THE
LIBERTY LAWYER A Publication of Liberty University School of Law
Tort Restitution: Demonstrating God’s Nature as a Healer 8
Expanding the Borders of the Foreign Corrupt Practices Act 21
2017 Edition
The Extraordinary Power of “Not Yet” 3
THE LIBERTY LAWYER 2017 EDITION
1
2016–17
EDITORIAL BOARD Editor-in-Chief Kristen Rose Managing Editor Hannah Phillips Articles Editor Kendra Roth Business Editor Brock Bales Student Works Editor Nicholas Lauer Faculty Works Editor Tate Henvey Online Editor Brittany Williams SENIOR STAFF Lauren Brown Levi Mauldin Ben Murray Benjamin Schaefer Meagan White JUNIOR STAFF Jared Blake Johnna Chick Sydney Phillips Morgan Tilley Christina Wright FACULTY ADVISORS Judge Paul Spinden Professor Rodney Chrisman
in this issue Professor Spotlight: Professor Harp 4 Is Zealousness Enough? Holistic-Based Advocacy and the Difference It Makes 6 Tort Restitution: Demonstrating God’s Nature as a Healer 8 Judicial Sentencing for Sexual Assault: Why Mandatory Minimums are Not the Answer 10 You Have the Right to Remain a Child: Juveniles and Miranda Rights 13
Achievements of Liberty University School of Law Students 15
One Country at a Time: International Human Rights Reform in Asia 27
Settlement Restrictions on False Claims Act (FCA) qui tam Actions: A Strict Application of Law or a Waste of Judicial Resources? 16
Updates on Events and Student Groups 30
Should the Hollywood Studios Be Broken Up? How Hollywood Skirts the Sherman Act 18
ABA Model Rules of Political Correctness 35
The Extraordinary Power of “Not Yet” 32
Expanding the Borders of the Foreign Corrupt Practices Act 21
An Enlightened Perspective: Humility and the Interpretation of the ERISA 403(b)(9) Church Plan Exemption 38
Snitches Can Get You Stiches 24
Alumni News and Announcements 41
EDITORIAL BOARD
BACK ROW (from left to right)
MIDDLE ROW (from left to right)
FRONT ROW (from left to right)
NOT PICTURED
Judge Paul Spinden Professor Rodney Chrisman Nicholas Lauer Brock Bales Levi Mauldin Ben Murray
Morgan Tilley Benjamin Schaefer Tate Henvey Jared Blake Kristen Rose
Brittany Williams Kendra Roth Hannah Phillips
Lauren Brown Meagan White Johnna Chick Sydney Phillips Cristina Wright
THE LIBERTY LAWYER 2017 EDITION
3
PROFESSOR SPOTLIGHT:
CAREN HARP by Meagan White
PROFESSOR CAREN HARP learned about restorative justice for the first time in 1999, and suddenly everything made sense. The endless cycle of reoffending, victimization, and loss of human potential that Harp witnessed for years in the criminal justice system could be interrupted. Things could turn around. Balanced and Restorative Justice (BARJ) offered a philosophical approach to criminal justice that required decision-makers in the system to give balanced consideration, in each case, to 4
THE LIBERTY LAWYER 2017 EDITION
public safety, offender accountability to victims and communities, and life-skill development for the offenders to help them live crime-free lives. Offender accountability and life-skill development required offenders to accept personal responsibility for the harm they caused their victims and the community and to repair that harm. Through this process, offenders were able to reconcile with their victims and reconnect with their communities.
Harp saw restorative justice as a way to enhance long-term public safety through victim engagement, individual responsibility, and restored relationships.
Harp is working to develop a restorative justice diversion program, and other restorative services, to offer to the local court and school system.
Professor Harp has extensive experience in the criminal justice system. She spent 20 years on the prosecution side of the court system, either prosecuting cases or training prosecutors around the country, and three years as a public defender. In Arkansas, Harp prosecuted a wide range of cases in criminal and juvenile court, including sexual assault, domestic violence, and capital murder. In New York City, Harp served as the Chief of the Sex Crimes Prosecution Unit for the Family Court Division of the New York City Law Department. As a public defender in Arkansas, she represented indigent defendants charged with major felonies, including capital murder. Although she feels privileged to teach and help guide law students into the legal profession, Harp’s passion is criminal justice reform. She continues to train prosecutors throughout the country through the National Juvenile Justice Prosecution Center, and she serves on the American Bar Association Juvenile Justice Standards Task Force, a working group charged with rewriting practice standards for juvenile justice practitioners. After 28 years of practice, training, and teaching, Professor Harp now believes that
the traditional criminal justice system, with its almost exclusive focus on retribution without adequate consideration given to rehabilitation and restoration, is actually fueling the rampant recidivism and ever-increasing prison costs currently plaguing communities.
similar to the reconciliation of mankind to God through Christ’s atoning death for all those who seek forgiveness and accept that transformative gift.
Professor Harp believes that restorative justice needs
As a practical matter, jurisdictions that implement restorative programs typically experience significant reductions in recidivism by offenders who complete the programs, and the programs themselves are cost effective. But it was another aspect of the restorative process that resonated with Harp.
to be a part of Liberty
She believes the opportunity restorative programs give offenders to face their victims and truly seek forgiveness is really at the heart of their success.
reconciliation.
As a Christian, Harp understands the unparalleled, life-changing power of forgiveness. The reconciliation between victim and offender, and the restoration of right relationships within the community, is
University School of Law, not only because of its current use in the criminal justice system, but also because of its focus on forgiveness and
Harp is working to develop a restorative justice diversion program, and other restorative services, to offer to the local court and school system. Harp envisions law students working with her to intervene effectively and restoratively with at-risk and court-involved youth to help put them back on a productive, crime-free path. Meagan White is a 2017 graduate of Liberty University School of Law. THE LIBERTY LAWYER 2017 EDITION
5
IS ZEALOUSNESS ENOUGH? HOLISTIC-BASED ADVOCACY AND THE DIFFERENCE IT MAKES by Brittany Williams
AN EXHAUSTED, OVERWORKED SECRETARY answers the phone as she subconsciously points another uneasy defendant to a small waiting room. The waiting room is decorated with cheap art and fold-up chairs and welcomes the defendant with the smell of stale coffee. The room is overcrowded with defendants and their families waiting to speak with an attorney. With no unoccupied chairs available, the defendant is forced to lean against the wall and wait.
His friends have already warned him that he will be receiving subpar legal service and that, if he wants to win, he needs to hire a “real attorney.” After a fifteen-minute meeting with a fasttalking public defender he probably will not see again until trial, the defendant leaves the building feeling dissatisfied. This common dissatisfaction occurs, because, while the attorney tried to address the defendant’s current legal needs, the attorney did nothing to help the defendant’s human needs. Left unattended, these human needs will ultimately bring the defendant back to the same waiting room for the same or worse reasons. The defendant, anxious and confused, needs an advocate that represents clients, not just cases. “Holistic Defense is an innovative model of public defense, pioneered by The Bronx Defenders, that achieves better outcomes for clients, their families, and their communities.”1 The Bronx Defenders is a group that provides legal services to 6
THE LIBERTY LAWYER 2017 EDITION
the indigent people of the Bronx.2 This client-centered advocacy takes into consideration a client’s social issues along with their legal issues.
“Holistic Defense combines aggressive legal advocacy with a broader recognition that for most poor people arrested and charged with a crime, the criminal case is not the only issue with which they struggle.”3 The public defender’s office is not a fast-food restaurant or a convenience store
and should be treated as more than a onestop-shop by both clients and attorneys. The classic model of indigent defense has become complacent with assembly-line justice, but the goal of community service has also shifted into an internal competition to resolve as many cases in the shortest amount of time as possible. However, for most criminal defendants, this legal problem is not their biggest worry, and the lenient sentence that their attorney so zealously argued for will ultimately not impact their overall wellbeing. A shorter sentence or lower fine will not solve defendants’ drug problems, feed their families, or evaluate their mental health.
to better counsel their clients and make permanent changes in their clients’ lives. Perhaps public defense offices do not receive the funding or support for these programs because of the stigma attached to being a public defender. It is time for society to move past the notion that public defenders and court-appointed attorneys are underqualified. They are not a collection of rejects or subpar lawyers. They are a group of dedicated, community-minded attorneys who have sacrificed the corner office and skyline view to work in the trenches and be a part of the community. Representing a criminal defendant is about so much more than a plea bargain or a not-guilty verdict. A criminal defense attorney has a unique opportunity to reach the unreachable and make a lasting impression.
“[T]he criminal justice system is the last stop for many clients. There is no greater moment of need or desperation than in the hours and days after an arrest.”4 At this intense state of vulnerability, a defendant, who would typically be closed off to accept help, may be open to the possibility of an array of available services. If all public defender offices had access to a variety of services such as counseling, rehabilitation programs, GED programs, civil attorneys, shelters, or immigration attorneys, public defenders would be able
becomes a repeat offender because the root of the problem was never addressed. A new movement of public defenders that address both the legal needs and human needs of a client can singlehandedly lower the prison population in the United States. “The Justice Department has been working to develop strategies, tools, and resources to help better understand and address the challenges to the effective provision of indigent defense.”8 The Bureau of Justice Assistance has helped fund the Bronx Defender Office in providing quality, holistic indigent defense services.9 These services, combined with creativity, make it possible to use existing mechanisms to implement the holistic defense strategy without increasing costs.
If public defenders had the tools to reach deeper into a client’s life and focus on their root issues, this approach would humanize the client for them and would fight against the notion of assembly-line justice.
Altering the norm in indigent defense is more than just a challenge for overworked public defenders. For both indigent clients and the advocates who zealously and tirelessly represent them, holistic defense is a unique opportunity to create an individualized approach to criminal defense and change the face of the criminal justice system.
Offices around the country are hiring social service workers to help represent clients. For example, Kentucky’s Department of Public Advocacy has started a social work pilot program, which has “demonstrated that social worker involvement led to both reduced client substance abuse and lower rates of recidivism.”5 District Court Judge John Paul Campbell from Knox County, Kentucky, stated that “[h]aving a social worker is leading to genuine reform in people’s lives. It’s how we should treat our fellow humans.”6 Humanizing clients can have a lasting impact on their lives.
Brittany Williams is a 2017 graduate of Liberty University School of Law.
This lasting impact can also lead to reduced recidivism rates. “Problem-solving approaches that create better chances of success for clients, as evidenced by a growing body of research documenting reductions in incarceration and recidivism rates as a result of defender interventions, can result in substantial costs savings for communities.”7 For the most part, a criminal defendant
Holistic Defense, Defined, THE BRONX DEFENDERS, www.bronxdefenders.org/ holistic-defense/ (last visited Oct. 2, 2016). 2 Id. 3 Id. 4 Robin G. Steinberg, Beyond Lawyering: How Holistic Representation Makes for Good Policy, Better Lawyers, and More Satisfied Clients, 30 N.Y.U. REV. L. & SOC. CHANGE, 625-27 (2006). 5 Melanca Clark & Emily Savner, Community Oriented Defense: Stronger Public Defenders, BRENNAN CTR. FOR JUST. 48 (2010), http://www.americanbar.org/content/ dam/aba/administrative/criminal_justice/ StrongerPublic Defenders.authcheckdam.pdf. 6 Jeff Sherr, Social Worker 092612 Vid Only, VIMEO, https://vimeo.com/75499954 (last visited Oct. 2, 2016); see KY DPA Alternative Sentencing Social Worker Program Video, KY: DEP’T. OF PUB. ADVOCACY, http://dpa. ky.gov/sw.htm (last visited Oct 2, 2016). 7 Clark, supra note 1, at 14. 8 Indigent Defense Grants, Training and Technical Assistance, U.S. DEP’T. OF JUST., https://www.justice.gov/atj/indigent-defensegrants-training-and-technical-assistance (last visited Oct. 2, 2016). 9 Id. 1
THE LIBERTY LAWYER 2017 EDITION
7
TORT RESTITUTION: DEMONSTRATING GOD’S NATURE AS A HEALER by Professor Barbara Mouly
AT THE HEART OF TORT LAW is the principle of restitution for harm done. A seminal scripture which sets forth this principle is found in Exodus 21:19: the person who has injured another person “shall only pay for the loss of his time, and shall provide for him to be thoroughly healed.”1 Modern tort law, following this principle of restitution, requires a person who is responsible for injuries to another to pay for the lost wages, medical expenses, and pain and suffering 2 resulting from those injuries.
The Hebrew word for healing in Exodus 21:19 is rapha.3 As a verb, it has various but related meanings, including “to mend, to cure, to cause to heal; to repair, to repair thoroughly; to make whole.”4 As a noun, it means “physician.”5 Modern tort law, following the principle of thorough healing, seeks to make an injured person whole through the payment of monetary compensation. The purpose for payment of money for personal injury is to “restore” the injured person, insofar as monetary compensation can do so.6 Restoration is designed to make an injured person whole. Requiring restoration by the one who is responsible for the injury is justice.
Tort restitution, seen from a biblical perspective, demonstrates a great principle of healing which has many applications. God’s nature includes God’s willingness to heal wounds and restore people to health.7 The psalmist David called out to God for healing: “O Lord, heal me, for my bones are troubled.”8 So did the prophet Jeremiah: “Heal me, O Lord, and I shall be healed[].”9 Jeremiah thus recognized that God was a dependable source of healing. The prophet Hosea spoke of God’s expected healing of the nation of Israel after God’s judgment: “He has torn, but He will heal us[].”10 Jeremiah spoke similarly: “‘For I will restore health to you And heal you of your wounds,’ says the Lord[].”11 The ministry of Jesus on earth, exemplifying the nature of God, included an explosion of miracles of healing. The first eight chapters of the Gospel of Mark describe many instances of Jesus healing the sick and casting out demons.12 Jesus’ ministry is summed up in the Gospel of Matthew: “Then Jesus went about all the cities and villages, teaching in their synagogues, preaching the gospel of the kingdom, and healing every sickness and every disease among the people.”13
Modern tort law requires a person who is responsible for injuries to another to pay for the lost wages, medical expenses, and pain and suffering resulting from those injuries.2
8
THE LIBERTY LAWYER 2017 EDITION
The greatest demonstration of healing is the Atonement, Jesus’ perfect sacrifice as the Lamb of God paid for the sins of all humankind, is a healing that is available to all people. Both the Old Testament and the New Testament describe the punishment that Jesus took for our sins in terms of healing. Isaiah said: “But He was wounded for our transgressions, He was bruised for our iniquities; the chastisement for our peace was upon Him, and by His stripes we are healed.”14 And Peter, speaking of Jesus and knowing the Old Testament scriptures, echoed the same understanding of the Atonement: “[W]ho Himself bore our sins in His own body on the tree [i.e., the cross], that we, having died to sins, might live for righteousness—by whose stripes you were healed.”15 Human beings are created in the image of 16 God. Thus, it is only natural that God would require us to imitate His nature as Healer by paying compensation when we have caused injury to others. God’s plan for the healing of humankind goes beyond what the civil courts can mandate. God teaches us to heal and restore when we encounter people with wounds that need healing, even though we are not responsible for causing those wounds. Jesus, in teaching what is meant by the command to love one’s neighbor, told a parable of a Samaritan who rescued a man who had been robbed and badly wounded by robbers. The Samaritan had compassion on the man, bandaged his wounds, and paid an innkeeper to take care of the man.17 His conduct demonstrated God’s nature as a healer through practical assistance. Ministers who are sensitive to the emotional hurts of others demonstrate God’s nature as a healer by listening, praying, and giving wise counsel. Through the healing ministries, those who are emotionally wounded can experience the fact that “[t]he Lord is near to those who have a broken heart[].”18
Furthermore, God uses His people to repair and restore entire societies and nations. Isaiah speaks of this large-scale healing: “Those from among you shall build the old waste places; you shall raise up the foundations of many generations; and you shall be called the Repairer of the Breach, the Restorer of Streets to Dwell In.”19 In our system of tort law, the civil courts have authority to enforce the requirement of restitution. The healing mandated by tort law can only approximate full restoration of an injured person or group of persons. Nevertheless, as human beings created in God’s image, we imitate, through our legal system, the healing which God accomplishes in His relationship to human beings. Thus, the principle of tort restitution typifies a great principle of healing and restoration which is part of God’s nature and which God wants to teach to humankind. The tort system, if it operates justly, can be an important part of God’s plan for “thorough healing.” Professor Barbara Mouly is an Associate Professor, Liberty University School of Law.
Exodus 21:19 (New King James). The responsibility for the injuries can derive from negligent conduct, from intentional conduct, or from engaging in abnormally dangerous activities which give rise to strict liability. 3 Rapha, STRONG’S EXHAUSTIVE CONCORDANCE OF THE BIBLE 7495. 4 Id. 5 Id. 6 See VICTOR E. SCHWARTZ, KATHRYN KELLY & DAVID F. PARTLETT, PROSSER, WADE, AND SCHWARTZ’S TORTS CASES AND MATERIALS 1 (13th ed. 2015). 7 God spoke of Himself as Healer in Exodus 15:26 (“I am the Lord who heals you.”). Exodus 15:26 (New King James). 8 Psalm 6:2 (New King James). 9 Jeremiah 17:14 (New King James). 10 Hosea 6:1 (New King James). 11 Jeremiah 30:17 (New King James). 12 See, e.g., Mark 1:40-42; Mark 2:3-11; Mark 3:15; Mark 5:1-13; Mark 7:32-35; Mark 8:22-25. 13 Matthew 9:35 (New King James). 14 Isaiah 53:5 (New King James). 15 1 Peter 2:24 (New King James). 16 Genesis 1:27 (New King James). 17 Luke 10:33-35 (New King James). 18 Psalm 34:18 (New King James). 19 Isaiah 58:12 (New King James). 1 2
THE LIBERTY LAWYER 2017 EDITION
9
JUDICIAL SENTENCING FOR SEXUAL ASSAULT: WHY MANDATORY MINIMUM PENALTIES ARE NOT THE ANSWER by Kendra Roth
IN THE SUMMER OF 2016, Brock Turner’s case took the country by storm when he received a shockingly lenient sentence after he was convicted of three felonies for sexually assaulting a 22-year-old unconscious woman behind a dumpster1 on Stanford University’s campus.2 He could have been sentenced for up to 14 years for all three felonies, but the prosecutors asked for six years.3 Judge Aaron Persky sentenced Turner to six months in prison and three years of probation.4 After serving only three months in jail, however, Turner was released.5 In short, after sexually assaulting an unconscious woman and being convicted of three felonies by a jury, Turner served a total of three months in jail.6
In essence, AB 2888 is a knee-jerk reaction to public outcry that offers the mandatory minimum sentence solution as immediate gratification to quell public outrage against the lack of justice present in the Turner case. But good intentions do not necessarily make good policy. Mandatory minimum sentences look good on the surface, but they have led to a host of problems and fail to truly mitigate the lack of justice surrounding rape in America. The history of mandatory minimums, mostly imposed in drug trafficking cases, shows that they do not reduce crime, result in arbitrary and severe punishment, and do not eliminate “sentencing disparities because they have not eliminated sentencing discretion.”10
The nation was outraged by this sentence, and the lawmakers in California quickly responded by moving to tighten sentencing in future cases similar to Brock Turner’s. Assembly Bill 2888 was drafted, passed unanimously by the Assembly,7 and signed by California Governor Jerry Brown within months of Turner’s conviction.8 Under AB 2888, the possibility of probation is revoked for a person convicted of sexually assaulting someone who is either unconscious or incapable of giving consent due to intoxication; it also imposes a mandatory minimum prison sentence of three years.9
The fact that the lawmakers’ response to the Turner case was to reuse failing legislation represents the lack of understanding of the issues surrounding the justice system regarding rape.
10
THE LIBERTY LAWYER 2017 EDITION
The issues run much deeper than unjust sentencing. Trying to correct each issue individually instead of changing the entire
system often results in bad legislation. In this case, California has not cured the sentencing discretion that resulted in Turner’s lenient sentence. The California legislature has simply transferred sentencing discretion from neutral judges to adversarial prosecutors, which can potentially lead to unfavorable results due to the amount of prosecutorial discretion already afforded to prosecutors. Statistics provided by the Rape, Abuse, & Incest National Network (RAINN) show that out of every 1,000 rapes, 994 perpetrators will walk free.11 But these perpetrators are not walking free because judges are handing out de minimis sentences. In actuality, the process is failing rape victims long before a judge even sees the case. Out of every 1,000 rapes, only 344 victims report the crime to the police
The nation was outraged by Brock Turner’s sentence, and the lawmakers in California quickly responded by moving to tighten sentencing in future cases.
Out of every 1,000 rapes, only 344 victims report the crime to the police (34 percent).12 Of the 344 reported rapes, only 63 will lead to an arrest, and only 13 of those arrests are referred to a prosecutor (20.6 percent).1
(34 percent).12 Of the 344 reported rapes, only 63 will lead to an arrest, and only 13 of those arrests are referred to a prosecutor (20.6 percent).13 Seven of those 13 cases (53.8 percent) will result in a felony conviction, which occurs when a judge enters the equation to issue a criminal sentence.14 Regarding the actual sentences, six out of the seven felony convictions (85.7 percent) result in incarceration.15 According to the Bureau of Justice Statistics, the average sentencing length is 10 years for rape and six years for sexual assault.16 While the sentence in Brock Turner’s case deserved the confusion and anger that resulted, in actuality, sentencing is not the looming issue when it comes to bringing rapists to justice. Just one month after Turner’s conviction and lenient sentence, Kyle Vo received
a conviction for actions eerily similar to Turner’s. Vo, a former university student from southeastern Pennsylvania, was sentenced in July 2016 after being convicted of sexually assaulting an intoxicated and unconscious woman in her dorm room on West Chester University’s campus.17 Although Turner’s and Vo’s convictions were similar, their sentences were not. Vo “was sentenced to six to 20 years in prison and five years of probation, and ordered to register as a sex offender.” Vo’s harsher sentence was not the result of a mandatory minimum sentence in Pennsylvania’s rape statute because Pennsylvania does not have a mandatory minimum sentence for rape.19 While Vo’s case is not conclusive that all sentencing results are correct, it supports statistics showing that most rapists who are actually reported and convicted are sentenced to incarceration for lengthy periods of time.
The statistics from RAINN show that the system is breaking down at the very beginning of the process, which is the reporting of the rape. Different victims give different reasons for why they never reported their rape. One of the common reasons is fear that no one, including the police or prosecutor, will believe them.20 Rape culture has become all too prevalent in America where, instead of focusing on the actions of the rapist, society focuses on the actions of the victim. Police officers and prosecutors face the obstacle of proving lack of consent, which often leads to questioning victims on how much they had to drink and whether they led the perpetrator on. Rape victims must choose between silence and the potential of being swept up into a judicial system that will likely prosecute them along with their assailants. Mandatory minimums will not help imprison the rapists in the 66 percent of rapes that are not reported. Instead, mandatory minimum THE LIBERTY LAWYER 2017 EDITION
11
sentencing statutes will likely continue the trend of less rapists convicted of their actual crime due to the shift of sentencing power and prosecutorial discretion. It has been well-established that mandatory minimums, such as the one found in AB 2888, have the potential to negatively impact different racial and social classes.21 Another potential negative impact is the effect of shifting sentencing power from judges to prosecutors.22 Mandatory minimums allow prosecutors to choose sentences based on the types of charges they decide to bring against a defendant.23 Prosecutors are afforded this freedom to choose which type of charge they bring based on prosecutorial discretion. Another freedom prosecutors enjoy under prosecutorial discretion is the ability to offer plea deals.24 This can ultimately impact whether a defendant is ever convicted of the actual crime he committed. Mandatory minimums can play a huge role as a bargaining chip when a prosecutor is trying to come to a plea agreement.25 For example, instead of prosecuting a defendant who has been charged with a sexual assault that carries a mandatory minimum sentence like the one in AB 2888, a prosecutor may be inclined to enter into a plea agreement where the charge is amended to a less serious crime without an attached mandatory minimum sentence.26 A defendant will be inclined to take the plea in order to avoid a mandated sentence if convicted.27 The prosecutor gets to add a conviction to their record, but it is not a conviction for the serious crime of sexual assault and ultimately still leads
12
THE LIBERTY LAWYER 2017 EDITION
to less prison time. In the end, victims of sexual assault will see defendants escaping the true consequences of their actual crime, and perpetrators will not be deterred from committing sexual violence.
Rape is a serious and lifechanging crime. The result in Brock Turner’s case is an insult to both his victim and other rape victims all over the country. While the outrage that resulted from Brock Turner’s case is understandable and the legislators were correct in thinking that it was time to capitalize on the public’s apparent appetite to discuss sexual assault, the course of action they ultimately took is far from satisfactory. Mandatory minimum sentences are not the answer. It is time for the legal community and legislators alike to start addressing the core issues surrounding sexual assault so that the passing of an already failing policy is not the “justice” we can offer to victims of sexual assault. Kendra Roth is a 2017 graduate of Liberty University School of Law. 1
2
3
Ray Sanchez, Stanford Rape Case: Inside the Court Documents, CNN (June 11, 2016), http://www.cnn.com/2016/06/10/us/ stanford-rape-case-court-documents/. Thomas Fuller, Court Papers Give Insight into Stanford Sex Assault, N.Y. TIMES (June 12, 2016), http://www.nytimes.com/2016/06/13/ us/brock-turner-stanford-rape.html. Veronica Rocha & Richard Winton, Stanford Rape Sentence Unusually Light, Legal Experts Say, L.A. TIMES (June 7, 2016), http:// www.latimes.com/local/lanow/la-me-ln-
judge-stanford-rape-20160607-snap-story. html. 4 Emanuella Grinberg & Catherine E. Shoichet, Brock Turner Released from Jail After Serving 3 Months for Sexual Assault, CNN (Sept. 2, 2016), http://www.cnn. com/2016/09/02/us/brock-turner-releasejail/. 5 Jennifer Calfas, Former Stanford Student Brock Turner Released After Serving 3 Months for Sexual Assault, WALL ST. J. (Sept. 2, 2016), http://www.wsj.com/articles/ former-stanford-student-released-fromjail-after-serving-3-months-for-sexualassault-1472830563. 6 See Emanuella Grinberg, Brock Turner To Leave Jail After Serving 3 Months For Sexual Assault, CNN (Sept. 1, 2016), http://www.cnn. com/2016/09/01/us/brock-turner-release/, for a full account of Brock Turner’s Case. 7 Jim Carlton, California Lawmakers Pass Bill Barring Probation After Stanford Sexual Assault, WALL ST. J. (Aug. 29, 2016), http:// www.wsj.com/articles/california-lawmakerspass-bill-barring-probation-after-stanfordsexual-assault-case-1472524183. 8 Sarah Larimer, In Aftermath of Brock Turner Case, California’s Governor Signs Sex Crime Bill, WASH. POST (Sept. 30, 2016), https://www.washingtonpost.com/news/ grade-point/wp/2016/09/30/in-aftermathof-brock-turner-case-californias-governorsigns-sex-crime-bill/. 9 Cal. Legis. Assemb. AB-2888. Reg. Sess. (2016), https://leginfo.legislature. ca.gov/faces/billTextClient.xhtml?bill_ id=201520160AB2888. 10 Evan Bernick & Paul Larkin, Jr., Reconsidering Mandatory Minimum Sentences: The Arguments for and Against Potential Reforms, HERITAGE FOUNDATION 3 (Feb. 10, 2014), http://www.heritage.org/research/ reports/2014/02/reconsidering-mandatoryminimum-sentences-the-arguments-for-andagainst-potential-reforms. 11 Criminal Justice System: Statistics, RAINN, https://www.rainn.org/statistics/criminaljustice-system (last visited Mar. 12, 2017). 12 Id. 13 Id. 14 Id. 15 Id. 16 Lawrence A. Greenfeld, Prison Sentences and Time Served for Violence, BUREAU OF JUSTICE STATISTICS 1 (Apr. 1995), http:// www.bjs.gov/content/pub/pdf/PSATSFV.PDF. 17 Lindsey Bever, Former Student Sentenced to Prison for Raping Unconscious Freshman in Dorm Room, WASH. POST (July 20, 2016), https://www.washingtonpost.com/ news/grade-point/wp/2016/07/20/formeruniversity-student-sentenced-to-prison-forraping-unconscious-woman/. 18 Id. 19 18 PA. CONS. STAT. ANN. § 3121 (West 2003). 20 See RAINN, supra note 9. 21 Ran Subramanian & Ruth Delaney, Playbook for Change? States Reconsidering Mandatory Sentences, VERA INST. OF JUST. (Feb. 2014), https://www.vera.org/publications/playbookfor-change-states-reconsider-mandatorysentences. 22 Bernick & Larkin, supra note 10, at 3. 23 Id. 24 Id. 25 Id. 26 See id. 27 See id.
YOU HAVE THE RIGHT TO REMAIN A CHILD: JUVENILES AND MIRANDA RIGHTS by Kristen Rose
THE FIFTH AMENDMENT of the United States Constitution provides that no person “shall be compelled in any criminal case to be a witness against himself.”1 In Miranda v. Arizona, the United States Supreme Court recognized that custodial interrogations have the potential to undermine the Fifth Amendment privilege against self-incrimination by possibly exposing a suspect to physical or psychological coercion.2 To protect individuals from such coercion, the Court established a set of procedural safeguards that require law enforcement to apprise suspects of their constitutional rights before any custodial interrogations begin.3
The Miranda Court concluded that unless a suspect is warned of his Fifth Amendment protections, any statements elicited from the suspect are inadmissible at trial.4 Under Miranda, before custodial interrogation can begin, police must inform a suspect that: (1) they have the right to remain silent; (2) their statements may be used against them at trial; (3) they have the right to the presence of an attorney during questioning; and (4) if they cannot afford an attorney, one will be appointed to them.5 The Court further held that any waiver of these rights must be made knowingly, intelligently, and voluntarily.6 One year after Miranda was decided, the Court confronted the issue of whether Miranda warnings must be afforded to juveniles prior to custodial interrogation.7 In In Re Gault, the Court held that juveniles are entitled to the same constitutional protections as adults in the context of interrogations.8 The Court reasoned that “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”9
In In Re Gault, the Court held that juveniles are entitled to the same constitutional protections as adults in the context of interrogations.
Although the Gault Court implied that juveniles might require a greater degree of protection during custodial interrogation,10 the Court has not mandated any special procedural protections for juveniles.11 Instead, the Court endorsed the adult standard for gauging whether a juvenile made a “knowing, intelligent, and voluntary” waiver.12 In Fare v. Michael C., the Court found that the “totality of the circumstances” test that governs adult waivers should be used to determine the admissibility of juvenile waivers as well.13 This “totality of the circumstances” test “includes evaluation of the juvenile’s age, experience, education, background, and intelligence and into whether he has the
capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.”14 The “totality of the circumstances” test mandated in Fare was intended to afford courts with flexibility in determining the validity of a juvenile’s waiver. Unfortunately, this flexibility has produced a problematic side effect. An application of the “totality of the circumstances” test forces court officials and police officers to engage in the psychological evaluation of whether a juvenile has made a knowing, intelligent, and voluntary waiver.
THE LIBERTY LAWYER 2017 EDITION
13
To determine the validity of a juvenile’s waiver, states have applied a variety of approaches. A majority of states apply a straight Fare “totality of the circumstances” test to assessments of juvenile waivers.16 In these states, it is unlikely a court will find even the youngest defendant’s waiver invalid.17 Furthermore some of these states do not require notice to a juvenile’s parent that the child is in custody and being interrogated.18 A minority of states have instituted, either through the court system or the legislature, additional procedural requirements for juveniles that go beyond the totality approach endorsed by Fare.19 These jurisdictions require that to be valid, a parent or other “interested adult” must be present at the time of the juvenile’s waiver.20
procedural protections. The best approach is to require the presence of a parent, legal guardian, or legal counsel during all juvenile custodial interrogations. The presence of an interested adult allows for heightened protection of juveniles’ rights and provides more certainty to a court in determining the validity of a waiver. As a society, we must advocate for the greater protections of children in the criminal justice system. Children are often left vulnerable to coerced confessions, and it is up to the public to encourage state legislatures and judges to adopt adequate protections. America’s children deserve it.
Under Miranda, before custodial interrogation can begin, police must inform a suspect that: (1) they have the right to remain silent; (2) their statements may be used against them at trial; (3) they have the right to the presence of an attorney during questioning; and (4) if they cannot afford an attorney, one will be appointed to them.5
The juvenile justice system is one of the few areas in law that does not sufficiently recognize the inherent vulnerabilities of minors by providing them with heightened protections. Many activities have ages of initiation. For instance, a person must wait until age 16 to start driving, age 18 to vote, age 21 to drink alcohol, and so on. The rationale behind these age limits involves juveniles’ lesser maturity and their psychological and emotional development.21
Scientific and sociological studies confirm that juveniles generally do not have the psychological capacity to knowingly waive their Miranda rights.22 Research indicates that juveniles misunderstand at least one of the four rights contained in a standard Miranda warning.23 Studies also suggest that juveniles have an overall poorer understanding of the function and importance of Miranda rights than adults.24 Finally, the Court has recognized that juveniles are more vulnerable to a coerced confession than adults simply because of the imbalance of power that exists in an interrogation between a child and a police officer.25 For a juvenile’s constitutional rights to be adequately protected, it is necessary that juveniles be provided with enhanced 14
THE LIBERTY LAWYER 2017 EDITION
Kristen Rose is a 2017 graduate of Liberty University School of Law.
1 2 3 4 5 6 7 8
U.S. CONST. amend. V. Miranda v. Arizona, 384 U.S. 436, 448 (1966). Id. at 444. Id. Id. Id. In re Gault, 387 U.S. 1, 55 (1967). Id. at 47 (“It would be indeed surprising if the
privilege of self-incrimination were available to hardened criminals but not to children.”). 9 Id. at 13. 10 Id. at 55 “([S]pecial problems might arise with respect to waiver or privilege by or on behalf of children . . . .”) 11 Barry C. Feld, Juveniles’ Competence to Exercise Miranda Rights: An Empirical Study of Policy and Practice, 91 MINN. L. REV. 26, 27 (2006). 12 Fare v. Michael C., 442 U.S. 707, 725-27 (1979). 13 Id. at 725. 14 Id. 15 Id. (“[T]he totality approach will all the court the necessary flexibility to take into account in making a waiver determination. At the same time, that approach refrains from imposing rigid restrain restraints on police and courts in dealing with an experienced older juvenile . . . .”). 16 See Trey Meyer, Comment, Testing the Validity of Confessions and Waivers of the Self-Incrimination Privilege in the Juvenile Courts, 47 U. KAN. L. REV. 1035, 1072 n.299 (1999) (listing thirty-five states following the “totality of the circumstances” test). 17 W.M. v. State, 585 So. 2d 979, 983 (Fla. Dist. Ct. App. 1991) (finding that a ten-year-old’s confession was voluntarily given). 18 For example, Tennessee state law requires that a juvenile who is “taken into custody” be delivered to juvenile court or released to his parents or guardian “within a reasonable time.” TENN. CODE ANN. § 37-1-115. Under this statute, police officers may temporarily detain and question juveniles before release to a parent or delivery to the court. State v. Manus, 632 S.W.2d 137, 140 (Tenn. Crim. App. 1982). In determining what a reasonable time is, a court considers the totality of the circumstances. State v. Gordon, 642 S.W.2d 742, 744 (Tenn. Crim. App. 1982). In some cases, juveniles have been in custody for more than five hours before a parent was notified, and courts have upheld this to be reasonable. Id. at 743. 19 See Feld, supra note 11, at 36 (citing Colorado, Georgia, Indiana, Massachusetts, Vermont, New Jersey, Kansas as states in the minority). 20 Id. 21 Miller v. Alabama, 132 S. Ct. 2455, 2464 (2012) (stating that “children have a ‘lack of maturity and an underdeveloped sense of responsibility,’ leading to recklessness, impulsivity, and heedless risk-taking” (quoting Roper v. Simmons, 543 U.S. 551, 569 (2005))). 22 See Thomas Grisso, Juveniles’ Capacity to Waive Miranda Rights: An Empirical Analysis, 68 CAL. L. REV. 1134, 1135-36 (1981). 23 Id. at 1160. 24 Id. at 1159. 25 Haley v. Ohio, 332 U.S. 596, 599-600 (“We cannot believe that a lad of tender years is a match for the police in such a contest [as a custodial interrogation].”).
ACHIEVEMENTS OF LIBERTY LAW STUDENTS BAR RESULTS • Second highest pass rate on the July 2016 Virginia Bar Exam with 89.66%* • 100% pass rate on the July 2016 North Carolina Bar Exam* *First-time test takers
MOOT COURT COMPETITIONS Illinois Appellate Lawyers Association Moot Court Tournament Whitney Rutherford (3L) and Wes Vorberger (3L) went undefeated throughout the preliminary, semi-final, and final rounds, resulting in a first-place win. Rutherford was named Second Best Oralist of the tournament.
Leroy R. Hassell Sr., National Constitutional Law Moot Court Tournament Tom Morris (2L) and Kristen Rose (3L) were the tournament champions and were awarded the Second Best Respondent Brief. Ben Murray (2L) was named Best Oralist, and Meagan White (3L) was named Fourth Best Oralist.
ABA Law Student Division National Appellate Advocacy Competition At the ABA Regional Competition in Washington, D.C., Courtney Garrett (2L) was named Best Oralist, and Meagan White (3L) was named Fifth Best Oralist.
TRIAL TEAM COMPETITIONS ABA Regional and National Arbitration Competitions The team of Michelle Protzman (3L), Kelsey Pittman (2L), Sydney Phillips (2L), and Ben Murray (2L) won first place at the ABA Regional Competition held here at Liberty
University School of Law. This team advanced to the ABA National Arbitration Competition in Chicago Illinois, and finished in the top four.
International Student Summit Michelle Protzman (3L) and Elizabeth Rerick (3L) competed against 22 teams at the Third Annual International Student Summit in Dnipropetrovsk, Ukraine. Teams from Ukraine, Poland, Romania, and the United States gave presentations on the topic of Strategies and Solutions for the Preservation of Democratic Institutions. Protzman and Rerick’s presentation was entitled Moral Foundations of the Rule of Law for the Preservation of Democratic Institutions and Human Dignity. Protzman and Rerick won second place.
ALTERNATIVE DISPUTE RESOLUTION (ADR) COMPETITIONS ABA Regional Negotiation Competition Courtney Garrett (2L) and Kylie Peterson (2L) placed fifth, narrowly missing the final four. Tyler Owens (3L) and Derek Green (3L) placed eighth after having two great rounds. Liberty also sent Suzanne Pierce (2L) and Haley Jones (2L), who had a strong showing and earned praises from several of the judges.
William & Mary Law School Negotiation Tournament Ben Allison (2L) and Micah Long (2L) won second place. Stephen Jones (3L) and Kendra Roth (3L) placed tenth in the competition.
ABA Regional Mediation Competition Lauren Brown (3L) and Stephen Jones (3L) won fourth place. Jared Blake (2L) and Priscila Nogueira da Silva (2L) won sixth place.
THE LIBERTY LAWYER 2017 EDITION
15
SETTLEMENT RESTRICTIONS ON FALSE CLAIMS ACT (FCA) QUI TAM ACTIONS: A STRICT APPLICATION OF LAW OR A WASTE OF JUDICIAL RESOURCES? by Mia Yugo and Joel Hesch
Should the government have absolute veto power to block voluntary settlements in qui tam actions, even in cases where the government has declined to intervene?
THE U.S. COURT OF APPEALS for the Fourth Circuit recently held that the Department of Justice (DOJ) possesses absolute veto power to block voluntary settlements negotiated between whistleblowers and defendants, even in instances where the government has declined to intervene.1 In United States ex rel. Michaels v. Agape Senior Community, Inc., the court held that Congress has granted the Attorney General the “broad and unqualified right to veto proposed settlements of qui tam actions.”2 As a result of this “broad” and “unqualified” right, the qui tam relator-plaintiffs were blocked from reaching a settlement agreement with the defendants, Agape Senior Community, Inc. (Agape), absent the government’s consent, and must instead continue litigation.3 This article will analyze the court’s reasoning in Agape and briefly highlight the pros and cons of the court’s strict interpretation of 31 U.S.C. § 3730(b)(1)’s consent-fordismissal provision. 16
THE LIBERTY LAWYER 2017 EDITION
The False Claims Act (FCA) is a statute enacted in 1863 that permits a private party (known as the “relator”) to seek civil remedies against the defendant for defrauding the government.4 In other words, the FCA allows Private Party A to not only report but also sue Private Party B for committing fraud against the government. Party A is the “whistleblower” plaintiff because he or she is effectively “blowing the whistle” on Party B for cheating the taxpayer (i.e., by overbilling the government for Medicare or Medicaid expenses).
This type of lawsuit is called a “qui tam” action because the relator pursues the action on the government’s behalf. It stems from the Latin phrase, “qui tam pro domino rege quam pro se ipso in hac parte sequitur,” which means “who pursues this action on our Lord the King's behalf as well as his own.”5 Once the relator initiates the action (i.e., serves the complaint on the government), the government then has a 60-day period, absent extenuating circumstances, in
The False Claims Act (FCA) is a statute enacted in 1863 that permits a private party (known as the “relator”) to seek civil remedies against the defendant for defrauding the government.
which it can choose to either (a) intervene and assume “primary responsibility” for prosecuting the defendant, or (b) decline to intervene and instead allow the relator to independently pursue the action on his or her own.6 If successful, the relator receives a percentage of the total recovery.7 At issue in Agape is whether the DOJ has the authority to block a settlement agreement between a relator and defendant once the government has already declined to intervene in the action. The statutory provision governing the issue is 31 U.S.C. § 3730(b)(1), which states, in part, that
“[t]he action may be dismissed only if the court and the Attorney General give written consent to the dismissal and their reasons for consenting.”8 The narrower question is whether this “consent-for-dismissal” provision grants the government veto power during all stages of litigation or only within the initial 60-day period. On this point the circuits are split. On the one hand, the Fifth and Sixth Circuits have held that the plain language of the statute clearly equips the Attorney General with absolute settlement veto power during all phases of litigation, even in the absence of government intervention.9 On the other hand, the Ninth Circuit has held that if the government has declined to intervene, it cannot thereafter automatically block a settlement.10 Since it did not assume responsibility for prosecuting the case within the allotted 60-day period, the government does not, in the Ninth Circuit’s view, have absolute authority to later force the parties to continue costly litigation against their will.11 Thus, instead of outright blocking a settlement, the government’s objections—notably made with good cause—result in a mere hearing to determine the reasonableness of the proposed agreement. Simply put: if the agreement is deemed fair and reasonable, the Ninth Circuit does not permit the government to stop its enforcement.12 The Fourth Circuit disagreed. In Agape, the court held that the “plain language” of the consent provision in 31 U.S.C. § 3730(b) (1) provides unambiguous support for the Fifth and Sixth Circuits in holding that the Attorney General must consent to all settlement agreements reached between the parties.13 Much like its two sister circuits, the Agape court reasoned that the relator’s “right to conduct the action does not necessarily include the right to settle the claim[.]”14 Since the relator is primarily driven by what the court deems “prospects of monetary reward rather than the public good,” the Fourth Circuit requires the Government to effectively sign off on the settlement before dismissing the suit.15 In other words, the Fourth, Fifth, and Sixth Circuits have practical considerations: they are concerned that the absence of government consent might result in a
smaller recovery for the taxpayers. For example, instead of recovering a total of $5 million (of which a portion may ultimately go to the plaintiff, depending on the source and circumstances of the information), the court is worried that the relator may, instead, prematurely opt to settle for $3 million in which case the taxpayers’ overall recovery is significantly reduced.
Is this fair, however, to whistleblowers that assumed financial responsibility for the suit after the government declined to intervene? Perhaps not.16 If anything, the decision undoubtedly results in protracted litigation and increased costs for the qui tam relator as well as for the defendant, particularly if the end result of the litigation is not, in fact, any greater than the proposed settlement. For the government, however, it increases the likelihood of fairness and accuracy in the recovery whilst decreasing the risk of an artificially structured settlement that denies the taxpayers their “fair” or “proper” share.17 Mia Yugo is the former editor-in-chief of the Legal Journal and now an attorney in private practice. Joel Hesch is a tenured law school professor, former DOJ trial attorney in the civil fraud section of the Department of Justice (DOJ), and national expert on the False Claims Act (FCA). While at DOJ, Professor Hesch conducted nationwide FCA
investigations affecting twenty different government agencies and facilitated cases recovering more than one billion dollars for the government.
United States ex rel. Michaels v. Agape Senior Cmty., Inc., 848 F.3d 330 (4th Cir. 2017). 2 Id. at 340. 3 See id; see also Alison Frankel, 4th Circuit: DOJ Has Absolute Veto Power Over False Claims Act Settlements, REUTERS (Feb. 16, 2017), http://www.reuters.com/article/otcfalseclaims-frankel-idUSKBN15V2WQ. 4 The FCA was enacted for “‘the principal goal of stopping the massive frauds perpetrated by large [private] contractors during the Civil War.’” United States ex rel. Clausen v. Laboratory Corp. of America, Inc., 290 F.3d 1301, 1307 (11th Cir. 2002) (quoting Vt. Agency of Natural Res. v. Stevens, 529 U.S. 765, 781 (2000)). 5 Rockwell Int’l Corp. v. United States, 549 U.S. 457, 462 n.2 (2007). 6 Agape, 848 F.3d at 333-34. See 31 U.S.C. § 3730(b)(4)(A)-(B). 7 See 31 U.S.C. § 3730(d)(1)-(4). 8 See 31 U.S.C. § 3730(b)(1) (emphasis added). 9 See, e.g., United States v. Health Possibilities, P.S.C., 207 F.3d 335 (6th Cir. 2000); Searcy v. Philips Electronics North America Corp., 117 F.3d 154 (5th Cir. 1997). 10 United States ex rel. Killingsworth v. Northrop Corp., 25 F.3d 715 (9th Cir. 1994) (holding that the Government “may not obstruct the settlement and force a qui tam plaintiff to continue litigation” but “may question the settlement for good cause[.]).” Id. at 724. 11 Id. 12 Agape, 848 F.3d at 337. 13 Id. at 339. 14 Id. 15 Id. at 340 (quoting Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 949 (1997)) (internal quotations omitted). 16 See, e.g., Frankel, supra note 3. 17 See Killingsworth, 25 F.3d at 724 (“We construe the Act as authorizing the district court to bar a qui tam plaintiff and defendant from artificially structuring a settlement to deny the government its proper share of the settlement proceeds.”). 1
THE LIBERTY LAWYER 2017 EDITION
17
SHOULD THE STUDIOS BE BROKEN UP? HOW HOLLYWOOD SKIRTS ANTI-TRUST LAW by Micah Long
18
THE LIBERTY LAWYER 2017 EDITION
“THERE’S NO BUSINESS LIKE SHOW BUSINESS!”1 Hollywood is unique among the thousands of industries in this country. It is a place of insider expertise and “in-the-know secrets.” One does not succeed in Hollywood without knowing the right people. As a result of its relational style, Hollywood has had frequent brushes with antitrust law throughout its history.
The movie industry evolved through three main eras. All three were marked by significant antitrust litigation. The first era began soon after the industry was born. From 1888—when Edison invented one of the first moving picture cameras—to around 1915, a single trust dominated the film industry.2 The Trust,3 as it came to be known, controlled the patents to most of the camera technology on the market.4 The Trust’s market power allowed it to license camera technology to movie producers for exorbitant fees.5 The second era of Hollywood began in 1915 and lasted until 1948.6 During this time, a small number of firms (known as studios) controlled all three stages of production: film production, distribution, and exhibition.7 However, the studio system ended abruptly with the U.S. Supreme Court’s decision in United States v. Paramount Pictures, Inc.,8 an antitrust case filed in 1938 against the studios for their control of major movie theater chains.9 The third era began with the Paramount litigation, which lasted for 11 years and changed the face of the movie industry forever. The Paramount decision culminated in three new legal rules that governed the movie industry: “(i) no direct or indirect intervention in admission price setting by producers and distributors; (ii) no licensing negotiations except on theaterby-theater and movie-by-movie bases; and (iii) no vertical integration between” the Trust and exhibitors.10 The Court intended these rules to open the market to independent producers and distributors, to allow exhibitors to select which movies they would show, and to remove artificial constraints on ticket pricing.11 Paramount
forced the separation of exhibition from production and distribution, bringing the studio system crashing down with it.12 The Paramount decision marked the end of an era. The financial structure of the industry did not change, but forced divestment of studios’ exhibition assets left the studios without a safety net of guaranteed access to box office revenue.13 The studios may have lost control of movie exhibition with the Paramount decision, but the studios still retain their control over distribution. Since the 1950s, the studios have slowly been rebuilding their control over the movie industry. The studios have been consolidating through periodic waves of mergers that occurred in the 1980s, 1990s, and mid-2000s.14 The pace of consolidation has only increased since the turn of the new century. In 1983, 50 companies owned 90 percent of the media consumed by Americans.15 By 2012, just six companies controlled that 90 percent.16 The “Big Six,” as the six largest studios are collectively known, is comprised of 20th Century Fox, Warner Bros., Paramount Pictures, Columbia Pictures, Universal Pictures, and Walt Disney Pictures.17 Disney and Universal alone carried off most of the profits in 2016.
Together, Disney and Universal managed to grab 70 percent of total industry profit this year.18 Antitrust law is designed to prevent anticompetitive strategies. The highest level of scrutiny is reserved for mergers of massive corporations that are seeking to join with competitors in the same industry.19 The Supreme Court created a three-step test for antitrust merger analysis in Brown Shoe Co. v. United States.20 The Court found that determining whether there has been a violation of antitrust law required: (1) defining the relevant market; (2) estimating the merging firms’ strength in the relevant market; and (3) examining industry and transaction-specific factors.21
media consolidation is far from over. Just last year, Comcast bought DreamWorks Animation Studio for $3.8 billion, sparking speculation that the entire industry will soon experience another round of largescale consolidation.22 Currently, Viacom is hunting for an investor in Paramount Pictures, Lionsgate is looking for a buyer, and a Chinese company, Dalian Wanda, agreed to purchase Legendary Entertainment last year.23
Before this year is over, even more of the industry is likely to fall under the sway of the studios. The consolidation of power in the entertainment industry hurts everyone. It hurts the viewers because the studios only make programs that fit the mold. It hurts producers because they are forced to
The first era—from 1888 to around 1915—a single trust dominated the film industry. The second era of Hollywood began in 1915 and lasted until 1948. A small number of studios controlled all three stages of production. The third era began with the Paramount litigation, which lasted for 11 years and changed the face of the movie industry forever.
Hollywood has taken advantage of this laxity with animal ferocity. The age of THE LIBERTY LAWYER 2017 EDITION
19
make the content that the studio demands. It hurts actors, whose employment opportunities are severely curtailed by the studios. If an actor clashes with an executive at one network, he could find himself blackballed in that studio’s entire network of subsidiaries. Consolidation hurts 24 everyone except the studios. Most modern antitrust litigation is concerned with mergers between large competitors. The court and federal regulators pay special attention to horizontal mergers and acquisitions.25 Section 7 of the Clayton Act prohibits mergers and acquisitions where the effect “may be substantially to lessen competition, or to tend to create a monopoly.”26 Yet Hollywood has gotten a free pass from government antitrust prosecutors since the Paramount decision in the 1940s. There have been no serious antitrust challenges to Hollywood studio mergers since the 1950s, even though the deals keep growing larger. Hollywood should not escape scrutiny simply because it is already consolidated. Existing oligopolies are more dangerous than contemplated ones. It only makes sense to place mergers under special scrutiny if huge corporations have not already been allowed to unlawfully merge in the past. The three-step process applied by the Court in Brown Shoe needs to be applied not only to contemplated mergers, but also to existing anticompetitive markets. The Supreme Court should apply the Brown Shoe framework to Hollywood’s existing oligopoly.
If the Court were to apply the Brown Shoe framework to the existing Hollywood oligopoly, the Big Six studios would almost certainly be broken up. Recall that the test involved (1) defining the relevant market; (2) estimating the merging firms’ strength in the relevant market; and (3) examining industry- and transaction-specific factors.27 Under the first step, the relevant market could either be defined as the distribution of movies, the production, distribution, and exhibition of films, or the distribution of media. 20
THE LIBERTY LAWYER 2017 EDITION
Regardless of how broadly or how narrowly one defines the relative market, under step two, the studios’ strength in the relevant market is overwhelming. The Big Six own 90 percent of all media in this country and much of the rest of the world.28 That is not just an overwhelming majority; it is a super majority.29 This market strength does not need to be estimated because the studios already control 90 percent of the market. Finally, under step three, industry-specific factors do not militate for consolidation. New technology has not democratized entertainment. The all-powerful studios still retain an iron grip on media distribution outlets. The movie industry is an oligopoly that needs to be broken up. Together, the studios control everything about a movie from the price of set materials and wage rate of actors to the price at the box office and the worldview of the content. Under the Brown Shoe test, the movie industry is a heavily concentrated market with no mitigating industry factors or economic headwinds.
The Big Six controls 90 percent of all media consumed in the U.S. and most of the Western world. As the saying goes, “power corrupts, and absolute power corrupts absolutely.”30 It is just human nature. Micah Long is a J.D. candidate, Liberty University School of Law (2018).
1
2
3
4 5 6
7 8
Irving Berlin, THERE’S NO BUSINESS LIKE SHOW BUSINESS (Brunswick Record Corp. 1954). Barack Y. Orbach, Antitrust and Pricing in the Motion Picture Industry, 21 YALE J. ON REG. 317, 332, 335 (2004); Alexandra Gil, Note, Breaking the Studios: Antitrust and the Motion Picture Industry, 3 NYU J.L. & LIBERTY 83, 92 (2008). The Motion Picture Patents Company was also called The Movie Trust, Edison Trust, or The Trust. See Motion Picture Patent Company, ENCYCLOPEDIA BRITANNICA (1998), https://www.britannica.com/topic/ Motion-Picture-Patents-Company. See Gil, supra note 2, at 92. Id. Kraig Fox, Note, Paramount Revisited: The Resurgence Of Vertical Integration In The Motion Picture Industry, 21 HOFSTRA L. REV. 505, 511 (1992). Id. at 505. United States v. Paramount Pictures, Inc., 334 U.S. 131 (U.S. 1948).
Orbach, supra note 2, at 342. Id. 11 See id. 12 Gil, supra note 2, at 118. 13 Id. at 120. 14 See Peter H. Nesvold, Note, Communication Breakdown: Developing an Antitrust Model for Multimedia Mergers and Acquisitions, 6 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 781 (1996); see also Geraldine Fabrikant, Turner Buying New Line and Castle Rock Film Companies, N.Y. TIMES, Aug. 17, 1993, http:// www.nytimes.com/1993/08/18/business/ turner-buying-new-line-and-castle-rockfilm-companies.html; see also Mark Landler, A $7.5 BILLION DEAL, N.Y. TIMES, Sept. 22, 1995, http://www.nytimes.com/1995/09/23/ us/turner-to-merge-into-time-warnera-7.5-billion-deal.html?pagewanted=all; see also Joan E. Solsman, Will $3.8 Billion DreamWorks Animation Deal Kickstart More Hollywood Consolidation? THE WRAP (May 1, 2016), http://www.thewrap.com/after-38-billion-dreamworks-animation-deal-doeshollywood-consolidation-continue/. 15 James Stewart, When Media Mergers Limit More Than Competition, N.Y. TIMES, July 25, 2014, http://www.nytimes.com/2014/07/26/ business/a-21st-century-fox-time-warnermerger-would-narrow-already-dwindlingcompetition.html. 16 Id. 17 Tanya Mukundan, Big Six, MAYA ACADEMY OF ADVANCED CINEMATICS (Dec. 22, 2014), http://www.maacindia.com/blog/ index.php/big-six/; see also Natalie Robehmed, Hollywood’s Most Profitable Movie Studios, FORBES MAGAZINE (May 15, 2015), http://www.forbes.com/sites/ natalierobehmed/2015/05/15/disneyis-hollywoods-most-profitable-moviestudio/#19ab9435580c (May 15, 2015). 18 James Rainey, ‘Increasingly Dire’ Film Industry Has Fewer Winning Films, VARIETY (Mar. 4, 2016), http://variety.com/2016/ film/news/hollywood-dire-outlooktentpoles-1201722775/. 19 Nevsold, supra note 11, at 796 n.78. THOMAS W. BRUNNER ET AL., MERGERS IN THE NEW ANTITRUST ERA 16 (1st ed. 1985) (explaining that horizontal mergers receive more scrutiny than any other category of merger); E. Thomas Sullivan, The Economic Jurisprudence of the Burger Court's Antitrust Policy: The First Thirteen Years, 58 NOTRE DAME L. REV. 1, 42-44 (1982). 20 Brown Shoe Co. v. United States, 370 U.S. 294 (U.S. 1962). 21 Id. at 855-56. 22 Solsman, supra note 13. 23 Id. 24 See Lauren Horwitch, Media Consolidation: Hollywood Versus The Big Six, BACKSTAGE (Oct. 19, 2006), http://www.backstage. com/news/media-consolidation-hollywoodversus-the-big-six/. 25 BRUNNER ET AL., supra note 18, at 16; see also Sullivan, supra note 16, at 42-44. 26 15 U.S. Code § 18 (1996). 27 Id. at 855-56. 28 Horwitch, supra note 23. 29 Id. 30 This phrase is a derivation of a phrase commonly attributed to Lord Acton. See Lord Acton Quote Archive, ACTON INST., http://www.acton.org/research/lord-actonquote-archive (last visited Mar. 12, 2017). 9
10
EXPANDING THE BORDERS OF THE FOREIGN CORRUPT PRACTICES ACT by Steven Osborne
IF A BUSINESSMAN offers a bribe to a public official within the borders of the United States, he will face potential criminal liability in state and possibly federal court. But what if that businessman is an American citizen offering a bribe overseas? What if that businessman was not an American citizen at all? The Foreign Corrupt Practices Act (FCPA) was created to prevent American companies and individuals from engaging in corrupt practices overseas. The FCPA creates federal jurisdiction over specific persons, both corporate and individual, who are attempting to exert improper influence over foreign government officials.1
In recent years, the FCPA has been enforced more vigorously than ever before.2 Its provisions and the extent of its jurisdiction have also been read more expansively.3 This
has triggered a legal question over how far the statute should extend and whether the principles of conspiracy and accessory liability should be considered in FCPA jurisprudence. The FCPA has two primary regulations, an accounting requirement and an antibribery provision.4 The purpose of the accounting requirement is to ensure that the management of a corporation is aware of the actions of lower level officers and employees.5 This accounting requirement furthers the main purpose of the FCPA—to prevent persons connected with the United States from bribing foreign officials. The two agencies tasked with enforcing the FCPA are the Securities and Exchange Commission and the Department of Justice.6
Persons covered under the FCPA include “issuers” and “domestic concerns.” An issuer is a company who has a class of securities registered under Section 12 of the Securities Exchange Act of 1934 (Exchange Act) or who is required to file reports under Section 15 of the Exchange Act.7
A domestic concern is an individual who is either a “citizen, national, or resident of the United States” or a corporate entity that has its principal place of business in the United States or is organized under the laws of a state or territory of the United States.8 THE LIBERTY LAWYER 2017 EDITION
21
The Foreign Corrupt Practices Act (FCPA) was created to prevent American companies and individuals from engaging in corrupt practices overseas.
The prohibitions and penalties of the FCPA also apply to foreign nationals who are agents of domestic concerns.9
There is a live legal controversy over whether the persons covered under the statute include those who are not agents, but who are co-conspirators or accomplices of a person who is covered by the statute. As a general rule, a co-conspirator is culpable for the crimes of another coconspirator done in furtherance of the conspiracy. However, the counterpoint is that Congress has drawn a line regarding to whom this statute applies based upon its specific listing of persons covered under the FCPA.10 In United States v. Lawrence Hoskins, the United States District Court for the District 22
THE LIBERTY LAWYER 2017 EDITION
of Connecticut fired a first salvo in a long battle to determine whether conspiracy principles can be applied in conjunction with the FCPA to bring foreign nationals under federal jurisdiction.11 The court concluded that the defendant, a foreign national, could argue that an agency relationship is the sole basis under which a conviction of a foreign national not on U.S. soil could occur.12 This court’s opinion represents a more constricted view of how the FCPA may be applied than that espoused by the government. In Hoskins, the government took the position that the 1998 Amendments to the FCPA were enacted to enforce the provisions of the Organization for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Convention).13 It contended that the OECD Convention obligated signatories to make it a crime for “any person” to
pay a foreign bribe.14 While the 1998 amendments to the FCPA did expand the categories of persons who could be charged for furthering a foreign bribe while on U.S. soil and allowed for foreign nationals found to be agents to be charged criminally, the court concluded that it did not expand jurisdiction to all persons in a manner that allowed for accomplice liability.15 Early legislative discussions surrounding the FCPA contemplated that accomplice liability could be imposed under the statute.16 However, the later enacted version indicated that individuals were “covered directly” under the statute.17 While the legislative history is helpful in making determinations as to the interpretation of the statute, it is possible that the members of Congress who crafted the bill were not entirely in agreement as to whether the statute precluded accomplice liability. The U.S. Court of Appeals for the Second Circuit has received written briefs as part of an appeal of the District
Court’s determination in Hoskins.18 The government’s argument is that if the statute is not interpreted to include accomplice liability, that foreign nationals like Hoskins, a top executive within the company, may avoid liability under the Act because they are too high up in the company hierarchy to be considered “agents.”19 Effectively, they could use Americans and other third party foreign nationals to carry out violations of the FCPA without facing any liability themselves.20 Historically, the Second Circuit has favored a narrower application of accomplice liability,21 whereas, the Seventh Circuit has favored a broader application.22 It remains to be seen if that circuit splitting trend will hold. Should the Second Circuit find
The FCPA has two primary regulations, an accounting requirement and an anti-bribery provision.4 The accounting requirement is to ensure that the management of a corporation is aware of the actions of lower level officers and employees.5 This accounting requirement furthers the main purpose of the FCPA—to prevent persons connected with the United States from bribing foreign officials.
that the scope of the FCPA does allow for accomplice liability to be applied to foreign co-conspirators, it will likely invite an appeal to the United States Supreme Court.
Additionally, the future of FCPA enforcement is currently an unknown. While the FCPA was enforced with increasing vigor under both Presidents Bush and Obama, it is less clear what direction enforcement will take under the Trump administration. In a 2012 CNBC interview, Donald Trump referred to the FCPA as a “horrible law” that “should be changed.”23 However, some within the Trump administration may view the law as a valuable tool in fighting corruption of both the political and corporate varieties. Both the impending circuit court decision and question of future enforcement will weigh heavily on those engaged in international business transactions. With the FCPA being so central to white collar criminal practice, attorneys the world over will be watching to see what happens. Steven Osborne is an associate attorney at Lugar Law in Roanoke, Virginia. He is a graduate of Liberty University School of Law and is a member of the Virginia State Bar. His past experiences include work with the United States House Judiciary Committee and the United States Attorney’s Office in Washington, D.C.
1 2
3
4
See generally 15 U.S.C. § 78dd-1. Katelyn Polantz, These Four Practices Flourished During the Obama Years, NAT’L L. J. (Oct. 16, 2016), http://www. nationallawjournal.com/id=1202770039810/ These-Four-Practices-Flourished-During-theObama-Years. See John P. Cunningham & Geoff Martin, SEC Sets Sights on Commercial Bribery, LAW 360 (Mar. 16, 2015), https://www.law360. com/articles/630931/sec-sets-sights-oncommercial-bribery; see also Office of Public Affairs, Department of Justice Secures More Than $2 Billion in Judgments and Settlements as a Result of Enforcement Actions Led by the Criminal Division, DEP’T OF JUSTICE (Jan. 21, 2011), https://www. justice.gov/opa/pr/department-justicesecures-more-2-billion-judgments-andsettlements-result-enforcement. Ronak D. Desai, Complying with U.S. Anti-
Corruption Laws While Conducting Business in India, FORBES (Oct. 30, 2015), http://www. forbes.com/sites/ronakdesai/2015/10/30/ ensuring-foreign-corrupt-practices-actcompliance-while-conducting-businessin-india/#56c365e81dae. “The FCPA has two primary provisions. The first prohibits U.S. persons, entities or any issuers of U.S. securities, from making or offering payments to foreign government officials to obtain or retain business or a business advantage. The second requires that issuers maintain accurate books and records and internal controls.” Id. 5 See Stuart H. Deming, FCPA Prosecutions: The Critical Role of the Accounting and Recordkeeping Provisions, BUSINESS LAW TODAY (Aug. 2, 2010), http:// www.americanbar.org/publications/ blt/2010/08/06_deming.html. “Under the accounting provisions, the purpose of internal controls is to ensure that issuers adopt accepted methods of recording economic events, protecting assets, and confirming transactions to management’s authorization.” Id. 6 Desai, supra note 4. 7 15 U.S.C. §§ 78c(a)(8), 78dd-1(a), 78o(d). 8 15 U.S.C. § 78dd-2(h)(1). 9 15 U.S.C. §78dd-2(a), 15 U.S.C. §78dd-2(g). 10 David S. Krakoff et al., Challenges to the DOJ’s Jurisdiction over Extraterritorial Conduct, LAW JOURNAL NEWSLETTERS (Oct. 2016), http:// www.lawjournalnewsletters.com/sites/ lawjournalnewsletters/2016/10/20/ challenges-to-the-dojs-jurisdictionover-extraterritorial-conduct/?slretu rn=20170026234240. 11 United States v. Hoskins, 123 F. Supp. 3d 316 (D. Conn. 2015). 12 Id. at 327. 13 Id. at 325-26. 14 Id. at 326. 15 Id. 16 See H.R. Rep. No. 95-640, at 8 (1977); S. Rep. No. 94-1031, at 7 (1976). 17 Markup Session on S. 305, Senate Comm. on Banking, Housing and Urban Affairs, 95 Cong., 8, 12 (Apr. 6, 1977). 18 Mark Hamblett, DOJ Urges Circuit to Reverse Ruling on Reach of FCPA, DAILY BUSINESS REVIEW (Jan. 9, 2017), http://www.dailybusinessreview.com/ id=1202776396948/-DOJ-Urges-Circuitto-Reverse-Ruling-on-Reach-of-FCPA?slreturn=20170026235942. 19 See Reply Brief for Appellant United States of America at 11, United States v. Hoskins, 123 F. Supp. 3d 316 (D. Conn. 2015) (No. 16-1010), available at http://nylawyer.nylj.com/adgifs/ decisions17/010917reply.pdf 20 Id. at 29-30. 21 E.g., Hoskins, 123 F. Supp. 3d at 323. 22 See id. at 323 n.6. 23 Trump: Dimon’s Woes & Zuckerberg’s Prenuptial, CNBC (May 15, 2012), http://video.cnbc.com/ gallery/?video=3000089630&play=1 (approximately 15:00 mark).
THE LIBERTY LAWYER 2017 EDITION
23
SNITCHES CAN GET YOU STITCHES by Baxter Stegall
24
THE LIBERTY LAWYER 2017 EDITION
A LONG-STANDING MANTRA in policing is that confidential informants are a necessary evil.1 Confidential informants are most often associated with narcotics enforcement but have been used in many other types of investigations. The justification is simple: the criminal underworld is difficult to penetrate, and the
person best suited for the task is a criminal.
The knowledge, connections, jargon, and, most importantly, the trust necessary to infiltrate a crime ring are not easily earned. This difficulty causes significant problems for prosecutors. The kinds of people who make the best witnesses (i.e., truthful, reliable, and believable) are not often the kinds of people who can buy crack on the street corner or get a cellmate to confess to a murder. However, informants often bring baggage: they might have criminal convictions making them subject to impeachment, a poor work ethic, or are generally difficult to manage. Most police agencies simply do not have the logistics, time, money, and training necessary to train, insert, and support undercover police officers. Simply put, snitches are often the best answer. Law enforcement agencies go to great lengths to hire capable, trustworthy, and intelligent officers who display the best judgment in adverse situations. Most departments conduct extensive background investigations to hire only the best candidates. One major purpose behind this exhaustive search is to limit liability.2 Police officers often find themselves in high-risk situations, requiring them to make instantaneous decisions based on limited information. Police officers’ actions are subject to the most exacting scrutiny by swarms of attorneys waiting to pounce when an officer makes a poor decision. This microscopic inspection of police action leads most departments to give prospective candidates a hard look. Departments want to select those who will expose the agency to the least liability, while still serving the public successfully.
Unfortunately, if a department used the same exacting standards in selecting confidential informants for use in a criminal investigation, it would find itself with very few useful snitches. Skilled prosecutors can help the informant survive impeachment on the stand for past criminal convictions. Strict management3 of the informant by police officers can prevent problems with the informant handling evidence (usually drugs or guns) and money. These same strict management guidelines are also critical in investigative credibility issues, such as proving chain of custody. The strict management guidelines create issues of vicarious liability for the police department. While most police administrators would love to disclaim informants as employees4, and thus disclaim liability for their actions, the principles of agency law may not allow it. The main issue to determine regarding vicarious liability is whether the informant is an employee or an independent contractor. In Virginia, a party is generally not vicariously liable for torts committed by independent contractors it has hired.5 The distinction between an employee and an independent contractor is based primarily on the amount of control that the principal exerts over the worker.6
Police officers must maintain strict control over informants during the course of a criminal investigation. In a narcotics distribution investigation, the officers normally meet with the informant and search him for drugs, cash, weapons,
The justification is simple: the criminal underworld is difficult to penetrate, and the person best suited for the task is a criminal.
THE LIBERTY LAWYER 2017 EDITION
25
or other items that could jeopardize the case.7 If the informant has a vehicle, the officers search it as well. The officers equip the informant with communications equipment, colloquially known as a wire.8 The officers then have the informant contact the target to set up the sale. The officers send the informant out to purchase the drugs and follow behind him. The officers find a location near the target to survey and photograph the purchase if possible. They receive a code word over the wire, indicating that the purchase has been made. The officers then follow the informant back to the meeting location, search him and his car again, take custody of the evidence, pay the informant, and fill out paperwork.9
The level of control over informants is greater than even most employers exert over their employees. The justification is obvious: to protect the credibility of the investigation. Unfortunately, for law enforcement agencies, this level of control creates an employeremployee relationship with the informant, leaving the department liable for torts the informant commits. Even with intentional torts such as assault, the burden will fall to the department to prove that the informant acted outside the scope of his employment.10
26
THE LIBERTY LAWYER 2017 EDITION
A simple hypothetical can help us understand the danger a police department could encounter. Officers meet the snitch, search him, wire him up in accordance with policy, and follow him to the buy. On the way, the snitch runs a red light, killing a motorist. If the driver had been a police officer, the department would expect to face liability for the crash. Most administrators may not expect the same when the driver is an informant. However, the principles of agency law demand that the department be vicariously liable. Therefore, police agencies should take care in selecting informants to reduce exposure to vicarious liability. By utilizing some of the same procedures already in place for hiring officers (such as driving record considerations), police agencies can better prepare for the eventuality of a lawsuit involving the tortious conduct of an informant. Baxter Stegall is a 2017 graduate of Liberty University School of Law. B.A., HampdenSydney College (2004). Prior to attending law school, the author was a police officer for almost a decade in Central Virginia. His service included three years as a local task force officer assigned to a Virginia State Police Drug Task Force. The author has managed many criminal informants and recognizes the difficulties that agencies and prosecutors face in their use. By pointing out the liability that agencies may face, it is the author’s hope that they can preempt suits or reduce liability through the imposition of policies to better control the informant.
Dennis G. Fitzgerald, Inside the Informant File, THE CHAMPION (May 1998), https://www.nacdl.org/ CHAMPION/ARTICLES/98may03.htm. 2 Richard B. Weinblatt, Avoid Recruiting Police Garbage, POLICELINK, http://policelink.monster. com/ training/articles/3450-avoid-recruiting-policegarbage (last visited Nov. 7, 2016). 3 Police officers utilizing confidential informants must keep tight control over the informant during the operation. Fitzgerald’s extensive article details some of the procedures used. See Fitzgerald, supra note 1. Officers can attend specialized training to learn these management techniques, such as courses put on by the Northeast Counterdrug Training Center run by the National Guard Bureau. See Counterdrug Training Centers, NAT’L GUARD COUNTERDRUG PROGRAM, https://ctrd.ng.mil/Pages/default.aspx (last visited Nov. 7, 2016). An extensive catalog of courses available for free to law enforcement agencies can be found at 2016/2017 Course Catalog, NE. COUNTERDRUG TRAINING CTR. (2016), http:// counterdrug.org/nctc/catalog. html. 4 Virginia Department of State Police Form SP-312, Cooperating Individual Agreement, ver. 6-01-2012. “I [as the informant] have no official status, implied or otherwise, as Agent or employee of the Virginia State Police.” Id. ¶ 8. 5 Norfolk & W. Ry. Co. v. Stevens, 34 S.E. 525, 526 (1899). An independent contractor may be defined as one who, in the course of an independent occupation, prosecutes and directs the work himself, using his own method to accomplish it, and representing the will of the company only as to the result of his work. Generally, where an independent contractor is employed to perform a work lawful in itself and not intrinsically dangerous, the company, if it is not negligent in selecting the contractor, is not liable for the wrongful acts or negligence of such contractor . . .. Id. (emphasis added). 6 Norfolk & W. Ry. Co., 34 S.E. at 526. [I]n order that the company shall be liable in such a case, it must appear that it either exercised, or reserved the right to exercise, control over the work, or had the power to choose, direct, and discharge the employees of the contractor. In general, it may be said that the liability of the company depends upon whether or not it has retained control and direction of the work. Id. (emphasis added). 7 Fitzgerald, supra note 1. 8 These small devices generally record audio, and often video, of the transaction and normally broadcast the audio a short distance. The broadcast is received by the officers who are monitoring the operation, so that they can maintain control over the informant and respond in the case of an emergency. 9 The Virginia Employment Commission has adopted twenty factors that the IRS uses to differentiate between an employee and an independent contractor. See IRS 20 Factors and Virginia Exemptions for Employee Classification, VA. EMP. COMMISSION (Oct. 30, 2016), http://www. vec.virginia.gov/irs-20-factors-and-exemptions. Compare these factors against a normal narcotics purchase, and it is evident that informants are likely employees. 10 Gina Chin & Assocs., v. First Union Bank, 537 S.E.2d 573, 577-78 (2000). [W]hen an employer-employee relationship has been established, the burden is on the [employer] to prove that the [employee] was not acting within the scope of his employment when he committed the act complained of, and . . . if the evidence leaves the question in doubt it becomes an issue to be determined by the jury. Id. (quoting Kensington Assocs. v. West, 362 S.E.2d 900, 901 (1987)) (internal quotations omitted). 1
ONE COUNTRY AT A TIME: INTERNATIONAL HUMAN RIGHTS REFORM IN ASIA by Shaun Lucas
ACCORDING TO MANY NATIONS, universal human rights are subjective. Although the international community advocates for the recognition of universal human rights, many other countries ignore the plea for international change. One of the most hotly contested areas of ignored human rights is human trafficking. Though a majority of countries create customary laws, follow general principles of international law, and ratify international conventions to denounce the modern trend of human slavery, many countries fail to allocate adequate resources or attention to human trafficking. This failure may act as a catalyst for human trafficking. Other countries, such as Vietnam, show promise to transform into better advocates against human trafficking; it just may take slow, yet faithful, encouragement from the international community.
THE LIBERTY LAWYER 2017 EDITION
27
From a biblical standpoint, all people have human rights—rights to be treated with equality and dignity— because all humans were created in the image of God. Galatians 3:28 states, “There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus.”1 This verse indicates that all Christians are one in Jesus Christ, and as a unit, all humans are equal—neither higher nor lower than any other human being.2 Human trafficking violates the human rights principle of equality. It demeans women, men, and children for the sex and labor trade, resulting in a modern form of slavery.3 One continent plagued with egregious human trafficking problems is Asia. According to International Labour Organization studies, Asia remains the top region for trafficking around the world.4 For perspective, there are about 45.8 million victims of human trafficking around the world.5 Of these victims, roughly two-thirds are located in Asia.6 Through the Trafficking Victims Protection Act of 2000 (TVPA), the United States government implemented a four-tiered placement system that allows the U.S. Department of State to analyze and place each country into a tier depending on a country’s compliance with TVPA minimum standards.7 Thailand and Vietnam are two Asian countries that have been analyzed under the TVPA’s standards and placed into a tier. Thailand, a country full of lush rainforests overflowing with tropical wildlife, is known for numerous tantalizing spices and vivid cultures—cultures which have existed for hundreds, if not thousands, of years. Despite these marvelous distinctions, however, Thailand has been categorized recently as a Tier 2 Watch List country under TVPA standards.8 Within the last couple of years, Thailand has threatened to punish reporters who have alleged that Thailand’s navy and police personnel were trafficking humans.9 Thailand has 28
THE LIBERTY LAWYER 2017 EDITION
silenced political expression that was deemed to subvert Thailand’s sovereignty,10 and Thailand’s military junta has threatened human rights lawyers with libel and defamation for aiding clients who have alleged human rights violations by Thai police.11 Human trafficking runs rampant within Thailand’s borders. In many parts of Thailand, villagers broker their daughters to brothels so that the daughters can send money home to their families.12 Small criminal groups gather and send women to different parts of the world solely for the fleeting benefit of monetary gain.13 As a whole, Thailand has done little to end human trafficking within its borders. When the denial of basic human rights to free speech is combined with the lack of effort to end human trafficking, Thailand’s placement in Tier 2 Watch List is understandable. On a more positive note, Vietnam has taken substantial steps to improve its human rights conditions. While Vietnam needs many years of reform before it is placed into a Tier 1 category, it currently stands in Tier 2 after rising from the Tier 2 Watch List in 2012.14 However, even with its faults—the greatest being the Vietnam Communist Party’s control over the country since 197515 — Vietnam is slowly making changes to alleviate trafficking problems within its borders.
Since the implementation of 2012 anti-trafficking legislation, Vietnam has maintained its initiative to prevent sex trafficking within its borders.16 Regarding prosecution of trafficking criminals, Vietnam convicted 413 individuals with harsher sentences in accordance with the 2012 anti-trafficking legislation.17 Vietnam’s weakest area was the protection of trafficked victims, and as such, Vietnam must strengthen its victim identification procedures and must maintain better record keeping of trafficked victims. Additionally, Vietnam should train
Asia is plagued with egregious human trafficking problems. According to International Labour Organization studies, Asia remains the top region for trafficking around the world. For perspective, there are about 45.8 million victims of human trafficking around the world. Of these victims, roughly two-thirds are located in Asia.
community brought attention to its human rights violations. Even Thailand, with its extensive human rights abuses, has informed the international community that it will begin allocating more resources to combat human trafficking.
The international community recognizes that it can protect human rights through conventions, treaties, customary international laws, and general principles of law.20 Change will take time; change requires devotion to help underdeveloped countries. By providing an avenue for thoughts and ideas, the international community can continue to encourage countries such as Vietnam in formulating anti-trafficking laws, and through the process, change the world one country at a time. more government personnel to aid victims in finding shelter and rehabilitation.18 Vietnam has openly shared its limited trafficking statistics with the international community; raised public awareness of trafficking through television, radio, and other media avenues; and reduced commercial sex through police raids. Although Vietnam still has a large human trafficking problem—its location being a prime spot for international human trafficking trades, marriage brokering, and border girls who easily service nonVietnamese customers—the United States government has recognized Vietnam’s initiative to combat trafficking within Vietnam’s borders. Compared to Thailand, which also has governmental problems but has failed to take meaningful steps to alleviate the trafficking problem, Vietnam is further along in combating human trafficking violations. The international community significantly influences the enforcement of human rights. Vietnam began adopting human rights legislation after the international
Shaun Lucas is a 2017 graduate of Liberty University School of Law.
1
2
3
Galatians 3:28 (King James). For additional verses regarding human equality, see Genesis 1:26-27 (humans are made in the image of God), Matthew 7:12 (the “Golden Rule”), Exodus 20 (the Ten Commandments), Acts 10:34 (God regards all humans equally), and Romans 2:11 (God shows no partiality). Article 1 of the Universal Declaration of Human Rights states, “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” G.A. Res. 217 (III) A, Universal Declaration of Human Rights, art. I (Dec. 10, 1948). Though the Universal Declaration may not have a biblical basis for protecting human rights, the Declaration still recognizes that humans should treat each other fairly and equally within reason. Id.at pmbl. The United Nations Office on Drugs and Crime (UNODC) offers an informative and comprehensive definition of human trafficking. Article 3, paragraph (a) of the Protocol to Prevent, Suppress and Punish Trafficking in Persons defines human trafficking as the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the
purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal or organs . . . . G.A. Res. 55/25, annex, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention Against Transactional Organized Crime, art. III, ¶ (a) (Nov. 15, 2000). 4 Belinda Luscombe, Inside the Scarily Lucrative Business Model of Human Trafficking, TIME (May 20, 2014), http://time. com/105360/inside-the-scarily-lucrativebusiness-model-of-human-trafficking/. 5 WALK FREE FOUNDATION, THE GLOBAL SLAVERY INDEX 2016 at 50 (2016). 6 Id. 7 Tier 1 countries acknowledge that human trafficking occurs within their borders and the countries’ governments have made efforts to address the problem. Tier 2 countries have not yet complied with TVPA minimum standards but are working to implement proper legislation and action to meet those standards. Tier 2 Watch List countries nearly mirror Tier 2 countries; however, the countries’ governments are failing to implement proper anti-trafficking legislation or to combat the trafficking problems within the countries’ borders. Tier 3 countries have not made significant steps to meet the TVPA minimum standards and most likely have not made any notable efforts to change the countries’ human trafficking violation record. U.S. Dep’t of State, Bureau of Democracy, H.R. and Lab., Trafficking in Persons Report 53 (2015) [hereinafter Trafficking Report]. 8 Sophie Brown & Kocha Olarn, Journalists Charged Over Human Trafficking Report Are Released on Bail, CNN (Apr. 18, 2014), http://www.cnn.com/2014/04/18/world/asia/ thailand-phuketwan-bail/. 9 Thailand, HUMANS RIGHTS WATCH, https:// www.hrw.org/asia/thailand (last visited Oct. 22, 2016). 10 Thailand: Rights Lawyers Harassed, Charged, HUMAN RIGHTS WATCH (Mar. 4, 2016, 8:55 PM), https://www.hrw.org/news/2016/03/04/ thailand-rights-lawyers-harassed-charged. 11 KATHRYN CULLEN-DUPONT, HUMAN TRAFFICKING 12-13 (2009). 12 KATHRYN FARR, SEX TRAFFICKING: THE GLOBAL MARKET IN WOMEN AND CHILDREN 107-08 (2005). 13 See Trafficking Report, supra note 7, at 5354, 362-63. 14 World Report 2015: Vietnam, HUMAN RIGHTS WATCH, https://www.hrw.org/worldreport/2015/country-chapters/vietnam (last visited Oct. 22, 2016). 15 Vietnam expanded on defining and criminalizing human trafficking in Articles 119 and 120 of its Penal Code. Trafficking Report, supra note 7, at 363. 16 Id. 17 Id. 18 Id. at 364. 19 Countries affect each other in the following way: Country A may adopt legislation with which Country B agrees. Country B, following A’s example, may enact the same or similar laws. When Countries C, D, and E notice the trend, these countries may follow A and B’s example by enacting their own laws. After a large number of states create their own similar laws, these states enact international agreements to protect the principles stated within each other’s domestic legislation.
THE LIBERTY LAWYER 2017 EDITION
29
HIGHLIGHTS ON
LIBERTY LAW EVENTS
BLACK LAW STUDENTS ASSOCIATION • “Then, Now, and Moving Forward”—A panel discussion addressed the breakdown of relationships across racial lines. Professor Cynthia Tompkins presented her article about the history of African Americans and other pertinent issues related to diversity.
30
THE LIBERTY LAWYER 2017 EDITION
CHILD ADVOCACY SOCIETY •
CASA Superhero Run—Liberty Law students partnered with CASA of Central Virginia during the Virginia 10 Miler. Students promoted CASA and cheered on runners.
•
Guest Speaker—Michael Reagan, survivor of childhood sexual abuse and son of former President Ronald Reagan, shared his story of recovery and healing and educated our students and faculty on the secrecy and lasting effects of abuse and how to talk with abuse victims.
•
Child Abuse Awareness Week—Victor Vieth, the founder of Gundersen National Child Protection Training Center, spoke to Liberty Law students regarding child abuse investigation, prosecution, and prevention. Following the speaking event, a panel discussion focused on abuse within the foster care and pre-adoption context.
CHRISTIAN LEGAL SOCIETY
LAW SCHOOL COMPETITIONS
•
•
2L/3L Moot Court Tournament—Nine judges from around the country came to Liberty Law to judge the final round. Whitney Rutherford (3L) won first place, and Johnna Chick (2L) won second place and received the best brief award.
•
1L Moot Court Tournament—Eight judges from around the country came to Liberty Law to judge the final round. Natalie Rhoads (1L) won first place.
•
1L/2L Negotiation Tournament—Avery Hill (IL) and Cameron Chotiner (IL) won first place.
Christian Legal Aid—The guest speakers were Ken Liu, director of Legal Aid Ministries, and David Nammo, executive director and CEO of the Christian Legal Society.
FEDERALIST SOCIETY •
Guest Speaker—Justice Daniel T. Eismann of the Supreme Court of Idaho addressed our school with a presentation called The Living Constitution: Simply a Lack of Judicial Integrity.
• •
Guest Speaker—Chief Justice Roy S. Moore of the Supreme Court of Alabama spoke to Liberty Law students and answered questions. Guest Speaker—Judge Jeffrey S. Sutton: Judge Sutton from the United States Court of Appeals for the Sixth Circuit spoke
PUBLIC INTEREST LAW SOCIETY •
on State Constitutions and the Eugenics Movement: A Missed Opportunity.
INTERNATIONAL LAW SOCIETY •
Clothing Drive—The International Law Society hosted its annual clothing drive for Big Brothers Big Sisters of Central Virginia. More than 200 articles of clothing were donated.
•
Taste of the Law School Panelists addressed practical ways for Liberty Law students to get involved in international law. Students brought various foods from their respective backgrounds or cultures for others to experience.
OTHER EVENTS •
Guest Speaker—Jon Powell, director of the Restorative Justice Clinic at Campbell University School of Law, gave a presentation on restorative justice, juvenile diversion, and restorative work between prison inmates and their victims.
•
Guest Speaker—John Fishwick, United States attorney for the Western District of Virginia, spoke on “Professionalism in Public Service.”
•
“I Have a Dream”—Martin Luther King Jr. Day: This event focused on the dream and opportunity that Martin Luther King Jr. saw. Three local community leaders from Freedom 424, The Lighthouse, and Miriam’s House encouraged students to choose to make a difference just as Martin Luther King Jr. did.
•
The Transgender Movement—Judith Reisman, author of "Stolen Honor Stolen Innocence," and Alisa Jordheim, founder of Justice Society and author of Made in the USA: The Sex Trafficking of America’s Children, spoke about the transgender movement in America today.
•
Schmidt v. Priddy—Professor Kline organized and hosted the re-creation of Schmidt v. Priddy, a case before the Third Reich German High Court argued in 1937. The Court’s order allowed the forcible sterilization of Ms. Priddy due to her feeblemindedness and ushered in Nazi persecution of persons based on their ethnic, racial, mental, or physical disability.
LAW REVIEW •
Symposium—Terrorism’s Effect on International Law—Conflict, War Crimes, and the Global Response: The symposium panelists were Professor Yuri Mantilla, Maj. Patrick Walsh, Professor Jeffrey Tuomala, Gen. Jim Walker, and Dean Stephen Parke. The panelists provided great insight into this pertinent issue in modern society.
LAW STUDENTS FOR LIFE •
Speaker—Professor Phillip Kline spoke about his battle with Planned Parenthood and what local, state, and federal prosecutors should expect when encountering “life” laws.
•
March for Life—Eleven Liberty Law students participated in the annual March for Life in Washington, D.C.
•
Guest Speaker— On International Women’s Day, President of Feminists for Life of America Serrin Foster spoke about the feminist case against abortion.
•
Military Law Society
•
AG Panel Discussion—The Military Law Society hosted a panel discussion with JAG officers.
Pro Bono Week Fair—The Public Interest Law Society partnered with the Center for Career & Professional Development (CCPD) to host a Pro Bono Week Fair.
THE LIBERTY LAWYER 2017 EDITION
31
While there are various ways that mindsets can be separated, Stanford University Professor Carol Dweck separates mindsets into two worlds: fixed or growth.
THE EXTRAORDINARY POWER OF “NOT YET” by Susan K. Patrick & Caleb A. Sweazey
DO YOU REMEMBER the children’s
song, “He’s Still Working on Me”?1 There is one line of this song that should resonate with each of us: “Don’t judge me yet, there’s an unfinished part.”2 That single line can change how we view any challenge, including our approach to learning. Adopting the growth mindset allows us to embrace the unfinished part. As lawyers and law students, we must embrace the idea that each challenge brings growth. The growth mindset is not only advantageous to attorneys; but, for Christians, this is the path we are called to walk. 32
THE LIBERTY LAWYER 2017 EDITION
THE MINDSET When faced with a difficult task, an individual’s mindset can shape the ultimate outcome of the task. While there are various ways that mindsets can be separated, Stanford University Professor Carol Dweck separates mindsets into two worlds: fixed or growth.3 The world of fixed traits focuses on “proving you’re smart or talented” by validating yourself through achievement.4 However, the growth traits focuses on “stretching
yourself to learn something new” with validation coming from the development.5 Each of us adopts a mindset in regard to how we will approach challenges. Using the growth mindset allows an individual to embrace the “power of yet” rather than being “gripped in the tyranny of now.”6
FIXED MINDSET The first mindset, the one of fixed traits, focuses on simply conquering the task. This approach focuses on getting the right answer rather than the right answer for the right reason. Approaching a task with a
place.”14 This emphasis on current ability focuses on the now, rather than the yet to come. The need to succeed can lead to a sense of pride and superiority; however, behind the self-esteem associated only with success, what does it mean when success is not achieved easily?15 Failure becomes an individual’s defining characteristic, rather than an opportunity to grow.16
growth mindset outperformed those with a fixed mindset.27 When studying, students with a fixed mindset would often read the textbook and their notes over and over or simply memorize the information.28 The fixed mindset students were interested in topics they were able to quickly and easily understand.29 These students often assumed they performed poorly on the test because chemistry just was not their subject.30
GROWTH MINDSET
On the other hand, students who embraced the growth mindset faced the more difficult topics and still maintained a high level of interest.31 When studying, they looked for common “themes and underlying principles across lectures” or reviewed their mistakes until they were able to understand where they had not yet grasped the material.32 The growth mindset students performed better because they were studying to learn.33 This studying-to-learn method resulted in better performance because it required students to engage in a deeper analysis of the material.34 By continuing to work through the material, the students embraced the power of “not yet,” rather than being gripped in the tyranny of “not now.”
The second world, the growth mindset, is characterized by the belief that “the hand you’re dealt is just the starting point for development.”17 When faced with a challenge, children with a growth mindset often respond in a positive manner by saying “I love a challenge” or “I was hoping this would be informative.”18 The emphasis of the growth mindset individual is on the future and journey, rather than the now, with the goal to acquire new “knowledge or skills.”19
fixed mindset often creates a belief that an individual’s qualities are “carved in stone.”7 This can result in an “urgency to prove yourself over and over.”8 Fixed mindset individuals often find themselves feeling as if their intelligence is always up for judgment, and that if they do not measure up, then they have failed.9 For these individuals, a learning assessment is the validation of their ability to succeed in a given area.10 However, they often feel the need to perform at an expert level almost immediately.11 The idea is that “if you have it you have it, and if you don’t you don’t.”12 This approach results in the belief that each individual possesses “only a certain amount of intelligence, a certain personality, and a certain moral character” and if so, then they must demonstrate a substantial possession of each in order to avoid the “look or feel [of deficiency] in these most basic characteristics.”13 The unfortunate reality is that individuals with a fixed mindset “expect ability to show up on its own, before any learning takes
The growth mindset embraces the idea of “not yet” because it provides a path of learning into the future.20 This mindset is cultivated by developing praise based on strategy or effort, rather than basic ability.21 Unlike the fixed mindset, the growth mindset is “based on the belief that your basic qualities are things you can cultivate through your efforts.”22 However, this approach does not mean that individuals do not have their own talents and abilities. Rather, this approach reflects an understanding that an individual can develop new and more polished skills through “application and experience.”23
THE CHEMISTRY CLASS EXPERIMENT A study was conducted on high-performing science majors in a general chemistry course at Columbia University.24 Surveys were administered to track the intrinsic motivation and performance of students at particular points during the semester.25 The researchers found the results remarkable.26 All of the students spent significant time studying, but those with a
CHRISTIANS AND THE GROWTH MINDSET Scripture describes the Christian walk from a growth mindset perspective, particularly regarding the sanctification process of becoming more like Christ. For example,
The first mindset, the one of fixed traits, focuses on simply conquering the task. The second world, the growth mindset, is characterized by the belief that “the hand you’re dealt is just the starting point for development.”
THE LIBERTY LAWYER 2017 EDITION
33
teaches Juris Master and Paralegal Studies courses online. He graduated from Liberty University School of Law magna cum laude and is a member of the Minnesota State Bar. He has practiced in the areas of estate planning, business planning, contracts, personal injury, and real estate transactions.
JOEL HEMPHILL, He’s Still Working on Me (Hemphill Music Company 1980). 2 Id. 3 CAROL S. DWECK, MINDSET: THE NEW PSYCHOLOGY OF SUCCESS 6-7 (2006). 4 Id. at 15. 5 Id. 6 Carol S. Dweck, Lewis and Virginia Eaton Professor, Stanford University, TED Talk: The Power of Believing that You Can Improve (Nov. 2014). 7 DWECK, supra note 3, at 6. 8 Id. 9 Carol S. Dweck, Lewis and Virginia Eaton Professor, Stanford University, TED Talk: The Power of Believing that You Can Improve (Nov. 2014). 10 DWECK, supra note 3, at 27. 11 Id. at 24. 12 Id. 13 Id. at 6. 14 Id. at 24. 15 Id. at 32. 16 Id. at 34. 17 Id. at 7. 18 Carol S. Dweck, Lewis and Virginia Eaton Professor, Stanford University, TED Talk: The Power of Believing that You Can Improve (Nov. 2014). 19 Heidi Grant & Carol S. Dweck, Clarifying Achievement Goals and Their Impact., 85 J. OF PERSONALITY & SOC. PSYCHOL. 541, 541 (2003). 20 Carol S. Dweck, Lewis and Virginia Eaton Professor, Stanford University, TED Talk: The Power of Believing That You Can Improve (Nov. 2014). 21 Eleanor O’Rourke et al., Brain Points: A Growth Mindset Incentive Structure Boosts Persistence in an Educational Game, in CHI ‘14 PROCEEDINGS OF THE SIGCHI CONFERENCE ON HUMAN FACTORS IN COMPUTING SYSTEMS 3339 (2014). 22 DWECK, supra note 3, at 7. 23 Id. 24 Grant & Dweck, supra note 19, at 548. 25 Id. The final grades were obtained from the Chemistry department with permission of the students. Id. 26 DWECK, supra note 3, at 61. Dweck states, “They were shocked to find out what students with the growth mindset do. Even I find it remarkable.” Id. 27 Id. 28 Id. 29 Grant & Dweck, supra note 19, at 541. 30 DWECK, supra note 3, at 61. 31 Id. at 23. 32 Id. at 61. 33 Id. 34 Grant & Dweck, supra note 19, at 550. 35 I John 3:2-3 (English Standard) (emphasis added). 36 See Ephesians 2:8-9; Hebrews 10:14; I Corinthians 13:12. 37 Colossians 3:3-5 (English Standard); I Peter 2:1-3 (English Standard). 38 Melanie Migliaccio, Liberty University School of Law, First Year Orientation Alumni Panel (Aug. 2016). 1
Embracing the challenge of the journey and the power of not yet will enable each of us to grow and develop skills that were once unimaginable.
“Beloved, we are God’s children now, and what we will be has not yet appeared; but we know that when he appears we shall be like him, because we shall see him as he is. And everyone who thus hopes in him purifies himself as he is pure.”35 These verses use dynamic, rather than static, terms to describe what Christians experience as God’s children. Even though Christians are currently in God’s family by God’s grace, they are not yet perfect; however, they will be perfect like Jesus for eternity.36 We see the same pattern and description of the Christian life in the apostles’ writings, which describe Christians as already God’s children who are not yet sinless.37 This “already but not yet” theological concept regarding sanctification should encourage us when we engage in the learning process. Christians are already accepted because of Jesus’ grace, and that propels them to pursue Christlikeness, even though the pursuit is not perfect. Law students’ pursuit of perfection will also not be perfect but still needs to occur in their time at law school. Growth is a good thing! 34
THE LIBERTY LAWYER 2017 EDITION
CONCLUSION A colleague once described law school to first year students as follows: “Law school is hard; it is hard for everyone, but those who view it as a challenge are the ones who succeed.”38 This same mindset, one of growth, applies to all of us regardless of where we are in life. Embracing the challenge of the journey and the power of not yet will enable each of us to grow and develop skills that were once unimaginable. Susan K. Patrick is the Director of the Center for Legal Writing at Liberty University School of Law. She serves as a professor for Law Skills, as well as Juris Master and Paralegal Studies courses online. She is a graduate of Liberty University School of Law and a member of the Virginia Bar. Prior to serving as the Director of the Center for Legal Writing, she was the Director of Academic Support. Caleb A. Sweazey is the Director of Academic Support at Liberty University School of Law. He also
ABA MODEL RULES OF “POLITICAL CORRECTNESS” by Tyler Owens
THE MISSION AND GOALS of the American Bar Association (ABA) includes the pursuit of “eliminat[ing] bias.”1 While many may applaud this aim as admirable, no one can be expected to actually achieve the absolute elimination of bias. Our partialities are intertwined with the very fabric of our values and beliefs, and they are fundamental to the lens with which we perceive the world. To assume that one can, let alone should, abolish these predilections is irrational.
Granted, those who harbor certain biases may tend to engender hatred, oppression, and even violence toward others simply because of their biological gender, the color of their skin, or their religion.
Most can agree that these examples of deleterious biases should be extirpated. But what about biases that are supported by a particular worldview or closely held religious beliefs? Who decides which biases are acceptable and which should be repudiated? In the legal profession, the ABA attempts to assume this role of prescribing appropriate ethical behavior for lawyers by codifying their own brand of justice in the Model Rules of Professional Conduct (MRPC).2 THE LIBERTY LAWYER 2017 EDITION
35
While these rules have no lawful effect initially, states often adopt and enact them nearly verbatim as the official ethics rules governing lawyers.3 Consequently, the ABA possesses a substantial amount of influence over defining what it deems to be appropriate lawyer conduct. At the ABA 2016 Annual Meeting in San Francisco, the ABA House of Delegates approved a revision4 to the MRPC in the hopes of not only furthering the goal of eliminating bias, but also punishing legal professionals who manifest any of the several proscribed biases5 in “conduct related to the practice of law.”6 Similar language existed formerly in Comment [2]7 under MRPC 8.4, which was only explanatory in status, but this new addition to the black letter elevates its status to enforceable. How extensive is this new provision in regulating lawyer conduct? The newly implemented Resolution 109 explains, “The nexus of the conduct regulated by the rule . . . is conduct lawyers are permitted or required to engage in because of their work as a lawyer.”8 One could interpret such nebulous language to encompass any number of contexts or circumstances in which a lawyer is “permitted or required to engage in” because of his or her9 profession. Authors from the Washington Post and the Wall Street Journal11 took notice and addressed the potential ramifications of this resolution on the nearly 1.2 million lawyers nationwide.12 Building from the scenarios provided in these two articles, consider the various examples in which a lawyer could be subject to discipline under this new policy: a Continuing Legal Education (CLE) event that includes a debate on Muslim immigration; a discussion of black-on-black crime at a local bar association dinner; a school board that tasks a lawyer with the responsibility of drafting a policy designating restroom use by biological gender for a private school; a church board that tasks a lawyer with the responsibility of drafting a policy 10
36
THE LIBERTY LAWYER 2017 EDITION
In the legal profession, the ABA attempts to assume this role of prescribing appropriate ethical behavior for lawyers by codifying their own brand of justice in the Model Rules of Professional Conduct (MRPC).2
disallowing the performance of same-sex marriages; or a law professor who authors a law review article critical of the fiscal transgressions of the one percent. In any of these scenarios, one could surmise an individual feeling discriminated13 against by a lawyer who holds a position contrary to his own, which is harmful to that individual’s views and evinces prejudice. This policy places lawyers in a susceptible position such that they are merely one offensive remark away from punishment or penalty. Furthermore, the policy is more concerned with “political correctness” than First Amendment protection. The implications for a lawyer found to have violated the new rule are severe. According to the Model Rules for Lawyer Disciplinary Enforcement, misconduct shall result in one or more of the following sanctions: disbarment, suspension, probation,
reprimand, or admonition.14 This attempt by the ABA to achieve despotic control of lawyer conduct—in order to appease the progressive social and cultural movements of the day—will have detrimental effects on lawyers holding views in opposition of the approved viewpoints. In short, the ABA’s newly promulgated provision effectively
This policy places lawyers in a susceptible position such that they are merely one offensive remark away from punishment or penalty.
prohibits speech under the auspices of promoting diversity. Fortunately, the ABA lacks the authority to enforce the MRPC unilaterally. Adoption by the highest court in each state is a prerequisite to giving clout to the new rule. For the sake of the First Amendment, lawyers can only hope that the judiciaries of each state will refrain from hamstringing the right most indispensable and valued in our Constitution. In the words of Justice William Douglas, “[r]estriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.”15 Tyler Owens is a 2017 graduate of Liberty University School of Law; B.A., Communications, Texas A&M University (2014); Ensign, United States Navy JAG Corps.
1
2
3
4
5
ABA Mission and Goals, AM. BAR ASS’N, http://www. americanbar.org/about_the_aba/aba-mission-goals. html (last visited Oct. 27, 2016). See generally MODEL RULES OF PROF’L CONDUCT (AM. BAR ASS’N 1983). See generally State Rules Comparison Charts, AM. BAR ASS’N, http://www.americanbar.org/groups/ professional_responsibility/policy/rule_charts.html (last visited Oct. 27, 2016). MRPC rule 8.4(g) now states that it is professional misconduct for a lawyer to engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules. MODEL RULES OF PROF’L CONDUCT r. 8.4 (AM. BAR ASS’N 1983). MRPC rule 8.4(g) lists the following prohibited bases of discrimination: “race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status . . . .” MODEL RULES OF PROF’L CONDUCT r. 8.4 (AM. BAR ASS’N 1983). Pursuant to MRPC rule 8.4(g), Comment [4], [c]onduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others
while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. MODEL RULES OF PROF’L CONDUCT r. 8.4. cmt. 4 (AM. BAR ASS’N 1983). 6 Pursuant to MRPC rule 8.4(g), Comment [4], [c]onduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law. MODEL RULES OF PROF’L CONDUCT r. 8.4. cmt. 4 (AM. BAR ASS’N 1983). 7 The language of Comment [2] prior to the rule change states: A lawyer who in the course of representing a client, knowingly manifests by words or conduct, bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status, violates paragraph (d) when such actions are prejudicial to the administration of justice. Legitimate advocacy respecting the foregoing factors does not violate paragraph (d). A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule. ABA Model Rules of Professional Conduct (pre2002), LEGAL INFO. INST., https://www.law.cornell. edu/ethics/aba/2001/CRule_8.4.htm (last visited Sept. 12, 2016). Additionally, paragraph (d) of this prior version of the rule, as referred to above, states that it is professional misconduct for a lawyer to “engage in conduct that is prejudicial to the administration of justice.” ABA Model Rules of Professional Conduct (pre-2002), LEGAL INFO. INST., https://www.law.cornell.edu/ethics/aba/2001/ ABA_CODE.HTM (last visited Sept. 12, 2016). 8 Myles V. Lynk, Revised Resolution 109, A.B.A. STANDING COMM. ON ETHICS AND PROF’L RESPONSIBILITY (Aug. 2016), http://www. americanbar.org/content/dam/aba/administrative/ professional_responsibility/final_revised_ resolution_ and_report_109.authcheckdam.pdf. 9 The author is cognizant of the transmogrification of the definition of “gender” taking place in the midst of the current sexual revolution. Notwithstanding, rather than attempt to keep up with the plethora of recently invented preferred gender pronouns, which continue to increase in number and change with unpredictable fluidity, the author chooses to use the traditional, biological gender pronouns of “his, him, himself, and he” and “hers, her, herself, and she.” 10 Eugene Volokh, A Speech Code for Lawyers Banning Viewpoints That Express ‘Bias’ Including in Law-Related Social Activities, WASH. POST (Aug. 10, 2016), https://www.washingtonpost.com/news/ volokh-conspiracy/wp/2016/ 08/10/a-speech-codefor-lawyers-banning-viewpoints-that-express-biasincluding-in-law-related-social-activities-2/. 11 Ron Rotunda, The ABA Overrules the First Amendment, WALL ST. J. (Aug. 16, 2016), http:// www.wsj.com/ articles/the-aba-overrules-the-firstamendment-1471388418. In conclusion, Professor Rotunda offers this facetious silver lining, “Yet the new rule offers one possible advantage: It may ameliorate underemployment among lawyers, since so many will be needed to meet the demand the rule creates.” Id. 12 Id. 13 According to Comment [3], discrimination “includes harmful verbal or physical conduct that manifests bias or prejudice towards others.” MODEL RULES OF PROF’L CONDUCT r. 8.4. cmt. 3 (AM. BAR ASS’N 1983). 14 MODEL RULES FOR LAWYER DISCIPLINARY ENF’T r. 10 (AM. BAR ASS’N 1989). 15 William O. Douglas, Supreme Court Justice, Speech to the Author’s Guild Council in New York, on receiving the 1951 Lauterbach Award (Dec. 3, 1952).
THE LIBERTY LAWYER 2017 EDITION
37
AN ENLIGHTENED PERSPECTIVE: HUMILITY AND THE INTERPRETATION OF THE ERISA 403(B)(9) CHURCH PLAN EXEMPTION by Brock Bales
I REMEMBER THE DAY my humanities professor taught my class and me an important lesson— meaningful interpretation requires humble deference. With a picture of an Egyptian painting of a pond full of fish on the projection screen, my professor looked over the top of his glasses as he asked, “What do you see?” A brave student, or should I say, patsy, raised his hand. He stated flippantly, “The fish are all dead and the painters are bad at drawing.” Impressed with himself, he winked at the girl to his right. The class laughed in agreement because it seemed like the fish were all floating on the
38
THE LIBERTY LAWYER 2017 EDITION
surface of the water because they were drawn without three-dimensional perspective or realism. The professor, with a smile on his face, took off his glasses, paused, and then said, “You’re wrong. The fish are not dead, but you just provided us a perfect example of prejudice based on your own presupposition.
You see with a different perspective, and rather than being able to appreciate and affirm the meaningful expression of the Egyptians, you laugh
because you think that they must either be bad at painting or good at painting dead fish.” A millennial student, in but a moment, turned the masterpiece of Egyptians—a painting accomplishing its goal of conveying complete visual information through frontality for the afterlife—into badly painted dead fish. If the student had humbly deferred to the purposes the Egyptians were trying to achieve rather than superimposing his own perspective, he would have appreciated the beauty of the painting rather than condemning it.
The IRS interpreted Section (33)(C) as unambiguously allowing church-associated or church-controlled organizations that are not churches themselves to maintain a church plan, even if a church did not establish the plan.
What is the ERISA 403(b)(9) church plan exemption and how does it apply to this story? Like the Egyptian painting, the ERISA 403(b)(9) church plan exemption is a matter of perspective, i.e., a matter of statutory interpretation. The church plan exemption itself is straightforward. If an organization complies with the terms of the exemption, ERISA does not apply to that organization’s retirement plan.1
This relieves religious nonprofit institutions of the burdens and costs of full ERISA compliance so that they can provide retirement plans to their employees in an affordable manner. For decades, a single interpretation of the church plan exemption existed—the IRS’s interpretation of Section (33)(C) which is exactly the same as ERISA’s Section 414(e). The IRS interpreted Section (33)(C) as unambiguously allowing church-associated or church-controlled organizations that are not churches themselves to maintain a church plan, even if a church did not establish the plan. The IRS applied this interpretation uniformly and consistently for decades without congressional disapproval. Thousands of religious nonprofits came to rely on the IRS’s interpretation and application of Section THE LIBERTY LAWYER 2017 EDITION
39
where humility is lacking, the circuit courts of appeals replaced the IRS interpretation with their own interpretation without fully acknowledging the gravity of their action. The new interpretation necessarily requires condemning an entire governmental agency as being completely and utterly wrong in its interpretive application of the church plan exemption even though Congress deliberately did not reprimand the IRS or change the IRS’s interpretation,5 no court held otherwise until 2014,6 and no appellate court held differently until 2015 despite the exemption being enacted decades ago.7 It is far easier just to say that we are right and you are wrong when you already think you are right. When you acknowledge that the IRS has a reasonable interpretation that existed for decades and the IRS has a great deal of clout because it was specifically tasked by Congress with enforcing the exemption as written, it is far harder. The circuit courts of appeals appear to think themselves in the first situation rather than the second, but this is not the reality of the situation.
A change in interpretation would mean crippling ERISA penalties and heavy compliance costs for reliant organizations.
(33)(C) while constructing their church plans. A change in interpretation would mean crippling ERISA penalties and heavy compliance costs for reliant organizations. Over the last year, a few courts started dancing to the tune of a motivated, persistent, and adverse rhetoric by holding that the actual language of the church plan exemption precludes the interpretation of the IRS.2 The new perspective interprets Section (33)(A) and Section (33)(C) to mean that only churches can establish church plans. It does not matter that a church-associated or church-controlled organization may maintain a church plan. A church must first establish it. 40
THE LIBERTY LAWYER 2017 EDITION
Incredibly, both the IRS interpretation and the new judicial interpretation arise from the exact same “unambiguous” statutory language found in two separate codifications.3 Essentially, two groups of people are looking at the same painting and seeing different things. The new interpretation as espoused by three circuit courts of appeals4 suffers from the same lack of humble deference that the student suffered while looking at the Egyptian painting. As with all matters
The church plan exemption is anything but a blank slate.8 Humility would deem deference most fitting in situations where reasonable minds can differ and the differing minds are the IRS and thousands of reliant religious nonprofits.9 Perhaps, a little humble deference by the judicial branch would prevent rendering the church plan exemption as dead fish. Brock Bales is a 2017 graduate of Liberty University School of Law; BS, Business Administration: Finance, Liberty University (2014).
1 2
3 4
5
6
7
8 9
29 U.S.C. § 1002(33); 26 U.S.C. § 414(e). Kaplan v. Saint Peter’s Healthcare Sys., 810 F.3d 175, 178 (3d Cir. 2015). 29 U.S.C. § 1002(33); 26 U.S.C. § 414(e). See, e.g., Stapleton v. Advocate Health Care Network, 817 F.3d 517, 523 (7th Cir. 2016); Rollins v. Dignity Health, 2016 WL 3997259 at *3 (9th Cir. 2016); Kaplan v. Saint Peter’s Healthcare Sys., 810 F.3d 175, 178 (3d Cir. 2015). Jeffrey A. Herman, Resolving ERISA’s “Church Plan” Problem, 31 ABA J. LAB. & EMP. L. 231, 253-54 (2016) (describing Congress’s acquiescence). Kaplan v. Saint Peter’s Healthcare Sys., 2014 WL 1284854 (2014); Stapleton v. Advocate Health Care Network, 76 F. Supp. 3d 796 (2014). Kaplan v. Saint Peter’s Healthcare Sys., 810 F.3d 175, 178 (3d Cir. 2015). Id. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984).
IN THE
liberty law
#2 in July 2016 Virginia Bar Exam passage among Virginia first-time test takers
passion for law purpose for life THE LIBERTY LAWYER 2017 EDITION
41
ALUMNI NEWS AND ANNOUNCEMENTS Here's an update on what Liberty Law alums have been up to since graduation:
'08
BRANDON OSTERBIND clerked for Judge William G. Petty on the Virginia Court of Appeals for two years after graduation. He is currently a personal injury and civil litigation lawyer in Central Virginia and made partner in 2012 at the law firm Overbey, Hawkins, & Wright, PLLC. He was selected for the 2016 and 2017 Virginia Rising Stars list published by Superlawyers.com. He was also recognized in “Top 40 under 40” by the American Society of Legal Advocates and “Top 100” Civil Plaintiff Lawyers by The National Trial Lawyers. Brandon has tried numerous trials successfully and appealed one case to the Supreme Court of Virginia, winning a victory that changed the law in Virginia (Ballagh v. Fauber Enterprises, Inc.).
'10
MICHAEL GUMPRECHT is a trial lawyer and owner of The Gumprecht Law Firm in Georgia. In 2016, Gumprecht’s firm recovered over $11 million for clients. Gumprecht is a lifetime member of the Million Dollar Advocates Forum, a member of Who’s Who Legal, and a charter member of Distinguished Legal Advocates. In 2016, Gumprecht also became a member of the National League of Renowned Attorneys, which is comprised of the top 1 percent of attorneys in the nation. He was named in the “Top 10 under 40” by the National Academy of Personal Injury Attorneys in 2014, was named in the “Top 100” by the National Trial Lawyers in 2015, and was named “Legal Elite” in Georgia Trend Magazine in 2016.
42
THE LIBERTY LAWYER 2017 EDITION
'10
'07
WILL ROACH worked in private practice after graduation until 2009, when he formed Roach & Robinson, LLP, with fellow Liberty Law grad David Robinson ('07). In 2014, Roach was elected to an eight-year term as the general sessions, juvenile, and probate judge for Jefferson County, Tennessee. Throughout his career, Roach has remained in a loving and thriving relationship with his wife and the Lord and has labored to raise godly children.
ANDREW P. CONNORS clerked for Judge William G. Petty on the Virginia Court of Appeals for two years after graduation. He then entered private practice, working at a business and intellectual property litigation firm. Connors is currently the managing partner of Connors Law PLLC in Blacksburg, Virginia. His focus is intellectual property law, business law, contract law, business litigation, and appeals. He opened his firm in July 2016, strategically locating it next to the Virginia Tech campus in Southwest Virginia’s bustling technology corridor. He has argued cases before all state trial courts in the Commonwealth of Virginia, the Court of Appeals of Virginia (including oral argument before the Court sitting en banc), the Supreme Court of Virginia, and the United States District Court for the Western District of Virginia. Various media have discussed his cases, including the Roanoke Times, Richmond Times-Dispatch, The Washington Times, and Virginia Lawyers Weekly.
'10
MELANIE (MITROFF) GOOD is an attorney with the U.S. Securities and Exchange Commission. Prior to joining the SEC, she worked at the Texas State Securities Board assisting Texas district attorneys’ offices with the prosecution of individuals for committing securities fraud. Her husband, Timothy Good ('10), is currently a felony district attorney with the Johnson County District Attorney’s Office where he focuses on crimes against children. Prior to joining the DA’s office, he worked for the Nueces County Attorney’s Office litigating civil Child Protective Services and severe child neglect cases.
'11
KERRY TILLEY is an assistant city attorney in Amarillo, Texas. Tilley was a municipal court prosecutor for more than three years before being promoted to the position of legal advisor to the Amarillo Police Department in March 2016. As a prosecutor, he tried more than 250 trials with 150 of those trials before a jury and was awarded merit certification as Municipal Court Prosecutor by the Texas City Attorneys Association. Tilley is also a Member of the Texas Bar College and has received his Guardianship Certification. Tilley and his wife, Reva, have two daughters, Meagan and Morgan.
'14
JULIA (AMATO) RUST is an associate attorney practicing in the area of business litigation at Pierce/McCoy in Norfolk, Virginia. Rust is the Chair of tHRive, a young professionals program that Rust helped launch at the Hampton Roads Chamber in Norfolk. Rust serves on the Hampton Roads Chamber’s Regional Board of Directors, making her the youngest person to be elected to the Regional Board of Directors. In 2016, Rust served on a panel alongside Governor Terry McAuliffe to discuss the economic future of the Hampton Roads region on ABC13 NewsNow. In 2016, Rust was also featured as a “Millennial on the Move” in CoVA Biz Magazine.
'11
DOUG WATERS operated his own law practice in Nashville, Tennessee, for four years. During that time, Waters directed a churchbased evangelistic English as a Second Language ministry serving internationals in the Nashville area. While a student at Liberty Law, Waters helped publish the first issue of the Liberty Legal Journal. Waters is currently a full-time business faculty and lead instructor for Business Law and Introduction to Business at Washtenaw Community College in Ann Arbor, Michigan. Waters is also a father to two children, Danny, born in June 2015, and Lily, born in January 2017.
'16
JOSHUA DRYSDALE is a fiduciary advisor at PNC Wealth Management in Erie, Pennsylvania. As a fiduciary advisor, Drysdale administers trust and investment accounts for high-networth clients and coordinates estate planning with local attorneys, wealth planners, and tax advisors. Drysdale and his wife, Lindsay, are car accident free despite 60+ inches of snow this past winter, and his daughter, Bella, got to build her first snowman!
'16
ERIKA LUKENBILL is currently working as a law clerk for Judge William G. Petty on the Court of Appeals of Virginia. This summer, Lukenbill will begin a clerkship for Justice Stephen R. McCullough on the Supreme Court of Virginia.
THE LIBERTY LAWYER 2017 EDITION
43
PASSION FOR LAW PURPOSE FOR LIFE
OUR STUDENTS RECEIVE UNPARALLELED SKILLS TRAINING SO THEY CAN START MAKING A DIFFERENCE IMMEDIATELY. • A preLaw magazine top 20 school for public defenders and prosecutors • #2 in July 2016 Virginia Bar Exam passage among first-time test takers • A National Jurist top 20 school for practical training — highest in Virginia • Awarded an A- in Trial Advocacy concentration by preLaw magazine
LEARN HOW LIBERTY LAW IS HELPING THE NEXT GENERATION OF LAWYERS FIND THEIR PASSION FOR LAW AND PURPOSE FOR LIFE.
lawcareer@liberty.edu (434) 592-5300 Liberty.edu/Law facebook.com/LibertyUniversityLaw