCME, 585 U.S. ___ (2018),” Justia Law, accessed December 14, 2022, https://supreme.justia.com/cases/federal/us/585/16-1466/.
clxxxii “Suspect Classification,” LII / Legal Information Institute, accessed December 13, 2022, https://www.law.cornell.edu/wex/suspect_classification.
clxxxiii Janus v. American Federation of State, 138 S. Ct. at 2464.
clxxxiv See generally West Virginia Bd. of Ed. v. Barnette, 319 US 624 (Supreme Court 591).
clxxxv Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 US 563 (Supreme Court 1968).
clxxxvi See generally Connick v. Myers, 461 US 138 (Supreme Court 1983).
clxxxvii See generally Garcetti v. Ceballos, 547 US 410 (Supreme Court 2006).
clxxxviii Clay Calvert, “Is Everything a Full-Blown First Amendment Case after Becerra and Janus? Sorting out Standards of Scrutiny and Untangling ‘Speech as Speech’ Cases from Disputes Incidentally Affecting Expression,” Michigan State Law Review 2019, no. 1 (2019): 129.
clxxxix David Hudson, “Strict Scrutiny,” accessed December 13, 2022, https://www.mtsu.edu/first-amendment/article/1966/strict-scrutiny. See infra Table 1
cxc “Intermediate Scrutiny,” LII / Legal Information Institute, accessed December 14, 2022, https://www.law.cornell.edu/wex/intermediate_scrutiny.
cxci Janus v. American Federation of State, 138 S. Ct. at 2465.
cxcii US v. Alvarez, 567 US 709 (Supreme Court 2012).
cxciii Janus v. American Federation of State, 138 S. Ct. at 2465.
cxciv David Hudson, “Strict Scrutiny.”
cxcv Calvert, “Is Everything a Full-Blown First Amendment Case after Becerra and Janus?,” 127.
cxcvi David L. Hudson, “Exacting Scrutiny,” accessed December 14, 2022, https://www.mtsu.edu/first-amendment/article/1959/exacting-scrutiny.
cxcvii “Intermediate Scrutiny.”
cxcviii “Rational Basis Test.”
cxcix Harris v. Quinn, 134 S. Ct. at 2639.
cc Knox v. Service Employees Intern. Union, Supreme Court 2012, 567 US at 2289.
cci United States v. United Foods, Inc., 533 US 405 (Supreme Court 2001).
ccii See generally United States v. United Foods, Inc., 533 US.
cciii US v. Alvarez, 567 US 709 (Supreme Court 2012).
cciv Janus v. American Federation of State, 138 S. Ct. at 2479.
ccv Gentithes, “Janus-Faced Judging,” 88.
ccvi Citizens United v. Federal Election Com’n, 558 US 310 (Supreme Court 2010) (Stevens, J., concurring in part and dissenting in part).
ccvii Thomas Jipping, “In Janus v. AFSCME, Supreme Court Throws Out Bad Precedent on ‘Compelled Speech,’” The Heritage Foundation, accessed November 30, 2022, https://www.heritage.org/courts/commentary/janus-v-afscme-supremecourt-throws-out-bad-precedent-compelled-speech.
ccviii Jipping.
ccix Ilya Shapiro, “Janus: Why It Was Proper (and Necessary) to Overturn Old Precedent | Cato at Liberty Blog,” June 28, 2018, https://www.cato.org/blog/janus-why-it-was-proper-necessary-overturn-old-precedent.
ccx Tilghman, “Restoring Stare Decisis in the Wake of Janus v. AFSCME, Council 31,” 167.
ccxi See supra Section III.B.
ccxii Janus v. American Federation of State, 138 S. Ct. at 26 (Kagan, J., dissenting).
ccxiii Gentithes, “Janus-Faced Judging,” 86. In 2018, Janus was cited as reasoning for reversal in two cases, with Gorsuch mentioning it twice more, in a concurrence and a dissent. Knick v. Twp. Of Scott, 139 S. Ct. 2162, 2178 (2019); Franchise
Tax Bd. of Ca. v. Hyatt, 139 S. Ct. 1485, 1499 (2019). In 2019-2020, it was cited twice again in the major cases June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) and Ramos v. Louisiana, 140 S. Ct. 1390, 1409 (2020).
ccxiv Dobbs v. Jackson Women’s Health Organization, 142 S. Ct.
ccxv Andrew Strom, “Janus and the Court’s Decision to Overrule Roe v. Wade,” May 5, 2022, https://onlabor.org/janus-andthe-courts-decision-to-overrule-roe-v-wade.
ccxvi Gallup Inc, “Confidence in U.S. Supreme Court Sinks to Historic Low,” Gallup.com, June 23, 2022, https://news.gallup.com/poll/394103/confidence-supreme-court-sinks-historic-low.aspx.
ccxvii Nina Totenberg, “The Supreme Court Is the Most Conservative in 90 Years,” NPR, July 5, 2022, sec. Reproductive rights in America, https://www.npr.org/2022/07/05/1109444617/the-supreme-court-conservative.
Letter from the Editor
