UCLA Undergraduate Law Journal - Volume XIX

UCLA UNDERGRADUATE LAW JOURNAL VOLUME 19

SPRING 2020

ARTICLES Killing the Death Penalty: The Legal Argument Against Capital Punishment Vito Emanuel – UCLA

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The Role of Campaign Finance Disclosure Requirements in U.S. Elections Karen Funk – UCLA

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Patents in eSports: Analyzing the U.S. Supreme Court’s Stance on Software Inventions Phillip Leung – UCLA

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Implicit Biases and Adolescent Criminal Responsibility Sarineh Khachikian – UCLA

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The Legal Argument Against Current Employment Classification Standards Joseph Keane – UCLA

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No Free Lunches: A Case for Compensating NCAA Student-Athletes Jacob Matthews – UCLA

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A Step Toward Peace: The Remedial Right of Secession Shant Eulmessekian – UCLA

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The Foster Care System in America: Identifying Effective Legislation and Flaws for Suggestions Kalysa To – UCLA

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Religion and Secular Law: A Comparative Analysis of the Application of Islamic Law Marieme Diallo – UCLA

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In Sickness and In Health: Divorcing America from Catholic Hospitals Aneri Suthar – UCLA

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Rectifying Disparities in K-12 Public Education Funding Olivia Mello – Chapman University

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Looking Back to Move Forward: European Data Law as a Model for the United States Andres Gonzalez – UCLA

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UCLA UNDERGRADUATE LAW JOURNAL VOLUME 19

EDITORIAL BOARD

SPRING 2020

Editor-in-Chief Jamail Gibbs Managing Editor Jacqueline Alvarez Senior Editor Anna Yan Editors Patrick Begian Katherine Bui Aniq Chunara Sean Patrick Cruz Evan J. Farrar Laura Hartley Celia Patricia Janes Younes Mahmoudieh Camille Schaefer Nina Tumulak Gregory Walsh President Julianne Ortega Vice President Hussain Ali

The UCLA Undergraduate Law Journal is published every Spring quarter by the UCLA Pre-Law Society, located at 4272 Bunche Hall, Los Angeles, CA, 90095. The journal is a student-produced publication written entirely by undergraduate students from UCLA and other universities with the aim of furthering undergraduate legal research. Copies are available at the Pre-Law Society office as well as online at the Pre-Law Society website: www.uclaprelawsociety.com.

FOREWORD On behalf of the UCLA Pre-Law Society, it is a tremendous honor to present Volume 19 of the UCLA Undergraduate Law Journal. For nineteen years, the Journal has been a unique outlet for undergraduates across the nation to explore pressing contemporary legal issues. Volume 19 represents a confirmation of this publication’s standing as a leader in an emerging community of undergraduate legal journals, and I remain eternally grateful for having had the opportunity of continuing this storied legacy for three consecutive years.

This volume’s applicant pool was historically competitive, and the executive staff meticulously evaluated each application — ultimately assembling an outstanding cohort of writers and editors.

These contributors engaged in rigorous collaboration, under the direction of the executive staff, to produce a collection of articles that truly exemplify their intellectual prowess and attentiveness to the world’s most salient legal issues. I am humbled to have worked alongside such a resilient executive team, and committed cohort of contributors, in producing one of the Journal’s most impressive volumes to date.

Although we remain physically distanced amid a global pandemic, I am hopeful that the contents of this volume, along with previous and future volumes, will inspire dialogue that transcends our physical separation. As I conclude an eventful three years with the Journal and prepare to graduate from UCLA, I remain more optimistic than ever in this publication’s ability to cultivate and inspire future generations of legal minds.

Jamail Lee Gibbs Editor-in-Chief Volume XIX of the UCLA Undergraduate Law Journal

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UCLA UNDERGRADUATE LAW JOURNAL Vito Emanuel*

Killing the Death Penalty: The Legal Argument Against Capital Punishment ABSTRACT. Capital punishment is unique in its gravity, finality, and enormity. A fundamental question it seeks to answer is whether people forfeit their right to life when they commit egregious crimes. However, the main contention in federal courts is not whether capital punishment is philosophically legitimate, but whether its practical applications are constitutional. In this article, I position myself among the abolitionists and will argue that the death penalty is unconstitutional. The death penalty is applied in discriminatory ways across the United States, disproportionately affecting marginalized communities, which contravenes the Fourteenth Amendment’s Equal Protection Clause. Furthermore, the death penalty is irreversible and has an intolerable risk of causing botched executions that violate the Constitution’s protection against cruel and unusual punishments. Although eligibility requirements for the death penalty have historically tightened, suggesting that the death penalty is gradually obsolescing as a punishment, nevertheless I argue that the Constitution *Vito Emanuel is a fourth-year political science and English undergraduate student at UCLA. In the future, Vito plans on taking two years off from school to work for a nonprofit organization that focuses on civil rights reform and grassroots, community-based advocacy before attending law school thereafter, where he intends to study public interest law. Vito would also like to thank his editor, Evan Farrar, for his comprehensive and constructive feedback — his gracious comments were foundational in the development of this article. He would like to dedicate this article to all the innocent people on death rows across the United States.

Editor: Evan Farrar is a second-year public affairs undergraduate student at UCLA, originally from Redwood City, CA. He plans to enter a career in legal and public policy research, with a focus on community development and inequality. When he is not at his desk reflecting on Vito’s incredible writing, Evan is likely cooking, tweaking his LinkedIn profile, or advocating for progressive politics as President of Bruin Democrats.

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UCLA UNDERGRADUATE LAW JOURNAL has always prohibited unconstitutional executions, and since every form of execution today is carried out unconstitutionally, capital punishment must be unconstitutional. To close, I argue that the time for abolition is now, whether it be through a Supreme Court decision or a piece of federal legislation. Capital punishment fails to achieve what it promises, fails to meaningfully reckon with the fundamental questions that guide it, fails to deter future homicides, and perpetuates a shameful history of discrimination and injustice that has corrupted the United States since the Framers wrote the Constitution.

Introduction “All I can ask is that each of you look deeper into this case, so that you really will finally see the truth … Continue to fight this fight. For those about to take my life, may God have mercy on all of your souls.”1 These were the last words of Troy Davis, a 42-year-old black man who allegedly murdered a police officer in 1989. 2 He was sentenced to death by a jury in 1991 and chose lethal injection after more than two decades of appellate proceedings failed to commute his sentence or exonerate him. 3 Most importantly, he may have been innocent. He was executed 15 minutes after speaking these words. 4 Among many things, capital punishment tries to answer the question of whether people forfeit their right to life when they commit heinous crimes.5 United States Attorney General William Barr announced that the federal government will resume executions in 2019, claiming that the Department of Justice “has sought the death penalty against the worst criminals.” 6 Curiously, when he refers to the death penalty’s usage against the worst criminals, he John Rudolf, Troy Davis' Last Words Released by Georgia Department of Corrections (AUDIO), Huffington Post (Oct. 7, 2011), https://www.huffpost.com/entry/troy-davis-execution-lastwords_n_100648 2 Kim Severson, Davis is Executed in Georgia, N.Y. Times, Sept. 22, 2011.

3 Id. 4 Colleen Curry & Michael S. James, Troy Davis Executed After Stay Denied by Supreme Court, ABC News (Sept. 29, 2011), https://abcnews.go.com/US/troy-davis-executed-stay-deniedsupreme-court/story?id=14571862 5 Furman v. Georgia, 408 U.S. 238 (1972).

6 Press Release, U.S. Department of Justice, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse (Jul. 25, 2019), https://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearlytwo-decade-lapse 1

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT neglects to include the word “only.” Indeed, the worst criminals are not the only people sentenced to death. Capital punishment unnecessarily and unfairly punishes people who are not the worst criminals: it punishes the most vulnerable members of our society, only “the worst” insofar as they are the worst equipped to defend themselves.

The death penalty is administered in a plainly discriminatory and disproportionate way across the United States: regardless of the crime, defendants who are black and whose victim was white are sentenced to death at much higher rates than any other defendants.7 These injustices are not confined to capital trials. Instead, they are outgrowths of systemic flaws that have bedeviled the criminal justice system throughout American history. However, the death penalty is uniquely irreversible. By their nature, appeals scour off impurities endemic to the criminal justice system: overzealous prosecutors, discriminatory peremptory strikes,8 coerced or perjured testimonies,9 and unreliable eyewitness evidence. 10 Any other defendant who has been wrongfully discriminated against at least retains the ability to right a wrongful conviction.

Indeed, the power of defendants to appeal their sentences is a cornerstone of our criminal justice system, and, when someone is executed, they are denied that power in the most ultimate way. Troy Davis was not alone in his protestation of innocence. Not only have many people sentenced to death maintained their innocence in their last words, 11 but 167 people have been exonerated from death row after being found innocent, 12 which is around 1.6 percent of all death sentences. Further research has corroborated this risk: a more recent study found as many as 1 in 25 (4.1%) of people on death row may

See infra note 52 See infra note 88.

9 Anthony Salzman, Recantation of Perjured Testimony, 67 J. Crim. L. & Criminology 273 (1976) (discussing history of perjured testimony in American criminal justice system).

10 Reid Hastie et al., Eyewitness Testimony: The Dangers of Guessing, 19 Jurim. Journal 1 (1978).

11 See, e.g., Nathan A. Heflick, Sentenced to Die: Last Statements and Dying on Death Row, 51 Journal of Death and Dying 323, at 323-36 (2005).

12 See, e.g., Innocence (Policy Issues), Death Penalty Information Center, https://deathpenaltyinfo.org/policy-issues/innocence.

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UCLA UNDERGRADUATE LAW JOURNAL be innocent, 13 including an unknowable number of people who may have already been executed.

The most vocal death penalty abolitionists try to argue the case on moral, normative terms: A country shouldn’t kill its people. Killing people in any way is wrong. 14 Unfortunately, these rationales are only compelling for the subset of the population that holds these values. To retentionists, the normative argument that reads: A country should kill murderers. Killing murderers is justice15 might be equally, if not more compelling. Moreover, abolitionist campaigns often fall victim to the chasm between these two moral positions, since retentionist campaigns weaponize raw emotion as leverage to maintain the status quo. 16 However, the law does not contain such chasms. Accordingly, I will analyze capital punishment from a legal perspective, using case law and the Constitution to guide my argument. I contend that capital punishment is an unconstitutional sanction that contravenes the prohibition on cruel and unusual punishment and strips those sentenced of their constitutional rights to due process and equal protection under the law.

In Part I, I will analyze the history of capital punishment jurisprudence in the United States, pre-Furman to present, specifically zeroing in on how the jurisprudence has incrementally narrowed and vacillated between the death penalty’s constitutionality or unconstitutionality. In Part II, I will address the death penalty’s violations of the Eighth and Fourteenth Amendments of the United States Constitution. Namely, capital punishment is applied arbitrarily in practice and violates the Fourteenth Amendment’s Equal Protection Clause, since defendants who are black and who perpetrated a crime against white victims are disproportionately sentenced to death. Furthermore, the possibility for some prisoners to suffer in agonizing pain during botched executions or for Samuel R. Gross et al., Rate of false conviction of criminal defendants who are sentenced to death, 111 Proc. Natl. Acad. Sci. 7230 (2014).

14 See, e.g., Catherine Garcia, Bernie Sanders Had a Powerfully Simple Message About the Death Penalty (Feb. 4, 2016), https://theweek.com/speedreads/603830/bernie-sanderspowerfully-simple-message-about-death-penalty 15 See, e.g., Steve O’Ban, Opinion, In an enlightened age, the death penalty is still justice, Seattle Times, Jan. 16 2017.

16 See, e.g., Vote NO on 34, http://www.waitingforjustice.net/ (video arguments arguing for preservation of capital punishment in California).

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT innocent prisoners to be executed renders capital punishment unnecessarily cruel and constitutes a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment. Finally, I will conclude Part II by refuting the claim that the death penalty deters homicides and will assert therefore that the death penalty has no legitimate penological purpose. In Part III, I will track the history of abortive death penalty reform efforts and will argue that capital punishment is broken, unconstitutional, ineffective, inhumane, and discriminatory. I will recommend that it should be abolished, via judicial or legislative action. Capital punishment is antithetical to modern conceptions of justice and its imposition jeopardizes our nation’s most fundamental values.

I. The Evolution of Capital Punishment Jurisprudence in the United States A. “Evolving standards of decency and the eighth amendment’s newfound flexibility post trop Before the mid-1950s, the Eighth Amendment was interpreted narrowly and historically: if a punishment was found to be constitutional, then it would remain constitutional. However, the Court recontextualized the meaning of the Eighth Amendment in Trop v. Dulles (1958). In a plurality opinion written by Chief Justice Earl Warren, the Court found that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” 17 This was a significant departure from previous jurisprudence, in which courts solely used a punishment’s historical constitutionality to determine its current constitutionality.18 Nearly fifty years earlier, the Fuller Court, in Weems v. United States (1910), held that cruel and unusual punishment “is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by humane justice.” 19 The Weems decision created the ideological framework for the Warren Court to affirm in Trop v. Dulles, 356 U.S. 86, 101 (1958) (emphasis added).

See, e.g., In re Kemmler, 136 U.S. 546 (1890); Wilkerson v. Utah, 99 U.S. 130 (1878).

19 Weems v. United States, 217 U.S. 349, 378 (1910).

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UCLA UNDERGRADUATE LAW JOURNAL Trop: namely, that the Eighth Amendment should be interpreted flexibly.20 More broadly, the Warren Court required consideration of (1) society’s current ethical values and (2) contemporary public opinions about the punishment to determine if it contravenes the Eighth Amendment. Determining whether a punishment is cruel or unusual, the Court implied, necessarily requires contextualizing the punishment in the present day. It would be patently anachronistic to apply 18th century ethical values to evaluate a modern punishment’s constitutionality; indeed, several forms of capital punishment that were popular and ethically acceptable when the Eighth Amendment was written—like death by burning or by breaking over the wheel21—now are widely perceived as barbaric and outmoded. To that end, the Court concluded that as society’s standards change, so too should its punishments.

It is also important to note that the evolving standards argument was not arbitrarily contrived to liberalize the Eighth Amendment: the Court has applied evolving standards to many types of cases, including those related to “murder, rape, juvenile offenders, mental health, and conditions of confinement.”22 The evolving standards of decency argument is, however, particularly relevant to capital punishment jurisprudence. The Court created a flexible doctrine for the Eighth Amendment, which Justice Warren stated exists to “assure that this power [to punish] be exercised with the limits of civilized standards.” 23 When the Court considered public opinion in their exegesis of the Eighth Amendment, it had the collateral effect of unbinding capital punishment jurisprudence from historical interpretation.24 In other words, the Trop decision made what was once a static jurisprudence a dynamic one, capable of expanding or contracting as much as public opinion necessitated.

Matthew C. Matusiak et al., The Progression of “Evolving Standards of Decency” in U.S. Supreme Court Decisions, 39 Crim. Justice Rev. 253-71, at 256 (2014).

21 Executions in the U.S. 1608-2002: The ESPY File, Death Penalty Information Center, https://files.deathpenaltyinfo.org/legacy/documents/ESPYstate.pdf, at 147.

22 Matusiak, supra, at 255.

23 Weems, 217 U.S. at 100.

24 Matusiak, supra, at 255.

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT B. The Court Giveth, the Court Taketh: Waffling on the Constitutionality of Capital Punishment in Furman and Gregg Although the constitutionality of the death penalty had been addressed in dicta in previous cases,25 until Furman v. Georgia (1972) it had not yet been interrogated substantively and thoroughly. The Court held in Furman that the death penalty was applied in an “arbitrary and discriminatory”26 manner in each case it reviewed, contravening both the Eighth and Fourteenth Amendment, and instructed states to redress any constitutional violations before resuming executions, leading to a de facto moratorium for four years. The Furman decision was explosive, splintering the nine Justices to each pen separate concurring and dissenting opinions. Justice Brennan mentioned the “denial of the executed person’s humanity” 27 and Justice Stewart analogized death sentences to the randomness of being struck by lightning,28 just as two illustrative examples.

Most Justices on the Court concurred that the current application of the death penalty was unconstitutional, rather than the philosophy of the death penalty in itself. In brief, the Justices shifted their analysis from a deontological approach to a consequentialist approach,29 evaluating the punishment by its experienced effects rather than by its intended effects. The Court held in Furman that not only does the death penalty in practice serve no penological purpose more effectively than a less severe punishment,30 but also outlined a cumulative and nuanced test to determine the constitutionality of any punishment: If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of

See Trop, 356 U.S. at 99.

Furman, 408 U.S. at 249.

27 Id. at 290.

28 Id. at 308.

29 Carol S. Steiker & Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment, at 75 (1st ed. 2016).

30 Furman, 408 U.S. at 286.

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UCLA UNDERGRADUATE LAW JOURNAL the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. 31

Rather than categorically ban the death penalty, the Court made a narrow consequentialist holding to eliminate its arbitrary and capricious effects, opening the door for future state-to-state reform efforts and further rulings.

The Court overturned this holding four years later in Gregg v. Georgia, arguing that Georgia’s bifurcated trial (one trial to assess guilt, one trial for death) was thorough and nuanced enough to prevent arbitrary sentencing.

Specifically, the Court held that the “death penalty may be carried out under the Georgia legislative scheme consistently with the Furman decision.” 32 In view of this decision, states began adopting Georgia’s Gregg-compliant bifurcated trials, and capital punishment’s de facto moratorium ended.

Additionally, Gregg required death-eligible juries to consider aggravating circumstances, conduct proportionality review (to ensure other similar offenses received similar punishments), and determine if the verdict was “imposed under the influence of passion and prejudice.”33 If these requirements were followed, the Gregg Court opined, then capital punishment could be meted out equitably, would cease to be arbitrary and capricious, and most importantly, would be constitutional. Since Gregg, there has been little argument about whether the death penalty as an institution is unconstitutional, instead focusing on whether its imposition upon special classes (juveniles, mentally disabled, rapists) are constitutional or if certain methods (lethal injection, firing squad) are constitutional.

C. Modern Developments and Narrowings Even though the Burger Court held that bifurcated death penalty procedures that considered mitigating and aggravating circumstances in each case were constitutional if they were compliant with the Court’s other

Id. at 282.

Gregg v. Georgia, 428 U.S. 153, 156 (1976).

33 Id. at 198.

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT requirements, 34 eligibility requirements for the death penalty have narrowed significantly since Gregg. The first of these narrowings came in Coker v. Georgia, in which the Court ruled that the death penalty is a disproportionate punishment for the penalty of rape,35 and therefore unconstitutional. Later, in Kennedy v.

Louisiana, the Court expanded this decision further, arguing that “the death penalty can be disproportionate to the crime itself where the crime did not result, or was not intended to result, in death of the victim,” 36 and incidentally ruled that the death penalty for child rape was unconstitutional.37 About a decade after Coker, the Court held in Ford v. Wainwright that the legally insane cannot be executed.38 Later, in 2002 and 2005, the Court held in Atkins v.

Virginia and Roper v. Simmons that executing intellectually disabled persons39 or juveniles40 is unconstitutional, respectively. In each of these cases, the Court used the “evolving standards of decency” test from Trop to evaluate the constitutionality of the death penalty, finding that current societal standards objected to its application in each case. Specifically, the Court has held that it is unconstitutionally excessive to execute persons of diminished capacity, who either are not mature enough to appreciate or are not intellectually competent enough to understand the gravity of their crimes. The Court’s jurisprudential history reveals a clear history of preclusion that has narrowed eligibility requirements and has rendered the death penalty exceptional and uncommon.

The Court has opined that these narrowings do not suggest that the death penalty is gradually obsolescing, but instead that they are spawned by the imperative that death “must be reserved for the worst of crimes and limited in It is not in the scope of this article to reckon with the growing body of scholarship that contends that aggravating and mitigating circumstances are often biased, subjective, and arbitrarily (if not discriminatorily) understood by juries (See, e.g., James Luginbuhl & Kathi Middendorf, Death penalty beliefs and jurors’ responses to aggravating and mitigating circumstances in capital trials, 12 Law and Hum. Behav. 263 (1988)). However, such challenges reveal that even requirements which were created and are currently used to make capital punishment decisions more objective and fairer can be impured by non-uniform, arbitrary definitions.

35 Coker v. Georgia, 433 U.S. 584 (1977).

36 Kennedy v. Louisiana, 554 U.S. 407, 416 (2008).

37 Id. at 471.

38 Ford v. Wainwright, 477 U.S. 399 (1986).

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

40 Roper v. Simmons, 543 U.S. 551 (2005).

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UCLA UNDERGRADUATE LAW JOURNAL its instances of application.” 41 The Court’s opinion reveals that it considers these narrowings to be a crystallization of the death penalty’s eligibility requirements: a process of careful refinement to make the death penalty more exceptional and more proportional. However, the Court consistently uses the “evolving standards of decency” test to make these preclusive decisions, which suggests these narrowings are the result of the death penalty becoming progressively less socially acceptable, rather than the strict byproduct of the Court ensuring it be proportionately applied.

Although Court analysis of the death penalty has constricted eligibility requirements, the Court has never declared a method of execution unconstitutional.42 Put simply, history suggests the Court is more concerned with who is executed than how a person is executed. In 1890 the Court upheld the constitutionality of electrocution;43 in 1879, the firing squad;44 and in 2008, lethal injection. 45 In Baze v. Rees, the Court held specifically that lethal injection is constitutional because it does not “create a substantial risk of wanton and unnecessary infliction of pain, torture, or lingering death” 46 and also detailed two tests (the “substantial” risk test and “objectively intolerable” risk test) for evaluating the constitutionality of executions methods, referred to as “methodof-execution” claims. The Court rejected petitioners’ request to use an “unnecessary risk” test to evaluate punishments in favor of the “substantial” risk test, holding that “the Constitution does not demand the avoidance of all risk of pain” 47 especially when practitioners can make procedural errors that lead to botched lethal injections. In retrospect, these strict tests tracked the Court’s gradual conservatization of the requirements to make a method-ofexecution claim, a trend that culminated in their landmark Glossip v. Gross decision.

Kennedy, 544 U.S. at 433.

See, e.g., Methods of Execution, Death Penalty Information Center, https://deathpenaltyinfo.org/executions/methods-of-execution 43 In re Kemmler, supra note 18.

44 Wilkerson, 99 U.S. at 137.

45 Baze v. Rees, 538 U.S. 35, 35 (2008).

46 Id. 47 Id. at 43.

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT Pre-Glossip, the Court’s long-standing jurisprudence prohibited barbaric punishments “under all circumstances.” 48 And certainly, if punishments like burning at the stake and any other methods which subject people to intolerable pain are barbaric, so too must be botched lethal injections. The Court did not agree. The Court certified the Baze plurality’s reasoning in Glossip by holding execution protocols (specifically lethal injections) violate the Eighth Amendment if and only if “those modes of the death penalty that demonstrably result in substantial risks of harm for the prisoner relative to viable alternatives can be challenged as unconstitutional.”49 However, when petitioners failed to identify a known and available alternative drug regimen (one of the requirements of the Court’s novel test) that would have substantially reduced the risk of pain in Glossip, the Court ruled against the petitioners.50 After Glossip, the Court made its previously categorical prohibition a conditional one, holding that a punishment is unconstitutional only if there is a known and available alternative.51 The latter requirement nullifies the former. An intolerable risk of severe pain, for instance, could be justified as constitutional any time when there are no other available alternative methods of execution. Such a ruling seems to eclipse decades of Court precedent and legitimizes the risk of exacting inhuman and freakish punishments. The Court has, in summary, created a set of tests that require petitioners to meet unnecessarily high standards to challenge the constitutionality of execution methods, regardless of their demonstrable cruelty.

II. Capital Punishment is Unconstitutional Across the United States, a defendant’s skin color is better at predicting whether they will be sentenced to death than the severity of their crime is. Black defendants have an arbitrarily greater chance of being sentenced to death than

Graham v. Florida, 560 U.S. 48, 56 (2010).

Limitations on Capital Punishment: Methods of Execution, Justia (U.S. Constitution Amended), https://law.justia.com/constitution/us/amendment-08/09-methods-of-execution.html (last visited Feb. 28, 2020).

50 Glossip v. Gross, 576 U.S. (2015).

51 Id. at 24.

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UCLA UNDERGRADUATE LAW JOURNAL

white people for similar crimes. Capital punishment contravenes the Fourteenth Amendment’s Equal Protection Clause, and despite decisions like McCleskey v.

Kemp, the way that capital punishment is carried out in the United States confers a constitutionally impermissible burden upon people of color, specifically black men. Decades of scholarship has confirmed that black people are not protected equally under the law, and such injustices are unconscionable when considered together with the death penalty. Furthermore, the executions themselves are unconstitutional: all lethal injections have an intolerable risk of being horribly botched and, furthermore, since there is no way to be certain of everyone’s guilt, the state risks executing people for crimes which they did not commit, which clearly violates the Eighth Amendment. Both of these problems, coupled with the damning realization that life in prison without the possibility of parole accomplishes the death penalty’s goals better than the death penalty itself does, render capital punishment unconstitutional.

A. Black Defendants are disproportionately sentenced to death Studies and legal scholarship have long confirmed that black defendants are disproportionately sentenced to death, 52 comprising “43% of total executions since 1976 and 55% of those currently awaiting execution.” 53 The American Civil Liberties Union (“ACLU”) assessed these disparities and found the following: While white victims account for approximately one-half of all murder victims, 80% of all capital cases involve white victims. Furthermore, as of October 2002, 12 people have

See, e.g., Marvin Wolfgang & Marc Riedel, Race, Judicial Discretion, and the Death Penalty, 407 Annals of Am. Acad. of Pol. and Soc. Sci. 119-33, at 124 (1973); David C. Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638 (1997-98); Michael Combs & John Comer, Race and Capital Punishment: A Longitudinal Analysis, 43 Phylon (1960-) 350-9 (1982); Harold Garfinkel, Research Note on Inter- and Intra-Racial Homicides, 27 Social Forces 369-81 (1949); Carol S. Steiker & Jordan M. Steiker, Sober Second Thoughts: Reflections on Two Decades of Constitutional Regulation of Capital Punishment, 109 Harv. L. Rev. 355 (1995); Arthur J. Goldberg & Alan M. Dershowitz, Declaring the Death Penalty Unconstitutional, 83 Harv. L. Rev. 1773 (1970).

53 Race and the Death Penalty, The American Civil Liberties Union, https://www.aclu.org/other /race-and-death-penalty/ (last visited Feb. 28, 2020).

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT been executed where the defendant was white and the murder victim black, compared with 178 black defendants executed for murders with white victims. 54

Eberhardt’s 2006 study of capital-sentencing outcomes found that black defendants are more likely to be sentenced to death in cases involving a white victim when they are perceived as “more stereotypically black.” 55 Baldus’s groundbreaking study, which catalyzed the Court’s deliberations in McCleskey v. Kemp (1987), found that capital sentencing rates in all white-victim cases were eleven times greater than that of all black-victim cases. 56 The scholarship and statistics are clear: defendants in capital trials are far and away more likely to be sentenced to death if they are black. A 2019 report found that of all inmates on death row across the United States, a majority (57.8%) were black,57 even though black people only comprise 13.4% of the U.S. population. 58 In states where death is a valid sentence, the discrepancies are even more stark.59 In Oklahoma, for example, black people comprise roughly 7% of the state’s population but 39% of the state’s death row inmates. 60 Under the Equal Protection Clause’s provisions, a black defendant who perpetrated a crime against a white victim should not have an arbitrarily greater chance of being executed when compared to a white defendant who perpetrated a similar crime. The severity of the crime should determine the proportionality of the punishment, not an arbitrary, exogenous factor like skin color.

Now that I have established empirical evidence for systemic discrimination against black defendants in capital cases, I will move to constitutional analysis Id. Jennifer L. Eberhardt et al., Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psych. Sci. 383 (2006).

56 David C. Baldus et al., Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience, 74 J. Crim. L. & Criminology 661 (1983).

57 Racial Disparities Persisted in U.S. Death Sentences and Executions in 2019, Death Penalty Information Center, https://deathpenaltyinfo.org/news/dpic-analysis-racial-disparitiespersisted-in-the-u-s-death-sentences-and-executions-in-2019 (2020).

58 U.S. Census Bureau, Black or African American alone, percent, https://www.census.gov/quickfacts/fact/table/US/PST045219 (last visited Feb. 28, 2020).

59 See, e.g., Ashley Nellis, The Color of Justice: Racial and Ethnic Disparity in State Prisons, The Sentencing Project, https://www.sentencingproject.org/wpcontent/uploads/2016/06/The-Color-of-Justice-Racial-and-Ethnic-Disparity-in-StatePrisons.pdf, at 16 (2016).

60 See Id. 54 55

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under the Fourteenth Amendment’s Equal Protection Clause by first establishing state responsibility. I will start by assuming that the Court has jurisdiction and the case is justiciable, since it cannot grant certiorari otherwise.

Then, I will prove that the unconstitutional application of capital punishment constitutes a government action. Specifically, since the punishment is issued by a judge in a court of law, whose status as a state actor make their actions attributable to the state, 61 the complaint satisfies this requirement too.

Thereafter, Equal Protection analysis requires the claimant to prove that the government imposes a “burden or confers a benefit on one class of persons to the exclusion of others,” 62 and that burden be either “facial” (in which the government is discriminating explicitly 63) or “in effect.” Its first prong, whether there is a burden on a class of persons, is easy to prove. Statistically, black defendants are more likely to be sentenced to death for similar crimes when compared to white defendants.64 Judges and prosecutors, whose actions can be imputed to the government, therefore, are violating black defendants’ constitutional guarantee of equal protection under the law, since a person’s skin color should not influence the severity of punishment. For the second prong, since capital punishment is not “facially” discriminatory (i.e. being black is not an aggravating factor in a capital case nor are there quotas for black executions) but instead is systemically discriminatory (since black defendants and black people who killed white victims are statistically more likely than other defendants to be sentenced to death for identical offenses65), I hold that capital punishment discriminates against black defendants “in effect.” The death penalty is not discriminatory per se, but the actors who sentence the defendant The basic premise of government action in equal protection analysis is that judicial actions can be imputed to the state, as per the Court (See Ex Parte Virginia, 100 U.S. 339, (1879)), wherein they delineated the following: “Whoever, by virtue of public position under a State government, deprives another of [life] … or takes away the equal protection of the laws… acts in the name of the state … [and] his act is that of the state” (emphasis added). Therefore, when judges render verdicts on capital cases, they are acting on behalf of the State, in the capacity of the State, and as the State.

62 Russel W. Galloway Jr., Basic Equal Protection Analysis, 29 San. Cla. L. Rev. 121, at 128 (1989) 63 See Brown v. Board of Education, 347 U.S. 483 (1954) (The Court held that segregated public schools explicitly discriminated against African Americans and violated the Fourteenth Amendment’s Equal Protection clause “on its face”).

64 See supra note 55 and accompanying text.

65 See Id. 61

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT (the judge, prosecutor, and jurors) have the empirically confirmed66 risk of acting with discriminatory intent, and the sentencing mechanisms themselves exacerbate latent discriminatory risks and lead to huge sentencing disparities.

McCleskey held that the Baldus study could not be used to prove that the Equal Protection Clause had been violated, even though the study showed clear disparities in the capital sentencing system.67 The Court held that these disparities were “inevitable” 68 and that constitutional challenges to systemic discrimination in the criminal justice system would have to show a discriminatory purpose.69 Since then, this decision has stonewalled efforts to reform many areas in the criminal justice system where black defendants have been systemically discriminated against but not purposefully and individually discriminated against. Moreover, the Court held that since Furman, there had been significant improvements to safeguard the system against arbitrariness and capriciousness, even when presented with evidence that the system was crumbling around them. Racial disparity, the Court held, was a natural consequence of prosecutorial and jury discretion, and was independent of internal flaws in the capital sentencing system. The Court was tasked to reckon with overwhelming evidence that threatened to capsize the legitimacy of a system they were obligated to reform, and rather than confront the evidence, they excluded it.

The legal70 and civil rights71 communities have excoriated and discounted the McCleskey decision, arguing that the Court’s purposeful discrimination

See infra notes 68 and 69 and accompanying text.

McCleskey v. Kemp, 481 U.S. 279, 280 (1987).

68 Id. at 312.

69 Id. at 351.

70 See, e.g., The Supreme Court, 1986 Term -- Leading Cases, 101 Harv. L. Rev. 119, 158 (1987); Too Much Justice: A Legislative Response to McCleskey v. Kemp, 24 Harv. L. Rev. 437 (1989); Scott E. Sundby, The Loss of Constitutional Faith: McCleskey v. Kemp and the Dark Side of Procedure, 10 Ohio St. J. Crim. L. 5 (2012).

70 See, e.g., Annika Neklason, The Death Penalty’s ‘Dred Scott’ Lives On, The Atlantic (Jun. 14, 2019).

71 See, e.g., Annika Neklason, The Death Penalty’s ‘Dred Scott’ Lives On, The Atlantic (Jun. 14, 2019), https://www.theatlantic.com/politics/archive/2019/06/legacy-mccleskey-vkemp/591424/.

66 67

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UCLA UNDERGRADUATE LAW JOURNAL doctrine fails to meaningfully respond to systemic discrimination. 72 I also contend that the purposeful discrimination doctrine is woefully unequipped to respond to invidious sentencing patterns. Although, taken on their own, the sentences do not appear to be racially motivated, when taken holistically, they reveal an indisputable pattern of discrimination against black defendants.

Regardless of the Court’s ruling, disproportionate sentences reveal black defendants are not equally protected under the law.

Next, the Court determines what kind of means-end scrutiny to use; in this case, since race is a “suspect” 73 classification (since black people and other races have been historically been targeted by discrimination in the United States), they are subject to strict scrutiny. 74 However, these specific degrees of scrutiny are not affirmed by all members on the Court, who often argue that since “in effect” Equal Protection claims require the court to apply the Feeney test (which checks to see if the government discriminated in effect and in purpose) 75 and because the death penalty does not purposely discriminate against black people to further some ostensible government interest, some justices choose to reject strict scrutiny claims. 76 The discriminatory-intent requirement is debated by scholars in law and philosophy, who rightly point out that “racial concepts function automatically and unconsciously, often without racial animus or discriminatory intent,” 77 which renders moot all claims that are systemically discriminatory, but not purposefully discriminatory. Furthermore, according to Harvard researchers, implicit biases (often racial ones) are ubiquitous and people are often unaware of the extent to which they affect their own behavior.78 Id. (“The precedent impairs constitutional challenges based on widespread racial disparities not just in capital sentencing, but in the criminal-justice system more widely; it requires defendants to prove discrimination on a specific basis, providing clear evidence that they were explicitly targeted because of their race. If police officers, prosecutors, judges, or others don’t openly acknowledge their own prejudices, defendants face a prohibitively high bar fighting for their Fourteenth Amendment rights in court”).

73 Galloway Jr., supra note 62, at 124.

74 Id. 75 Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979).

76 Id., at 135 (“three Justices -- Brennan, Marshall, and Blackmun -- have concluded that benign racial classifications should be subject to intermediate rather than strict scrutiny”).

77 Robin Bradley Kar & John Lindo, Race and the Law in the Genomic Age: A Problem for Equal Treatment Under the Law, The Oxf. Handbook on Law, Reg., and Tech. 874 (2015).

78 General Information, Project Implicit, http://www.projectimplicit.net/generalinfo.php (last visited Feb. 29, 2020).

72

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT This is another way the McCleskey decision (and, by extension, Batson challenges) fails to reckon with discrimination that isn’t overt or purposeful, but instead engendered, insidious, and unconscious. This is a fundamental sticking point in contemporary death penalty jurisprudence. Several justices79 have tried to break the logjam by arguing that capital punishment confers a higher degree of scrutiny because of its irreversibility,80 but such efforts have not been readily affirmed by the Court. Therefore, strict scrutiny is difficult to apply universally because of the Feeney test, which requires the Court to find explicit evidence of biases that are usually either unconsciously operating or deliberately disguised, which is a nearly impossible task.

The United States historically has been marred by policies and programs that weaponize race-neutral justifications as pretext to discriminate on the basis of race,81 so it seems very likely that the same engendered and insidious discrimination82 has leaked prismatically into the capital sentencing system, especially when prosecutors and district attorneys have a vested interest in winning cases83 and have the tools to do so. The inability of the discriminatorypurpose test to capture insidious, internalized discrimination is seen most prominently in jury selection, specifically in regard to peremptory challenges.

Broad prosecutorial discretion creates the conditions for latent racial bias to operate perniciously in juries, 84 especially when prosecutors have both the

See Furman, 408 U.S. at 290 (Brennan, J., concurring), 346 (Marshall, J., concurring).

Margaret Jane Radin, Jurisprudence of Death: Evolving Standards for the Cruel and Unusual Punishments Clause, 126 U. Pa. L. Rev. 989 (1978), at note 132 (“[M]ost people intuitively recognize a distinction between the irrevocability of everything and the irrevocability of death or mutilation. The latter … encompasses irreversible deprivations of attributes or capacities essential to, or at least closely connected with, complete personhood”).

81 See, e.g., Carol Anderson, One Person, No Vote: How Voter Suppression Is Destroying Our Democracy (2018).

82 See Shelby v. Holder, 570 U.S. 529, 1 (2013) (Ginsburg, J., dissenting). (Regarding latent racial bias in the Voting Rights Act, Justice Ginsburg poignantly noted that “Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated.”) (emphasis added) 83 See Brian A. Sun, The Overzealous Prosecutor. 18 Litigation 38 (1992).

84 See McCleskey, 481 U.S. at 364 (Brennan, J., dissenting) (“The issue in this case is the extent to which the constitutional guarantee of equal protection limits the discretion in the Georgia capital sentencing system. As the Court concedes, discretionary authority can be discriminatory authority...Judicial scrutiny is particularly appropriate in McCleskey's case because [m]ore 79

80

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incentive and the ability to engineer a jury that will deliver their desired verdict.

Longtime Philadelphia District Attorney Jack McMahon, for example, specifically instructed his new prosecutors (in a now-infamous and oft-cited training video) to use peremptory challenges to strike black jurors because “blacks from low income areas are less likely to convict.” 85 After Batson (1986), which prohibited striking jurors based on their race, McMahon outlined ways for prosecutors to circumvent the Court’s holding by using race-neutral reasons as pretext to legitimize striking potential black jurors.86 Batson challenges are ineffective at reducing unconscious (or purposefully disguised) discrimination because “trial judges are reluctant to doubt prosecutors’ proffered reasons for their challenged strikes” and because prosecutors only have to produce reasons, not persuade the judge.87 This is surely an illustrative example, but by no means was it exceptional: these practices were common in both Philadelphia88 and in North Carolina writ large.89 When requiring the Feeney test to rigidly evaluate purposeful discrimination and using Batson challenges to ineffectively reckon with discrimination, injustices can never be meaningfully interrogated because subtle, less consciously held racial attitudes could also influence the decisions in the Georgia capital sentencing system.”) (emphasis added) (internal quotation marks omitted).

85 Jury Selection With Jack McMahon, DATV Productions videotape, no date.

86 McMahon also instructed future district attorneys to strike black jurors if they were educated or dressed in a suit, which he alleged proved that they respect the law. He specifically said re Batson: “[T]he best way to avoid any problems with [Batson] is to protect yourself. And my advice would be in that situation is when you do have a black jury, you question them at length.

An [sic] on this little sheet that you have, mark something down that you can articulate later if something happens… you may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race.” Id. (emphasis added) 87 Judge Mark W. Bennett, Unraveling the Gordian Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire, the Failed Promise of Batson, and Proposed Solutions, 4 Harv. L. Pol. Rev. 1207, 1220 (2010).

88 See Nina Totenberg, Supreme Court Takes On Racial Discrimination In Jury Selection, NPR (Nov. 2, 2015), https://www.npr.org/2015/11/02/452898470/supreme-court-takes-on-racialdiscrimination-in-jury-selection (Between 1983 and 1993, Philadelphia prosecutors used peremptory strikes on more than half (52%) of potential black jurors, but less than a quarter (23%) of all other potential jurors).

89 Catherine M. Grosso et. al., Examining Jurors: Applying Conversation Analysis to Voir Dire in Capital Cases, a First Look, 107 J. Crim. L & Criminology 687 (2017) (In North Carolina, prosecutors used peremptory strikes against potential black jurors twice as often against white jurors in capital cases); Catherine M. Grosso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531 (2012) (The same biases led to biased jury selections in 173 cases in which the defendant was sentenced to death).

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT every actor in the criminal justice system has an incentive to obfuscate their motivations and make purposeful jury-rigging seem equitable and random, creating discriminatory effects without acting in an explicitly purposeful discriminatory manner.

Let’s assume that the government applies strict scrutiny, so the government then must prove the punishment fulfills a compelling government interest. The fact remains that the government does not have a single valid compelling interest that is effectively furthered by discriminating against black defendants in capital cases. One of the oft-cited compelling government interests is that of decreasing homicide. Although the government does have a vested interest in reducing and deterring crime, as I discuss later, there is no empirical consensus to confirm that the death penalty does so either well or at all, 90 no empirical consensus which confirms it deters crime more effectively than life in prison,91 and no evidence to support the argument that sentencing black defendants to death more frequently than white defendants reduces crime more effectively.

Sentencing data proves black defendants are more likely to be sentenced to death than white defendants; however, at best, deterrence data is inadequate and insufficient, and has left researchers unable to find a correlation between the death penalty and homicide rates.92 The Court incongruously accepts deterrence as factually correct, even when it is bereft of any empirical consensus, but rejects probative evidence and indisputable data showing that black defendants face invidious sentencing. This may seem unsurprising; indeed, to confirm that discriminating against black defendants in capital cases doesn’t more effectively further government interests seems self-evident.

However, it is crucial to understand that the existence of the death penalty and the government’s right to use it does not also grant the government the right to use it in a discriminatory fashion.

Critics of the Equal Protection argument point out that the potential for discrimination to exist is not unique to capital punishment, and “taken to its See infra note 154 and accompanying text.

See infra note 153 and accompanying text.

92 See infra note 154 and accompanying text.

90 91

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logical conclusion, [it] throws into serious question the principles that underlie the entire criminal justice system.” 93 They expand the original claim (that intentional discrimination exists in the administration of capital punishment) to implicate the “entire criminal justice system,” making the claim seem inscrutable, and the possibility of reform seem impossible. Of course, the assertion is correct per se (that there is discrimination in the entire criminal justice system) but recognizing that the risk of discrimination exists within the entire criminal justice system does absolutely nothing to prove the risk of discrimination isn’t particularly potent within the death penalty. Although Court dicta are virtually nonexistent post-McCleskey on capital punishment as a whole, Justice Scalia’s dissenting opinion in Baze follows the same logic: since the risk of discrimination is not exclusive to the death penalty, but instead is inclusive to any criminal penalty, it consequently forecloses adjudicating the specific constitutionality of the discriminatory risk of the death penalty. 94 This argument is a form of rhetorical evasion that deliberately glosses over how capital punishment is extraordinarily unique by virtue of its irreversibility and enormity. Justice Scalia implicates the entire criminal justice system to balk at adjudicating a specific punishment within that system. However, unlike any other criminal penalty, executions are irreversible. You can only exonerate dead people insofar as the exoneration is able to resurrect them, which it of course cannot. You can reverse, commute, reduce, or nullify all other criminal penalties, but you cannot reverse an execution. The Court has continually affirmed that “death is different” and that it should and must be viewed as such.95 Discrimination in all other cases is remediable (i.e. those who have been wrongly discriminated against can appeal or may become exonerated); however, discriminatorily executing someone who on the merits of his or her case should not be executed96 is a gross miscarriage of justice and one in which no remedies are available.

Baze, 481 U.S. at 281 (Scalia, J., dissenting).

Id. 95 Furman, 408 U.S. at 238.

96 In all mandatory capital appeals, courts conduct proportionality review in the nineteen states that require it (comparative proportionality review is not constitutionally required) to ensure that different defendants in different cases are being sentenced equitably, but a large body of 93

94

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT The death penalty is, by design, an exceptional and unique punishment (a sentiment that has been frequently affirmed by the Court97), so comparing it to other reversible sentences is a false equivalency. In his dissenting opinion in McCleskey, Justice Brennan addressed Justice Scalia’s fear in Baze: The prospect that there may be more widespread abuse than McCleskey documents may be dismaying, but it does not justify complete abdication of our judicial role. The Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law…[T]o reject McCleskey’s powerful evidence on this basis is to ignore both the qualitatively different character of the death penalty and the particular repugnance of racial discrimination. 98

Surely, the pragmatic and moderate response to such a damning revelation would be to suspend executions (echoing the Court’s decision in Furman) because (1) the exceptional and irreversible nature of the death penalty necessitates it to be prescribed in an even-handed, equitable manner, more so than a sentence of life without the possibility of parole, (2) there exists extensive statistical evidence which supports the claim that race remains an inextricable factor in sentencing, and (3) given its uniquely irreversible and exceptional character, coupled with its discriminatory sentencing patterns, the death penalty directly violates the Equal Protection Clause on the grounds that black defendants and defendants who commit crimes against a white victim are unfairly discriminated against.

B. The Death penalty is a cruel and unusual punishment Landmark changes in capital punishment jurisprudence have originated from seminal cases which addressed the Eighth Amendment’s prohibition on cruel and unusual punishment. The Eighth Amendment reads, “Excessive bail legal scholarship contends that proportionality review is not sufficient and discrimination persists. See Kaufman-Osborn, T., Proportionality Review and the Death Penalty, 29 The Just. Sys. Journal 257, 269 (2008) (“[T]he court has failed to develop a procedure that ensures that the death penalty is consistently applied to those convicted of the most heinous murders and, correlatively, that those convicted of less heinous crimes are not sentenced to die”).

97 See supra note 92 and accompanying text.

98 McCleskey, 481 U.S. at 229.

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shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 99 The Court, while by no means monolithic, has historically held that the principle of capital punishment is permissible per the Fifth Amendment.100 Instead, the main disagreements come from its application: the actual executions. I will first look at the most popular form of capital punishment, lethal injection, and will assert that the botch frequency and the unreliability of the current science render it unconstitutional. Secondly, I will look at a couple questions that pervade all execution types: is it unconstitutional to execute someone who is innocent? Can we ever be certain someone is guilty? I will hold that all methods of execution are unconstitutional precisely because it is impossible to ever be statistically certain of someone’s guilt, and its irreversibility and enormity render it unconstitutionally excessive and disproportionate under the Eighth Amendment.

Finally, retentionists often cite a proportionally small body of scholarship that contends that executions deter future crimes from being committed because people are innately afraid of being executed. This argument, the deterrence argument, is the final stronghold for retentionists when all other arguments fail. Under the Eighth Amendment, a punishment is only constitutional if it serves a “legitimate penological purpose,” 101 and the deterrence argument is often used to prove that executions fulfill this requirement. However, this argument is fundamentally flawed and, additionally, is misrepresented as true when only a minority of the scientific community supports it. Capital punishment is not a reliable deterrent to future crimes (nor is it a better deterrent than life in prison without the possibility of parole), so therefore it does not serve a legitimate penological purpose and must be unconstitutional.

U.S. Const. amend. VIII. But see Joseph Blocher, The Death Penalty and the Fifth Amendment, 111 Northw. Uni. L. Rev. 1, 2 (2016).

101 Graham, 560 U.S. at 71.

99

100

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT i. Anyone can suffer: Lethal Injections are Unreliable, Inherently Flawed and Unconscionably Degrading Lethal injection is by far the preferred method of execution by prisoners, comprising almost 90% of executions in the past 37 years.102 Lethal injection, while commonly championed as the “more humane” 103 method, has a botch rate of 7.1%, which is significantly higher than all other forms of execution. 104 This same study, commissioned by an Amherst professor in 2012, found the botch rate of all 9,000 executions since 1910 to be 3%. 105 The Court uses two tests to adjudicate the constitutionality of lethal injection (the “substantial risk of harm” test and the “objectively intolerable risk” test) but neither of them adequately address or remediate the aberrant statistical likelihood that lethal injections will be botched, because of both the undertrained medical technicians who administer the drugs and the drug regimen itself.

Clayton Lockett was sentenced to die by lethal injection in Oklahoma on April 29th, 2014. At the time, Hospira and other pharmaceutical companies had stopped supplying death penalty states with sodium thiopental,106 an anesthetic used to numb the pain of potassium chloride, which is the drug used to stop the heart. Oklahoma opted to use a three-step experimental cocktail of midazolam (an untested, off-label anesthetic), vecuronium bromide, and potassium bromide to execute Lockett. 107 For contrast, Florida requires a 500-milligram minimum recommended dosage to completely anesthetize its prisoners;108 102 Mona Chalabi, How Often Are Executions Botched?, FiveThirtyEight (Apr. 30, 2014), https://fivethirtyeight.com/features/how-often-are-executions-botched/.

103 David G. Savage, High court finds lethal injections are humane, L.A. Times (Apr. 17, 2008), https://www.latimes.com/archives/la-xpm-2008-apr-17-na-scotus17-story.html.

104 Austin Sarat, Gruesome Spectacles: Botched Executions and America’s Death Penalty (2016).

105 Id. 106 See John Ericson, Botched Execution Shows Perils of Lethal Injection Drug Shortage, Newsweek (Apr. 30, 2014), https://www.newsweek.com/2014/05/16/states-go-great-lengths-find-lethalinjection-drugs-249154.html.

107 See Katie Fretland, Oklahoma execution: Clayton Lockett writhes on gurney in botched procedure, The Guardian (Apr. 30, 2014), https://www.theguardian.com/world/2014/apr/30/oklahomaexecution-botched-clayton-lockett 108 See Stephanie Mencimer, Does This Secret Drug Cocktail Work To Execute People? Oklahoma Will Find Out Tonight, Mother Jones (Apr. 29, 2014

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UCLA UNDERGRADUATE LAW JOURNAL Oklahoma used one-fifth of that amount. 109 The average execution by lethal injection lasts six minutes in Oklahoma.110 Lockett’s execution took fortythree.111 As he was strapped to the gurney, he writhed, sputtered, and choked for air after the drug mixture failed to render him unconscious.112 The medical technicians charged with mainlining the cocktail into Lockett’s arm and groin poked around fruitlessly for several minutes before finally inserting it into his femoral vein;113 however, the technicians mis-located the vein and failed to penetrate the IV past his muscles, liquefying his groin tissues for thirty three minutes until the technicians ran out of the drug. 114 As they frantically unstrapped him from the gurney and attempted to render aid, he spasmed to the floor and died from a heart attack.115 Clayton Lockett adds his name to an intolerably long list of offenders who have experienced botched lethal injections, and who have been tortured to death because of the lethal mixture of experimental drugs, medical incompetence, and violations of state execution guidelines.

Despite Lockett’s horrendously botched execution, the Court decided in Glossip v. Gross that using midazolam in lethal injections, the drug used to execute Lockett, is constitutional. 116 Justice Sotomayor penned a dissenting opinion to the Court’s decision and outlined several errors in the Court’s plurality opinion.117 She cited several doctors who testified that benzodiazepines are subject to a ceiling effect, which means that doses only effectively induce unconsciousness up to a threshold, and higher doses are not reliably correlated with greater efficacy. The smoking gun, she contends, is the risk that midazolam may not have any “analgesic—or pain-relieving—effects” at all. 118 The dissent

https://www.motherjones.com/politics/2014/04/double-execution-tonight-ok-using-secretexperimental-drug-protocol/.

109 Id. 110 Fretland, supra.

111 Id. 112 Id. 113 Id. 114 Id. 115 Id. 116 Glossip, 576 U.S. at 4.

117 Id. at 7. (Sotomayor, J., dissenting) 118 Id. at 9.

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT then contends that “while midazolam may be able to induce unconsciousness, it cannot be utilized to maintain unconsciousness in the face of agonizing stimuli” which gives it an objectively intolerable risk of cruel pain, because there is the chance that those sentenced to die feel their own deaths. 119 The Court majority gave disproportionate credence to one expert who testified that midazolam could maintain unconsciousness, but his evidence was “entirely unsupported by any study, … inconsistent with the scientific understanding of midazolam…[and] premised on basic logical errors.” 120 The most damning evidence against midazolam and other drugs used in the cocktail is the possibility that inmates may be rendered paralyzed but not unconscious, forced awake by respiratory distress and heart spasms, and made to bear witness as a third party to their own execution.121 The Court ruled against the complainant in Glossip, holding that midazolam does not pose an “objectively intolerable risk of severe pain” and that petitioners couldn’t identify “alternative means by which the State may kill them.” 122 Both of their conclusions are incorrect.

Across all forms of current methods of capital punishment (firing squad, lethal injection, hanging, gas chamber, electrocution) there is a risk of agonizing pain. As for lethal injection specifically, there is still a question as to if it is painless or paralytic agony. The American Medical Association and almost all other medical associations prohibit medical professionals from helping carry out the death penalty, 123 which means that almost all of the prison technicians who supervise and administer the drug mixture are untrained, unqualified, and comparatively incompetent. Their lack of experience in administering the drugs increases the risk that the drugs will not be used correctly, the risk that the person being executed will be left conscious and in horrendous pain, and the risk that the execution will be botched. However, even when technicians follow protocols precisely, medical scholarship has found that the drugs themselves may be Id. at 10.

Id. at 15.

121 Id. at 21.

122 Id. at 2.

123 See Capital Punishment, American Medical Association, https://www.amaassn.org/delivering-care/ethics/capital-punishment (last visited Feb. 29, 2020).

119

120

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entirely unable to induce anesthesia. Konaris’s 2005 study, “Lethal Injection for Execution: Chemical Asphyxiation?” largely confirms the dissent’s worries of an agonizing execution masked by drug-induced paralysis, arguing that several prisoners would have experienced “fleeting or no surgical anesthesia” 124 from thiopental (considered a safer drug than midazolam) and it would be impossible to tell how much they suffered because of the paralysis induced by the pancuronium. They would be left chemically unable to use their esophagus, conscious while they silently asphyxiate. Of course, such a punishment is neither swift nor painless, is arguably less humane than the firing squad, and is comparable to torturing someone to death.

Finally, the failures of lethal injection are endogenous to the protocol itself and do not merely result from bad drugs. The authors note that the lack of scientific research into lethal injection “emphasize[s] the failure of lethal injection practitioners to design and evaluate rigorously a process that ensures reliable, painless death, even in animals.”125 The Court has held that an error in the punishment’s administration doesn’t “suggest cruelty,” and does not meet the prerequisites to be analyzed under the “substantial risk” test. 126 However, the Baze interpretation of “cruel” is excessively narrow, and places the burden of responsibility on the practitioners rather than the punishment. A punishment’s effects can be cruel regardless of the practitioners’ intentions.

Unlike the case that spawned this precedent, the punishment does not contain a singular, simple, mechanistic error,127 but instead contains multiple repeated errors produced by systematically overlooking and discounting the lethal injection protocol that generates botched executions. The error, here, is more than just forgetting to turn the power on; instead, the fundamental construction of (and circumstances which surround) lethal injection protocol have inevitably led to an outgrowth of hellish executions. Lethal injection errors are not

Teresa A. Zimmers et al., Lethal Injection for Execution: Chemical Asphyxiation? 4 PLoS Med 4 156 (2007).

125 Zimmer et al., supra, at 651.

126 Baze, 553 U.S. at 3.

127 Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) (The Court upheld Louisiana’s decision to try to execute a prisoner again after a one-time malfunction in the electrical current of the electric chair).

124

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT stochastic, unconnected accidents, but instead are reliably spawned from unreviewed protocols and untrained technicians.

When the Court and the petitioners concede that if the protocol were followed precisely, it would be constitutional,128 they gloss over the practical constitutionality of the protocol in favor of its theoretical constitutionality. If they considered the protocol holistically they would find that many of the problems arise from untrained medical technicians failing to follow the protocol, not because of negligence, but because of incompetence. 129 If the technicians cannot follow a theoretically constitutional protocol in a way that is practically constitutional (because they are undertrained and medically incompetent), then that protocol is unconstitutional. Inmates are not being executed by a theoretical protocol; they are being executed by an untrained technician’s application of that protocol. This holding is not incongruous with my previous emphasis on the punishment’s cruelty rather than the technician’s. Indeed, the technician is not cruel; the punishment is.

In light of these systemic problems, the Court “should adopt a substantial risk of intentional or unnecessary pain”130 test to address the following uncorrectable or otherwise unavoidable chokepoints: (1) the stock of people qualified and allowed to administer lethal injection protocols is vanishingly small, and will remain that way because of well-established ethical standards in medicine; (2) states are turning to inferior, unreliable drugs produced by compounding pharmacies because FDA-regulated pharmaceutical companies Baze, 553 U.S. at 3 (“In light of the safeguards Kentucky’s protocol puts in place, the risks of administering an inadequate sodium thiopental dose identified by petitioners are not so substantial or imminent as to amount to an Eighth Amendment violation”).

129 See Stephanie Mencimer, State Executioners: Untrained, Incompetent, and “Complete Idiots”, Mother Jones (May 7, 2014), https://www.motherjones.com/politics/2014/05/death-penaltylethal-injections-untrained-doctors/ (On concealing the identity of executioners and low training requirements: “States typically have had few requirements for those serving on an execution team. At one point, in Florida, the only criteria were that a potential executioner be at least 18 years old. Wardens, prison guards, phlebotomists, paramedics, and nurses are sometimes in the mix ...The actual makeup of execution teams is often a state secret that officials work hard to conceal [and] individuals are rarely held accountable”).

130 Dana E. Sherman, Note: Compounded Drugs, Experimentation, and Baze: Time for a Better Solution, 47 Colum. Human Rights L. Rev. 200, 235 (2015) (internal quotation marks omitted; emphasis added).

128

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are refusing to sell their drugs for executions; and (3) the drug regimen itself may fail to induce anesthesia or may result in an excruciating, torturous death.

A punishment can be intolerably cruel without being intentionally cruel, and if the cruelty is symptomatic of exogenous factors like drug shortages and incompetent technicians, then that punishment has a substantial risk of being unnecessarily cruel. By these standards, lethal injection is a cruel and unusual punishment and thus contravenes the Eighth Amendment. ii.

The State Risks Executing Defendants for Crime they Did not Commit

Since 1973, 167 people have been exonerated from death row as a result of wrongful convictions,131 caused mostly by perjured testimonies or false accusations. A famous study by Stanford Law professor Samuel Gross contends 4.1% of people currently on death row are innocent, and since “no process of removing potentially innocent defendants from the execution queue can be foolproof…it is all but certain that several of the 1,320 defendants executed since 1977 were innocent.” 132 Several critics of this argument point out that there is virtually no data that has been collected on people who have been exonerated after execution. However, Gross contends that it is a “dark figure,” which is not merely unknown but unknowable.133 One reason being that death penalty lawyers simply do not have the resources to keep litigating for dead clients when there are living clients to defend instead, especially because the appeals process also ends.134 The lack of data is symptomatic of how extraordinarily difficult it is to acquire the data, yet no risk of executing innocent people (even if it were 0.027%) 135 is negligible or acceptable.

See supra note 12.

Gross et al., supra, at 7235.

133 Id. at 7230.

134 See Executed But Possibly Innocent, Death Penalty Information Center, https://deathpenaltyinfo.org/policy-issues/innocence/executed-but-possibly-innocent (last visited Feb. 29, 2020) (“Courts do not generally entertain claims of innocence when the defendant is dead. Defense attorneys move on to other cases where clients’ lives can be saved”).

135 Kansas v. Marsh, 548 U.S. 163, 198 (2006) (Justice Scalia’s underestimation of the proportion of wrongful executions).

131

132

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT Eighth Amendment jurisprudence has often avoided addressing the problem of innocence, declaring its irrelevance for punishments. Historically, the Court has held that the conviction phase must answer whether the defendant did it whereas the death penalty trial phase must answer how the defendant did it. 136 In other words, the punishment, according to the Court, is fundamentally unconcerned with the defendant’s innocence and the residual doubt in the case.

However, the Courts own jurisprudence contradicts this assertion in capital cases. One of the Eighth Amendment’s prongs is the question of penological purpose: if a penalty serves no legitimate penological purpose, then it is unconstitutional. In Kennedy v. Louisiana, Justice Kennedy, writing for the Court, held that the relatively high probability of wrongful convictions in child rape cases is “a structural impediment to preventing the risk of wrongful executions; and thus, as a factor that weighs against any purported penological purpose that the death penalty serves.”137 And later, in Atkins v. Virginia, the Court factored the “special risk of wrongful execution” in the case of the mentally disabled, who may be unable to make a persuasive showing of mitigation in court.138 Using these cases as a lens to understand the Court’s jurisprudence, when the court has historically considered the death penalty, “the concern of residual doubt appears to drive the Court’s categorical exclusion of a number of crimes and offenders.” 139 Therefore, the Court not only uses wrongful convictions as a factor to consider wrongful executions in capital cases, but the Court has precluded executions entirely because of circumstances in which there may exist corruptions in the sentencing process.

Such corruptions are pervasive; they are not limited to the mental inability of a defendant from being persuasive or a child from misidentifying their rapist, but include overzealous prosecution, incompetent defense, junk science, perjured testimonies, coerced confessions, and faulty eyewitnesses. Such corruptions are

Robert Smith et. al., Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent 163 (Daniel S. Medwed ed., 2018).

137 Smith, supra, at 172.

138 Atkins, 536 U.S. at 16.

139 Smith, supra, at 173.

136

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those that exist in the entire criminal justice system but are specifically potent in capital cases.

Proportionality review and the ability for a person to benefit from new evidence form the bedrock of due process, so any punishment that precludes the discovery of new exculpatory evidence that might exonerate someone or reduce their sentence is patently violative of the Fifth Amendment’s guarantee of due process.140 Briefly reading the Eighth and Fifth Amendment together gives us a new interpretive lens: if it is unconstitutional to impede due process, and the irreversibility of the death penalty precludes new exculpatory evidence, then there is a risk that innocent people have been executed, which is obviously unconstitutional. One unconstitutionality generates another. An illustrative example is the recent trial and subsequent execution of Troy Davis, a 42-yearold black man who was sentenced to death for allegedly murdering police officer Mark MacPhail. After the trial, seven of nine witnesses recanted their testimonies, claiming they were coerced into identifying Davis as the shooter who killed MacPhail. 141 Davis later testified that he did not have the gun on his person, because he had given it to someone else. Another man at the crime scene, Sylvester Coles, was identified as the shooter by witness Benjamin Gordon, and witness Anthony Hargrove testified that Coles had confessed to the shooting to him.142 Coles was not present at the Supreme-Court-ordered evidentiary hearing, so Judge William Moore elected to preserve the sentence.143 After several abortive appeals attempts, Davis maintained his innocence in his last words, and was executed by lethal injection fifteen minutes later.144 The prospect of his innocence is not something that I will adjudicate, but it is important to recognize the amount of coerced confessions, perjured testimonies, and new evidence that contaminated the original sentence. His Blotcher, supra, at 2.

Eamon McNiff, Witnesses Now Say They Lied in 1991 Trial that Sent Troy Davis to Death Row, ABC News (Jun. 23, 2010), https://abcnews.go.com/TheLaw/witnesses-helped-convictman-death-row-now-recant/story?id=10995816.

142 Jan Skutch, Troy Davis hearing could end today, Savannah Morning News (Jun. 24, 2010), https://www.savannahnow.com/troy-davis/2010-06-24/troy-davis-hearing-could-end-today.

143 The Associated Press, Troy Davis lawyers ask judge to weigh rejected evidence, Savannah MorningNews,(Jul.22,2010),https://web.archive.org/web/20100726082902/http:/savannahno w.com/latest-news/2010-07-22/troy-davis-lawyers-ask-judge-weigh-rejected-evidence.

144 See supra note 1 and accompanying text.

140 141

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT death ended the appeals process, ended the ability for new evidence to exonerate him, ended the possibility of all of the witnesses recanting their testimonies – perhaps none of these would have happened, but his execution rendered all of these possibilities unknowable.

The death penalty might be constitutional if it were revocable. If the accused could be exhumed, revived, and then exonerated, then the costs of convicting an innocent person to die would be nearly equal to the costs of convicting an innocent person to life in prison. But of course, this is ridiculous. Executions are irreversible, which renders this punishment unique when compared to all other criminal punishments. The death penalty is the ultimate punishment, in both its finality and enormity. The Court has historically affirmed this through their “death is different” doctrine.145 Such an irrevocable punishment should require a proportional amount of certainty. If there is no way to remedy a wrongful execution, we must eliminate the possibility entirely – therefore, only when the risk of wrongful execution is zero is the death penalty constitutional and proportional. In Justice Scalia’s Baze dissent, he argues that since criminal punishments fall victim to inherent imperfection, the death penalty is not unique or unconstitutional. 146 But in doing so, he actually makes a compelling argument for the contrary: if all criminal punishments are inherently imperfect, then so too is capital punishment, and because executions are irreversible and irredeemable, they must be administered perfectly, which of course is untenable in Justice Scalia’s own terms. Perfect administration is impossible, especially when certain forms of evidence have been proven as junk science or have been unable to prove guilt beyond a reasonable doubt, like hair samples147 and arson

See Furman, 408 U.S. at 290 (Brennan, J., concurring) (“Death is truly an awesome punishment. The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person's humanity. [An executed person loses] the right to have rights.”) (internal quotation marks omitted).

146 Baze, 553 U.S. at 6 (Scalia, J., concurring in judgement) (Justice Scalia asserts that a risk of error could infect “any criminal penalty, including life without parole; there is no proof that in this regard the death penalty is distinctive”).

147 See generally The Ed. Board, Opinion, Junk Science at the FBI, N.Y. Times (Apr. 27, 2015), https://www.nytimes.com/2015/04/27/opinion/junk-science-at-the-fbi.html.

145

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UCLA UNDERGRADUATE LAW JOURNAL analysis.148 The prospect of wrongful executions expands to corrupt all forms of execution. In looking at method-of-execution claims, I began by examining lethal injection, the most prevalent form of execution, and its specific violations. Here I conclude by examining the prospect of wrongful executions: a general violation that clouds all forms of execution and, since there is never a way to be statistically certain of someone’s guilt, renders all execution methods unconstitutional.

The death penalty violates the Eighth Amendment’s Cruel and Unusual Punishment Clause on grounds that the state will always risk executing innocent people. Imperfect evidence, imperfect juries, and several corruptible points in the sentencing process make absolute innocence unknowable up to the day of execution. Since these impurities make absolute innocence unknowable, and since execution is an irrevocable penalty, then all executions carry an unjustifiable and unconscionable risk of being wrongful, and therefore are unconstitutional. iii.

The Death Penalty Does Not Reliably Deter Future Crimes

The final argumentative stronghold used by retentionists is a kind of grim utilitarianism: capital punishment deters criminals from committing future violent crimes. There are two kinds of deterrence: specific (where the sentenced person is deterred from committing future crimes) and general (where other members of society are collaterally deterred from committing future crimes because of a punishment).149 The moral calculus for the latter is that the death penalty confers a net benefit to society: if one execution deters fourteen future murders,150 then thirteen lives have been saved by the death penalty. After briefly examining the constitutional jurisprudence, I will focus on general

148 See Thomas R. May, Fire Pattern Analysis, Junk Science, Old Wives Tales, and Ipse Dixit: Emerging Forensic 3D Imaging Technologies to the Rescue?, 16 Rich. J.L. & Tech 13 (2010).

149 Sara Colón, Capital Crime: How California’s Administration of the Death Penalty Violates the Eighth Amendment, 97 Cal. L. Rev. 1377, 1404 (2009).

150 See Paul R. Zimmerman, Estimates of the Deterrent Effect of Alternative Execution Methods in the United States: 1978-2000, 60 Am. J. Econ. & Soc. 909 (2006).

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT deterrence and will argue that it does not effectively deter crime than life in prison without the possibility of parole does.

In Furman v. Georgia, the Court used a comprehensive test to assess whether a punishment is unconstitutional, the penological purpose test, wherein the Court held that capital punishment is unconstitutional “if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment.” 151 Deterrence has been interpreted by the Court as a legitimate “penal purpose,” so here the fundamental constitutional question is whether the death penalty deters future crime more effectively than less severe punishments, including life in prison without the possibility of parole. If executions do not deter future crimes any better than a sentence of life in prison does, then the death penalty is unnecessarily excessive and is unconstitutional.

Since the death penalty’s deterrent effect is so readily cited by retentionists, we should expect there to be an empirical consensus which supports this claim.

However, there is not, neither in the international nor the domestic spheres.

One report released by the Abdorrahman Boroumand Center in 2018 found that among twelve countries that abolished the death penalty, eleven experienced drops in crime rates, and the twelfth’s small rise in crime rates did not significantly change the pronounced decrease in crime rates on average among all twelve countries.152 To address the argument that perhaps the United States is unique and should expect different outcomes, several organizations have also conducted domestic studies as well. The results are similarly definitive: the Death Penalty Information Center aggregated and compared homicide rates between states that have the death penalty and states that do not have the death penalty, and found that homicide rates in states with the death penalty have “been 48 percent to 101 percent higher than in states without [it].”153 Alongside Furman, 408 U.S. 238 at 282.

Abdorrahman Boroumand Center, What Happens to Murder Rates when the Death Penalty is Scrapped? A Look at Eleven Countries Might Surprise You (2018), https://www.iranrights.org/library/document/3501.

153 Raymond Bonner & Ford Fessenden, Absence of Executions: A special report.; States With No Death Penalty Share Lower Homicide Rates, N.Y. Times (Sept. 22, 2000), https://www.nytimes.com/2000/09/22/us/absence-executions-special-report-states-with-nodeath-penalty-share-lower.html.

151

152

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evidence against deterrence, there are also studies which claim it is “impossible” to ascertain whether executions deter violent crime.154 In 2012 the National Resource Council conducted a 35-year follow-up study and came to a similar conclusion that they came to in their first 1978 study: the research about capital punishment’s deterrent effects is inconclusive, and no correlation exists between executions and homicide rates.155 The council goes to great lengths to emphasize that, although their conclusion supports neither assumption (executions do versus do not deter homicide), because research has been inconclusive, deterrence “should not influence policy judgments about capital punishment.” 156 Although I do recognize that studies exist which confirm that executions do not deter murder, those studies are often challenged by other studies which claim the opposite.157 In sum, the death penalty either has no effect on crime rate or is associated with higher crime rates.

Returning to the Constitution, if there is no evidentiary, empirical, or scientific consensus to support the assumption that executions deter violent crimes, then the claim that the death penalty satisfies a legitimate penological purpose is problematic. Especially considering the possibility that abolishing the death penalty might lower homicide rates, then life in prison is a less severe punishment which satisfies a legitimate penal purpose, deterrence, more effectively than the death penalty does, rendering it unconstitutional by the Court’s legitimate penological purpose test and under the Eighth Amendment.

However, even if we were to entertain the counterfactual that the death penalty does marginally deter homicide, the death penalty is currently applied in a way that severely undermines deterrence. The capacity for a punishment to deter potential crime is a function of how consistently it is imposed.158 If there National Research Council, Deterrence and the Death Penalty (2012), at 4, https://www.nap.edu/read/13363/chapter/2 155 Id. 156 Id. 157 Id. at 3, on logic pitfalls. Specifically, on conflating no evidence for as evidence against: “Commentary on research findings often pits studies claiming to find statistically significant deterrent effects against those finding no statistically significant effects, with the latter studies sometimes interpreted as implying that there is no deterrent effect. A fundamental point of logic about hypothesis testing is that failure to reject a null hypothesis does not imply that the null hypothesis is correct” (emphasis added).

158 Russil Durrant, An Introduction to Criminal Psychology 285 (2nd ed. 2014).

154

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT is a slim chance that the punishment will be imposed on offenders, they will not be deterred as much as they would be if they knew the punishment would certainly be imposed. Justice Breyer’s dissent in Gross remarks upon this concept, specifically referencing the long wait times (which get longer year by year) between conviction and execution: [A]n offender who is sentenced to death is two or three times more likely to find his sentence overturned or commuted than to be executed; and he has a good chance of dying from natural causes before any execution (or exoneration) can take place. In a word, executions are rare. And an individual contemplating a crime but evaluating the potential punishment would know that, in any event, he faces a potential sentence of life without parole ... [so] it makes it difficult to believe (given the studies of deterrence cited earlier) that such a rare event significantly deters horrendous crimes. 159

Consider the following hypothetical scenario: (1) a man kills someone, is convicted of first-degree murder, and sentenced to death; (2) rather than being afforded a swift execution, his execution date is delayed for fifteen years;160 and (3) he is executed, and so adds his name to the list of people sentenced to death who are actually executed, a list which comprises roughly 1.3% of inmates on death row.161 Observing such a situation, any rational person would see that his execution neither guaranteed nor happening soon after his crime. Even if we accept that the death penalty deters future violent crimes, in order for a deterrent effect to exist, executions must be carried out reliably and consistently, and since mandatory death penalty laws were ruled unconstitutional in 1976,162 there is no way to readily reduce long execution wait times.163 Therefore, potential violent offenders are not able to come to the teleological conclusion that they will certainly be executed after they commit a crime. However, potential offenders do know that, once caught, they face a

Gross, 576 U.S. (2015) (Breyer, J., dissenting).

See Table 10 in Tracy L. Snell, Capital Punishment, 2013 - Statistical Tables, Bureau of Justice Statistics, https://www.bjs.gov/content/pub/pdf/cp13st.pdf, for typical state-by-state values.

161 See id. at Table 12.

162 Woodson v. North Carolina, 428 U.S. 280 (1976).

163 It is also important to understand that the only way to reduce execution times is to forego safeguards that prevent innocent people from being executed, like the (often decades-long) appeals process, so such a prospect is not only practically improbable, but constitutionally impossible.

159

160

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nearly certain possibility of life in prison. Therefore, given the low possibility of being executed compared with the near certain possibility of being sentenced to life in prison, it is doubtful that potential violent offenders are deterred any more by the prospect of being executed than they would be from the prospect of life imprisonment.

Yet all of the prior analysis rests on the assumption that prospective capital offenders premeditate their crimes and are able to carefully consider the possible punishments for committing a capital crime. However, the ACLU points out most capital crimes “are committed during moments of great emotional stress or under the influence of drugs or alcohol” and “by persons [who are] unable to appreciate the consequences to themselves” and to others. 164 Therefore, any of capital punishment’s would-be deterrent effects target people who are the least likely to be deterred, because they commit unpremeditated violent crimes in a headspace that renders them unable to consider their crime’s consequences.

Considering the following problems—(1) that there is no scientific consensus which confirms executions deter homicides, (2) executions might be correlated with increased homicide rates, (3) long waits and unlikely executions make deterrence effects less pronounced and potent, (4) the risk of life in prison would deter any rational person more than the risk of execution would, and (5) even if the previous four points were true, capital crimes are rarely premeditated, and those who commit them are unlikely to be deterred in the first place—the probability of executions reliably deterring violent offenders becomes vanishingly small. Furthermore, it is far more likely that the prospect of almost-certain life in prison deter offenders just as much (if not more) than the prospect of execution does, a conclusion that causes the death penalty to fail the Court’s penological purpose test and renders it violative of the Eighth Amendment’s prohibition of cruel and unusual punishment.

The Case Against the Death Penalty, The American Civil Liberties Union, https://www.aclu.org/other/case-against-death-penalty (last visited Feb. 29, 2020).

164

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT III. Recommendation for Abolishing the Death Penalty A. Abolition solves more Problems Than the Death Penalty Creates Perhaps it seems too extreme to recommend the death penalty be completely abolished. However, it is important to understand that the death penalty’s contemporary failures originate from its own abortive history of reform. The Supreme Court overturned its decision in Furman and held in Gregg that Georgia’s bifurcated trial was a perfectly reasonable safeguard against arbitrary executions. Specifically, the Court held that: [T]he concerns expressed in Furman that the penalty of death not be imposed in an arbitrary or capricious manner can be met by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance. As a general proposition, these concerns are best met by a system that provides for a bifurcated proceeding at which the sentencing authority is apprised of the information relevant to the imposition of sentence and provided with standards to guide its use of the information. 165

The Court’s narrow, cursory decision in Gregg created our contemporary capital sentencing system, the same system that has been invariably susceptible to the same impurities and corruptions present in any criminal sentencing procedure.

Impurities that can be resolved, redressed, or rescinded in any other sentence are made mortally permanent because of the death penalty’s irreversibility.

Since Gregg, eligibility for capital sentencing has narrowed significantly, now precluding juveniles, rapists, and the mentally disabled from being sentenced to death.166 Yet still, the risk of discrimination remains a scar on the system. The reform efforts have whittled away easily justiciable problems and left the core problem: these problems that plague the criminal justice system are almost impossible to reform. The death penalty then, must be administered perfectly to ensure that the right people are being executed for proportional means, but these same problems make its perfect administration impossible. The death

165 166

Gregg, 428 U.S. (1976) at 153.

See supra notes 35-41 and accompanying text.

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penalty is a broken, unconstitutional sanction, and since its problems are impossible to resolve and taint the entire criminal justice system, abolition is the only sensible solution.

In sum, the death penalty fails to do what it promises to do well or at all. Life in prison without the possibility of parole accomplishes every single purpose that the death penalty claims to accomplish better than the death penalty itself does.167 Critics of abolition may ask even if we accept that the abolitionists’ findings are true, why is abolition the right thing to do? The answer is that abolishing the death penalty solves more problems than it creates: when public funding is finite, criminal justice becomes a zero-sum game, and therefore choosing to uphold the death penalty comes at the opportunity cost of diverting funding away from other punishments that have been proven to more effectively reduce crime. Although it is true that the death penalty is more expensive than life in prison per capita, 168 what is more important is that the money that is currently going towards funding capital punishment is not going towards programs that could affect policing and crime rates. New York, a state that abolished the death penalty, uses the money (approximately $1.8 million dollars per case169) that would have been going towards funding the death penalty to a policing program known as “community policing.” Instead of 750 officers, New York has about 3,000 on the streets, integrating themselves into local communities to reduce crime.170 This strategy has been wildly effective, and it would have been fiscally impossible if that money had been going towards executions instead. 171 The death penalty siphons off money from other criminal justice reform efforts that have proven to be more effective. Not only would abolishing the death penalty get rid of the injustices that it itself had created, but its abolition would also Jonathan Grades & Shari Silberstein, Pumping Oxygen into the Room, Government, Law and Policy Journal, 2014, 10.

168 See, e.g., Judge Arthur L. Alarcón & Paula M. Mitchell, Costs of Capital Punishment in California: Will Voters Choose Reform in November?, 46 Loy. L.A. L. Rev. S1 (2012); Peter A. Collins et al., An Analysis of the Economic Costs of Seeking the Death Penalty in Washington State 5 (2015), https://files.deathpenaltyinfo.org/legacy/documents/WashingtonCosts.pdf.

169 Death Penalty Information Center, Millions Misspent: What Politicians Don’t Say About the High Costs of the Death Penalty 8 (1992), https://www.ncjrs.gov/pdffiles1/Photocopy/142912NCJRS.pdf 170 Id. 171 Id. 167

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT collaterally fund solutions that have historically proven to be effective. The funds being wasted on the death penalty, in which deterrent effects are either difficult to calculate or nonexistent, could be going towards improving policing and lowering crime rates. Abolishing the death penalty accomplishes its promises more reliably than administering it does, and then some.

B. Judicial Versus Legislative Several Supreme Court cases have been argued in front of the Court which have questioned the constitutionality of the applications of capital punishment, but apart from Furman, the Court has not heard a case that challenges the death penalty per se. I would unconditionally recommend for the Supreme Court to rule capital punishment unconstitutional; however, several current justices resist the idea of judicial abolition. This idea is from Justice Scalia, who traced his argument back to the following originalist reading of the Fifth Amendment: since the Constitution implicitly references, (or in his words, “contemplates” 172) the death penalty, then it must be constitutional everlasting.

However, it is difficult to imagine that the Framers foresaw capital punishment becoming so brutally perverted in application and jurisprudence that they ever explicitly foreclosed the possibility of judicial abolition. Even so, the Fifth Amendment specifically references capital punishment in the negative, containing “prohibitions, not powers, and there is no reason to suppose that it somehow nullifies other constitutional prohibitions— most importantly, the ban on cruel and unusual punishment.”173 The Bill of Rights is meant to be read cumulatively: if the Fifth Amendment permits the existence of capital punishment, but it is practiced in a way that violates the Eighth Amendment, then it is unconstitutional. The Court begins its holding in Glossip by opining “[b]ecause capital punishment is constitutional, there must be a constitutional means of carrying it out.” 174 However, per the Court’s risk test, if all methods

Glossip, 135 S. Ct. 2726, 2747 (2015) (Scalia, J., concurring) (emphasis removed).

Blotcher, supra, at 2.

174 Glossip, 576 U.S., at 1.

172 173

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of execution pose an objectively intolerable risk of severe pain, (thereby constituting cruel and unusual punishment), then all executions are unconstitutional in practice, even if capital punishment is constitutional in the abstract. In her Glossip dissent, Justice Sotomayor irons out this jurisprudence definitively: Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means. If a State wishes to carry out an execution, it must do so subject to the constraints that our Constitution imposes on it, including the obligation to ensure that its chosen method is not cruel and unusual. 175

No one is organizing a riot to abolish the philosophy of capital punishment, rather the application of capital punishment. If all current methods to execute someone are unconstitutional, then capital punishment is unconstitutional in practice, and the most judicially sound provision would be to impose a mandatory moratorium on all forms of capital punishment. The Court, I contend, should read capital punishment on these grounds, instead of trying to adjudicate the philosophical legitimacy of death as a proportional punishment.

And indeed, this is what many of the justices on the liberal side of the bench have historically done.

Justice Scalia (often the most outspoken opponent of abolition) argued that abolishing the death penalty is nothing short of “judicial fiat,�176 in which the Supreme Court overrules the Jacksonian will of the People and imposes its own views. This is not the case. To abolish capital punishment would not abnegate democracy; it would reinforce it. To refuse to adjudicate the constitutionality of capital punishment is to consign it to partisan politicization in Congress and to the irreconcilable moral and philosophical values of the public. The values he claimed overcomplicate and muddle the original meaning of the Constitution in the Courts would be distorted further if not adjudicated and left up to a historically sclerotic Congress. The Court exists to adjudicate, and by refusing to do so, Justice Scalia and other justices like him abandon their roles as interpreters of the law.

175 176

Glossip, 576 U.S., at 28 (Sotomayor, J., dissenting).

Baze, 553 U.S., at 7 (Scalia, J., concurring in judgement).

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT Perhaps this seems a little anachronistic. Justice Scalia is dead, and new justices have taken his place, who are equally (if not more) reluctant to adjudicate the constitutionality of the death penalty. I hold that our “evolving standards of decency” have obsolesced the death penalty, but perhaps the Court is not ready to adjudicate the merit of that position. In any case, when the Supreme Court refuses to do so, they effectively defer their responsibility to state legislatures to do away with the death penalty as they see fit, the same state legislatures that are often tied down by interest groups, and beholden to constituents who are rip-torn from position to position by predatory ad campaigns. My recommendations for the state legislatures are to pass legislation to prohibit the death penalty as a possible sentence and to commute all inmates’ sentences on death row to life in prison without possibility of parole. Life in prison without the possibility of parole accomplishes the same penological purpose as the death penalty: incapacitation. The “worst criminals” are off the streets, and those who are unjustly imprisoned have the opportunity to appeal their cases and be exonerated. The death penalty bastardizes the institutions that form the bedrock of the American justice system, and only when states pass legislation to abolish the death penalty will they be upholding their obligation to defend all parts of the Constitution.

Conclusion As it is currently meted out in the United States, capital punishment is an unconstitutional sanction that strips defendants of their guarantees to equal protection under the law and to humane and proportional punishments. Black defendants have an arbitrarily higher chance of being sentenced to death in capital crimes, and despite the argument that the death penalty must perpetually remain a punishment, its history of narrowing jurisprudence suggests that it is not impervious to restrictions or abolition. Beyond its Fourteenth Amendment violations, executions by lethal injection are sufficiently cruel, degrading, and inhumane to contravene the Eighth Amendment, especially when inmates are killed using experimental and defective drugs by technicians who lack sufficient

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training to safeguard against botched executions. Furthermore, the unknowable but statistically significant risk of executing an innocent person cannot be ameliorated with reform efforts because the impurities and corruptions that are magnified by the death penalty pervade the entire criminal justice system and may be impossible to extirpate. Finally, the death penalty’s deterrence effect is devoid of scientific consensus and thus fails to qualify as a legitimate penal purpose. Moreover, because executions are often glacial and random, any supposed deterrence effects that might be gained if it were imposed reliably and swiftly would be blunted.

The thrust of previous jurisprudential problems comes from trying to interpret the constitutionality of the death penalty vis-á-vis its philosophical legitimacy rather than vis-á-vis its practical application. Indeed, the Court’s conclusion that “[b]ecause capital punishment is constitutional, there must be a constitutional means of carrying it out”177 is inverted; capital punishment is only constitutional when there are constitutional means of carrying it out. Since there are no current constitutional means to execute people in the United States, the death penalty must be unconstitutional.

In many ways, the death penalty is already dying. Since 2010, ten states have either abolished the death penalty or have imposed gubernatorial moratoriums on executions.178 Only seven states179 executed prisoners in 2019. For the fifth straight year, “no state west of Texas carried out any executions” and Texas itself carried out 41% of all executions in the United States in 2019. 180 Currently, the United States has scheduled 19 executions for 2020 181 and more in the following years. Several of them will take place in Texas, a state that executed as many people as the next three states combined in 2019, and a state that refuses to release the name of its phenobarbital supplier 182 to administer the lethal See supra note 173 and accompanying text.

See supra note 173 and accompanying text.

179 State by State, Death Penalty Information Center, https://deathpenaltyinfo.org/state-andfederal-info/state-by-state (last visited Mar. 8, 2020).

180 Death Penalty Information Center, The Death Penalty in 2019: Year-End Report 2 (2019), https://files.deathpenaltyinfo.org/reports/year-end/YearEndReport2019.pdf 181 Id. At 2-3.

182 Jolie McCullough, After loss at state Supreme Court, Texas keeps fighting to conceal its execution drug supplier, Texas Tribune (Jul. 23, 2018), https://www.texastribune.org/2018/07/23/texassupreme-court-execution-drug-rehearing/.

177

178

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KILLING THE DEATH PENALTY: THE LEGAL ARGUMENT AGAINST CAPITAL PUNISHMENT injection in an unprecedented and experimental fashion. Across the United States, the death penalty is becoming rarer and more sporadically imposed.

Public opinion polls show an even more pronounced erosion of the death penalty over the last decade. In 2019, a Gallup poll found 60% of people favor life in prison to the death penalty for murder, up from 34% in 1985, and general support for the death penalty has reached a roughly thirty year low.183 These data suggest that perhaps the death penalty will end gradually, by attrition, rather than all at once, be it via a Supreme Court decision or a piece of legislation.

Regardless of its philosophical or moral implications, the law is clear: the death penalty is unconstitutional, discriminatory, inhumane, and befouls the bedrock values of the Constitution and the criminal justice system. Whether it be through a Supreme Court decision or a piece of legislation from Congress, abolishing the death penalty would allow states to better allocate resources to lower homicide rates and would give felons a chance to use the Constitution’s provisions to appeal their sentence without an expiration date. The worst offenders would be off the street and the families of victims would not have to endure the maelstrom of emotions generated by years of waiting for the execution date. Reforming the entire criminal justice system by eliminating all sentencing bias is impossible; however, abolition is not. In Troy Davis’s words, seeing the truth is to recognize that the costs of the death penalty monstrously outweigh the benefits. Seeing the truth is to recognize that the death penalty is unconstitutional and must be abolished.

Death Penalty, Gallup, https://news.gallup.com/poll/1606/death-penalty.aspx (last visited Mar. 8, 2020).

183

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UCLA UNDERGRADUATE LAW JOURNAL Karen Funk*

The Role of Campaign Finance Disclosure Requirements in U.S Elections ABSTRACT. Campaign finance laws mandating disclosures are a hallmark of American elections. These mandates have been created and maintained in legislation enacted by Congress and upheld in Supreme Court decisions. However, some nonprofit groups can make contributions without disclosing their donors, thereby impeding transparency vital to the electoral process. Specifically, there has been a rise in "dark money," or undisclosed contributions, among 501(c)(4) social welfare organizations and 501(c)(6) nonprofit business groups. It is imperative that disclosure mandates are applied ubiquitously across all groups, as a lack of transparency undermines the core principles of campaign finance law. Fortunately, recent case developments may offer a path to a solution by mandating that these organizations release the identity of their donors. With greater disclosure requirements, the American public can have more information upon which to base crucial decisions about the candidates seeking to represent their interests.

*Karen Funk is a senior studying political science at the University of California, Los Angeles. In addition to her involvement with the Undergraduate Law Journal, she is a member of the Pre-Law Society Executive Board and serves as a student representative on the UCLA Student Conduct Committee. Karen plans to attend law school after graduating from UCLA. Editor: Aniq Chunara is a sophomore studying political and environmental science at the University of California, Los Angeles. In addition to his involvement with the Undergraduate Law Journal, he is a Justice for the UCLA Judicial Board, an intern for Senator Dianne Feinstein and a legal assistant for Eisenberg & Associates. Aniq hopes to attend law school and pursue his business goals in the field of environmental energy after graduating from UCLA.

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS Introduction Money has long been a part of campaigning in U.S. elections. While early presidential candidates often self-funded their campaigns with their families’ wealth, the election of 1828 was the first prominent deviation from this practice.1 The ability to raise outside money for one’s candidacy for public office has provided the opportunity for people to run who may not otherwise have the means to finance their own campaigns. Unfortunately, outside funding and donations have created some complications. Questions have been raised about who should be able to donate to election campaigns, and, subsequently, what types of organizations should be required to disclose their contributions. The landmark Supreme Court ruling in Citizens United allowed corporations, including 501(c)(4) and 501(c)(6) political nonprofits, to make unlimited independent expenditures which are donations that are not coordinated with a candidate.2 While these two types of nonprofits have been responsible for millions of dollars allocated in recent federal elections, they have not been subject to disclosure requirements. This reality has led money spent by these groups to be termed dark money, or funds undisclosed to the public. 3 Transparency and access to relevant donor information have been hallmarks of U.S. elections, and a lack of disclosure undermines these foundational aspects of campaign finance law.

As such, this article argues in favor of strengthening disclosure requirements for political nonprofit groups. Specifically, the lack of legislative and enforcement mechanisms on political nonprofit groups contradict the holdings of the Supreme Court that have generally ruled in favor of campaign finance disclosures. Part I of this article will examine the origins of campaign finance disclosures in legislation enacted by Congress, such as the Tillman Act,

The Center for Responsive Politics, Money-in-Politics Timeline, OPENSECRETS (Feb. 11, 2020), https://www.opensecrets.org/resources/learn/timeline.

2 Myles Martin, Citizens United v. FEC (Supreme Court), Federal Election Commission (Feb. 15, 2020), https://www.fec.gov/updates/citizens-united-v-fecsupreme-court/.

3 The Center for Responsive Politics, Dark Money Basics, OPENSECRETS (Feb. 15, 2020), https://www.opensecrets.org/dark-money/basics?cycle=2016&view=type.

1

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the Federal Corrupt Practices Act (FCPA), and the Federal Election Campaign Act (FECA), and early jurisprudence regarding disclosure mandates. Part II will provide an overview of modern campaign finance laws, such as the Bipartisan Campaign Reform Act (BCRA) and recent cases decided by the Supreme Court, to solidify the legal basis for disclosure requirements. Part III will discuss the origins and rise of dark money by 501(c) social welfare nonprofits and corporations. Additionally, this section will present a case study of undisclosed spending in the 2012 and 2016 federal elections. Lastly, Part III will reinforce why such disclosures, which are grounded in precedent, are necessary for American democracy. Lastly, Part IV will offer a prospect for a solution through recent case developments that are pending judicial review.

I. Background A. The Origins of Campaign Finance Law In 1828, Andrew Jackson ran for president as the first candidate to accept outside funds to finance his campaign, since he was not from an affluent family.

Subsequent candidates continued this trend of receiving outside campaign financing resources. However, in 1904, Theodore Roosevelt’s presidential campaign sparked controversy due to the large amount of donations he received from corporations.4To quell public disapproval, in 1905, President Roosevelt called for a ban on these types of corporate donations in his first State of the Union address.5 Roosevelt’s efforts led to the passage of the Tillman Act of 1907, which banned corporate and bank campaign contributions in federal elections.6 This prohibition was later extended in 1943 to include labor unions, which were barred from making contributions to federal campaigns under the Tillman Act.7

The Center for Responsive Politics, Money-in-Politics Timeline, OPENSECRETS (Feb. 11, 2020), https://www.opensecrets.org/resources/learn/timeline.

5 Theodore Roosevelt, 1905 State of the Union, American History (Feb. 11, 2020), http://www.let.rug.nl/usa/presidents/theodore-roosevelt/state-of-the-union-1905.php.

6 Supra note at 4.

7 Id. 4

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS Later, in 1910, the Federal Corrupt Practices Act (FCPA) was enacted under President William Howard Taft and represented the first federal law requiring all candidates to disclose campaign donations.8 This act, which only applied to elections for the House of Representatives, became the first disclosure requirement for federal races. 9 Namely, the FCPA “...required political committees... and organizations operating to influence congressional elections in two or more States, to disclose [the] names of all contributors of $100 or more; [and the] identification of recipients of expenditures of $10 or more...” 10 In addition, if donations were not made by means of a political committee, the FCPA mandated the independent reporting of any private donation of $50 or more annually to support a congressional election.11 With the passage of the FCPA, Congress acknowledged the importance of disclosing the sources of political campaign contributions that are made independent of a political committee, and may evade disclosure as a result. The FCPA sought to close this loophole for private donations in 1910 for greater transparency. An amendment to the FCPA in 1911 extended the law to apply to Senate elections,12 including “pre-nomination transactions such as those involved in conventions and primary campaigns” for all congressional elections. 13 Subsequently, Congress amended the FCPA again in 1925 to implement further expenditure limits and reinforce disclosure requirements by broadening the prohibition on corporate contributions to federal campaigns.14 The amendments required candidates to report donors who contributed $50 or more, and also mandated quarterly reports of all election contributions. 15 Nevertheless, there were weak mechanisms in place to enforce these

8

Id. Federal Election Commission, Federal Election Campaign Laws, Appendix 4, (2019), https://www.fec.gov/resources/cms-content/documents/feca.pdf.

10 Buckley v. Valeo, 424 U.S. 1 (1976).

11 Id. 12 Supra note at 9.

13 Supra note at 10.

14 Leslie Graves, History of Campaign Finance Regulation, BALLOTPEDIA (Feb. 23, 2020), https://ballotpedia.org/History_of_campaign_finance_regulation.

15 Id. 9

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UCLA UNDERGRADUATE LAW JOURNAL requirements, 16 and candidates were able to circumvent disclosure and expenditure limits by claiming they were unaware of outside spending on behalf of their campaign.17 In response, Congress sought to close this loophole in 1971 with the passage of the Federal Election Campaign Act (FECA), 18 which replaced the FCPA. Within a short period of time, attempts to circumvent the law were diminished as, “In 1968, still under the old law, House and Senate candidates reported spending $8.5 million, while in 1972, after the passage of the FECA, spending reported by Congressional candidates jumped to $88.9 million.” 19 Ultimately, FECA’s impact was significant and it became the basis for stricter campaign finance disclosure standards.

B. Legislative Basis for Campaign Donation Disclosures Representing the genesis of modern campaign finance laws, FECA required more frequent and thorough reporting of campaign spending and contributions, and implemented spending limits on media and advertising.20 Significant characteristics of FECA included caps on the quantity of contributions to parties and federal campaigns.21 In addition, FECA required the disclosure of donations over $100 and expenditures of $1,000 or more per year, by political committees and candidates.22 Again, Congress reinforced the importance of disclosure requirements with the passage of FECA, just as it had with FCPA. While FECA ratified the ban on expenditures and contributions originating from treasury funds, it did allow for an alternative route through which corporations and labor unions could contribute to elections.23 These groups were permitted to spend

16

Supra note 4.

Federal Election Commission, Federal Election Campaign Laws, Appendix 4, (2019), https://www.fec.gov/resources/cms-content/documents/feca.pdf.

18 Id. 19 Id. 20 Supra note 4.

21 Clifford A. Jones, Federal Election Campaign Act: Definition, Amendments, & Facts, ENCYCLOPEDIA BRITANNICA (February 23, 2020), https://www.britannica.com/topic/Federal-Election-Campaign-Act. 22 McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

23 Id. 17

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS their own money from separate funds to solicit contributions to Political Action Committees (PACs) that represented their interests. 24 A provision of FECA that came under scrutiny by the Supreme Court was Section 441(b), which criminalized ads produced by corporations that expressly advocate for or against a candidate within 30 days of the primary election and within 60 days of the general election.25 However, this provision, while amended by the Bipartisan Campaign Reform Act (BCRA) in 2002 within its Section 203, was later struck down as unconstitutional in the Citizens United decision.26 Unfortunately, one weakness of FECA was the lack of oversight by a single federal agency, but the Watergate scandal soon changed that. Namely, FECA was amended in 1974 to establish a federal agency called the Federal Election Commission (FEC).27 This agency exists today as the governing body to oversee and enforce campaign finance laws. 28 C. The Foundations of Campaign Finance and Disclosure Jurisprudence The passage of FECA, and subsequent enforcement of stricter campaign finance laws by the FEC, resulted in court challenges. The first case disputing FECA was in 1976 with the Supreme Court case of Buckley v. Valeo.29 Buckley sought to address the question of whether FECA and similar limits on campaign finance contributions violate the free speech clause of the First Amendment. 30 In a 7-2 decision, the Supreme Court held that restrictions on contributions did not violate the First Amendment, and upheld FECA’s contribution ceilings as they ensured the "integrity of our system of representative democracy." 31

McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

Brian Duignan, Citizens United v. Federal Election Commission: Opinion, Dissent, Significance, & Influence, ENCYCLOPEDIA BRITANNICA (Feb. 11, 2020). https://www.britannica.com/event/Citizens-United-v-Federal-Election-Commission.

26 Id. 27 Supra note 4.

28 Id. 29 Buckley v. Valeo, Oyez (Feb. 15, 2020), https://www.oyez.org/cases/1975/75-436.

30 Supra note 10.

31 Id. 24 25

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Namely, the Court reasoned that “These limitations, along with the disclosure provisions, constitute the Act's primary weapons against the reality or appearance of improper influence…[from] large campaign contributions.” 32 In spite of this, the Court found that any limitations on a candidate’s personal spending towards their own campaign violates the candidate’s First Amendment right to free speech and association.33 The rationale was that spending from one’s personal resources does not pose the same risk of corruption as do donations from outside individuals or organizations.34 As such, the Supreme Court established a distinction in this case between “...contributions (the money given to a campaign) and expenditures (the money spent on a campaign)...”35 Specifically, the Court argued that although regulating or placing limits on expenditures could violate the First Amendment, contributions did not warrant the same level of concern. 36 This distinction between contributions and expenditures would later prove to be a potential cause for the loopholes used by many organizations to circumvent campaign finance disclosure laws.

However, disclosure and recordkeeping requirements were upheld by the Court as constitutional and not in violation of the First Amendment.37 The Court maintained that disclosure mandates “...serve substantial governmental interests in informing the electorate and preventing the corruption of the political process…” 38 In the majority’s view, the disclosure requirements should not apply to donations made by independent candidates or small parties.39 To demonstrate injury sufficient for such an exemption, a party “…need show only a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals 32

Id. Id. 34 Id. 35 Heather K. Gerken, The Real Problem with "Citizens United": Campaign Finance, Dark Money, and Shadow Parties, American Philosophical Society, Vol. 159, No. 1 (Mar. 2015), pp. 5-16, https://www.jstor.org/stable/pdf/24640167.pdf.

36 Id. 37 Federal Election Commission, Federal Election Campaign Laws, Appendix 4, (2019), https://www.fec.gov/resources/cms-content/documents/feca.pdf.

38 Buckley v. Valeo, 424 U.S. 1 (1976).

39 Id. 33

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS in violation of their First Amendment associational rights.”40 Centrally, Buckley was a pivotal case in establishing the importance of disclosure mandates meanwhile allowing for possible exceptions if necessary, and has been heavily cited in campaign finance case decisions since.

The next significant case arose in 1986 with FEC v. Massachusetts Citizens for Life, Inc., where the Supreme Court considered the issue of whether corporate spending towards any federal election from its general corporate treasury funds was prohibited by FECA.41 In a 5-4 decision, the Court held that applying FECA rules to the flyer distributed by Massachusetts Citizens for Life, Inc. (MCFL) was unconstitutional as it limited political speech violating the First Amendment.42 In this case, the defendants MCFL, a non-stock and nonmember corporation, spent money from their general treasury funds on flyers advocating for readers to vote for “pro-life” candidates throughout Massachusetts for federal and state office positions. 43 In its decision, the Court determined that MCFL was not considered a corporation as it had no shareholders, was not formed by a business or labor union, and was created solely for political purposes.44 MCFL could not be subjected to this burdensome type of limitation because it does not meet the characterization of a business corporation, for which these types of restrictions are reserved.45 Ultimately, this case laid the groundwork for the standards that classify campaign donations and advocacy activities. Furthermore, the decision in this case represents the source of modern campaign finance law distinctions between whether an organization is considered a for-profit or nonprofit political advocacy group.

Next, in the 1990 case of Austin v. Michigan Chamber of Commerce, the Chamber had used general funds to sponsor a newspaper advertisement in support of a candidate for the state’s House of Representatives.46 This was in

Id. Id. 42 FEC v. Mass. Cit. for Life, 479 U.S. 238 (1986).

43 Id. 44 Id. 45 Id. 46 Austin v. Mich. Chamber of Comm., 494 U.S. 652 (1990).

40 41

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violation of the Michigan Campaign Finance Act, which forbade corporations from spending treasury money to make political contributions in state campaigns unless they established a separate fund from which to make such expenditures.47 In a 6-3 decision, the Supreme Court upheld the Michigan Campaign Finance Act, maintaining that it did not violate the Chamber’s First Amendment rights.48 In its defense, the Chamber cited FEC v. Massachusetts Citizens for Life, Inc. and argued they should also not be considered a traditional business but rather a "nonprofit ideological corporation."49 Such a designation would exclude them from the prohibition imposed by the Michigan Campaign Finance Act. Nevertheless, the Court reasoned that, “The Chamber does not exhibit the crucial features identified in MCFL, supra, that would require the State to exempt it from independent spending burdens as a nonprofit corporation more akin to a voluntary political association than a business firm.” 50 In other words, the Court emphasized additional considerations beyond whether a group is a nonprofit organization. Given that the Chamber was primarily composed of business corporations and based on its “activities” and “linkages with community business leaders,” the Court considered them a business group rather than a nonprofit. 51 As a result, Austin was another significant development in campaign finance law as it established that a Chamber of Commerce, which is classified as a 501(c)(6) nonprofit organization, is materially equivalent to a corporation. As such, 501(c)(6) organizations would be subject to campaign donation restrictions as private businesses. They would also face the same prohibition imposed on corporations from using general treasury funds towards independent expenditures. However, this restriction was later overturned in the Citizens United decision. In summary, the Austin decision coupled with the decisions in Buckley and FEC v. MCFL, represent the Court’s agreement with

47

Id. Austin v. Mich. Chamber of Comm., FindLaw (Feb. 20, 2020), https://caselaw.findlaw.com/us-supreme-court/494/652.html.

49 Austin v. Mich. Chamber of Comm., 494 U.S. 652 (1990).

50 Id. 51 Austin v. Mich. Chamber of Comm., Oyez (Feb. 20, 2020), https://www.oyez.org/cases/1989/88-1569.

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS congressional disclosure requirements and the early jurisprudence classifying what organizations constitute political nonprofit corporations.

II. Modern Mandates for Disclosures A. The Origins of Campaign Finance Law Notable legislative developments and cases in campaign finance law occurred following the turn of the century. Specifically, in 2002, the Bipartisan Campaign Reform Act (BCRA) was signed into law prohibiting “soft money” contributions, which refers to all donations made to a party or issue, rather than a specific candidate.52 Such contributions often come from corporations and labor unions. This provision of the BCRA addressed a loophole in FECA’s disclosure requirements which had previously only extended to “hard money” contributions,53 or those funds donated to a candidate directly. 54 The BCRA also coined the term “electioneering communications,” which requires that all advertisements leading up to the primary and general election mention and focus on the candidate.55 Three sections of the BCRA have been disputed in subsequent case law. First, Section 201 addressed disclosure of electioneering communications, defined as “...any broadcast, cable, or satellite communication that refers to a clearly identified Federal candidate, made within 60 days of a general, special, or runoff election, or within 30 days of a primary or preference election…” 56 Second, Section 203 of the BCRA banned unions and corporations without tax-exempt status, i.e., nonprofits, from making electioneering communications.57 Lastly, Section 311 of the BCRA focused on 52

Barclay Palmer, Hard Money vs. Soft Money: What’s the Difference?, INVESTOPEDIA (Feb. 23, 2020), https://www.investopedia.com/ask/answers/08/hard-money-soft-money.asp.

53 McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

54 Barclay Palmer, Hard Money vs. Soft Money: What’s the Difference?, INVESTOPEDIA (Feb. 23, 2020), https://www.investopedia.com/ask/answers/08/hard-money-soft-money.asp.

55 John Dunbar, A modern history of campaign finance: from Watergate to “Citizens United,” Center for Public Integrity, (Feb. 23, 2020), https://publicintegrity.org/politics/a-modernhistory-of-campaign-finance-from-watergate-to-citizens-united.

56 Bipartisan Campaign Reform Act, H.R. 2356, 107th Cong. (2002).

57 Id.

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election advertising and required disclosure of those paying for political communications in order to provide more visibility by identifying donors. 58 Shortly thereafter, the first challenge to the BCRA came with the 2003 case of McConnell v. FEC. In a 5-4 decision, the Court upheld the BCRA’s limits on soft-money contributions and the regulation of electioneering communications, citing that the effects on First Amendment speech were a minimal and justified restriction, not a violation. 59 Namely, the Court argued that the government has a legitimate interest in protecting federal elections from actual or perceived corruption.60 With regard to disclosure requirements, the Court argued that the government’s interest in providing relevant information to voters is warranted by the short period of time in which supporters release these communications. 61 Moreover, the Court maintained that the benefit of disclosure leading up to an election greatly outweighs any potential risk of harm, for which there is little evidence in the present case.62 With this decision, the Court acknowledged that any minimal restrictions to free speech are justified when weighed against the public interest, and once again reinforced the importance of disclosure requirements.

Subsequently, in FEC v. Beaumont (2003), the Supreme Court upheld the ban on political contributions by affirming that nonprofit organizations should continue to be subject to the same campaign finance laws as labor unions and corporations.63 In the 7-2 decision, the Court held that the ban on direct donations by nonprofit corporations is constitutional and does not violate the First Amendment.64 The case arose when anti-abortion group North Carolina Right to Life (NCRL) and Christine Beaumont argued that the FECA ban on direct campaign contributions by corporations should not apply to nonprofits. 65 Under FECA, NCRL could not make any donations to federal election Id. McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

60 McConnell v. Federal Election Commission, Oyez (Feb. 20, 2020), https://www.oyez.org/cases/2003/02-1674.

61 McConnell v. Federal Election Commission, 540 U.S. 93 (2003).

62 Id. 63 Federal Election Comm'n v. Beaumont, 539 U.S. 146 (2003).

64 Federal Election Comm'n v. Beaumont, Oyez (Feb. 20, 2020), https://www.oyez.org/cases/2002/02-403.

65 Id. 58

59

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS candidates who were friendly to its cause.66 As an advocacy group, it argued this restriction was an unconstitutional limitation on free speech.67 Ultimately, this case represented another example in the ongoing judicial debate regarding the rules that should govern advocacy nonprofit groups.

Moreover, the Court in Beaumont considered whether restrictions deprive such organizations of their First Amendment rights. Specifically, the Court reasoned that, “Since 1907, federal law has barred such direct corporate contributions…” and “An attack on the federal prohibition of direct corporate political contributions goes against the current of a century of congressional efforts to curb corporations' potentially deleterious influences on federal elections.”68 Still, the Court found that restrictions on political contributions are merely “marginal” speech restrictions. 69 These limitations only require a sufficiently important government interest, not a compelling one that necessitates strict scrutiny, as established in Buckley. 70 Therefore, this case reinforced the Court’s precedent established in prior cases that the government has a compelling interest to protect the electoral process, such that restrictions to First Amendment speech are minimal and justified.

B. Strengthened Disclosure Requirements Despite Weakening of Contribution Limits The 2010 Citizens United v. Federal Election Commission decision marked one of the most significant changes in modern campaign finance law. In this 5-4 landmark decision, a conservative nonprofit corporation named Citizens United released a documentary titled Hillary: The Movie about 2008 presidential candidate Hillary Rodham Clinton.71 Citizens United wanted to make the film available on cable through video on demand within 30 days of the Democratic

Federal Election Comm'n v. Beaumont, 539 U.S. 146 (2003).

Id. 68 Id. 69 Id. 70 Id. 71 Citizens United v. FEC, 558 U.S. 310 (2010).

66 67

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UCLA UNDERGRADUATE LAW JOURNAL primary election along with three advertisements for the movie.72 It feared criminal and civil penalties would be imposed by the BCRA's ban on electioneering communications that express advocacy. 73 For that reason, Citizens United sought declaratory and injunctive relief “arguing that the ban on corporate electioneering communications in 2 U.S.C. §441(b) was unconstitutional as applied to the film and that disclosure and disclaimer requirements were unconstitutional as applied to the film and the three ads for the movie.” 74 In this case, the Supreme Court examined the constitutionality of Section 441(b) of FECA, which had been amended in Section 203 of the BCRA. Section 441(b) in FECA had been expanded to include “electioneering communications paid for with corporate or union general treasury funds.” 75 Citizens United argued that Section 441(b) did not serve the interests of the state in preventing actual or perceived corruption in a narrowly tailored way. 76 This is because the independent expenditures it prohibited could not possibly give rise to a quid pro quo of money in exchange for votes, when they were by definition not coordinated with a particular campaign or candidate.77 The Court reasoned that “no sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corporations.” 78 As a result, the Court “...overruled its earlier verdict in Austin and part of its verdict in McConnell regarding the constitutionality of the BCRA’s Section 203.” 79 Namely, the ruling overturned the decision in Austin that banned corporations from using their general treasury funds to make independent expenditures.80 Moreover, it also reversed a portion of the holding in McConnell that banned electioneering communications by Id. Id. 74 Citizens United v. FEC, Federal Exchange Commission (Feb. 21, 2020), https://www.fec.gov/updates/citizens-united-v-fecsupreme-court/.

75 Brian Duignan, Citizens United v. Federal Election Commission: Opinion, Dissent, Significance, & Influence, ENCYCLOPEDIA BRITANNICA (Feb. 21, 2020). https://www.britannica.com/event/Citizens-United-v-Federal-Election-Commission.

76 Id. 77 Id. 78 Id. 79 Id. 80 Citizens United v. FEC, Federal Exchange Commission (Feb. 21, 2020), https://www.fec.gov/updates/citizens-united-v-fecsupreme-court/.

72 73

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS corporations under the BCRA.81 The Court argued that “...the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections.” 82 As such, it held that contributions from these organizations are an expression of political free speech protected by the First Amendment. 83 Most significant for the purposes of this discussion, the Court in Citizens upheld disclaimer and disclosure requirements in a vote of 8-1 for electioneering communications and independent expenditures.84 In the Court’s view, “Disclosure is the less-restrictive alternative to more comprehensive speech regulations,” which is supported by precedent in the Buckley and McConnell decisions. 85 Buckley acknowledged that such requirements “may burden the ability to speak, but... disclosure can be justified by a governmental interest in providing ‘the electorate with information’ about election-related spending sources.” 86 In McConnell, the Court noted that disclosures do not “prevent anyone from speaking,” and instead ensure voters have access to information through the disclaimer mandate established in Section 311 of the BCRA.87 In other words, since the content of the documentary released by Citizens United was considered an electioneering communication, the nonprofit was required to disclose donor information. In its decision, the Court emphasized the importance of campaign finance disclosures as a safeguard against potential corruption that could result from lifting the ban on corporate contributions.

Shortly after the Citizens United decision, the Court examined the state’s disclosure interests in Doe v. Reed, a case that addressed the issue of whether signing a petition for a ballot measure is a private expression of political speech, or if such acts can be made public through the disclosure of signers. 88 In its 8-1 Id. Citizens United v. FEC, 558 U.S. 310 (2010).

Id. 84 Citizens United v. FEC, Federal Exchange Commission (Feb. 21, 2020), https://www.fec.gov/updates/citizens-united-v-fecsupreme-court/.

85 Citizens United v. FEC, 558 U.S. 310 (2010).

86 Id. 87 Id. 88 Id. 81

82

83

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UCLA UNDERGRADUATE LAW JOURNAL

decision, “...the Supreme Court reaffirmed the state’s interest in disclosure, ruling that disclosing the identity of persons signing a petition for ballot referenda did not constitute a violation of the First Amendment.”89 The legal authority at issue in this case was the Public Records Act. 90 The Court found that the Public Records Act was not a prohibition on speech, and while a “disclosure requirement may burden the ability to speak… [it does] not prevent anyone from speaking,” as established in Citizens United. 91 Centrally, the Doe case is yet another example of how the Supreme Court has emphasized the importance of disclosures.

Subsequently, the Supreme Court examined the issue of aggregate limits brought forth in 2014 with the McCutcheon v. Federal Election Commission case.

Here, the Supreme Court considered whether the BCRA’s two-year aggregate contribution limit for individual donors violated the First Amendment.92 The 54 decision declared this limit unconstitutional because it restricted participation in the electoral process and did not accomplish the objective for which it was intended.93 Namely, the Court reasoned that under this provision, donors are forced to choose between interests, thereby limiting their right to free speech because they are prohibited from giving more than a certain amount to a limited number of candidates.94 In McCutcheon, the Court upheld disclosure requirements and emphasized that disclosure is aided by technology, which provides voters with crucial information regarding the source of funds and reduces the likelihood of exploiting the campaign system. 95 In reaffirming the importance of disclosure requirements, this case built upon the precedents established in Citizens United, McConnell, and Buckley.

Conor M. Dowling & Amber Wichowsky, Does It Matter Who’s Behind the Curtain?

Anonymity in Political Advertising and the Effects of Campaign Finance Disclosure, 41 AMERICAN POLITICS RESEARCH 965–996 (2013), https://journals.sagepub.com/doi/full/10.1177/1532673X13480828.

90 Doe v. Reed, 561 U.S. 186 (2010).

91 Id. 92 McCutcheon v. Federal Election Commission, Oyez (Feb. 23, 2020), https://www.oyez.org/cases/2013/12-536.

93 Id. 94 Id. 95 McCutcheon v. Fed. Election Comm’n, 572 U.S. 185 (2014).

89

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS III. Missing Disclosure Requirements for Political Active Nonprofit Groups A. The Origins and Rise of Dark Money Historically, the Supreme Court has upheld campaign finance disclosure requirements as necessary to further an important public interest. For instance, in the Buckley decision, the Court upheld disclosure requirements as “the least restrictive means of curbing the evils of campaign ignorance and corruption.” 96 Most importantly, in Buckley, the Court recognized the importance of disclosures, as they would “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.” 97 In subsequent cases such as McConnell, “the Court has reaffirmed the government’s interest in regulating political speech through disclosure on the grounds that it helps counter corporate interests and small numbers of wealthy donors masquerading as citizen groups.” 98 In McCutcheon, the Court argued that bans on certain types of speech are a less desirable alternative to disclosure requirements, which pose less risk in restricting speech.99 The Court in McCutcheon cited Citizens United, which held in favor of disclosures by a vote of 8 to 1. 100 Previously, the Court had acknowledged in Citizens United that disclosure requirements do not impose an unreasonable burden, as held by the Buckley decision. Furthermore, the government’s interest in informing the electorate about donation sources is a justified restriction. 101 Significant to this discussion is how in the Citizens United decision, the Court surmised that expenditure limits for corporations “were premised on a system without adequate disclosure.” 102 However, the Court noted that voters will be able to hold corporations and their elected officials accountable through 96

Buckley v. Valeo, 424 U.S. 1 (1976).

McCutcheon v. Fed. Election Comm’n, 572 U.S. 185 (2014).

98 DOWLING & WICHOWSKY, supra note 90.

99 McCutcheon v. Fed. Election Comm’n, 572 U.S. 185 (2014).

100 Citizens United v. FEC, 558 U.S. 310 (2010).

101 Id. 102 Id. 97

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UCLA UNDERGRADUATE LAW JOURNAL real-time disclosures with the help of the internet.103 Therefore, a key part of the rationale in eliminating spending limits was the assumption that disclosures would be more transparent and readily available to the public through the internet.104 This ruling allowed 501(c)(4) and 501(c)(6) social welfare organizations and corporations to spend without limitation. 105 As a result, these political nonprofit corporations have grown tremendously in number since 2010. Unfortunately, time has demonstrated that technology neither resulted in nor ensured public disclosure of donations to 501(c) groups, specifically since no binding restrictions were imposed upon these organizations following the Court’s decision in Citizens. 106 As a result of their tax-exempt status, these organizations do not have to disclose the identity of their donors, and, as such, have found a loophole around disclosure requirements. Social welfare organizations formed as nonprofits under IRS code section 501(c)(4) are defined by the IRS as "...operat[ing] exclusively for the promotion of social welfare."107 The IRS modified their status in 1959 108 to allow these groups to “... engage in some political activities, so long as that is not its primary activity.” 109 The IRS’ change meant that these groups can advocate for or against federal election candidates.110 While the percentage of political activity allowed has not been formally defined by the IRS, essentially these organizations can spend up to 49.9 percent of their funds towards political causes.111 The IRS permits these organizations to participate in political activities so long as a majority, or a minimum of 50.1 percent, of its spending is

103Id.

Id. Michael Beckel, What is political “dark money” - and is it bad?, CENTER FOR PUBLIC INTEGRITY (Feb. 23, 2020), https://publicintegrity.org/politics/what-is-political-darkmoney-and-is-it-bad/.

106 Id. 107 The Center for Responsive Politics, Outside Spending: Frequently Asked Questions About 501(c)(4) Groups, OPENSECRETS (Feb. 23, 2020), https://www.opensecrets.org/outsidespending/faq.php.

108 Id. 109 Social Welfare Organizations, Internal Revenue Service, (Feb. 23, 2020) https://www.irs.gov/charities-non-profits/other-non-profits/social-welfare-organizations.

110 Id. 111 Supra note 107.

104 105

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS funneled into social welfare activities for “...the common good and general welfare of the people of the community."112 Moreover, nonprofits formed under IRS code section 501(c)(6), also known as business organizations include “chambers of commerce, real estate boards and boards of trade, which may engage in political activity, as long as they adhere to the same general limits as 501(c)(4) organizations.” 113 Examples of 501(c)(6) groups are the Freedom Partners Chamber of Commerce, Americans for Job Security, the U.S. Chamber of Commerce, and the American Medical Association.114 These groups existed before 2010 but have become increasingly politically active since the Citizens decision.115 Some political nonprofit groups that have recently contributed large sums of money to political campaigns are Crossroads GPS, Patriot Majority, and Americans for Prosperity. 116 Although the Citizens decision emphasized the importance of increased transparency that would become more easily accessible with current technology, since the decision, that has hardly been the case. In fact, “Instead of a world with lightning-fast Internet disclosure, more than $600 million in dark money has been spent in federal races since 2010” with no trace of where these funds originated.117 When the source of outside funds donated to a campaign is unknown, this is considered “dark money,” a term coined nine months after the Citizens decision.118 Dark money is “...spent in a political election with the purpose of influencing the decision of a voter and the source of the money is not

Id. The Center for Responsive Politics, Dark Money Basics, OPENSECRETS (Feb. 23, 2020), https://www.opensecrets.org/dark-money/basics?cycle=2016&view=type.

114 The Center for Responsive Politics, Outside Spending: Frequently Asked Questions About 501(c)(4) Groups, OPENSECRETS (Feb. 23, 2020), https://www.opensecrets.org/outsidespending/faq.php.

115 Id. 116 Id. 117 The State of Campaign Finance Policy: Recent Developments and Issues for Congress, Congressional Research Service (2018), https://fas.org/sgp/crs/misc/R41542.pdf.

118 Michael E. Hartmann, The Etymology of “Dark Money,” Capital Research Center (Feb. 23, 2020), https://capitalresearch.org/article/the-etymology-of-dark-money/.

112 113

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UCLA UNDERGRADUATE LAW JOURNAL disclosed…” 119 Politically active nonprofits organized under IRS Code Sections 501(c)(4) and 501(c)(6) have been determined to be the most common vehicles for funneling dark money into political campaigns. 120 The Court’s decision in Citizens acknowledged that “transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.” 121 Despite this, no formal disclosure requirements were imposed upon politically active nonprofits to report their donors to the FEC.122 Both 501(c)(4) and 501(c)(6) nonprofits must submit annual financial reports to the IRS, but they are not required to divulge the name or contact information of any donor publicly.123 Moreover, the legal basis for these exemptions can be traced back to NAACP v. Alabama when the Supreme Court recognized the effect that requiring disclosure could have on freedom of association. 124 The Court in NAACP v. Alabama, held that organizations could not be compelled to release member or donor information, as it may expose such individuals to retaliation or public contempt.125 As a result, 501(c)(4) or 501(c)(6) organizations, by virtue of their classification by the IRS, have not been required to disclose the identity of their donors to the FEC. This has resulted in a political environment within the past decade where a significant amount of undisclosed funds have made their way into federal election campaigns.

The Center for Responsive Politics, Dark Money Basics, OPENSECRETS (Feb. 23, 2020), https://www.opensecrets.org/dark-money/basics?cycle=2016&view=type.

120 Michael E. Hartmann, The Etymology of “Dark Money,” Capital Research Center (Feb. 23, 2020), https://capitalresearch.org/article/the-etymology-of-dark-money/.

121 Sarah Kleiner & Dave Levinthal, ‘Dark money’ in politics is about to get lighter, CENTER FOR PUBLIC INTEGRITY (Feb. 23, 2020), https://publicintegrity.org/politics/dark-moneyin-politics-is-about-to-get-lighter/.

122 Id. 123 Public Disclosure and Availability of Exempt Organization Returns and Applications, Internal Revenue Service (Feb. 23, 2020), https://www.irs.gov/charities-non-profits/public-disclosureand-availability-of-exempt-organization-returns-and-applications-public-disclosure-overview.

124 501(c)(4) Reporting, Alliance for Justice Action Campaign, 1-4, (2018), https://afjactioncampaign.org/wp-content/uploads/2017/03/501c4-Reporting.pdf.

125 NAACP v. Patterson, 357 U.S. 449 (1958).

119

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS B. A Case Study of Major Elections Since Citizens United: 2012 & 2016 The Supreme Court has historically recognized the importance of disclosing campaign donors as a foundational principle of campaign finance law and an integral part of preserving the tenets of democracy. Disclosure is believed to effectively reduce corruption and the appearance of corruption because it acts as "an automatic regulator, inducing self-discipline among political contenders and arming the electorate with important information."126 Dark money is a concern in high-profile campaigns, such as presidential races. The 2012 election marked a historic peak in undisclosed donations pumped into the campaign cycle. 127 Notably, “This lack of disclosure is not to be confused with anonymity,” meaning that while some entities may know the identities of donors, this information is kept from the public.128 For instance in 2012, which represented the first election following the Citizens United decision, only 40.8% of spending by outside groups was disclosed to the public.129 This is in stark contrast to the 2004 election following the enactment of BCRA disclosure laws, after which there was a 96.5% disclosure rate.130 Likewise, in 2006, the disclosure rate was 92.9%.131 In the 2008 campaign cycle, of the $5.3 billion spent,132 undisclosed donors accounted for $102.43 million. 133 However, in the 2012 election, 501(c) nonprofit organizations spent about $333 million, most of which came from 501(c)(4) groups, and this represents an

126

Trevor Potter & Bryson B. Morgan, The History of Undisclosed Spending in U.S. Elections & How 2012 Became the Dark Money Election, 27 NOTRE DAME J.L. ETHICS & PUB. POL’Y 383– 480 (2013), https://heinonline.org/HOL/Page?handle=hein.journals/ndlep27&div=20&g_sent=1&casa_to ken=&collection=journals.

127 Id. 128 Id. 129 Id. 130 Id. 131 Id. 132 Jeanne Cummings, 2008 Campaign Costliest in U.S. History, POLITICO (Feb. 23, 2020), https://www.politico.com/news/stories/1108/15283.html.

133 The Center for Responsive Politics, Dark Money Basics, OPENSECRETS (Feb. 23, 2020), https://www.opensecrets.org/dark-money/basics?cycle=2016&view=type.

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UCLA UNDERGRADUATE LAW JOURNAL increase of 53% from the 2008 presidential election cycle.134 These 501(c)(4) social welfare nonprofits increased spending from $97 million in 2010 to $257 million in 2012.135 Spending by these groups included Crossroads GPS, who spent just over $71 million, the League of Conservation Voters who spent about $11 million, and Americans for Tax Reform who spent approximately $15 million.136 While 501(c)(4) social welfare organizations accounted for most of the undisclosed spending among nonprofits, some 501(c)(6) groups, such as the U.S. Chamber of Commerce and Pharmaceutical Research and Manufacturers of America (PhRMA), also spent significant amounts of money in 2012.137 For instance, PhRMA contributed slightly over $13 million,138 and the U.S. Chamber of Commerce spent more than $35 million that year.139 The presidential and congressional elections of 2012 were the most expensive in U.S. history, as campaign spending reached $6 billion, much of which was dark money.140 Subsequently, the 2016 presidential and congressional elections cost a total of $6.5 billion.141 That year, total spending by outside groups not required to

134 Daniel C. Kirby, The Legal Quagmire of IRC Sec. 501(c)(4) Organizations and the Consequential Rise of Dark Money in Elections, 90 Chi.-Kent L. Rev. 223 (2015), https://heinonline.org/HOL/Page?handle=hein.journals/chknt90&div=12&g_sent=1&casa_to ken=&collection=journals.

135 Deena Zaidi, Explaining the dark money that will influence election 2016: Trump vs. Clinton, THESTREET (Feb. 23, 2020), https://www.thestreet.com/opinion/explaining-the-darkmoney-that-will-influence-election-2016-trump-vs-clinton-13654673.

136 The Center for Responsive Politics, 2012 Outside Spending, by Group, OPENSECRETS (Feb. 23, 2020), https://www.opensecrets.org/outsidespending/summ.php?cycle=2012&chrt=V&disp=O&type =U. 137 Id. 138 Michael Beckel, Dark Money Illuminated, Issue One, (2018), https://www.issueone.org/wpcontent/uploads/2018/09/Dark-Money-Illuminated-Report.pdf.

139 The Center for Responsive Politics, 2012 Outside Spending, by Group, OPENSECRETS (Feb. 23, 2020), https://www.opensecrets.org/outsidespending/summ.php?cycle=2012&chrt=V&disp=O&type =U. 140 Russ Choma, The 2012 Election: Our Price Tag (Finally) for the Whole Ball of Wax, OPENSECRETS (Feb. 23, 2020), https://www.opensecrets.org/news/2013/03/the-2012election-our-price-tag-fin/.

141 Christopher Ingraham, Analysis | Somebody just put a price tag on the 2016 election. It’s a doozy., WASHINGTON POST (Feb. 23, 2020), https://www.washingtonpost.com/news/wonk/wp/2017/04/14/somebody-just-put-a-pricetag-on-the-2016-election-its-a-doozy/.

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS disclose, i.e., 501(c) organizations, was $183.54 million. 142 Essentially, of these outside groups, 501(c)(4) social welfare organizations spent $147 million.143 Some prominent 501(c)(4) social welfare organizations include the American Future Fund which spent over $12 million, and Majority Forward which spent $10 million.144 Likewise, 501(c)(6) trade associations spent approximately $40 million in the 2016 campaign. 145 For example, the U.S. Chamber of Commerce, a 501(c)(6) group, donated $29 million. 146 While these numbers are lower than the undisclosed independent expenditures made during the 2012 presidential election, it is important to note that the reasons for this decline were not due to any changes in disclosure laws. Rather, this was “likely due to the unique features of each presidential campaign,” 147 which are beyond the scope of this discussion. These numbers illustrate the concern that dark money has grown as a result of channeling funds through 501(c) political nonprofit organizations that are not required to disclose their donors.

Furthermore, between 2010 and 2016, “Just 15 groups were responsible for more than 75 percent of dark money political spending... and together poured more than $600 million—out of a total of $800+ million—[of dark money] into campaigns...” 148 This money can be traced to about 400 donors overall who gave $760 million in dark money contributions to recent elections.149 For example, the $154 million spent from the Americans for Prosperity 501(c)(4) originated The Center for Responsive Politics, Dark Money Basics, OPENSECRETS (Feb. 23, 2020)., https://www.opensecrets.org/dark-money/basics?cycle=2016&view=type.

143 Nathaniel Persily, Robert F. Bauer, & Benjamin L. Ginsberg, Campaign Finance in the United States: Assessing an Era of Fundamental Change, Bipartisan Policy Center, (2018), https://bipartisanpolicy.org/wp-content/uploads/2019/03/BPC-Democracy-CampaignFinance-in-the-United-States.pdf.

144 The Center for Responsive Politics, Outside Spending: Frequently Asked Questions About 501(c)(4) Groups, OPENSECRETS (Feb. 23, 2020), https://www.opensecrets.org/outsidespending/faq.php.

145 PERSILY, BAUER, & GINSBERG, supra note 144.

146 The Center for Responsive Politics, 2016 Outside Spending, by Group, OPENSECRETS (Feb. 23, 2020), https://www.opensecrets.org/outsidespending/summ.php?cycle=2016&chrt=V&disp=O&type =U. 147 PERSILY, BAUER, & GINSBERG, supra note 144.

148 Michael Beckel Dark Money Illuminated, Issue One, (2018), https://www.issueone.org/wpcontent/uploads/2018/09/Dark-Money-Illuminated-Report.pdf.

149 Id. 142

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UCLA UNDERGRADUATE LAW JOURNAL from only 29 separate donors who are all unknown. 150 Similarly, the U.S. Chamber of Commerce’s $85 million spent in 2016 came from 127 individual sources, and the $145 million spent by the American Future Fund received its contributions from only 27 unique donors.151 When donations of significantly large sums of money are given from relatively few donors with unknown identities, it raises concerns of influence and transparency. This is troubling because the American public deserves to know whether candidates are accepting funds from individuals and organizations that are consistent with the positions and values for which they advocate. Lastly, the growth of undisclosed funds is inconsistent with the Citizens decision in its emphasis on disclosure with the expectation that modern technology would aid in the dissemination of donor information.

C. Why American Democracy Needs Disclosures The current state of dark money is inconsistent with the spirit of Supreme Court decisions that have upheld the legislative history on political campaign contribution disclosures. Historically, disclosure laws required that funds spent to influence elections be made public and have been generally upheld by the Supreme Court.152 Conservative and liberal judges alike tend to favor disclosure laws in these cases.153 The Court in McConnell decided to uphold disclosure requirements as specified in the BCRA for electioneering communications. In Citizens United, the Court reinforced the 2003 McConnell decision, which cited significant reasons why disclosures further the public interest, as discussed in Buckley.154 According to the Court in the Buckley decision, there are three primary public interests that necessitate disclosures:

Id. Id. 152 POTTER & MORGAN, supra note 127.

153 POTTER & MORGAN, supra note 127.

154 Id. 150 151

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS (1) the anti-corruption interest of deterring actual or apparent corruption of the nation's democratic processes by exposing campaign fundraising and spending to public scrutiny; (2) the informational interest of providing relevant information to voters to assist them "to place each candidate in the political spectrum more precisely," and to "alert the voter to the interests to which a candidate is most likely to be responsive and thus facilitate predictions of future performance in office," and "help [ ] voters to define more of the candidates' constituencies";" and (3) aiding in the enforcement of other campaign finance laws, such as contribution limits and prohibitions. To the Court, these interests were sufficiently important to justify compelled disclosure. 155

These interests remain valid in the present day, and the Court has sought to preserve them while acknowledging that such requirements can create a burden on constitutional rights of free speech and association protected under the First Amendment.156 As such, the Court has “stated that compelled disclosure can violate the First Amendment in certain limited contexts, such as when disclosure may expose donors to severe politically-motivated threats, harassment, or reprisals.” 157 Critics of disclosure requirements argue that revealing identities can result in the harassment and intimidation of donors.158 For instance, in the Buckley opinion, the Court recognized that “public disclosure of contributions to candidates and political parties will deter some individuals who otherwise might contribute [and] in some instances... may even expose contributors to harassment or retaliation.159 Despite this risk, public disclosure can help voters better assess candidates and keep them accountable.160 As such, historically, the Court has reinforced disclosure requirements as established in the aforementioned case law.161 This is because disclosure “appear[s] to be the least restrictive means of curbing the evils of campaign ignorance and

Id. Id. 157 Id. 158 Id. 159 Citizens for Responsibility and Ethics in Washington v. FEC, 243 F. Supp. 3d 91, 105 (D.D.C. 2018).

160 Id. 161 POTTER & MORGAN, supra note 127.

155

156

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UCLA UNDERGRADUATE LAW JOURNAL corruption...” 162 For this reason, the Court has maintained that preemptively banning disclosures is not valid when an exemption can be requested by a party who is able to provide evidence of mistreatment.163 In the Doe v. Reed opinion, Chief Justice Roberts “noted that the plaintiffs had offered ‘scant evidence’ that disclosure would subject the plaintiffs to threats, harassment, or reprisals from government officials or private parties.” 164 Justice Roberts did express that “in keeping with Buckley and NAACP v. Alabama,...the plaintiffs could offer such evidence in other proceedings pending before the District Court.”165 This distinction is important to note because within the context of the time period in which NAACP v.

Alabama was heard in 1958, the NAACP was justified in requesting that its member list remain confidential. It was certainly possible at that time in history for members to face harassment had their names been released to the public.

However, that may not always be the case for each plaintiff, which is why a blanket prohibition on disclosures has not been granted by the Court. In Doe v.

Reed, Justice Scalia argued that “...there are numerous laws that would prevent the government and other individuals from retaliating against, harassing, or intimidating individuals and groups that engage in political activity.” 166 Therefore, donors would need to show sufficient evidence of harassment to be considered for such an exemption.

IV. A Potential Solution The case of CREW v. FEC, decided in 2018, may begin shedding light on dark money as it is currently under appeal. Citizens for Responsibility and Ethics in Washington (CREW) filed a complaint with the FEC in November 2012 where they argued that Crossroads GPS, a 501(c)(4) social welfare organization,

162 Citizens for Responsibility and Ethics in Washington v. FEC, 243 F. Supp. 3d 91, 105 (D.D.C. 2018).

163 POTTER & MORGAN, supra note 127.

164 Id. 165 Id. 166 POTTER & MORGAN, supra note 127.

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS violated FECA and FEC regulations by not disclosing their donors.167 Under FECA, individuals or political committees that make independent expenditures of $250 or more annually are required to disclose this activity to the FEC.168 Meanwhile, federal laws require non-political committees to identify individual donors of $200 or more when they are “further[ing] the purpose” of an independent expenditure.169 When the FEC applied this rule, it required the donor to state whether their donation should be earmarked for political purposes.170 Even so, many individuals give without specifying, which allows their contribution to go undisclosed. 171 According to its guidelines, the FEC’s six commissioners may not have more than three individuals belonging to the same political party.172 In 2015, the FEC deadlocked in a three to three vote on whether to pursue an investigation into this matter. 173 The three FEC commissioners “that voted against proceeding found no reason to believe that Crossroads GPS violated certain provisions of the Act.” 174 As a result, the FEC unanimously dismissed CREW’s complaint a few weeks later.175 CREW responded by suing the FEC “for, among other things, allegedly failing to enforce disclosure requirements,” which brought the case before the U.S. District Court of the District of Columbia. 176 In August 2018, the federal district court ruled in CREW’s favor, holding that

The State of Campaign Finance Policy: Recent Developments and Issues for Congress, Congressional Research Service (2018), https://fas.org/sgp/crs/misc/R41542.pdf.

168 Zainab Smith, District court vacates IE disclosure rule in CREW v. FEC, Federal Election Commission (Feb. 23, 2020), (16-259), https://www.fec.gov/updates/district-court-vacates-iedisclosure-rule-crew-v-fec-16-0259/.

169 Robert Weissman, Public Citizen Urges FEC to Close Its Donor Disclosure Loophole, PUBLIC CITIZEN (Feb. 23, 2020), https://www.citizen.org/news/public-citizen-urges-fec-to-close-itsdonor-disclosure-loophole/.

170 Id. 171 Id. 172 The Center for Responsive Politics, Money-in-Politics Timeline, OPENSECRETS (Feb. 11, 2020), https://www.opensecrets.org/resources/learn/timeline 173 Zainab Smith, District court vacates IE disclosure rule in CREW v. FEC, Federal Election Commission (Feb. 23, 2020), (16-259), https://www.fec.gov/updates/district-court-vacates-iedisclosure-rule-crew-v-fec-16-0259/.

174 Id. 175 Id. 176 The State of Campaign Finance Policy: Recent Developments and Issues for Congress, Congressional Research Service (2018), https://fas.org/sgp/crs/misc/R41542.pdf.

167

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UCLA UNDERGRADUATE LAW JOURNAL

the permitting groups “...to conceal their donors violates the intent and plain language of federal campaign finance laws.” 177 The interpretation of these laws indicates that disclosure is legally required by such organizations.

Therefore, this holding applies to social welfare groups and political nonprofits, namely 501(c)(4)s and 501(c)(6)s, which must now disclose “the sources of all contributions made over $200 for the general purpose of advancing independent expenditures.”178 Nevertheless, after the ruling went into effect, only four of the 17 groups that were required to disclose donors by the September 2018 deadline did so.179 FEC enforcement appears to be a significant issue, as “The remaining 13 organizations, which collectively spent millions of dollars in September, are still keeping all of their funders a secret.” 180 It is likely that “the new framework created by the decision will not truly be clear until FEC’s commissioners come together to issue new regulations.” 181 Key issues often result in an impasse as the FEC’s current commissioners tend to be split ideologically. 182 Currently, the CREW v. FEC case is under appeal before the District of Columbia Circuit Court of Appeals.183 The Supreme Court initially denied Crossroads’ application for stay.184 Nevertheless, if the Circuit Court is to uphold the federal court’s ruling, Crossroads may very well file a writ of Robert Weissman, Public Citizen Urges FEC to Close Its Donor Disclosure Loophole, PUBLIC CITIZEN (Feb. 23, 2020), https://www.citizen.org/news/public-citizen-urges-fec-to-close-itsdonor-disclosure-loophole/.

178 Tim L. Peckinpaugh, Margaret R. Westbrook, Scott C. Nelson, & Eli M. Schooley, “Dark Money” Gets a Little Light: CREW v. FEC and Its Implications for the 2018 Midterms, K&L Gates (Feb 23, 2020), http://www.klgates.com/dark-money-gets-a-little-light-crew-v-fec-and-itsimplications-for-the-2018-midterms-09-26-2018/.

179 Brendan Fischer & Maggie Christ, How the FEC is Still Allowing Dark Money Groups to Remain Dark, CAMPAIGN LEGAL CENTER (Feb. 23, 2020), https://campaignlegal.org/update/how-fec-still-allowing-dark-money-groups-remain-dark.

180 Id. 181 Tim L. Peckinpaugh, Margaret R. Westbrook, Scott C. Nelson, & Eli M. Schooley, “Dark Money” Gets a Little Light: CREW v. FEC and Its Implications for the 2018 Midterms, K&L Gates (Feb 23, 2020), http://www.klgates.com/dark-money-gets-a-little-light-crew-v-fec-and-itsimplications-for-the-2018-midterms-09-26-2018/.

182 Id. 183 Id. 184 Dave Levinthal Kleiner Sarah, Supreme Court Lets Stand a Decision Requiring ‘Dark Money’ Disclosure, THE ATLANTIC (Feb. 23, 2020), https://www.theatlantic.com/politics/archive/2018/09/supreme-court-lets-stand-a-decisionrequiring-dark-money-disclosure/570670/.

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THE ROLE OF CAMPAIGN FINANCE DISCLOSURE REQUIREMENTS IN U.S ELECTIONS certiorari requesting the case to be heard by the Supreme Court. Ultimately, the burden of proof is on Crossroads to prove that requiring disclosure infringes on its donors’ First Amendment rights, such that they are entitled to an exemption.

As previously mentioned, the legal basis for 501(c)(4) and 501(c)(6) nonprofits not being required to publicly release donor information is often traced back to NAACP v. Alabama.185 In that case, there was sufficient evidence that disclosing member information violated freedom of association protections under the First Amendment.186 Similarly, Buckley established that “...in order to prove injury as a result of application to them of the disclosure provisions, [a party] need show only a reasonable probability that the compelled disclosure… will subject them to threats, harassment, or reprisals in violation of their First Amendment associational rights.” 187 Therefore, Crossroads will have to prove that their members are facing a similar risk to be entitled to an exemption.

Moreover, in the Doe v. Reed opinion, Chief Justice Roberts expressed a willingness to consider disclosure exemptions for parties who could bring forth compelling and sufficient evidence of harassment, citing Buckley, Citizens United, and McConnell.188 Existing laws and prior Supreme Court decisions have repeatedly favored campaign finance disclosures. For that reason, a new decision on this matter will likely result in disclosures applying to 501(c)(4) and 501(c)(6) organizations. In all probability, it will be for the Supreme Court to ultimately decide if there is a sufficient countervailing argument to grant an exemption for these types of groups narrowly or broadly.

Conclusion The Supreme Court has consistently sided in favor of disclosure requirements throughout the evolution of campaign finance law. The lack of disclosure has permitted 501(c)(4) social welfare organizations and 501(c)(6) 501(c)(4) Reporting, Alliance for Justice Action Campaign (Feb. 23, 2020), 1-4, (2018), https://afjactioncampaign.org/wp-content/uploads/2017/03/501c4-Reporting.pdf.

186 Id. 187 Buckley v. Valeo, 424 U.S. 1 (1976).

188 Doe v. Reed, 561 U.S. 186 (2010).

185

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nonprofit business groups to contribute large sums of dark money in recent elections. This violates the Court’s consistent stance on this critical issue.

Disclosure is vital for voters to know who is supporting candidates and organizations. This foundational principle has been established and upheld in other areas of campaign finance law, such as disclosure requirements for individual, corporate, and PAC donors. A Supreme Court decision or congressional legislation mandating this type of disclosure will have significant implications on the campaign finance system. Moreover, "transparency and disclosure are the building blocks necessary to empower citizens with information to fully and accurately assess the source and credibility of the groups” shaping opinions through political ads and funding candidates. 189 Despite the best intentions for the accessibility of donor disclosures, the rise of dark money has given cause for concern amongst the electorate and advocacy groups like CREW. However, the Supreme Court appears open to considering whether certain limited exemptions from disclosure rules may be granted based on potentially compelling evidence of retaliation against donors. The modern political environment is one where money is a prerequisite to running for political office. Given this reality, disclosures provide the American electorate with valuable and material information that deters potential corruption and allows for making informed voting decisions. Therefore, in addition to the fact that they have been consistently upheld, disclosure requirements are vital for transparency and preserving the integrity of U.S. elections.

189

Jessica Corbett, Since “Citizens United,” Just 15 Groups Account for 75 Percent of the $800+ Million in Dark Money Spent on US Elections, COMMON DREAMS (Feb. 23, 2020), https://www.commondreams.org/news/2018/09/13/citizens-united-just-15-groups-account75-percent-800-million-dark-money-spent-us.

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UCLA UNDERGRADUATE LAW JOURNAL Phillip Leung*

Patents in eSports: Analyzing the U.S. Supreme Court’s Stance on Software Inventions ABSTRACT. Patents are a relatively new and unexplored area of intellectual property in the eSports industry. That said, eSports-related patents and their proximity to software products mean potential patentees must look to recent trends to ensure their inventions will remain patent-eligible. This article will explore how U.S. law affects the patentability of eSports by first reviewing fundamental subsections of Title 35 of the United States Code. Then, landmark decisions from the Supreme Court will be discussed in order to ascertain the patent-eligibility of software-related inventions. Finally, currently-existing eSports patents will be evaluated to demonstrate how the Court’s precedents may affect the patenteligibility of future eSports inventions. Based on the Supreme Court’s history on software patents, it is clear that inventions incorporating software need a novel hardware feature to be considered patentable. As such, eSports-related patent applications will need to follow suit, focusing on unique hardware elements rather than software implementations.

* Phillip Leung is a fourth-year student at UCLA majoring in materials engineering and minoring in philosophy. This is Phillip's second year writing for the UCLA Undergraduate Law Journal, where he expands upon his knowledge gained during his externship with the United States Patent & Trademark Office. He also serves as a reporter for the arts & entertainment section of the Daily Bruin. Following graduation, Phillip plans to attend law school and pursue a career in intellectual property.

Editor: Nina Tumulak is a fourth-year business economics student, who will be pursuing a career in entertainment/sports law. This is her second consecutive year editing for the Journal. Nina would like to thank her writer, Phillip, for cooperatively including her in the development of his article.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction Electronic sports, also known as eSports or professional competitive gaming, has been steadily growing as an industry over the past few years as video games have become increasingly mainstream. As of 2018, the eSports community reached a size of 380 million viewers, with the industry expected to exceed $1 billion in revenue by 2020. 1 Though the debate on whether eSports should be considered a “true sport” continues, the field has been gradually gaining widespread acceptance. In 2017, the International Olympic Committee openly considered designating “competitive eSports” as a sporting activity.2 Meanwhile, the Overwatch League, an eSports league for the videogame “Overwatch” developed by Blizzard Entertainment, made a contract for all matches to be broadcasted on ESPN, Disney XD, and ABC during its second season.3 Given the growth and widespread appeal of video games today, it is clear that eSports will remain a popular field of entertainment for years to come.

However, as a new and developing realm of entertainment, eSports has many issues that need to be addressed. One area of relevance is intellectual property (IP) law, which has many ramifications for eSports given its foundation in computer-based games and software. For example, players participating in an eSports competition are playing video games that possess copyright protections from their developers. Consequently, this complicates broadcasting contracts by adding another party that must be considered—the game developer.

An additional aspect of IP that presents legal issues in eSports is the fact that relatively few patents are being filed in the industry. This, combined with the varying stances on software patents in different countries, further complicates eSports patents. Court decisions on the relevant legal characteristics of software patents are constantly evolving. As such, the conflicting Court decisions

Gray, The Explosive Growth of eSports, WORLD ECONOMIC FORUM (Jul. 3, 2018), https://www.weforum.org/agenda/2018/07/the-explosive-growth-of-esports/.

2 Stephen Townley & Annie Townley, eSport: Everything to Play For, WIPO MAG. (Feb. 2018), https://www.wipo.int/wipo_magazine/en/2018/01/article_0004.html.

3 Tyler Erzberger, How Weekly Hero Pools Will Affect Overwatch and the Overwatch League, ESPN ESPORTS (Jan. 30, 2020), https://www.espn.com/esports/story/_/id/24124361/overwatchleague-playoffs-how-watch-espn-disney-xd.

1 Alex

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PATENTS IN ESPORTS: ANALYZING THE U.S. SUPREME COURT’S STANCE ON SOFTWARE INTERVENTIONS regarding the patent-eligibility of software inventions may be the reason relatively few patents are being filed in the eSports industry. Thus, it is currently unclear what traits make an eSports invention patentable. This article will primarily explore this problem, clarifying how future eSports patents can ensure their long-term validity. The eSports industry is a breeding ground for new technologies, with many patented inventions focused on improving the spectator experience for viewers. Some examples of such patents include: an eSports venue viewing platform using virtual reality, 4 game features where spectator input affects gameplay, 5 and a system for storing video game streams from multiple perspectives. 6 Given their relation to video games, many of these patents involve computer software, which is a contentious technology in patent law. The United States judiciary is continuously refining what grounds software and computer programs should be eligible for patenting, which will subsequently affect eSports-related patents. 7 Patent protections are especially complicated for an international industry such as eSports, as they vary by individual country. This article will focus on practices established by the United States government and patents granted by the United States Patent and Trademark Office (USPTO), though patents and cases outside of the U.S. may be referenced for context and general trends in the industry. Additionally, it is more pertinent to focus on U.S. laws and regulations as most of the video games with the largest eSports audiences are developed by companies based in the U.S. (though some developers, such as Riot Games and Blizzard Entertainment, are partially owned by Chinese stakeholder Tencent). 8 This article attempts to answer what characteristics eSports software must possess to be patent-eligible. Furthermore, the analysis involves how patentees 4 U.S.

Patent No. 10,484439 (filed June 30, 2015).

Patent No. 10,567,466 (filed June 20, 2017).

6 U.S. Patent No. 10,491,943 (filed June 22, 2018).

7 Jas Purewal & Isabel Davies, The eSports Explosion, LANDSLIDE, Nov.-Dec. 2016, at 9, https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/201617/november-december/esports-explosion-legal-challenges-opportunities/#22.

8 Steven Messner, Every Game Company that Tencent Has Invested In, PC Gamer (Oct. 4, 2019), https://www.pcgamer.com/every-game-company-that-tencent-has-invested-in/.

5 U.S.

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may structure their applications to increase their likelihood of patentability. An examination of significant Court decisions affecting currently-existing patents will aid in answering these questions. Section I will review the fundamentals of U.S. patent law, such as federal codes and regulations pertinent to eSports.

Section II will explore a timeline of U.S. Court cases regarding software patents, and how the USPTO views such patents; the Manual of Patent Examining Procedure (MPEP) will also be referred to. Lastly, Section III will examine existing eSports patents and how current patent law practices and past Supreme Court decisions would affect the likelihood of their approval if they were to be reexamined.

I. Fundamentals of Patent Law As defined by the World Intellectual Property Organization, a patent is an exclusive right given to an invention.9 In exchange for disclosing the technical information of the invention, a patentee is granted commercial ownership of the invention for a set period of time, usually 20 years, starting on the filing date.

Patents are mutually beneficial to the public and the patentee, as they provide the public with the technology behind an invention, while giving the patentee protections in their invention’s commercial use. The laws outlining patenteligibility in the U.S. are described in Title 35 of the United States Code (U.S.C.), particularly sections 101, 102, 103, and 112. These four sections of 35 U.S.C. each discuss a different facet of patent-eligibility and will be explained in detail in the following subsections.

A. 35 U.S.C § 101 The first section of 35 U.S.C. that is relevant to patents is section 101, which defines what types of inventions are eligible for a patent and states, “Whoever invents or discovers any new useful process, machine, manufacture, or

9 Patents,

WIPO, https://www.wipo.int/patents/en/ (last visited Feb. 3, 2020).

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PATENTS IN ESPORTS: ANALYZING THE U.S. SUPREME COURT’S STANCE ON SOFTWARE INTERVENTIONS composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title.” 10 35 U.S.C. § 101 describes what types of inventions constitute subject matter that is eligible for a patent. As described in the paragraph, the invention must be a “process, machine, manufacture, or composition of matter.” A process is defined as an act or a series of acts and steps. A machine is a tangible object, consisting of parts for a device or a combination of devices, such as a computer or a car. A manufacture is an article produced from raw materials, such as a compact disc or a water bottle. Lastly, a composition of matter contains two or more substances and refers to products, such as pharmaceuticals or oils.

In addition to fulfilling one of these four categories, an invention must demonstrate that it has a valid utility as a technology. To be considered to have a utility eligible for patenting, an invention must fulfill three conditions. (1) The utility must be specific. (2) The utility must be substantial, meaning it would not require further research to demonstrate real-world usage. Additionally, a trivial utility cannot be attached to the invention to fulfill this requirement. For instance, a transgenic mouse used as snake food would lack substantial utility, because a mouse does not need to be genetically modified to be used as food. (3) The utility must be credible. For instance, a perpetual motion machine is not physically possible according to scientific laws, so its utility would not be credible. Ultimately, if an invention does not fall under the four categories of eligible subject matter or its utility is not sufficiently demonstrated, a patent application will be rejected under 35 U.S.C. § 101.

B. 35 U.S.C. § 102 Unlike section 101, which wholly focuses on the patent itself, section 102 is concerned with whether or not the invention described in a patent is truly original, which requires examining documentation beyond that of the patent application:

10 Inventions

Patentable, 35 U.S.C. § 101 (2011).

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UCLA UNDERGRADUATE LAW JOURNAL (a) NOVELTY; PRIOR ART. – A person shall be entitled to a patent unless – (1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention. 11

As stated in 35 U.S.C. § 102(a), an invention must be novel based on a prior art search. Prior art is any evidence that the invention described in a patent application was already widely known or available before the effective filing date.

According to 2152.01 of the Manual of Patent Examining Procedure, the effective filing date is the “earliest of: (1) the actual filing date of the patent or the application for the patent containing the claimed invention; or (2) the filing date of the earliest application for which the patent or application is entitled.” 12 Condition (1) is essentially the date the patent application was submitted.

Condition (2) also encompasses earlier applications for the same patent, including provisional, nonprovisional, and foreign patents. For example, say an inventor applies for a U.S. patent, which was filed on September 10, 2017. If the inventor also applied for a patent in Japan (for the same invention) on July 8, 2017, condition (2) would apply, and the effective filing date would be July 8, 2017. The effective filing date places a limit on what qualifies as prior art; anything published after it is not eligible to be used as prior art.

Though most rejections of patent applications on the basis of 35 U.S.C. § 102(a) utilize previously filed patents (not limited to the USPTO) as prior art, any publicly available information that details the claimed invention can be used as prior art. This includes research papers, public lectures, and even online videos. Any information published before the application’s effective filing date can serve as grounds for rejection. If a patent application is rejected under section 102(a), it is considered to be “anticipated” by the prior art. This means the claimed invention has been shown to be predicted or expected, given the prior art as evidence. Therefore, if an examiner manages to find prior art that demonstrates the applicant’s claimed invention was already in existence before the effective filing date, the application is to be rejected under 35 U.S.C. § 102(a).

11 Conditions for

Patentability; Novelty, 35 U.S.C. § 102(a) (2011).

35 U.S.C. § 102(a) (2011).

12 Detailed Discussion,

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PATENTS IN ESPORTS: ANALYZING THE U.S. SUPREME COURT’S STANCE ON SOFTWARE INTERVENTIONS C. 35 U.S.C. § 103 Although section 102 prevents applicants from obtaining patents for unoriginal inventions, are there possible loopholes? Can a person take an existing invention, alter it slightly, and obtain a patent for it? These exceptional cases are what 35 U.S.C. § 103 addresses: A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. 13

The key term in 35 U.S.C. § 103 is “obvious.” The framework precedent for determining whether a claimed invention is obvious was set by Graham v. John Deere Co. and further confirmed by KSR Int’l Co. v. Teleflex. 14 It considers the following questions: 1.

2.

3.

4.

What is the scope and content of the prior art?

What are the differences between the prior art and the claims at issue?

What is the relevant level of ordinary skill in the pertinent art?

Does any objective evidence of nonobviousness exist? 15

Notice the repetition of the phrase “of ordinary skill in the art.” A hypothetical person having ordinary skill in the art has relevant knowledge of the art (such as a certain field of engineering). If the differences between the claimed invention and the prior art were considered “obvious” to this hypothetical person, then the claimed invention can be rejected under 35 U.S.C. § 103. Some rationales of obviousness from the MPEP include: 1.

2.

3.

Combination of prior art elements according to known methods that yield predictable results Simple substitution of one known element for another to obtain predictable results Use of known techniques to improve similar devices (methods or products) in the same way

13 Conditions for 14 Examination 15 Id.

Patentability; Non-Obvious Subject Matter, 35 U.S.C. § 103 (2011).

Guidelines for Determining Obviousness, 35 U.S.C. § 103 (2011).

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While prior art “anticipates” a patent’s claims under 35 U.S.C. § 102, the prior art can also be used to argue that a claimed invention is “obvious” under 35 U.S.C. § 103, even if the prior art does not fully disclose the claimed invention.

Generally, the purpose of section 103 is to prevent patents that simply take an existing device and make small or trivial modifications to it.

D. 35 U.S.C. § 112 While the sections of 35 U.S.C. discussed thus far are concerned with the invention and its specifications, the language of a patent application is also very important. Like any legal document, a patent needs to be clear and concise, which is handled by section 112: IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention. 16

Unlike the previously discussed sections, 35 U.S.C. § 112 is primarily concerned with how a patent application is written rather than its subject matter. It should be noted that while patent applications will include background information and specifications of the claimed invention, the exclusive rights granted by a patent are defined solely by the patent application’s claims. In other words, the patentee has legal ownership over whatever claims are presented in the patent, no matter what the background or specification may state. The background and specifications may provide context to the claims, but the legal protections do not extend beyond what the claims describe.

Due to the vital importance of claims to a patent application, 35 U.S.C. § 112 also contains laws concerned with how to interpret claims and the manner in which they are written. In all cases, claims should be given the broadest reasonable interpretation. As such, the way a claim is written can be determined to be too vague or ambiguous, leading to a rejection under section 112. While such laws are clearly important to patent law and examination, it will not be 16 Specification,

35 U.S.C. § 112 (2012).

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PATENTS IN ESPORTS: ANALYZING THE U.S. SUPREME COURT’S STANCE ON SOFTWARE INTERVENTIONS necessary to explore the details of section 112 to evaluate the general implications of eSports patents.

This section has reviewed the most important portions of 35 U.S.C. that concern patent-eligibility. For an invention to be patented, it must involve eligible subject matter, be an original and non-obvious invention, and be described in a well-written application. While there are obviously several more details and nuances to patent law in the United States, this general overview should provide enough grounding to comprehend the discussion of Supreme Court decisions in the following section.

II. A History of Software Patents in the U.S. The eSports industry revolves around video games, so many of the patents created for the industry will naturally involve or relate to software technologies.

As such, this already provides a complicated situation, as software patents have had a long and dynamic history in the United States. To fully understand trends in how the federal court system has treated software patents, this section will explore the history of software patents in the U.S. A chronological evolution of jurisprudence regarding the topic of software patents will be traversed, with a focus on cases heard by the U.S. Supreme Court.

Software and patent law became intertwined in 1968, beginning with the first approved U.S. patent that contained computer programming (U.S. Pat. No. 3,380,029). 17 It did not take long for questions to arise about whether or not computer software should be considered eligible for patenting, with the U.S. Supreme Court deciding for its patentability in Gottschalk v. Benson in 1972. The Supreme Court would continue to discuss software patenting in the following years with Parker v. Flook in 1978, Diamond v. Diehr in 1981, and Alice Corp. v.

CLS Bank in 2014. These landmark cases and their effects on software patenting will be discussed in the following paragraphs.

17 U.S.

Patent No. 3,380,029 (filed April 9, 1965).

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Gottschalk v. Benson was concerned with a patent that claimed to convert binary-coded decimal numbers into pure binary numbers. Decimal numbers are conventionally used in day-to-day life, with ten possible digits ranging from 0 to 9. Binary numbers, on the other hand, rely on the base-2 system, meaning numbers under such a system contain only two types of digits, 0’s and 1’s. All modern computers utilize a binary system to hold and process data. The Supreme Court ruled that the process of converting decimal numbers to binary numbers was merely a mathematical formula consisting of multiple steps. As such, the claimed invention was ruled to be ineligible subject matter, with mathematical formulas falling under the category of abstract ideas (35 U.S.C. § 101). The Court noted, however, that: “While a scientific truth, or the mathematical expression of it, is not a patentable invention, a novel and useful structure created with the aid of knowledge of scientific truth may be.” 18 Therefore, software used to implement mathematical concepts does not constitute a patentable process on its own according to the Court, but rather, it requires a more practical invention that incorporates the said concepts.

Parker v. Flook also dealt with a patent involving a mathematical formula that was made for a method to update alarm limits during a chemical conversion of hydrocarbon molecules. Again, the Supreme Court found that once the mathematical formula (an ineligible subject matter for patenting) was considered to be prior art, the remainder of the invention contained no patentable subject matter.19 For instance, the Pythagorean Theorem cannot simply be programmed on a computer and patented as an invention, because it does not use the formula in a noteworthy way. This decision seemed to imply that while the use of a mathematical formula in an invention is not inherently flawed, it cannot be the defining characteristic of the invention.

Diamond v. Diehr was based on another patent detailing a computer program that operates a molding press for the manufacture of rubber products. It utilized a mathematical formula called the Arrhenius Equation. Unlike the previous two

Benson, OYEZ, https://www.oyez.org/cases/1972/71-485 (last visited Feb. 3, 2020).

19 Parker v. Flook, OYEZ, https://www.oyez.org/cases/1977/77-642 (last visited Feb. 3, 2020).

18 Gottschalk v.

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PATENTS IN ESPORTS: ANALYZING THE U.S. SUPREME COURT’S STANCE ON SOFTWARE INTERVENTIONS cases, the Supreme Court ruled in favor of the patent, acknowledging that the invention utilized a mathematical formula in a useful application.20 At the time, this landmark decision implied that computer programs were indeed entitled to patent protection, provided that they have clear application or utility.

Alice Corp. v. CLS Bank, heard relatively recently in 2014, called into question the precedent set by Diamond v. Diehr. The patents owned by Alice Corp. concerned, in this case, a computer-based implementation of a monetary transaction system. The implementation used a financial intermediary, an objective third party, in order to minimize risk for both sides of the transaction.

Unanimously, the Supreme Court ruled against Alice Corp., arguing that even though the implementation of the system required computer programming, the core idea behind the invention was abstract and not patent-eligible. 21 This was a crucial decision, one that implied that software created to execute existing ideas is not a true invention, significantly limiting the potential patentability of computer software.

The core debate behind the aforementioned cases involves what constitutes an “abstract” idea. Because software and computer programming are not tangible products by nature, it can be difficult to discern what software characteristics are being claimed as patent-eligible, as evidenced by the Supreme Court’s constantly changing verdict on the subject. In explaining its holding for Alice Corp. v. CLS Bank, the Supreme Court referred back to Diamond v. Diehr, stating that Diehr’s patent was valid because it contained original elements outside computer programming. For instance, Diehr’s patent claimed a thermocouple, a sensor used to measure temperatures inside the molding press.

Though the Court’s perspective on software patents has and likely will change in the future, some aspects of their holding remain consistent. It appears that for a software-based patent to be eligible subject matter, the computer programming must facilitate a novel change in whatever hardware it controls.

20 Diamond

v. Diehr, OYEZ, https://www.oyez.org/cases/1980/79-1112 (last visited Feb. 3, 2020).

21 Alice Corporation v. CLS Bank International, OYEZ, https://www.oyez.org/cases/2013/13-298 (last visited Feb. 3, 2020).

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The above principle applies in all four of the previously discussed Supreme Court cases. Gottschalk v. Benson focused on a patent claiming a software algorithm for converting decimal to binary numbers. Since no meaningful hardware output was included, the Court ruled against the invention’s patentability. Parker v. Flook is slightly more complicated since it claimed an alarm system, a tangible product, that used a mathematical formula to determine when it would sound. The mathematical formula alone could not be patented, as established by Gottschalk v. Benson. What remained was an alarm system that sounded when a certain measurement limit was reached, which was already anticipated by prior art, and thus, not patentable. This is different from Diamond v. Diehr, because Diehr’s patent, as previously mentioned, contained a novel hardware application in the thermocouple which measured the temperature inside a molding press. Lastly, the patent discussed in Alice Corp. v. CLS Bank also adheres to this trend; Alice Corp.’s patent simply claimed the financial intermediary system was implemented on a “generic computer.” This brief but eventful history of software patents in the United States has shown that to be eligible for patenting, computer programs need to trigger meaningful and novel mechanisms on the hardware they reside in.

Analyzing the Supreme Court’s stance on software patents will be helpful in evaluating how eSports-related patents may be affected by the Court in the future. Currently, there are relatively few patents that are pertinent to eSports, given the industry’s brief history thus far. Since eSports inherently relate to video games, which are software-based products, the Supreme Court’s relatively strict stance on software patents may make it difficult for companies and inventors to obtain patents for eSports-related inventions. The following section will apply the previously discussed Supreme Court decisions to currently existing patents, predicting how the Court may evaluate the said patents if they were to be disputed III. The Future of eSports and Patents Patents related to the eSports industry face an inherent obstacle, as the inventions they claim will be inevitably related to video games, which are

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PATENTS IN ESPORTS: ANALYZING THE U.S. SUPREME COURT’S STANCE ON SOFTWARE INTERVENTIONS software products. Unlike the previously discussed cases, this means many eSports products will be more closely connected to regulating and influencing other software, as opposed to being a tangible device. As such, it may be difficult for certain eSports patents to establish a novel hardware product in their claims.

To ensure their claimed inventions will remain patent-eligible, potential patentees will need to adhere to the standards set by the Supreme Court. This section will examine three different patents related to eSports and will evaluate how their patentability would fare under the precedents discussed in Section II. A. Spatial Audio and Video in Virtual Reality (U.S. Patent No. 10,416,954) The first patent, assigned to Microsoft Technology Licensing, LLC, claims a system for streaming spatial audio and video in a virtual or augmented reality setting. 22 The specification describes that the system generates a primary audio and visual output for a user in virtual or augmented reality. Currently, virtual and augmented reality takes the form of a headset that users place over their eyes, which then displays images and audio that create a virtual environment.

The system can receive a request to share the virtual reality session with another user. To accomplish this, the system will generate a second audio and visual output based on audio-spatialization technology. As such, the second user will receive different audio and visuals based on their position in the virtual environment. This could be used for creating an immersive eSports broadcasting environment, where viewers can participate as opposed to just spectating.

Given how its claims are structured, this patent adheres to the precedents on how to approach software patents set by the Supreme Court. The patent focuses on and claims the patent-eligible hardware components of the system, rather than the software implementation of the said components. Clearly, the invention outlined in this patent will require a significant amount of complex

22 U.S.

Patent No. 10,484,439 (filed June 30, 2015).

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software, such as implementing a system to give different audio outputs based on spatial positioning. Claim 1 of the patent (which all subsequent claims are dependent on) explains that the system is comprised of “a processor; a computer-readable storage medium in communication with the processor,” 23 which places emphasis on the hardware aspects of the system. The product that is being claimed in this patent is the system that provides virtual reality users varying audio and visual experiences depending on their spatial position in the virtual environment. Similar to Diamond v. Diehr, the novelty of the invention lies in the hardware. The software is merely a medium to execute this product, meaning this patent adheres to the hardware requirement observed in the Court’s decisions. Therefore, the Court would likely rule in favor of this invention’s patentability if the patent were to be disputed.

B. Competition Leaderboard (U.S. Patent. No. 10,410,474) The second patent, assigned to WinView, Inc., claims a method and a system of entering a single performance into multiple contests of skill, where such contests could include eSports competitions.24 On a programmed device, a user can elect to participate in multiple competitions. A variety of games can be used in competition, including “video, computer, card, dice, trivia and word games” 25 as described in Claim 17 of the patent. Once the player finishes a game, the metrics of their performance are sent to a network, which are then tabulated and sent back to the user. As such, the user can continuously observe their performance relative to other users in the competition.

The patentability of these claims depends on existing prior art, but overall, it does not fit the requirements needed for a software patent. In essence, this invention simply contains a system for storing and displaying a competition leaderboard. As such, it is fairly obvious that a competition leaderboard is by no means a novel invention, so this product’s concept, outside its software, is not original. Of course, its implementation in a device in the form of computer 23 Id.

24 U.S. 25 Id.

Patent No. 10,448,064 (filed October 25, 2018).

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PATENTS IN ESPORTS: ANALYZING THE U.S. SUPREME COURT’S STANCE ON SOFTWARE INTERVENTIONS programming improves upon the idea and its efficiency, but the underlying invention of a competition leaderboard is still the same. Thus, the invention claimed in this patent does not contain eligible subject matter based on its function.

The hardware implementations described in the patent are also rather generic, with the patent stating the device can be “a cellular device, a laptop computer, a personal computer, a PDA or other web-connected device.”26 Given that the claims allow the product to be used on a wide variety of electronic devices, the invention appears to have no unique or specific hardware attributes.

The emphasis on this patent seems to be a programmed contest system, in which the software cannot be patented. That said, the patent may still be eligible if the system of using one performance to enter multiple contests (excluding the software) is not anticipated by any prior art. However, this patent still has potential obstacles regarding subject matter eligibility as demonstrated in Gottschalk v. Benson, where products completely rooted in software implementations are not considered patentable subject matter.

This patent would likely be invalidated by the Supreme Court, since the uniqueness of the claimed invention, a competition leaderboard, is its basis in software. With no noteworthy hardware features, the invention fails the Court’s apparent condition for software patents.

C. Player’s Biometric Data Display (U.S. Patent No. 10,522,188) The third patent, assigned to Rothschild et. al., claims a system and method for collecting and displaying the biometric data of a user, to be shown alongside video data of the said user.27 According to Claims 2 to 5 of the patent, biometric data can include heart rate, oxygen saturation, heart activity, and brain activity data from the user, collected using a variety of sensors. As described in the specifications, potential applications of this product in eSports could be in 26 Id.

27 U.S.

Patent No. 10,567,466 (filed June 20, 2017).

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broadcasting competitions, where a player’s biometric data is displayed in conjunction with facial reactions. This may be especially useful in broadcast competitions like poker (that often use eSports platforms such as twitch.tv), which are very reliant on small details and subtle reactions.

Once again, this patent seems to fail the precedents set by the Supreme Court. At its core, this invention collects biometric data from a user and displays it alongside video output of the user. The system combines many different sensors for a relatively simple task, which could be considered obvious to a person skilled in the art (grounds for a 35 U.S.C. § 103 rejection). Furthermore, the patent claims relatively vague concepts regarding the software implementation, such as in Claim 12, which describes “using artificial intelligence (AI) operating on said mobile computing device to automatically identify” 28 when a biometric value exceeds a certain threshold. The claims described in this patent do not outline any novel hardware impact, with more focus being placed on the system displaying the biometric data. Similar to the financial intermediary in Alice Corp. v. CLS Bank, this invention requires software to function but does not possess any unique hardware features. As such, this patent would not be considered patent-eligible by the Supreme Court.

The Supreme Court’s decisions on software patents have significantly limited the scope of eSports inventions and products that are eligible for patenting. Though whether an application receives a patent is up to the examiner evaluating it, some existing eSports-related patents face the risk of being invalidated based on the Court’s precedents. To maintain patenteligibility, an invention must incorporate some novel hardware feature within its patent claims. Incorporating software into an invention is certainly permissible, but the invention must also fulfill the hardware requirement set by the Court if the patentee wishes to minimize the risk of their patent being invalidated.

28 Id.

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PATENTS IN ESPORTS: ANALYZING THE U.S. SUPREME COURT’S STANCE ON SOFTWARE INTERVENTIONS Conclusion As video games become more widely accepted, the eSports industry will also grow and become more sophisticated. Companies will inevitably begin developing various products for the eSports industry and likely apply to patent these products. Like that of any other industry, these patents need to adhere to the laws set by the U.S. over the last century. The eSports industry is unique in that inventions will always interact with software in some capacity, given the nature of video games. As seen in past decisions from the Court, software should only be seen as a means to an end in an invention, and not as the invention itself.

Software is almost always used to implement a general or “abstract idea” that cannot be considered eligible subject matter. Such trends need to be strongly considered in regard to future patents in the eSports industry. Patents related to eSports will need to have impactful and novel hardware specifications if the patentees wish to reduce the risk of their patents being invalidated. While the precedents set by the Supreme Court mainly concern patent-eligible subject matter (35 U.S.C. § 101), patent applicants will also have to consider prior art to ensure that the inventions are truly novel and not anticipated or obvious by current technologies as the eSports industry expands and becomes a staple in entertainment. Though the Supreme Court may change its stance on softwarerelated patents again in the future, it would be wise for patent applications to err on the side of caution, prioritizing the use of software to facilitate hardware interactions, rather than focusing on the software itself.

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UCLA UNDERGRADUATE LAW JOURNAL Sarineh Khachikian*

The Influence of Implicit Biases on Adolescent Criminal Responsibility ABSTRACT. The binary legal framework, the approach to legal regulation whereby children and adults are classified under two distinct categories, has become a gateway for implicit biases in the criminal justice system. The system in its current state allows for probation officers’ racial prejudices to influence sentencing outcomes, as embodied in the overrepresentation of minority youth at every stage of juvenile and criminal justice processing. Black adolescent defendants are not only judged to be more dangerous than their white counterparts, but also more deserving of punishment. The growing prevalence of such biases has been reinforced by the transformation of the traditional juvenile court, and with it, the crumbling of the rehabilitative model. Following the 1967 landmark opinion of In re Gault and the surge of youth violence in the late 1980s, the juvenile court began to favor a more retributive stance toward juvenile crime. As a consequence of this punitive reform movement, adolescent offenders are no longer exclusively grouped alongside children, making it easier to adjudicate their offenses in the adult criminal legal system. Today, over 200,000 adolescents below the age of eighteen are tried as adults annually in the United States. The criminalization of adolescent offenders is a topic worth investigating, because their placement in violent adult correctional facilities violates the state’s commitment to protecting its young citizens. In this article, I will investigate how black adolescents are especially susceptible to criminalization as a consequence of probation officers’ implicit racial biases. I will

*Sarineh Khachikian is a third-year philosophy major and global studies minor at the University of California, Los Angeles. She is interested in international law and plans to attend law school following graduation.

Editor: Celia Janes is a fourth-year history major with minors in Global Health as well as Society and Genetics. She is involved with HOOLIGAN Theatre Company and the Daily Bruin at UCLA. She plans to take a gap year before attending law school, where she will study health law.

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY argue that these biases are not only wrong with respect to the validity of their content, but also wrong in themselves. Thus, I will propose the employment of a new categorical framework modeled after the unique developmental immaturity of adolescents. This will mend the ambiguity of the traditional binary framework, and in doing so, ensure that juvenile crime is evaluated in consideration of adolescent immaturity, rather than at the arbitrary discretion of implicit biases.

Introduction “The State has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” 1

Established with the intent of protecting its juvenile citizens, America’s paternalistic legal rhetoric elevated the power of the state to that of a superparent. The vestiges of this rhetoric are embodied in modern legal regulation through the employment of the binary legal framework, with childhood as one category, and adulthood as the other. The question, then, is where does adolescence, the intermediary developmental stage spanning between ages ten to eighteen, fit into the picture? Although adolescents have typically been grouped alongside children, growing concerns over their violence have disrupted this characterization. These concerns have led to a rise in the adjudication of their offenses in the adult criminal legal system, by which they are transferred to criminal courts. 2 Today, upwards of 200,000 adolescents below the age of eighteen are tried as adults annually in the United States; approximately twelve percent of these offenders are below the age of sixteen. 3 Adult correctional systems expose juvenile delinquents to violent, dangerous, and retribution-oriented environments, depriving them of a proper opportunity

Hodgson v. Minnesota, 497 U.S. 417, 444 (1990).

Rodney K. Hopson & Jennifer E. Obidah, When Getting Tough Means Getting Tougher: Historical and Conceptual Understandings of Juveniles of Color Sentenced as Adults in the United States, 71 J. NEGRO EDUC. 158, 159 (2002).

3 Brian G. Sellers & Bruce A. Arrigo, Adolescent Transfer, Developmental Maturity, and Adjudicative Competence, 99 J. CRIM. L & CRIMINOLOGY. 435, 442 (2009).

1

2

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to grow out of their criminal tendencies. And thus, the supposed protective goal of the traditional juvenile court is called into question.

In this article, I will examine the salience of implicit racial biases in the criminalization of adolescent offenders, namely with respect to probation officers’ sentencing decisions when handling black delinquents. Studies reveal that probation officers often ascribe the criminal tendencies of black youth to their characters and those of white youth to social pressures. Thus, an appeal to character theory, which links culpability to bad character, suggests that young black offenders are not only more dangerous, but also more deserving of punishment than their white counterparts. 4 The effects of these biases are embodied in the disproportionate confinement of minority youth, who are overrepresented at all stages of juvenile and criminal justice processing. 5 In Part I, I will present a brief history on the United States’ Progressive Era, from which the paternalistic rhetoric and binary legal framework emerged.

Further, I will consider the successes of the binary framework, as well as the challenges it fosters with respect to crime, given the developmental discrepancies between children and adolescence. In Part II, I will investigate the crumbling of the traditional juvenile court, from the 1967 landmark opinion of In re Gault, to the surge in youth violence in the late 1980s. Moreover, I will explore how this failure is embodied in modern juvenile justice policy, as apparent in the ill-suited punitive treatment of juveniles in adult correctional facilities. In Part III, I will assess the implicit biases employed by probation officers in two notable respects: (1) by determining the validity of their content, with respect to black juveniles’ “rotten social backgrounds,” the socioeconomic deprivation from which their criminal behavior arises; (2) by investigating the fault of implicit biases, more generally, as revealed through the legal mechanisms of insulation and debiasing. Lastly, in Part IV, I will suggest and defend a categorical approach to adjudicating youth offenses on the basis of normative adolescent immaturity.

ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE JUSTICE 114 (2008).

Jeffrey Fagan, Juvenile Crime and Criminal Justice: Resolving Border Disputes, 18 COLUMBIA LAW SCHOOL PUBLIC LAW & LEGAL THEORY WORKING PAPER GROUP. 11, 96 (2008).

4 5

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY Ultimately, I argue that probation officers’ assessments of adolescent culpability are highly susceptible to implicit racial biases against black delinquents and thus overlook the factor of socioeconomic deprivation as a possible cause. Consequently, the ambiguity of the binary legal framework must be addressed in order to terminate the influence of implicit biases, which I will assert are wrong in themselves, irrespective of the validity of their content.

Finally, I will propose that the employment of a new categorical framework modeled after the distinct developmental immaturity of adolescents will preclude the criminalization of young offenders, especially those negatively impacted by racial prejudices.

I. Paternalism and the Binary Legal Framework A. Parens Patriae: The Parent of the Nation It was not until the late nineteenth and early twentieth centuries that the American government adopted a protective stance toward the welfare of its young citizens.6 Prior to this ideological movement, the government remained relatively detached from promoting the health and safety of its youth. Children were subject to the absolute authority of their parents—so much so that parental rights were comparable to property rights. Young people “belonged,” first and foremost, to their parents, and then to the state. Traces of this proprietorial sentiment carried into the 1925 opinion of Pierce v. Society of Sisters, in which the Supreme Court of the United States held that the state could not mandate children to attend public schools, as doing so violated the liberty of parents to direct their children’s education.7 The Court established that parental rights were protected under the Fourteenth Amendment of the U.S. Constitution, and thus could not be interfered with arbitrarily.

During the Progressive Era, reformers sought to redefine the relationship between state and child by pushing for the conceptualization of the government 6 7

Id. at 62.

Pierce v. Society of Sisters, 268 U.S. 510 (1925).

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“as a benign super-parent,” one who possessed both the authority and the duty to care for juveniles. 8 At the cornerstone of the Progressive mission was the public education system. Compulsory school attendance laws were enacted, in conjunction with child labor restrictions, in order to keep children in schools and out of sweatshops. Through these efforts, the interests of both children and parents were subordinated to the authority of the state in order to ensure that youth did not fall prey to the influence of neglectful, irresponsible adults. This paternalistic rhetoric was grounded in the belief that young persons were categorically vulnerable, innocent, and dependent citizens. Modern legal regulation is rooted in the ethos of the Progressive Era, as evident in the categorization of both children and adolescents as legal minors, a distinct class of citizens, typically under the age of eighteen, who necessitate unique government protections. As a consequence of their developmental psychology, minors are assumed to be dependent on others for survival, incapable of making rational choices, and highly responsive to peer pressure.

These assumptions are embodied in the law in a multitude of ways. Firstly, minors’ legal rights are more limited than those of adults. They are not allowed to vote, make medical decisions, or enter legal contracts, because such privileges require mature judgement and reasoning, capacities which juveniles lack.

Secondly, they are not held accountable for their actions to the extent that adults are. Specifically, it is believed that a person’s blameworthiness is a function of his or her ability to make moral judgements. Juveniles are disadvantaged in the latter respect, because they are immature both psychologically and experientially; so, it follows that they should not be legally punished to the extent that adults are. Finally, young citizens are entitled to legal protections that ensure their development into healthy adulthood. Parents and the state are required by law to provide children with adequate financial support, care, and education, all of which juveniles are incapable of providing for themselves.

Access to these opportunities is essential for the progression into a healthy and

8

SCOTT & STEINBERG, supra, at 62.

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY productive adult life.9 As Chief Justice Warren asserted in the 1954 opinion of Brown v. Board of Education: [Education] is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment… Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms. 10

Taken together, the described policies of restricted rights, limited responsibilities, and special protections support the fact that minors are a special class of citizens. Accordingly, their developmental capacities warrant legal rules which differ from those applied to adults.

B. The Binary Legal Framework Importantly, the discussed legal rules are structured around a commitment to the welfare of children, and they address an overriding question of what it means to be a child. The worry, then, is: Where is the developmental stage of adolescence represented in the law? It seems as though, as a product of its paternalistic roots, American law overlooks an essential period of life—the distinct, transitional stage of adolescence. Namely, it treats childhood and adulthood as binary legal categories, leaving no room to account for the developmental discrepancies of adolescents. As a result, teenagers and toddlers are often lumped together in the same class. This binary has functioned successfully in various legal contexts, such as driving privilege regulations, alcohol restrictions, and child support laws—all of which facilitate a productive transition into adulthood by assuming the shared vulnerability of both teens and young children.

However, it is important to also observe the challenges that arise when adolescence is not acknowledged as a distinct, intermediary stage between childhood and adulthood. Addressing this ambiguity is particularly important due to the psychological distinctions between children and adolescents, which

9

Id. at 67.

10

Brown v. Board of Education, 347 U.S. 483, 493 (1954).

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may, in turn, affect their propensities toward criminal behavior. Thus, in the context of the binary legal framework, juvenile justice policy is an especially compelling area of concern. In early adolescence, youth begin to individualize from their parents. Then, in mid-adolescence, they orient themselves toward their peers. Finally, in late adolescence, the process of individualization is complete, and they pursue the establishment of personal identities. As children undergo this transition into adolescence, a number of developmental shifts typically occur. 11 Firstly, their emotional arousal is heightened, as they orient themselves toward sensation-seeking activities. In their pursuit of pleasurable experiences, they become especially susceptible to drug use and crime.

Secondly, they undergo a significant social shift, through which the salience of their parents is outshined by emerging relationships with peers. Such interpersonal relations often foster the pressure to engage in risky behavior.

Thirdly, adolescents become less dependent on their parents and pursue emotional and behavioral freedom. The process by which they form their separate, adult identities often entails the experimentation of dangerous activities. As such, there is reason to believe that the criminal choices of children—and in particular, adolescents, who are especially impressionable to crime—are incomparable to those of adults. Simply put, despite children and adolescents both being developmentally subordinate to adults, their relationship with crime is not identical. While the American government initially intended to protect both groups under a shared legal category, its failure to recognize their psychological differences, coupled with a significant shift in juvenile justice policy, has stunted that goal. The binary legal framework has remained, but the state’s attitude toward its young offenders has toughened, whereby the characterization of risk-oriented adolescents has shifted away from “immature children” and toward “mature adults.”

11

SCOTT & STEINBERG, supra, at 34.

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY II. The Transformation of the Juvenile Court This ideological shift of adolescent characterization is embodied in the transformation of the juvenile court, and, with it, the treatment of the nation’s juvenile population. In 1899, the first juvenile court was established in Chicago as a step toward promoting the welfare of young individuals involved in crime.12 Until this time, only very young children were excused from criminal responsibility, while most juveniles charged with crimes were tried and disciplined as adults. With the establishment of the juvenile court, children were removed from adult corrections systems and subjected instead to individualized treatment. 13 Such treatment was adapted to manage the specific case and child in question. Supervisors worked closely with young offenders to address the social, educational, and familial deficits that may have oriented them toward crime.14 This rehabilitative model was embedded in reformers’ “faith in human malleability,” the belief that juveniles could be “cured” out of their criminal tendencies.15 The overarching purpose of rehabilitation was to treat delinquent youth as persons in need of assistance to distinguish them from adult offenders on the basis of their immaturity and heightened corrigibility. 16 A. The Failure of the Rehabilitative Model The traditional juvenile court was notably challenged in 1967 in In re Gault, through which the Supreme Court extended due process protections to youth in delinquency proceedings.17 Fifteen-year-old Gerald Gault was accused of making offensive phone calls to his neighbor. He was brought before a juvenile court judge but was neither informed of the charges against him, nor defended by an attorney. Further, the neighbor did not appear in court as a witness; National Research Council, Reforming Juvenile Justice: A Developmental Approach (Richard J. Bonnie et al. eds., 2013).

13 Barry C. Feld, Juvenile and Criminal Justice Systems' Responses to Youth Violence, 24 CRIME & JUST. 189, 192 (1998).

14 SCOTT & STEINBERG, supra, at 258.

15 Feld, supra, at 204 (1998).

16 Lode Walgrave, Restoration in Youth Justice, 31 CRIME AND JUST. 543, 545 (2004).

17 SCOTT & STEINBERG, supra, at 90.

12

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instead, an arresting officer presented the neighbor’s reports. Following the proceeding, Gault was sentenced to the Arizona State Industrial School for up to six years for a crime that would have carried a two-month jail term and a $50 fine if committed by an adult. The case of Gerald Gault underscored the informality of the rehabilitative model, which deprived juveniles of a right to legal counsel, a right to notice of charges, and a right to confront witnesses. In the words of Justice Fortas, the juvenile court afforded young offenders “the worst of both worlds,” whereby they not only lacked procedural rights but also were often confined to correctional facilities akin to prisons. 18 The Court concluded that, just as adult offenders, juvenile criminal defendants faced a loss of liberty and, therefore, were entitled to specific due process protections.

Ultimately, the decision to transform delinquency proceedings into more formal adversarial hearings instigated a shift away from the rehabilitative model upon which the juvenile court was established.

The mission of the juvenile court was further undermined in the late 1980s, when America experienced a sudden surge in youth violence and homicide due to gang activity. Consequently, young people were increasingly viewed as dangerous members of society. 19 The perceived threat of juveniles called into question the adequacy of a justice system that protected its youth at the expense of accountability and public welfare. Thus, a punitive reform movement arose in an attempt to “get tough” on juvenile crime. Between the late 1980s and early 1990s, there was a seventy percent increase in the adjudication of youth to the adult system. Adult criminal courts differed from juvenile courts, because they committed to “just deserts”—deserved punishments—as opposed to rehabilitative measures; the “length, location, and intensity” of sentences were therefore proportional to the seriousness of the crimes committed.20 It can be said that the rehabilitative model failed as a consequence of its ambitious framework. Firstly, it supported a juvenile court that deprived young offenders of proper procedural rights. Secondly, it attempted to reconcile its involvement in delinquency cases with its commitment to protecting society; Id. at 89.

Feld, supra, at 194.

20 Id. at 198.

18 19

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY however, the two are not wholly compatible, because the promotion of young offenders’ welfare simultaneously creates the risk of social harm. In short, there was an inescapable tension between the interests of juvenile offenders and the general interests of a community. The crumbling of the rehabilitative model has extended into modern legal discourse. In the 1990s and early 2000s, almost every state in the nation implemented reforms to toughen the sentencing of juveniles. This effort involved expanding the types of crimes that qualified adolescents for transfer, lifting age restrictions, and adding statutory exclusion as a mechanism by which transfers could take place.21 Today, the criminal prosecution of adolescents is no longer limited to those charged with serious violent crimes such as murder, rape, and kidnapping. In fact, in most states, juveniles charged with property and drug offenses can face adult punishments.22 As a consequence of these reforms, the rate of transfers has increased; now, over 200,000 adolescents under the age of eighteen are tried as adults annually in the United States. 23 B. The Criminal Court: Unfit for Adolescent Offenders The rise in transfer rates is worth investigating, because it challenges the very premise of the establishment of the juvenile court. Advocates for punitive reforms depict young offenders as predators and enemies of society; this attitude suggests that the priority of transfers is not necessarily the promotion of youth welfare. Adult correctional institutions are harmful to young offenders in three notable respects.24 Firstly, the populations in adult institutions are drastically different from those in juvenile facilities. Around half of the inmates in prisons are between the ages of twenty-five and thirty-four, while over seventy percent of youth in juvenile institutions are between fifteen and seventeen.25 As Thomas A. Loughran et al., Differential Effects of Adult Court Transfer on Juvenile Offender Recidivism, 34 LAW HUM. BEHAV. 476, 476-477 (2010).

22 SCOTT & STEINBERG, supra, at 98.

23 Sellers & Arrigo, supra, at 442.

24 Donna M. Bishop, Juvenile Offenders in the Adult Criminal Justice System, 27 CRIME & JUST. 81, 139 (2000).

25 Id. 21

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a consequence of the age disparity, populations in prisons tend to have longer criminal histories, greater physical strength, and more experience with imprisonment. Additionally, around fifty percent of inmates in prison are there for a violent offense, compared to a mere twenty percent of youth in juvenile institutions. Thus, juveniles who are transferred to criminal court alongside adults are endangered by older, stronger, and more experienced offenders.

The second effect of transfers involves the organizational distinctions between juvenile and adult facilities, whose average populations at any given time are seventy and seven hundred, respectively. The larger size of adult institutions is linked to overcrowding, which may lead to greater levels of violence.26 Thirdly, the two systems’ staffing patterns differ due to their contrasting objectives. In accordance with its retributive aims, prisons grant a high priority to security concerns; as a result, two-thirds of all workers are custody or security staff. Juvenile institutions, on the other hand, are committed to rehabilitation and thus prioritize education programs. While the teacher/inmate ratio in prisons is a mere 1:100, it rises to 1:15 in juvenile facilities. 27 Consequently, transfers may deter young offenders from receiving a proper education, despite the fact that their cognitive malleability makes them especially receptive to corrective measures.

How can the juvenile court commit to the welfare of young delinquents, yet at the same time, partake in a system that criminalizes them? Perhaps, an answer to this question is rooted in the early motives of Progressive reformers, whose paternalistic agenda planted the seeds of the juvenile court. Revisionist accounts of the Progressive mission have found that the reformers’ ultimate goal was not wholly altruistic—that juvenile courts and child welfare agencies were designed to protect the middle-class from poor immigrants and people of color.28 Thus, the adjudication of young people may, in part, be attributed to judgments of race, which serve an overriding goal of social control. Today, these racialized sentiments persist, as exemplified in the disparate treatment of youth of color— Id. Id. at 140 (2000).

28 Kristin Henning, Criminalizing Normal Adolescent Behavior in Communities of Color: The Role of Prosecutors in Juvenile Justice Reform, 98 CORNELL L. REV. 404, 404 (2013).

26 27

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY especially those from impoverished environments—despite the shared normative tendencies of youth across all ethnic and socioeconomic backgrounds.29 III. Implicit Biases A. Probation Officers’ Racialized Judgments Minority youth are overrepresented at every stage of juvenile and criminal justice processing.30 In fact, black juveniles are more likely than white juveniles to be prosecuted for serious crimes, sent to secure confinement, and transferred to adult facilities.31 In 2013, cases involving black youth were twenty percent more likely to be formally processed than those involving white youth. 32 The source of this disproportionate representation may be traced back to the assessments made by juvenile probation officers, who determine the course of action to be followed in response to a case—namely, whether a case should be dismissed, handled informally, or directed to formal processing.33 Although officers are specifically trained to handle delinquent youth, their assessments are often shaped by attributional biases, whereby juveniles’ misbehavior is ascribed either to internal or external factors; the former refers to the defendant’s character, while the latter describes situational pressures.

Studies suggest that probation officers frequently attribute black juveniles’ crimes to their internal dispositions, and white juveniles’ crimes to their social environments. 34 Namely, a study conducted in 2004 by Sandra Graham and Brian Lowery found that probation officers judge black delinquents as “less Id. Fagan, supra, at 96.

31 David E. Barrett & Antonis Katsiyannis, Juvenile Delinquency Recidivism, 22 J EMOT. BEHAV. DISORD. 184, 184 (2015).

32 Katherine Hunt Federle, The Right to Redemption: Juvenile Dispositions and Sentences, 77 LA. L. REV. 52, 52 (2016).

33 Sandra Graham & Brian S. Lowery, Priming Unconscious Racial Stereotypes About Adolescent Offenders. 28 LAW HUM. BEHAV. 483, 494 (2004).

34 George S. Bridges & Sara Steen, Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms, 63 AM. SOCIOL. REV. 554, 567 (1998).

29 30

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immature and more violent...more culpable, more likely to reoffend, and more deserving of punishment.” 35 Underpinning this characterization is the belief that black youth have inherently dangerous personality traits; accordingly, they are given more severe sentences, because they are assumed to be less receptive to rehabilitative measures. This assumption suggests that the psychology of juvenile offenders of color is closer to that of adults, making a case for their transfer into adult courts. This argument makes an appeal to character theory, which links culpability to the inference that criminal acts are a product of bad character. Accordingly, the blameworthiness of a crime is contingent not only on the quality of an actor’s choice, but also on the meaning of the act as an expression of the actor’s character. 36 In addition to its racialized premises, this line of reasoning is problematic, because it is inconsistent with what it means to be an adolescent. What distinguishes juveniles from adults is the fact that the latter group is expected to possess a defined personal identity, while the former group is not. Indeed, adolescents do not yet have fully-formed characters; their identities are fluid, and their values, plans of life, and beliefs are tentative due to the temporary developmental processes that are typical of adolescence.37 In fact, most delinquent youth will outgrow the antisocial, risky, and immature tendencies which drove them to commit crimes in the first place.38 Thus, the criminal behavior of normative adolescents is not indicative of bad character, but rather, of transitory developmental psychology. Ultimately, the very reason why adolescents are different than adults is that they do not have fully formed characters. So, the fact that black juveniles are criminalized as a response to their “internal characters” points to a fundamental misunderstanding of what it means to be an adolescent.

Perhaps this fault in reasoning can be traced back to the ambiguity of the binary framework and its failure to distinctly account for the intermediary developmental stage. When the only two categories recognized are “childhood” Graham & Lowery, supra, at 496.

SCOTT & STEINBERG, supra, at 125.

37 Id. at 136.

38 Id. at 55.

35

36

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY and “adulthood,” the normative antisocial behavior of adolescents seems to align more closely with the tendencies of a violent adult, rather than a naive child. Additionally, the ambiguity of the binary framework invites the influence of implicit biases, such as judgements on race, which then affect how adolescents are categorized within the binary. What is it about these implicit biases that are so troubling? Is it the fact that they exist at all, or is it the content that they carry? How might our answer to this question inform our approach to the binary framework? In other words, do we restructure it, or do we correct the implicit biases which it invites?

B. The Rotten Social Background Defense In order to understand the challenge of these implicit biases, it is valuable to first examine the validity of their content. Perhaps, the reason we find probation officers’ biases so troubling is because they are plainly incorrect; we cannot justify the criminalization of black juveniles if the reason for their criminal prosecution is, at best, speculative. Indeed, I have already invalidated the bias in one respect—namely, that the attributing of black juveniles’ crimes to their characters violates the very idea of what it means to be an adolescent because the poor decision-making of adolescents reflects their developmental psychology rather than an innate characteristic. However, given that this bias is formulated within the constraints of the binary framework, I will proceed to test its validity in this same context. In other words, assuming that the only two categories are childhood and adulthood, is it correct to ascribe the behavior of black juveniles to their internal dispositions and that of white juveniles to their social environments?

Is it not true that external factors might play just as much—if not more—of a role in the lives of black juveniles? Richard Delgado explores the link between socioeconomic deprivation and criminal behavior through his discussion of the “rotten social background” criminal defense. Central to his argument is the claim that many black defendants’ criminal tendencies are fostered by their economic and cultural backgrounds—so much so, that their ability to conform

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UCLA UNDERGRADUATE LAW JOURNAL to social rules is largely out of their control. 39 Delgado explains the relationship between rotten social background and crime through two notable perspectives: social and physiological.

Firstly, he argues that the frustration-aggression which pushes people toward crime is often instigated by social conditions such as inadequate schooling, racism, and differential treatment by police. 40 According to a National Urban League study, minority children attending schools in urban areas receive substandard instruction due to low funding. 41 The compromised teacher-student relationship directly harms juveniles, because it fosters low expectations, emphasizes order and control, and curbs children’s aspirations.

Ultimately, the worse a child performs in school, the higher the likelihood that he or she will commit a crime.42 Black defendants’ propensities toward crime are also instigated by their exposure to institutional racism. Their access to education, employment, and housing is obstructed by racially differential treatment; so, they are less likely to respect and comply with a social system that contributes to their exclusion. Finally, blacks are disproportionately targeted by police officers, as apparent in their overrepresentation in police shootings, interrogations, and arrests. As a consequence of these discriminatory policing practices, the frustration-aggression that instigates crime is further compounded.43 Delgado presents a second perspective on the rotten social background defense, namely one concerned with the physiological effects of a deprived socioeconomic background. He discusses the physiology of rage in the context of malnutrition and alcoholism. Poverty and inadequate eating habits restrict proper nutritional intake. Moreover, alcohol abuse, which is prevalent in economically deprived environments, undermines inhibitions. Taken together, these two biological factors engender the sort of violence, stress, and aggression

Richard Delgado, Rotten Social Background: Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation, 3 LAW & INEQ. 9, 23 (1985).

40 Id. at 24.

41 Id. at 28.

42 Id. at 29.

43 Id. 39

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY that lead to crime. 44 Black Americans are especially vulnerable to the described social and physiological pressures of a rotten social background, due to their disproportionately high poverty rates. The official poverty rate for black Americans has always been above thirty percent, and at times, has been triple the rate of poverty for white Americans. 45 This suggests that, contrary to the implicit bias, black juveniles’ propensities toward crime are strongly linked to external factors; in some cases, impoverished backgrounds play such a central role in juvenile offenses, that it would simply be wrong to impose punishment on them.

Importantly, an objector might argue that just about any type of environmental factor can be rationalized as a cause of criminal activity; so, an appeal to socioeconomic deprivation is not particularly powerful and is not an adequate reason to excuse a crime. We would not defend a murderer, for example, simply because the stress of his morning commute pushed him to be violent. However, it is important to keep in mind that the rotten social background argument does not make a case for general environmental factors; rather, it focuses specifically on socioeconomic conditions and the characteristic ways in which they foster criminal behavior. This argument is so compelling, because many of these conditions are entirely out of the agent’s control—so much so, that their engagement in crime is essentially imposed upon them by their economic status and various social obstacles. Thus, evidence of a rotten social background can be utilized in criminal trials as a defense of excuse, whereby a defendant is exculpated on the basis of his or her loss of control.

The described dyscontrol was cited by Judge Bazelon in the 1972 D.C. Circuit Court of Appeals case United States v. Alexander, as evidence of a rotten social background defense. In Alexander, Benjamin Murdock shot and killed a white marine after being called a “black bastard.” 46 The defense argued that Murdock’s crime stemmed from an uncontrollable urge to shoot, a consequence Id. at 36.

Harrell R. Rodgers, Black Americans and the Feminization of Poverty: The Intervening Effects of Unemployment, 17 J. BLACK STUD. 402, 402 (1987).

46 United States v. Alexander, 471 F.2d 923, 957 (D.C. Cir. 1972).

44 45

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of his emotionally and economically deprived childhood in Watts, California, during which he “was subjected to racist treatment and learned to fear and hate white persons.” 47 A defense psychiatrist refused to label Murdock insane but testified that his impaired behavior was deeply rooted in his rotten social background. This meant that at the time of his unlawful conduct, the defendant’s mental processes were compromised to an extent that rendered him criminally non-responsible. A rotten social background makes a particularly good case for this sort of dyscontrol, because it entails social and physiological stress, both of which hinder a person’s ability to uphold his or her behavior to society’s expectations. 48 Bazelon’s defense seems to suggest that when a defendant’s ability to choose to refrain from crime is curtailed, punishment should not be applied.

With these considerations in mind, it seems as though the fault in probation officers’ implicit biases is the fact that they are systematically incorrect. The rotten social background argument reveals that many of the black juveniles whose crimes are attributed to internal dispositions are the same people who grow up in socioeconomically disadvantaged environments. Thus, there is a strong reason to believe that their criminal tendencies are linked more closely to external factors than typically assumed. Not only does this disprove the content of probation officers’ biases, but it also offers a possible defense against the criminalization of socioeconomically deprived black youth. Importantly, this argument does not yet provide enough reason to suggest that implicit biases, themselves, are immoral. Rather, it explains that their content requires reevaluation. Is this to say that the binary legal framework is unproblematic, so long as the implicit biases it invites are corrected? Or, should the framework itself be restructured, so that it insulates itself from biases, entirely?

47 48

Delgado, supra, at 20.

Id. at 88.

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY C. The Wrong of Implicit Biases In order to approach these inquiries, I believe it is worth examining how the law protects itself from the influence of implicit biases. Doing so may reveal that implicit biases are inherently wrong, irrespective of the validity of their content.

The legal system, in practice, seeks to eliminate differential treatment on the basis of protected traits such as race and gender; thus, implicit biases pose a challenge against the project of the law.49 Antidiscrimination law demonstrates an attempt to counteract people’s biases by forbidding forms of selective treatment. One approach to combating such treatment is the insulation of outcomes from the effects of biases.50 This technique is embodied in affirmative action plans, which counteract implicitly biased assessments of merit by establishing a preference for the groups harmed by those biases; so, insulation stops implicit biases from translating into final outcomes. In 2003, for example, the Supreme Court held in Grutter v. Bollinger that student body diversity was a compelling state interest—so much so, that it could justify the factoring of race into university admissions decisions.51 Race-conscious programs resisted the underrepresentation of minority students by insulating admissions choices from the influence of pre-existing racial biases. As expressed in the 1978 joint opinion of University of California Regents v. Bakke, the “[g]overnment may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice.” 52 A second strategy entails direct debiasing, through which specific laws or policies are established to correct decision-makers’ unintended biases. 53 One example of this approach is exemplified in the prohibition of hostile environments in workplaces, educational facilities, and other public spaces. It is unlawful in these environments to feature negative or demeaning depictions of protected groups, because such media can further contribute to implicit 49 Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94 CALIF. LAW REV. 969, 976 (2006).

50 Id. at 978.

51 Grutter v. Bollinger, 539 U.S. 306 (2003).

52 University of California Regents v. Bakke, 438 U.S. 265, 325 (1978).

53 Jolls & Sunstein, supra, at 980.

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stereotypes. Thus, direct debiasing targets not only the expression of discriminatory beliefs, but also their source, by prohibiting the sort of behavior that fosters hostility. Finally, a third strategy involves indirect debiasing, by which the law incentivizes regulated actors to take the steps toward decreasing their implicit biases.54 This is exemplified in antidiscrimination laws in the workplace, which encourage employers to utilize diversity-oriented hiring practices, in order to reduce their implicit biases against protected groups.

Collectively, these three mechanisms reveal the law’s existing resistance to implicit biases; the law seeks to eliminate their effects—and, if possible, their existence entirely—because they are antithetical to its commitment to equal, impartial treatment. It follows, then, that the problem is implicit biases, more generally, rather than the validity of their content. Importantly, this does not make the rotten social background argument useless; in fact, I believe referring to it is of great worth, because it underscores the negative effects of racial biases, especially when they are plainly false. Probation officers’ belief that black juveniles are characteristically violent not only misconstrues their relationship with crime, but also deprives them of a rotten social background defense, whereby their crimes can be excused on the basis of their socioeconomic deprivation. Therefore, the binary framework must be modified not only to correct probation officers’ racial prejudices but to also subvert the authority that these prejudices possess in the adjudication of juveniles.

IV. Recommendation: A New Categorical Framework In order to devise a course of action for addressing racialized implicit biases, it is necessary to contextualize ourselves in the framework in which they operate—the binary legal framework. I previously argued that the reason such biases persist is because of the framework’s ambiguity; it explicitly recognizes the categories of childhood and adulthood, yet overlooks the stage of adolescence. This binary is especially problematic with respect to crime, because adolescence is not equivalent to childhood, because it entails violent, 54

Id. at 985.

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY immature, and irresponsible tendencies that instigate criminal activity. So, the framework’s ambiguity leaves room for implicit biases, which then criminalize normative adolescent behavior. To put an end to these biases’ influence on probation officers’ decisions, the ambiguity must be mended. I believe this can be done by establishing a new framework, modeled after the distinct developmental psychology of adolescents. Only then can we ensure that the adjudication of black juvenile crime does not fall into the hands of racial prejudices.

Typical adult offenders are presumed to be fully responsible for their crimes, while children are given an excuse, by which they are not responsible at all due to their deficient decision-making capacities. 55 Under the binary model, adolescents are lumped into either category, often under the discretion of implicit biases. However, if adolescence is formally recognized as a distinct group, a case can be made for mitigation on the basis of their developmental immaturity; mitigation applies to delinquents who are blameworthy enough to meet a minimum threshold of culpability, yet deserve less punishment than a typical adult offender would be given. 56 Through mitigation, criminal law can measure the culpability of adolescents along a continuum. Accordingly, an adolescent offender who commits a violent crime does not need to be identified as a child to escape punishment. The adolescent’s adjudication can be formulated under the belief that he or she is more culpable than a toddler, yet not to the extent, nor in the same way, that an adult is. So, the delinquent’s sentencing can focus on rehabilitation and education, as opposed to the retributive measures that are more appropriately directed toward adult criminals.

Importantly, immaturity does not affect adolescents on a case-by-case basis.

In fact, most adolescents have immature faculties. Thus, acknowledging the developmental psychology of adolescence would make juveniles’ immaturity a categorical mitigating condition, as opposed to an individualized one. Such an

55 56

SCOTT & STEINBERG, supra, at 122.

Id.

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approach would embody a collective pre-commitment to recognizing the mitigating condition of immaturity when assigning blame. Normative adolescent offenders qualify for mitigation on the basis of the following three conditions. 57 First, although adolescents may possess the appropriate cognitive capacities for reasoning, they lack the experience and competency to properly employ these abilities in real-world situations. Second, adolescent criminal choices are often shaped by external pressures, such as their rotten social background; unlike adults, adolescents do not have the financial autonomy to escape these circumstances, and thus, are often forced into criminal behavior. Third, adolescent criminal choices are far more attributable to their transitory developmental immaturity, as opposed to some inherently immoral character.

Taken together, these three conditions support the claim that adolescent offenders belong in a separate category, distinct from both children and adults.

How might this new categorical framework affect the criminal processing of youth, and by extension, the adjudication of black juvenile delinquents? When an individualized approach to mitigation is employed, immaturity is often overlooked on the basis of the perceived threat of the specific adolescent in question—as is the case with probation officers' assessments of black delinquents. Indeed, an aggressive young offender does not necessarily resemble the image of a dependent child deserving of protection. Simply put, there exists a tension between the traditional conception of immaturity, which entails innocence and vulnerability and its embodiment in violent juvenile offenders, and racial prejudices only amplify this disparity. Consequently, applying a categorical approach to mitigation will protect juveniles by insulating processing decisions from distorted judgements and stereotypes. 58 These changes will likely alleviate the criminalization of adolescents, and in turn, lower their transfer rates into adult facilities.

57 58

Id. at 129.

Id. at 141.

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THE INFLUENCE OF IMPLICIT BIASES ON ADOLESCENT CRIMINAL RESPONSIBILITY Conclusion Although the binary legal framework was established to support the Progressive Era’s mission of youth welfare, the context in which it operates has drastically changed. Given the surge of youth violence and homicide in the late 1980s, violent juvenile offenders are no longer perceived as innocent children deserving of the state’s protection, and implicit racial biases have exacerbated this sentiment. Indeed, it is easier to treat young super-predators as enemies of the state when delinquent youths are identified as belonging to a disfavored or “other” group. The binary framework has actualized these punitive sentiments by structuring the characterization of adolescent offenders as a strict choice between either innocent child or culpable adult. It follows, then, that the binary legal framework’s protective goal is attainable only in its original context— namely, under the shared belief that all young people are vulnerable, dependent, and helpless. Otherwise, it cannot be guaranteed that they will be grouped alongside children. Thus, considering the shift in the nation’s attitude toward young criminals, a new framework must be adopted so that the paternalistic rhetoric is not overridden by distorted prejudices.

Ultimately, the fault in the binary legal framework is its ambiguity, which invites the influence of implicit biases. The “rotten social background” that is characteristic of many black juveniles reveals that probation officers employ misdirected implicit biases when assessing crime. Furthermore, the law’s protection against differential treatment demonstrates why such biases are wrong in all respects, regardless of their content’s validity. Thus, implicit biases must be wholly discarded; in order to do so, the paternalistic framework should be restructured to explicitly account for the distinct developmental stage of adolescence. Doing so will likely lead to decreases in transfer rates, because juveniles’ immature tendencies make a case for mitigation. I believe that these changes will not only resolve the challenges of implicit biases, but will also improve the livelihood of juvenile delinquents, who otherwise would be placed in ill-fitting, dangerous adult prisons.

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UCLA UNDERGRADUATE LAW JOURNAL Joseph Keane*

The Legal Argument Against Current Employment Classification Standards ABSTRACT. Employee classification is the legal framework used to determine whether workers are employees or independent contractors. Employee status confers many economic benefits, such as minimum wage protections and the right to organize one’s workplace that are denied to independent contractors. The prevailing federal classification regime is fragmented into two judicial tests: the economic reality test and the control test. These tests are rife with ambiguities and fail to adequately affect the intent of the Fair Labor Standards Act, the National Labor Relations Act, and other employment statutes enacted by Congress.

Misclassification is rampant and harms workers and society as a whole. In light of these weaknesses, the state of California has provided a clearer and more stringent framework: the ABC test, coupled with a legal presumption of employment status.

The ABC test is broader in scope than both of the current tests and does not countenance bad faith tactics by corporate and political actors to undermine workers’ rights. This article articulates the failures of the status quo to protect the statutory rights of American workers. Furthermore, it argues that the ABC test and presumption of employment should be implemented on the federal level through

*Joseph Keane is a second-year political science student with minors in labor studies and history at UCLA. In addition to writing for the Undergraduate Law Journal, Joseph is an active member and incoming Vice President of the UCLA chapter of Phi Alpha Delta, the largest law fraternity in the nation. Joseph thanks Camille Schaefer for all her input and guidance that made this article possible.

Editor: Camille Schaefer is a sophomore at UCLA studying public affairs. Besides her involvement with the Undergraduate Law Journal and Pre-Law Society, Camille competes with UCLA's Mock Trial team and hopes to attend law school or work in education or prison reform policy after her undergraduate years.

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THE LEGAL ARGUMENT AGAINST CURRENT EMPLOYMENT CLASSIFICATION STANDARDS judicial action and provides the reasoning and precedent to support this reinterpretation of classification law.

Introduction Despite incessant talk of a booming economy and a roaring stock market, American workers are in dire straits. The past forty years have been characterized by diminished working conditions and increased corporate power.

In this period, Union membership, which gives workers a voice in their workplaces and is strongly correlated with higher wages, has fallen to a historic low of ten percent of all working Americans.1 In that same time, CEO pay has increased by 940 percent while the wages of ordinary workers have remained stagnant.2 Politicians in Washington have aided and abetted this transformation by eroding bedrock employment statutes, such as the Fair Labor Standards Act (FLSA) and the National Labor Relations Act (NLRA). Unfortunately, this regressive, anti-worker trend has only accelerated under the Trump administration. For example, the current Trump-appointed regime at the National Labor Relations Board (NLRB) has attacked almost every fundamental labor right on the books, including the right to strike, protection from anti-union discrimination, and the duty of employers to participate in good-faith bargaining with unions. 3 This backsliding, along with partisan gridlock in Congress, presents a grim outlook for the future of national worker protections.

Against this backdrop, the structure of the American workplace has dramatically transformed. The rising “gig” economy – an economic system that relies on “the flexibility and the prevalence of short-term work”– has supplanted the traditional structures of the American economy in an unprecedented way. 4 As of 2019, approximately 57 million Americans perform 1

Union Membership (Annual) News Release, (Jan. 22, 2020 10:00 AM) https://www.bls.gov/news.release/union2.htm.

2 Celine McNicholas, Margaret Poydock, Lynn Rhinehart, Unprecedented, (Oct. 16, 2019), https://www.epi.org/files/pdf/177387.pdf 3 Id. 4 William B. Gould IV, Dynamex is Dynamite, but Epic Systems Is Its Foil, 83 Missouri L.R. (2018) (discussing the impacts of California’s Dynamex decision).

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“freelance” (or “gig”) work, with low-skill labor, such as ridesharing or housecleaning, making up around thirty percent of the total. 5 This represents a significant expansion of freelance work, as the U.S. Government Accountability Office estimated only 42.6 million workers performed work of that kind as recently as 2006. A key aspect of the gig economy is a heavy dependence on independent contractors, who make up 8.4 percent of today’s workforce. 6 These contractors are essential to many innovative business models that dominate the gig economy, such as those of Uber and Lyft. Independent contractors differ from employees in that they are denied many of the protections and rights that employees are guaranteed, including, but not limited to, minimum wage baselines, the right to unionize, and access to unemployment insurance.7 This makes contract labor economically appealing to companies seeking to cut costs, while also making misclassification a grave threat to the lives and livelihoods of contract workers.

Due in large part to worker activism and organizing, many states have acknowledged the abysmal state of workers’ rights and have implemented innovative solutions. Specifically, over the past ten years, the majority of states have enacted, either through legislative action or ballot measures, minimum wages higher than the federal $7.25 minimum. Moreover, a growing subset of these states have plans to reach $15 per hour within the coming decade.8 More importantly, however, states have begun cracking down on the misclassification of employees as independent contractors. Namely, the “ABC Test,” a stringent three-pronged standard that presumes workers are employees, is gaining favor across the country.

This article will argue that the current federal employee classification framework is much too ambiguous and weak to adequately reflect Congress’ 5 Shoshana Deutschkron, Caitlin Pearce, Freelancing in America 2019, (2019), https://www.upwork.com/press/2019/10/03/freelancing-in-america-2019/.

6 Maura Dolan, Andrew Khouri, California’s Top Court Makes it More Difficult for Employers to Classify Workers as Independent Contractors, (April 30, 2018 7:15 PM) https://www.latimes.com/local/lanow/la-me-ln-independent-contract-20180430-story.html.

7 Myra H. Barron, Who’s an Independent Contractor? Who’s an Employee?, 14 American Bar Association 457-73 (1999) (defining the difference between contractors and employees).

8 Jackson Brainerd, State Minimum Wages 2020 Minimum Wage by State, (Jan. 6, 2020) https://www.ncsl.org/research/labor-and-employment/state-minimum-wage-chart.aspx.

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THE LEGAL ARGUMENT AGAINST CURRENT EMPLOYMENT CLASSIFICATION STANDARDS intent in passing employment statutes. In place of the current muddled system, a national ABC test and legal presumption of employment would protect workers and conform to the spirit of American employment law. Part I of this Article will discuss the history of federal employment classification law, contextualizing the legislative intent, jurisprudence, and subsequent amendments that are crucial to understanding current law. Part II will demonstrate that current law, as applied by the federal government and courts, has failed to fulfill its purpose. Finally, Part III will propose implementing a nationwide ABC test and presumption of employment to rectify this pressing issue.

I. The Historical Foundations of U.S. Employment Law Much of the existing body of American employment law was enacted during the New Deal. The overarching goal of most of these laws was to combat the rampant inequalities of the Great Depression era. The two statutes this Article will focus on, the FLSA and NLRA, sought to achieve the New Deal’s goals by restructuring the American workplace. This section will examine the legislative and judicial history of these statutes and the context in which they were implemented.

Before the New Deal, worker classification was solely a concern in tort actions against corporations and other employers, specifically under the doctrine of vicarious liability. Courts formulated a standard in order to determine whether a business could be held liable for the actions of someone working on their behalf. This standard is embodied in the “control test” – also known as the “common-law test” – which was based on the theory that an employer is liable only for the actions of workers it exerts control over. In order to determine control, the test weighs a list of factors, including the extent to which the worker is engaged in business for themselves, the level of skill required by the job, and whether the worker performs services for other

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UCLA UNDERGRADUATE LAW JOURNAL businesses as well. 9 Under this test, a cashier in a retail establishment would qualify as an employee, while a plumber hired temporarily to fix a leak in that same store would qualify as an independent contractor. Ultimately, this test was partially supplanted when social welfare statutes began appearing during the New Deal, but it remains applicable in cases arising under the NLRA and similar statutes.

The New Deal expanded the importance of classification, primarily by creating new statutory rights for employees. For example, the NLRA protects employees’ right to organize their workplaces, bans certain “unfair labor practices” on behalf of employers and unions, and tasks the NLRB with enforcing the statute.10 The FLSA sets a national minimum wage standard, requires overtime pay for most workers, and bans most child labor. 11 However, there is a glaring exception built into these landmark protections. Both statutes only cover workers who are classified as employees, while leaving out workers classified as independent contractors. In addition to being guaranteed a minimum wage and overtime pay, employees receive numerous other fringe benefits denied to contractors. For example, contractors are responsible for the entirety of their Social Security and Medicare contributions while employees share half the burden with their bosses. Employees also enjoy workers’ compensation programs, the ability to take family and medical leave, and protection from many kinds of workplace discrimination.12 Since the NLRA, FLSA, and subsequent legislation created a suite of employment rights, the distinction between employees and contractors has become very tangible for workers with a variety of real-world implications.

That important distinction hinges on the minutiae of statutory language, which differs between the NLRA and FLSA. For example, the NLRA did not contain any language defining or limiting its application to contractors at the time of its conception. In its current form, however, the NLRA explicitly

9

Barron, supra note 7.

29 U.S.C. § 7(II)(151-169).

11 29 U.S.C. § 162(201-219).

12 Barron, supra note 7.

10

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THE LEGAL ARGUMENT AGAINST CURRENT EMPLOYMENT CLASSIFICATION STANDARDS exempts “any individual having the status of an independent contractor,” 13 but does not define “contractor” nor specify a classification test. The FLSA, however, defines the term “employ” to “includ[e] to suffer or permit to work.” 14 The remainder of federal statutes that govern employment can be divided by those that lack a meaningful definition of employment and those that utilize the “suffer or permit” language. This article frequently uses the NLRA and the FLSA as stand-ins for those two categories, respectively.

The FLSA’s “suffer or permit” language radically changed American employment classification. The phrase has a long history that implicates a broad statutory purpose. Specifically, the language traces back to early 19th century state laws that banned child labor and broadened the scope of employer liability.

Instead of focusing on control, this expansive language-imposed liability on any employer who knew child labor was utilized and could stop it. 15 In 1938, Congress inserted this sweeping concept of employment into the FLSA. This definition of employment is so broad that the Supreme Court noted in United States v. Rosenwasser (1945) that “a broader or more comprehensive coverage of employees . . .would be difficult to frame.” 16 Due to that broadness, the Supreme Court has repeatedly declined to use the control test in FLSA cases, holding that the FLSA “contains its own definitions, comprehensive enough to require its application to many persons and working relationships, which prior to [the FLSA], were not deemed to fall within an employer-employee category.” 17 In place of the control test, the “economic reality” test, also referred to as “economic realities,” is typically employed by courts in FLSA cases. This test utilizes a much more holistic approach, which takes into account the totality of the worker-hirer relationship. Different circuit courts apply this test in slightly different ways. For example, one common approach analyzes many factors of 29 U.S.C. § 7(II)(152).

29 U.S.C. § 162(203).

15 David Weil, U.S. Dept. of Labor Wage and Hour Div., Administrator’s Interpretation No. 2015-1 (2015).

16 United States v. Rosenwasser, 106 U.S. 323, 360 (1945).

17 Walling v. Portland Terminal Co., 336 U.S. 330 (1947).

13

14

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the employment relationship, of which control is just one facet. Other courts, however, place an emphasis on a worker’s economic dependence on their hirer and how much a worker relies on their boss for “economic stability.” 18 This approach typically defines independent contractors as “those workers with economic independence who are operating a business of their own.” 19 In essence, all iterations of the economic reality test are more sweeping than the control test, and therefore cover a broader range of workers.

At first, in the nascent years of the NLRA, the Supreme Court similarly refrained from applying the “control” test to it, even though it lacks the “suffer or permit” language. In NLRB v. Hearst Publications (1944), the Court, by taking into account the “history, terms and purposes of the [NLRA],” determined that Congress had intended the NLRA to be an expansive effort “to encourage collective bargaining and to remedy the individual worker's inequality of bargaining power.” Therefore, the Court held that the common law test was inadequate for the NLRA and that classification under the NLRA should account for “underlying economic facts rather than technically and exclusively by previously established legal classifications.” The Court based this test on the logic that any worker subject to “the evils the statute was designed to eradicate” and would benefit from the NLRA’s remedies should be covered.20 The previously mentioned bears a resemblance to the modern economic reality test, which accounts for statutory purpose and the totality of the economic situation at play.

Unfortunately, the prevailing view that Congress had intended both the FLSA and the NLRA to be broader than the narrow confines of the “control” test quickly fell apart. After Hearst, Congress repudiated the Court’s decision and passed the infamous Taft-Hartley amendments to the NLRA, also known as the Labor Management Relations Act of 1947. Among other regressive changes, these amendments added language excluding independent contractors from the NLRA’s coverage. The House Report on Taft-Hartley strongly 18

Barron, supra note 7.

David Weil, U.S. Dept. of Labor Wage and Hour Div., Administrator’s Interpretation No. 2015-1 (2015).

20 NLRB v. Hearst Publications, Inc., 336 U.S. 322 (1944).

19

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THE LEGAL ARGUMENT AGAINST CURRENT EMPLOYMENT CLASSIFICATION STANDARDS admonished the NLRB, claiming it had given the word “employee” a “farfetched meaning” in the Hearst case. 21 It is important to note that Congress did not add language to the Act endorsing or requiring the use of a particular classification test. However, courts have turned to legislators’ statements and reports about the amendments for indicia of congressional intent. Senator Taft, one of the authors of the amendments, asserted that “the question whether or not a person is an employee is always a question of law, since the term is not meant to embrace persons outside that category under the general principles of the law of agency.” 22 The report issued by the House Committee on Education and Labor contains a quasi-definition of the term “independent contractor”: "Independent contractors" undertake to do a job for a price, decide how the work will be done, usually hire others to do the work, and depend for their income not upon wages, but upon the difference between what they pay for goods, materials, and labor and what they receive for the end result, that is, upon profits. 23

This seemingly innocuous and uncontroversial definition does not mention control or require an especially narrow classification test.

However, the Supreme Court soon interpreted the Taft-Hartley amendments to require a massive expansion of the control test. First, it began applying the control test to cases arising under the NLRA, believing that test to embody the principles of “agency” Senator Taft endorsed. Then, it formulated the principle that most statutes lacking an explicit definition of the word “employ” implicitly call for the “common-law” definition, which implicates the control test. 24 Therefore, courts now use the narrower control test not just for NLRA cases, but also cases regarding the Employee Retirement Income Security Act (ERISA) and the Americans With Disabilities Act (ADA). As a result of the Taft-Hartley amendments and subsequent decisions, courts have stopped analyzing the purposes of a particular statute when deciding classification cases, and instead have become narrowly focused on the presence 21

H. Adenstein and H. Edwards, The Resurrection of NLRB v. Hearst: Independent Contractors Under the National Labor Relations Act, 17 Kansas L.R. (1969) (defining independent contractors under the NLRB).

22 Id. 23 Id. 24 Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318 (1992).

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of “suffer or permit” language of the statute at issue. Ultimately, this approach ignores the legislative intent of the NLRA and weakens the scope of its protections.

II. The Failures of Existing Classification Law Despite the efforts of New Deal era legislators to improve American working conditions, existing law falls short of that lofty goal. This section will argue that neither of the prevailing federal classification tests are sufficient in combating misclassification in light of the new employment trends of today’s economy. A 2000 study by the Department of Labor found that misclassification was so rampant at the turn of the century that approximately one-third of American employers misclassified some of their workers. Certain industries are especially prone to misclassification, including trucking, construction, and janitorial services.25 The rise of the gig economy, and the subsequent increase in contracting, creates even more opportunities for misclassification.

One of the driving factors of this phenomenon is sheer confusion over current law. The existence of different standards across federal statutes creates a patchwork that can be difficult to navigate, especially for small business owners and individual workers. The multi-factor approach of both prevailing tests, wherein courts arbitrarily weigh a laundry list of oftentimes contradictory points of evidence, compounds this confusion. Crucially, as the U.S. Joint Committee on Taxation has noted, “there are no rules for the weight that any particular factor is given,” which can make it functionally impossible for an employer to make the correct classification in situations that exist in the vast legal gray area.26 Additionally, another factor contributing to misclassification is profitdriven decisions by corporations and other employers to push the limits of classification law, oftentimes in bad faith. The burgeoning industry that is at the forefront of the classification debate consists of app-based gig economy 25 Jacobs, Thompson, Sinroja, Misclassification in California, UC Berkeley Labor Center (Mar. 11, 2019), http://laborcenter.berkeley.edu/misclassification-in-california-a-snapshot-of-thejanitorial-services-construction-and-trucking-industries/.

26 Joint Comm. on Taxation, 110th Cong., Present Law and Background Relating to Worker Classification for Federal Tax Purposes (2007).

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THE LEGAL ARGUMENT AGAINST CURRENT EMPLOYMENT CLASSIFICATION STANDARDS companies, such as Uber, Lyft, Doordash, and their ilk. According to an analysis

by Barclay’s, these companies rely on classifying their workers as contractors for much of their revenue. In California alone, Uber and Lyft save $3,625 annually per contractor, primarily by avoiding payroll taxes and unemployment insurance taxes. Treating their California workers as employees would cumulatively cost Uber $500 million and Lyft $290 million each year. Both companies already operate at an annual loss of hundreds of millions of dollars, making the decision to classify their workers as employees even more undesirable. 27 Perhaps unsurprisingly, these app-based companies are deeply committed to maintaining their ability to classify drivers as contractors. However, their reaction to state-level efforts to expand employment rights and enact tougher classification rules illustrates that this classification is likely in bad faith.

California legislators recently passed Assembly Bill 5 (AB 5), which codified the ABC test in the state. Observers and legislators alike believed that the ABC test would invalidate gig companies’ practice of classifying their drivers as contractors, but the targeted companies boldly refused to comply. 28 After AB 5’s passage, Uber issued a statement proclaiming that their relationship with their “independent contractor” drivers passed the ABC test and that they are merely a “technology platform for several different types of digital marketplaces.” 29 However, at the same time, Uber and one of its compatriots, Postmates, are simultaneously contending in federal court that AB 5 is an “irrational and unconstitutional statute designed to target and stifle workers and companies in the on-demand economy” and that the bill’s author is “overtly hostile to the gig companies.” 30 Moreover, gig companies are sinking 100 million dollars into a campaign for a 2020 California ballot initiative that would 27

Alison Griswold, How Much it Would Cost Uber and Lyft if Drivers Were Employees, Quartz (June 14, 2019) https://qz.com/1643263/the-cost-to-uber-and-lyft-if-drivers-were-employees/.

28 Scott Rodd, Uber, Lyft, Postmates Refuse to Comply with California Gig Economy Law, NPR (Jan. 4, 2020) https://www.npr.org/2020/01/04/793142903/as-california-tries-to-makecontract-workers-employees-industries-push-back.

29 Tony West, Update on AB 5, Uber Newsroom (Sept. 12, 2019) https://www.uber.com/newsroom/ab5-update/.

30 Rodd, supra note 28.

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UCLA UNDERGRADUATE LAW JOURNAL exempt app-based companies from the ABC test.31 This response to the ABC test is deeply hypocritical and suggests that these companies’ contractordependent business models are predicated on intentional misclassification tactics.

However, employers are not the only entities that take advantage of the current legal landscape to unfairly curtail workers’ rights. The current regime at the NLRB has exploited the ambiguity and permissiveness of current law to rig the game in favor of big corporations. The Board, in an administrative decision [SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019)], fabricated a new, weaker classification test that subordinates the control factor to an amorphous and underdeveloped concept called “entrepreneurial opportunity” and has begun using it to deprive gig workers of a chance to seek relief at the NLRB. The Board also decided that it is not an unfair labor practice to intentionally misclassify workers as part of a union-busting effort.32 Similarly, the Department of Labor (DOL) has also taken steps to administratively weaken worker protections. In 2017, the Department rescinded Obama-era guidance about compliance with classification under the FLSA. Interestingly, because this guidance was purely advisory, observers at the National Employment Law Project contend that the DOL’s move served primarily as a “[signal] to low-road employers that they may proceed with bad behavior unchecked.” 33 The DOL then issued a non-binding opinion letter stating that an anonymous gig company’s workers were independent contractors, even though the company exerts many of the traditional indicators of control. 34 These recent developments show how current law allows employers and government actors to exploit loopholes and ambiguities in federal statutes and act in bad faith towards their workers.

Id. McNicholas, Poydock, Rhinehart, supra note 2.

33 Catherine Ruckelshaus, Trump DOL Signals Rollbacks When Nobody is Watching, NELP (June 29, 2017) https://www.nelp.org/blog/trump-dol-signals-rollbacks-when-nobody-is-watching/.

34 DOL Opinion Letter Offers Gig Employer Free Pass to Misclassify Workers, NELP (April 29, 2019) https://www.nelp.org/news-releases/dol-opinion-letter-offers-gig-employer-free-pass-tomisclassify-workers/.

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32

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THE LEGAL ARGUMENT AGAINST CURRENT EMPLOYMENT CLASSIFICATION STANDARDS This endemic misclassification wreaks economic harm on workers, their families, and society as a whole. In addition to the myriad benefits noted above that contractors cannot access; misclassification directly diminishes government revenues. Namely, states such as Colorado and New York have found that misclassification has deprived their unemployment insurance coffers and general funds of over 150 million dollars every year. 35 This puts unneeded financial stress on cash-strapped state governments, and cuts into funds for social services, public safety, infrastructure, and other institutions responsible for the maintenance of a functional society. Meanwhile, large corporations and unscrupulous bosses that misclassify their workers profit from ill-gotten gains.

III. The Case for a Nationwide ABC Test In light of the societal ills caused by widespread misclassification and the ineffectiveness of the current tests, a new classification paradigm is sorely needed. This section will argue that federal implementation of the ABC test under the FLSA, coupled with a presumption of employment under the NLRA, would rectify the failures of the current regime. While codification by Congress would be ideal, Congress’ chronic gridlock makes this route difficult. Instead, this section will posit that these recommendations can be implemented through judicial action.

To begin, the FLSA’s classification scheme has been narrowed by courts to such an extent that the current test bears little resemblance to the intent and plain language of the statute. As noted above, the FLSA utilizes an incredibly broad conception of “employment,” centering around the “suffer or permit” language. The economic reality test, with its many ambiguities, fails to embody that broad vision of employment. However, the California Supreme Court offered a worthy replacement in its landmark Dynamex Operations W. v. Superior Court (Dynamex) decision in 2018 that implemented the ABC test statewide.

Jennifer Pinsof, A New Take on an Old Problem: Employee Misclassification in the Modern GigEconomy, 22. Michigan Telecomm. (L.R.) (2016) (describing the issue of misclassification in the gig economy).

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Under the ABC test, a worker must be a) “free from the control and direction of the hiring entity;” b) “[perform] work that is outside the usual course of the hiring entity's business;” and c) be “engaged in an independently established trade, occupation, or business” in order to be classified as an independent contractor. Importantly, the test presumes workers are employees unless their hirer can affirmatively demonstrate they meet the contractor standard. The ABC test is much stronger than the economic reality standard. Namely, by abandoning a discretionary calculation of rather ambiguous factors in favor of clear-cut requirements, the ABC test makes classification decisions much clearer and confers “employee” status to many more people, as the FLSA was originally intended to do.

The California example also offers a well-reasoned framework for judicial adoption of the ABC test federally. The Dynamex decision interpreted the very same “suffer or permit” language that is found in the FLSA and found it to require the application of the ABC test. The Dynamex decision notes that the language stems from “model child labor laws published between 1904 and 1912” and had been applied incredibly broadly by courts in situations “when no common law employment relationship” existed. 36 The ruling went on to quote Justice Hugo Black, one of the authors of the FLSA, saying that it is the “broadest definition” of employment found in American law. Most importantly, the court examined the fundamental purposes of California’s wage and hour laws, which are to guarantee workers the minimum pay and conditions needed to survive in light of the fact that “individual workers generally possess less bargaining power than a hiring business,” protect compliant companies from unfair competition, and protect society at large from responsibility for the consequences of poor labor conditions. 37 Much of the same analysis the California Supreme Court applied to state labor law can apply to the FLSA. As noted above, the federal adoption of the “suffer or permit” language was consciously and purposefully lifted from state child labor laws, such as the one examined by Dynamex. Additionally, the 36 37

Dynamex Operations W. v. Superior Court, 4 Cal. 903 (2018).

Id.

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THE LEGAL ARGUMENT AGAINST CURRENT EMPLOYMENT CLASSIFICATION STANDARDS express purpose of the FLSA is to curb “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers” and that “[constitute] an unfair method of competition in commerce.”38 Put simply, there is very little distinction between roots of the California wage laws interpreted by Dynamex and the FLSA. On these grounds alone, there is little reason for federal courts to not utilize the same logic and apply the ABC test to the FLSA. The California Supreme Court also makes a strong argument in that the reigning “multifactor” tests’ ambiguity “often leave both businesses and workers in the dark” and “affords a hiring business greater opportunity to evade its fundamental responsibilities under a wage and hour law” by gaming the system to meet just enough of the factors to get away with contractor classification. 39 This confusion and exploitation does not comport with Congress’ intent and should not be countenanced by the courts any longer.

The Dynamex decision points out what is obvious to many workers in today’s economy: both the common law test and the economic reality test have failed to fulfill their purpose of defining what it means to be an employee and upholding the rights and privileges associated with such a definition. The FLSA, clearly intended to confer broad protections to as many workers as possible, has been judicially limited by the relatively narrow economic reality test. Thus, courts should take action to reinforce the expansive foundations of the FLSA. As the Supreme Court noted in U.S. v. Silk (1947), a case that arose before federal social welfare legislation was weakened, New Deal protective statutes were “an attack on recognized evils in our national economy” and “a constricted interpretation of the phrasing by the courts would not comport with [their] purpose.” 40 There is ample precedent contemporary to the passage of the FLSA, clear indicators of intent, and sound reasoning supporting the abandonment of the current classification system. The institution of the ABC

29 U.S.C. § 162(201).

Dynamex Operations W. v. Superior Court, 4 Cal. 903 (2018).

40 United States v. Silk, 331 U.S. 704 (1947).

38 39

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test in FLSA (and other “suffer or permit” statutes) cases is a strong remedy for the failures of the current standards to adequately capture modern realities.

Turning to the NLRA, the reigning classification scheme fails once again.

Unfortunately, the NLRA, which attacked fundamental imbalances in the employee-employer relationship and sought to protect the power of organized labor, does not include the “suffer or permit” language. However, this does not mean that workers should remain mired in the status quo when it comes to the NLRA and other statutes currently controlled by the common law rule. While years of precedent have refined and reaffirmed the control test, there is no statutory language in the NLRA requiring courts to apply this rule. The Act merely exempts independent contractors, without providing a definition. In fact, the guidelines laid out in the House committee report on the Taft-Hartley amendments (which emphasizes contractors’ ability to set their prices, control their work method, and hire subordinates) bears very little resemblance to the control test as it exists today. The modern control test allows Uber drivers, truckers, construction workers, and many other similarly-situated workers to be classified as contractors, even though they have little say over the price of their labor or the method in which they perform that labor. In short, these workers would most likely not have been viewed as contractors at the time of the TaftHartley amendments. The letter of the law does not require the application of the control test, and the spirit of the law is strongly contradictory to it. The Supreme Court should look towards formulating a new test that more accurately captures the intention of the NLRA, while accounting for the modern context.

In addition to a new test, a rebuttable presumption of employment would drastically limit misclassification and give misclassified workers more power to change their lot. A legal presumption of employment helps workers by shifting the focus of hirers from retroactive classification decisions to proactive compliance with the classification rules. Furthermore, it can also help “root out common misclassification tactics” and ensure that innovative or novel work relationships follow the rules. 41 As noted above, the presumption of 41 Anna Deknatel, Lauren Hoff-Downing, ABC On the Books and in the Courts: An Analysis of Recent Independent Contractor and Misclassification Statutes, 18.1. UPenn JLSC (2015) (analyzing current employee classification law and what can be done to improve it).

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THE LEGAL ARGUMENT AGAINST CURRENT EMPLOYMENT CLASSIFICATION STANDARDS employment is implicit in the structure of the ABC test due to the requirement that all three prongs must be met in order to classify a worker as a contractor.

Essentially, all workers are employees unless their hirer can demonstrate otherwise. However, the NLRA also implicitly requires a shifted burden.

While the burden of proof, i.e. who prevails in a case when the evidence is evenly balanced, is generally placed on the party bringing an action, the Supreme Court has held that certain statutes implicitly place that burden on the respondent. 42 In Schaffer v. Weast (2005), the Court considered whether a statute implicitly shifted the burden from the plaintiff to the defendant. The majority’s decision did not explicitly endorse a framework for determining shifted burdens but focused heavily on congressional intent. Moreover, it also reaffirmed the Court’s decision in United States v. New York, N. H. & H. R. Co that “[t]he ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary,” while emphasizing that this exception was not universal. Justice Ginsburg, in her dissent in Schaffer, endorsed the circuit court’s decision that the primary factors that can shift the burden are “policy considerations, convenience, and fairness.” 43 There is no firmly established rule for shifting burdens, but two things are clear: the general rule contains exceptions, and congressional intent and fairness are key factors in determining a shifted burden.

On each of these counts, the NLRA clearly implies a shifted burden of proof.

As for the question of intent and policy considerations, one has to look no further than the text of the Act itself to see that it was intended to favor workers in a lopsided struggle against their bosses. In the NLRA, Congress decried the “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers” and declared that “encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers” of their labor rights was the official policy of the United States.44 It does not make sense that Congress would craft a statute Schaffer v. Weast, 546 U.S. 49 (2005).

Id. 44 29 U.S.C. § 7(II)(151).

42 43

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explicitly designed to destroy inequity in the workplace and then allow structural inequities to stymie worker’s efforts in court. It is clear that Congress intended the NLRA to shift power structures in favor of workers, and therefore courts are entirely justified in shifting the burden of proof onto employers.

The case for a burden shift is strengthened by an analysis of the fairness factor. Employers, especially in high-profile cases, routinely have more legal firepower and institutional support than individual workers. For example, Uber drivers operate in an infamously fractured workplace and face significant barriers to assembling a strong case and effectively prosecuting it. Uber, on the other hand, has a seasoned legal team and is guaranteed ample support, and even a friendly amicus brief, from the Chamber of Commerce and other industry organizations. Both Justice Ginsburg and the majority looked for institutional expertise and experience that would make it systematically easier, less costly, and fairer – for all parties – for the defendant to bear the burden of proof.45 In the employment context, everyone’s convenience is served by placing the burden on employers, who typically have more institutional knowledge of their own employment practices and a higher capability to explain them than misclassified workers do.

Conclusion The economy has changed significantly since the New Deal of the 1930s. As a result of a potent combination of greedy corporate actors and regressive politicians, the principles of the era, such as leveling the playing field in the workplace, empowering workers, and ensuring that Americans can live and work in dignity, are fantasies to many Americans today. The powerful and groundbreaking laws passed during the New Deal remain on the books but have been hobbled by the courts. In order to fulfill the original purposes of protective labor statutes like the FLSA and the NLRA, courts must take actions that might seem bold in today’s anti-worker environment but are both reasonable and steeped in precedent. The ABC test is the right classification standard for the

45

Schaffer v. Weast, 546 U.S. 49 (2005).

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THE LEGAL ARGUMENT AGAINST CURRENT EMPLOYMENT CLASSIFICATION STANDARDS 21st century, and it is time for courts to reflect this reality. Lastly, Congress must provide leadership and codify the ABC test and a presumption of employment so that no more generations of American workers are deprived of dignity and justice.

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UCLA UNDERGRADUATE LAW JOURNAL Jacob Matthews*

No Free Lunches: A Case for Compensating NCAA Student Athletes ABSTRACT. This paper argues NCAA student-athletes in high-profit-grossing sports should be entitled to compensation for the services of athletic performance they provide. In collegiate sports such as football and basketball, the profit an institution makes from an individual’s services is much larger than the value of the scholarship given to the individual. The justification for the apparent inequity is that student-athletes are not professionals. Past rulings of the federal judiciary have clarified whether apprentices, trainees, and interns should be paid by law or statute.

Under the precedent set by these other non-employee laborers (NEL), NCAA student-athletes ought to be entitled to compensation when the amount, per athlete, of profit their sport grosses for the university is greater than the amount paid out to those athletes in scholarships. The paper concludes by suggesting an alternative to this precedent--a uniform payment to student-athletes on successful teams.

* Jacob Matthews is a fourth-year student studying history and geography at the University of California, Los Angeles. He extends his most sincere thanks to Greg Walsh, whose help in editing this paper was invaluable, as well as the Journal’s managing editorial team, whose many hours of work made this publication possible. He also thanks his parents and grandparents, who provide him with love and support that he hopes to pour onto others.

Editor: Greg Walsh is a fourth-year history student at the University of California, Los Angeles.

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES Introduction There is no such thing as a free lunch, especially for a National Collegiate Athletic Association (NCAA) athlete. Under the present structure, having someone else pay for lunch is a violation of the non-compensation guidelines given to student-athletes. Granted, these student-athletes are provided with scholarships in exchange for the product of their athletic performance.

However, anything more than the scholarship, even if it is just a free lunch, comes with repercussions.

In 1995, Donnie Edwards was an All-American linebacker for the UCLA football team. On a local radio station, Edwards spoke of how his UCLA athletic scholarship only covered tuition, room, and board. In addition, the time he spent with the UCLA football program meant there was no opportunity to work a parttime job and, consequently, he could not afford groceries. A few days after the radio show, an agent left $150 worth of groceries on Edwards doorstep. Edwards did not explicitly request this donation, other than his simple statement on the radio show. When it was reported to the NCAA, Edwards was suspended for a game.1 Specifically, he was said to be guilty of soliciting payment for his athletic activity, which constituted a violation of NCAA bylaws.2 However, Edwards’ statements on the radio did not resemble solicitation and were simply an observation of his situation. The lack of structure for compensation, which leaves high profile student-athletes with unmet basic needs, is a principle central to this paper.

Throughout the history of the United States, courts and other government actors have produced rulings and legislation to protect workers. These protections are applicable even when the individuals in question are not explicitly called “employees.” Various rulings by the federal judiciary prove that is the case for a number of non-employee laborers (NEL) such as Joe Nocera & Ben Strauss, HOW NORTHWESTERN FOOTBALL UNION NEARLY CAME TO BE SPORTS ILLUSTRATED (2016), https://www.si.com/college/2016/02/24/northwestern-unioncase-book-indentured (last visited Mar 11, 2020).

2 Principles of Amateurism, Legislative Services Database (LSDBi - NCAA), https://web3.ncaa.org/lsdbi/bylaw?bylawId=2470&division=1&adopted=0 (last visited 2020).

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apprentices, trainees, and interns. Until the last decade, no ruling has addressed the possibility of providing similar legal protections to student-athletes.

As a result, high-level college athletes across the country continue to labor without compensation under an exploitive structure. The current discussion on whether or not they should be paid centers around their titles of “studentathletes” and how this makes them “amateurs.” This article examines the principle from a different angle, arguing that the title given to an individual should not be the issue. Based on legal precedent created by the Supreme Court’s opinions on other non-employee forms of labor, student-athletes in sports that produce a profit ought to be paid beyond the scholarships they currently receive. Regardless of what previous laborers have been called or designated by the institutions for which they work—be it apprentice, trainee, or intern—cases still have been brought to question the lack of compensation for work by these groups.

This topic is of particular interest today because of the increased profits universities are grossing from college sports: the product of the student-athletes' performance. This results in more time being poured into these sports, which in turn makes the student-athletes increasingly resemble professionals. This evolution has created high levels of exploitation where the compensation granted to these student-athletes, which is given in the form of scholarships, is remarkably low in comparison to the value of the services they provide. Without a resolution to this issue, the nation is left with universities full of athletes, like Donnie Edwards, who have gained national fame but still find themselves unable to afford basic necessities like groceries.

This paper seeks to show that NCAA student-athletes within high-profit driving sports, which is any sport where the amount of profit brought in by the institution far surpasses the value of the scholarships given to the athletes, are deserving of compensation from the institutions for which they work. There is an inconsistency today with how student-athletes are treated versus other NEL. This paper claims student-athletes should be treated using the same criteria as other NEL, based on the benefits their institutions gain from them. Specifically, this paper will touch on administrative and antitrust topics but will deal mostly with labor law. In Part I, I will explore rulings in other forms of non-employee

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES labor, introduce the Supreme Court’s six-factor test, and contextualize the NCAA athlete’s position under this analysis. Part II advances the argument by examining the present situation for student-athletes: namely, what court rulings have looked like in terms of compensation, along with some recent legislation at the state level concerning potential commercialization. Part III provides evidence of how the NCAA and member institutions profit (to the tune of millions of dollars) from the labor of these athletes. Part IV shows a key parallel with Stanford University v. Roche Molecular Systems (2011) to which one can look for a possible solution. The paper concludes by synthesizing this information to make it clear that, due to historical precedent concerning other NEL and the profits student-athletes bring to their universities, these athletes deserve compensation that goes beyond their current scholarships.

I. Past Non-Employee Labor Legal history in the United States shows a number of times individuals have had titles that did not make them direct employees of the institution for which they labored. In these cases, courts have consistently created frameworks by which to evaluate the labor of an individual to determine if they should be compensated. In the context of this article, precedent dictates terming studentathletes “amateurs” or “student-athletes” need not be the determining factor as to whether they should be compensated. This section aims to demonstrate that there is significant precedent in rulings for NEL to move the discussion beyond whether NCAA student-athletes are truly amateurs to an analysis of whether their labor, regardless of their title, constitutes compensation.

A. Legislative Background The discourse on protections for NEL began with apprenticeships, which since have been filtered out of our present-day economy. From 1933 to 1935, apprenticeships were regulated under the National Industrial Recovery Act. Section 7(a) of this Act was a victory for progressives, as it provided collective bargaining rights for unions. Unfortunately, it made no mention of non-

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employee forms of labor. After Supreme Court cases Panama Refining Co v.

Ryan 3 (1935) and Schechter Poultry Corp v. United States 4 (1935), the Act was declared unconstitutional not because of its lack of worker protections, but because of unfair regulations it placed on the affected industries. Consequently, the Department of Labor addressed shortcomings by creating a Federal Committee on Apprenticeship, which submitted a proposal for the National Apprenticeship Act, otherwise known as the Fitzgerald Act, in 1937. The Act set standards for wages, working conditions, and hours an apprentice could work. Its effect was similar to that of the ruling in West Coast Hotel Co. v. Parrish 5 (1937), in which the Supreme Court upheld the constitutionality of minimum wage legislation.

There was enough of a distinction between apprentices and employees that lawmakers deemed it necessary to create separate laws regulating them. The Fitzgerald Act, by building on previous legal precedent, regulated both the role of and the fair working conditions of apprentices in the workplace. In addition, it altered how these apprentices would be regulated as “The Secretary of Labor may publish information relating to existing and proposed labor standards of apprenticeship.” 6 This gave a name to the actual legislative body which would regulate apprentices. The Act also created separate legal regulations to distinguish apprentices from employees, setting in motion two critical items of historical relevance. First, it displayed a trend toward increased protection for non-employee forms of labor. Secondly, and perhaps more importantly, it created a new class of laborers (apprentices, in this case) and articulated the need to regulate them differently. Thus, there is reason for the argument set forward in this paper. The United States has been faced previously with issues concerning groups of NEL and has seen the labels placed on these individuals within the workplace as non-defining factors for just compensation.

A critical addition to the definition laid out by the Fitzgerald Act was the Fair Labor Standards Act of 1938. The Act established a minimum wage law at Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

5 West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).

6 National Apprenticeships Act. (29 U.S.C. § 50) (1937).

3

4

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES the national level and created the forty-hour work week. This was a landmark change for American labor. It established an individual would be considered an employee if the organization garnered an “immediate advantage” from them. 7 This was understood as the institution being able to attribute any gains in productivity and or profit to the individual.

B. The Six-Factor Test and its Applications The Fitzgerald Act and the Fair Labor Standards Act were critical developments in government interaction with business. Essentially, the Department of Labor and its Secretary were given unilateral authority to create structures to regulate apprentices and other non-employee forms of labor. The Supreme Court would later clarify these definitions in Walling, Wage and Hour Administrator v. Portland Terminal Co. (1947). The central issue of the case was whether individuals trained by the company ought to be compensated for their time during training. Part of the training these individuals took part in was actual work an employee would have been expected to do. This came into conflict with the Fair Labor Standards Act, as no wages were being provided to the individuals. It also was a challenge to the Fitzgerald Act by questioning whether these individuals were actual employees of the railroad company. 8

7

Fair Labor Standards Act. (29 U.S.C. § 203) (1938).

By clarifying that NEL can in fact be entitled to compensation, it addresses a compelling counterargument which could be mounted against their potential payment. An argument could be made that these student-athletes are in a training of sorts to get them to the next level of their sport. [Ex: a college football player is receiving the training and exposure to prepare for a career in the National Football League (NFL)]. This was a critical point in the O’Bannon case discussed in Part II, for the claim made was the NCAA essentially had a monopoly on the training, forcing athletes to go into a zero-pay system, as opposed to seeking to invest their talents elsewhere during this “training period.” A further argument could be made that alternative solutions (such as international leagues for basketball or the Canadian Football League for football) could be undertaken by some athletes. However, there are presently so few individuals domestically to have emerged from any potential alternative to the NCAA and have a successful career in the professional leagues that they can be viewed as anomalies rather than the norm. For these reasons, such alternatives can be ruled out as potential training arenas, as their success rate for aspiring athletes is markedly lower.

8

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The petitioners in Walling presented the concern that they were not being paid during the supervised time where they engaged in the work of employees.

The Court agreed this was a violation of the Fair Labor Standards Act, claiming that the “purpose as to wages was to ensure that every person whose employment contemplated compensation should not be compelled to sell his services for less than the prescribed minimum wage.”9 The respondents in the case, representing the Portland Terminal Company responded that these individuals were not employees, but merely trainees, and therefore they were under no obligation to pay for their services. The Supreme Court agreed with this claim but qualified it by stating “without a doubt the Act covers trainees, beginners, apprentices, or learners if they are employed to work for an employer for compensation.” 10 Then, the question became whether trainees ought to be compensated.

After the Court investigated, it concluded the trainees’ “work does not expedite the company business but may, and sometimes does, actually impede and retard it.” 11 This is the reason why the railroad company was not obligated to give wages to trainees. Under the Fair Labor Standards Act and provisions laid out by the Secretary of Labor after the Fitzgerald Act, a company would not have to pay wages to employees unless they provided an “immediate advantage” to the company. In other words, the Court concluded that there would be no obligation on a company’s part to pay their NEL unless there was a tangible benefit garnered by doing so.

To clarify the change further, the Supreme Court set out a framework revised later by the Department of Labor to clarify the difference between an employee and a trainee. The guidelines are paraphrased below: 1. The training is similar to that of a vocational school, even though it is by an employer.

2. The training is done in order to benefit the trainees.

3. The trainees do not take the jobs of regular employees but work with close supervision.

4. The employer does not receive an immediate benefit from the trainee.

9

Walling v. Portland Terminal Co., 330 U.S. 148, 153 (1947).

Id at 152.

11 Id at 150.

10

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES 5. The trainees are not guaranteed a job with the employer after training.

6. Both parties understand that the trainees are not entitled to any sort of wages for the time spent in training. 12

This multi-stepped qualification metric was based on precedent laid out in Walling v. Portland Terminal Co. in 1947. It would later be referred to as the “sixfactor test” in determining an individual’s right to compensation, which paved the way for the system we have today.

Applying the six-factor test presented by the Supreme Court to current student-athletes proves to be gratifying for advocates of student-athlete compensation. In numerical order, the first factor is somewhat difficult to sort through, since there is no vocational school for an athlete beyond the high school level. Since there is no universal alternative, the first factor can be counted as a draw. Moving on, an argument can be made that training is done to benefit the applicants, as they are able to exercise their skillset, and gain exposure that would not be possible through other means. Thus, the second factor seems to be fulfilled.

The third factor is irrelevant since there are no regular employees of the same stature. However, the fourth factor is particularly contentious, as the institutions can receive millions of dollars in profit from the product of these student-athletes’ athletic performance. 13 Quantifying individual contributions to profits earned is difficult. With no obvious solution, stagnation and the status quo win out, which is part of the reason student-athletes are being exploited today. The fifth factor is fulfilled, since there is no guarantee of a job either with the institution or in their sport’s professional league upon completion. The sixth factor is unclear as applied. Not only is the question of wages already an issue, but there is an expectation on the part of the athlete that they will be compensated in the form of scholarships and other “cost of attendance” 12 Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act, Wage and Hour Division (1993), https://www.dol.gov/agencies/whd/fact-sheets/71-flsa-internships (last visited 2020).

13 Greg Johnson, THE NCAA MAKES BILLIONS AND STUDENT ATHLETES GET NONE OF IT THE NATION (2015), https://www.thenation.com/article/archive/ncaa-makes-billions-and-studentathletes-get-none-it/ (last visited Mar 11, 2020).

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expenses. Due to disagreements on the fourth and sixth factors, student-athletes cannot be viewed as trainees of their universities.

The six-factor test was notably utilized in the case of Donovan v. American Airlines Inc. (1982). The Secretary of Labor himself petitioned the case within the Fifth Circuit Court of Appeals after trainees with American Airlines brought forth the claim that they ought to be paid for their time during training. A simple reading of this case with the precedent of the six-factor test resulting from Walling v. Portland Terminal Co. would show the airline need not pay the trainees. However, much like the situation with the NCAA and studentathletes, a deeper analysis is required to contextualize within the test. At their headquarters in Dallas, American Airlines would train applicants, who had already been through a selective process, to be flight attendants. American Airlines paid for the selected individuals to fly out and also paid for room and board during the time of training. There were careful provisions within the training, such as that “Each trainee acknowledges, in writing, that he or she is not an employee during training, and acceptance for training is not an offer of employment by American.”14 By having this distinction agreed to by the individual, American’s training met criteria five and six of the six-factor test as well.

However, there was a claim by the trainees the Airline may directly benefit from their work. Specifically in regard to the flight attendant training, “Each trainee makes one observation flight as a passenger and then one orientation flight required by the FAA.” 15 The fact the flight attendant trainee went on flights could have caused a problem for the airline, if it were not for the provision that read “during training, no trainee supplements the work of, or replaces, any American employee [and has no] without contact with passengers [thus] does not assist on any commercial flight.” 16 This kept the airline’s training program compliant with factors 3 and 4, strengthening the argument that they had no obligation to pay trainees.

14Donovan

v. American Airlines, Inc., 514 F. Supp. 519, 526 (5h Cir. 1981).

Id at 530.

16 Id at 532.

15

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES The most significant issue American Airlines encountered was if the qualifications their training offered could be obtained at a vocational school. If a comparable program existed, the relevant precedent meant employers ought not be punished for providing the same service for free. Although this issue was a critical point of argumentation in this case, it holds little relevance for the case of student-athletes since there is no parallel. In brief, all American Airlines had to do was abbreviate training for individuals coming out of this specific junior college to clarify their definition as trainees.

Donovan v. American Airlines is important to the case of NCAA studentathletes because the trainees of American Airlines were already provided with benefits (flight to the training facility, room and board during training).

However, the Supreme Court still understood this compensation may not be equal to the services the trainees provided. American Airlines could not cover the expenses of training for their trainees and then expect to use them as employees. As with student-athletes, who are provided with scholarships, room and board, and other expenses there is good reason for them to receive further payment.

Nobody today is equating student-athletes with trainees, so they are not required to have the same protections. However, the comparison serves the purpose of showing how, if the student-athletes were viewed as trainees, they would be obligated to be paid.

C. Alternative Comparison While it is not the aim of this article, a comparison between NCAA studentathletes and trainees can be made. A grey area arises in attempting to discern whether the same treatment should be afforded to student-athletes. In addition to delving further into this debate, this paper will proceed with making a comparison to interns, who continuously are becoming more of an integral part of Western economies. Just like student-athletes, the labor of these modern-day interns looks very different from that of the apprentices and trainees on which the Court previously made rulings. By nature, they seem not to fit within the six-

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factor test previously used in cases by the Supreme Court. The modern-day internship has students doing work that could not be learned at a vocational school and also often matches the schedules and routines of full-time employment. In fact, interns are generally involved enough in the work of companies, non-profits, and government agencies that they are given training on adhering to ethical standards as well as to different laws and regulations. 17 Although these internships can benefit the individuals participating in them, which is the third factor laid out by the Supreme Court in 1947, there are cases of companies profiting from interns. In these cases, the companies violate the six-factor test, making it compulsory for them to compensate their interns.

This principle is most clearly demonstrated in Glatt v. Fox Searchlight Pictures (2015). The context for this case is fairly simple: there were two interns who had worked on Fox’s production of the movie Black Swan. Before they had begun their internship, they had known they would be unpaid. However, when the film was released, they saw their work was actually displayed in the movie, meaning Fox was profiting from the labor they made without compensation.18 This led them to file a case against Fox, which eventually would become a class action suit as other Fox interns, past and present, realized the corporation had done the same thing with their work. The Second Circuit Court of Appeals set an important precedent in this case after it ruled Fox had treated the work of the interns the same as it would have for employees, which entitled the interns to back payments.

The Court employed the six-factor test laid out by the Department of Labor to determine the unpaid interns’ employment status stating that “The district court found that the first four factors weighed in favor of finding that Glatt (and Footman) were employees and the last two factors favored finding them to be trainees.” 19 With no previous legal framing as to how unpaid interns would be classified, the federal court moved to have them effectively defined as Brian Mollen Debra Baird, INTERNSHIP, PRACTICUM, AND FIELD PLACEMENT HANDBOOK (2019), 74.

18 Eriq Gardner, INTERNS WIN HUGE VICTORY IN LABOR LAWSUIT AGAINST FOX THE HOLLYWOOD REPORTER (2013), https://www.hollywoodreporter.com/thr-esq/interns-winhuge-victory-labor-566360 (last visited Mar 11, 2020).

19 Glatt v. Fox Searchlight Pictures, No. 13-4478, 535 (2d Cir. 2015).

17

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES employees, mainly due to the magnitude of the immediate benefit garnered from the interns’ work.

The court decided to create a test, not unlike the one that came out of Walling, to discern whether unpaid interns should be paid.20 The court acknowledged that every unpaid internship operates differently, but deferred to the Department of Labor to make a test to differentiate unpaid internships from those obligating payment. 21 Federal courts understand there is exploitation of unpaid interns occurring and have made a ruling on an instance when these interns ought to be paid but have neglected to create the framework necessary for wider adoption. While it is true the judiciary usually aims to rule only on the specific, narrow legal questions in front of it, exigent circumstances demand action.

The most important takeaway for the purposes of this paper is that when faced with a new kind of non-trainee, non-employee labor dispute, i.e. with interns, the Supreme Court defaulted to the same six-factor test used for trainees. Thus, the analysis given to the key fourth factor, of the institution gaining an immediate advantage from the individual, can and ought to be extended to the student-athletes as well.

II. The Current State for NCAA Athletes This section is intended to give a picture of the current debate overcompensation for student-athletes. Previous discourse over the issue revolved around the notion that student-athletes are amateurs. The NCAA vehemently defends this fact. It has long stood at the core of its bylaws which state, in part: Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation,

20 21

Id at 536.

At this time, no such test has been published.

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UCLA UNDERGRADUATE LAW JOURNAL and student-athletes should be protected from exploitation by professional and commercial enterprises. 22

In other words, amateurism is what differentiates “student-athletes” from professionals. Additionally, making the student-athletes amateurs from the outset means the door does not ever open to potential business-type issues (agents, marketing, payment disputes, etc.) that could distract the individual even more from academic endeavors.

The implications of this amateurism clause are made explicit in the titles given to these individuals. A “student-athlete” is named as such to show academics are the primary focus. But oftentimes, the relationship between the two is not so black and white. The NCAA’s bylaws create a structure in which athletics are almost treated as a hobby: A student-athlete may receive athletically related financial aid administered by the institution without violating the principle of amateurism, provided the amount does not exceed the cost of education authorized by the Association [....] Any other financial assistance, except that received from one upon whom the student-athlete is naturally or legally dependent, shall be prohibited unless specifically authorized by the Association. 23

This puts many student-athletes in a difficult position. The “hobby” is often the only reason these individuals can afford to attend the universities, especially with the rising costs of college. The NCAA’s governance is predicated on the fact that its athletes are amateurs, and that their parents or legal guardians (those upon whom the athlete would be “naturally or legally dependent”) are the only ones who can provide them any sort of financial support. Under the system created by these bylaws, neither universities nor third parties can compensate these athletes, which the NCAA claims protects the athletes against potential exploitation. However, as seen in the case of Donnie Edwards, this puts many student-athletes in a position where they are unable to afford basic necessities.

Theoretically, the NCAA wants to protect student-athletes. However, sometimes it is actually the NCAA who has collaborated with said exploitive 22 Principles of Amateurism, Legislative Services Database (LSDBi - NCAA), https://web3.ncaa.org/lsdbi/bylaw?bylawId=2470&division=1&adopted=0 (last visited 2020).

23 “Principle Governing Financial Aid.” Legislative Services Database (LSDBi - NCAA), https://web3.ncaa.org/lsdbi/reports/pdf/searchPdfView?id=2447&businessCode=BYLAW_S EARCH_VIEW (last visited 2020).

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES forces. Most outside actors would use the likenesses of the athletes for advertising if given the opportunity. In 2009, a former college athlete realized there may already be exploitation occurring. Ed O’Bannon was a star basketball player at UCLA from 1991 to 1995.24 Upon discovering his likeness was being used in an EA Sports video game, he sued both Electronic Arts (EA) Sports and the NCAA, alleging they had used his likeness without permission. Both institutions were profiting from this unauthorized use of his likeness in a video game, completely separate from his actual on-the-court performance. Thus, the Ninth Circuit Court of Appeals ruled in the 2014 case of O’Bannon v. NCAA that athletes are entitled to $5,000 for the use of their name, image, and likeness rights. Essentially, it established that these components were separate from the product the athletes were putting out in their athletic endeavors, and, thus, entitled the athletes to some sort of compensation.25 This established that the institution did not have the exclusive rights to sell or profit from the likeness of the athlete without said athlete receiving compensation.

However, the next year the same court reversed the ruling, stating that the institution did not need to provide an additional $5,000, but instead simply cover the cost of attendance. The flip-flop changed nothing for student-athletes, for under NCAA rules, the “full cost of attendance” cannot extend beyond tuition, fees, room, board, and a stipend for textbooks and travel expenses.26 But, as all of those attendance costs already were provided, the value of the likeness, including the rights to use that likeness in televised broadcasts of games, was essentially included in their scholarship.

In 2015, the same court faced a challenge to the structure created in O’Bannon, this time directed at the scholarships. In Jenkins v. NCAA (2015), petitioners contended that athletes get shortchanged by capping the value of athletic scholarships to the cost of attendance. Although this pays for the

24

Jon Solomon, TIMELINE: ED O'BANNON VS. NCAA CBSSPORTS.COM (2015), https://www.cbssports.com/college-basketball/news/timeline-ed-obannon-vs-ncaa/ (last visited Mar 11, 2020).

25 O'Bannon v. NCAA, No. 14-16601 (9th Cir. 2014).

26 Id at 1076–79.

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education student-athletes are provided with, it does not measure up to the net profit universities and coaches see from their teams’ athletic endeavors. 27 Student-athletes are in a position where the only place they can actually take their talents is to these schools. At the schools, the coaches and athletic departments can pour millions into the facilities surrounding the athletes, but the Ninth Circuit Court of Appeals ruled that nothing can be directly invested into the individual athletes themselves. In the opinion, the court ruled that “To be viable, an alternative must be ‘virtually as effective’ in serving the procompetitive process of the NCAA [...] without substantially increasing the cost.” 28 Paying the athletes would substantially increase the costs to the NCAA, as their profits would now be paid out, in part, to the creators of their product.

Therefore, the court essentially ruled against any payment for the athlete coming from the NCAA itself.

Some analyses equate Jenkins v. NCAA with a later case, Alston v. NCAA (2016), which was a class action suit requesting settlements for former Division I basketball and football players exploited by the system. 29 However, there is a crucial difference in that Jenkins was concerned with future compensation rather than with damages for past injuries. 30 Many former NCAA student-athletes have filed similar lawsuits against the NCAA, many of which have evolved into class action suits. Little if any resistance comes from those who are currently student-athletes. With over 460,000 student-athletes competing today, it could be possible for the group to unionize, perhaps even by sport. However, they have been denied the right to unionize due to the fact that the athletes are defined as amateurs and the sport as a hobby. After all, who unionizes over a hobby?

The lack of unionization has not gone unchallenged. In 2014, major action was taken to counter the NCAA’s amateurism claim and state that student27 Jenkins v. Nat'l Collegiate Athletic Ass'n (In re Nat'l Collegiate Athletic Ass'n Athletic GrantIn-Aid Cap Antitrust Litig.), No. 14-md-2541 CW (N.D. Cal. Aug. 5, 2016).

28 Id. at 13-15.

29 Alston v. Nat'l Collegiate Athletic Ass'n (In re Nat'l Collegiate Athletic Ass'n Athletic Grant-In-Aid Cap Antitrust Litig.), No. 18-15054 (9th Cir. Apr. 17, 2019).

30 Michael McCann, NCAA AMATEURISM, SCHOLARSHIP RULES T O GO ON TRIAL SPORTS ILLUSTRATED (2018), https://www.si.com/college/2018/04/02/ncaa-amateurism-trial-judgewilken-martin-jenkins-scholarships (last visited Mar 11, 2020).

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES athletes were in fact employees. Kain Colter, a former quarterback at Northwestern University, and Ramogi Tuma31, a former UCLA linebacker, organized the entire Northwestern football team’s signing of National Labor Relations Board cards.32 These cards served as their application to unionize. If granted, it would show they were employees of the institution for which they labored and were entitled to all the rights that relationship entails.

The Board found that, in accordance with the National Labor Relations Act, which lays out the actual criteria for an “employee,” the Northwestern football players were in fact employees of the University.33 But, in a surprising departure from the finding, the NLRB voted unanimously not to approve the Northwestern athletes’ formation of a union. The NLRB had the authority, but they declined to deem these athletes’ employees because of the structure of NCAA football. Asserting jurisdiction over Northwestern football players would not promote labor stability, they claimed. Essentially, the Board denied the claim the football players were employees because the Board did not have the right to rule on whether the players’ peers were employees.

Northwestern is a member of the Big Ten conference (which has twelve teams, due to shifting league membership over the decades). Eleven of these schools are state-run institutions, over which the NLRB does not have jurisdiction. Thus, the Board ruled Northwestern football players were not seen as employees and therefore did not have the right to unionize.34 The structure of the NCAA prevailed. With almost half a million athletes competing for both public and private institutions, it is difficult for the NCAA (a third party to state governments and actual member institutions) to regulate uniformly across the country. The levels of existing bureaucracy worked in favor of the NCAA, with

31

Notably, Tuma played football at UCLA with Donnie Edwards, the student-athlete who was suspended for a game after receiving free groceries.

32 Joe Nocera & Ben Strauss, HOW NORTHWESTERN FOOTBALL UNION NEARLY CAME TO BE SPORTS ILLUSTRATED (2016), https://www.si.com/college/2016/02/24/northwestern-unioncase-book-indentured (last visited Mar 11, 2020).

33 National Labor Relations Act, Section 2(3) 34 Northwestern University - 1352 (Aug. 17, 2015), https://www.nlrb.gov/case/13-RC-121359.

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the NLRB ruling that if it had a wider jurisdiction or legislative mandate, it would define the Northwestern football players as employees.

In opposition to the NLRB, which took a step back to allow for legislative bodies to enact laws protecting student-athletes, the California state government has taken a stand. With little regard for how a similar law may be written or passed in other states or how the NCAA would respond, California created a “likeness” bill. Although it changed little in the way of the employment status of current student-athletes, it does create the possibility for them to profit from their likenesses in the future. CA SB 206 reads: This bill would prohibit California postsecondary educational institutions except community colleges, and every athletic association, conference, or other group or organization with authority over intercollegiate athletics, from providing a prospective intercollegiate student athlete with compensation in relation to the athlete’s name, image, or likeness, or preventing a student participating in intercollegiate athletics from earning compensation as a result of the use of the student’s name, image, or likeness or obtaining professional representation relating to the student’s participation in intercollegiate athletics. 35

Notice anything? The words “allowed to profit from their likeness” do not actually appear in the bill. The text indicates that athletes at any university in California, private or public, cannot be disallowed from profiting from their likeness. Put simply, it means that starting in January 2023, if any company, from Nike to a local sandwich shop wanted an athlete to advertise for them and were willing to pay, neither the NCAA nor the athlete’s institution could stop the transaction. The bill also makes no claim as to whether these athletes are amateurs or professionals. 36 No doubt, this is a clever move by the California state legislature, as it makes it more likely the bill would survive a possible court challenge. However, it does show the state is not presently positioned to get involved in the debate as to 35

Steven Bradford & Nancy Skinner, California SB 206 LegiScan (2019), https://legiscan.com/CA/text/SB206/id/2055437/California-2019-SB206-Chaptered.html (last visited 2020).

36 Members of the NCAA Board of Governors, NCAA RESPONDS TO CALIFORNIA SENATE BILL 206 NCAA.ORG - THE OFFICIAL SITE OF THE NCAA (2019), http://www.ncaa.org/about/resources/media-center/news/ncaa-responds-california-senatebill-206 (last visited Mar 11, 2020).

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES whether the institutions themselves would have to pay student-athletes. This is more of an intermediary step, in which the athletes are allowed to gain some sort of compensation from a third party, but only after they work for or contract with that third party. This potential payment is a result of their labor as athletes (which is why businesses would want to use them for advertising in the first place), but there is still no compensation from the institutions themselves.

Again, the artificial distinction of amateurism causes conflict as professional athletes are allowed to seek out sponsorship deals but are still paid by the club for which they play. The passing of this bill is momentous, but it is closer to an incremental progression than a final resolution.

At this time, the NCAA has come out firmly against the bill, saying it would upend the competitive balance of recruiting for member institutions. Obviously, if one is able to be paid in one place but not another, they are more likely to choose the former.

III. NCAA Profiteering The claims of previous NEL have been fairly simple. In essence, there is a desire to be compensated if certain conditions, such as the institution for which they labor are for profiting from them, are met. Additionally, that this compensation would be comparable to that which others within the institution are receiving. In this section, these claims will be contextualized in the present situation for student-athletes.

It is without a doubt student-athletes are providing an immediate benefit to the institutions they play for by generating profits.37 The magnitude of these profits is astounding. For example, in 2010, the NCAA Division I Men’s Basketball tournament signed a 14-year deal with CBS/Turner for exclusive television rights to the “March Madness” tournament, valuing it at $10.8 billion. In 2016, the parties signed an 8-year extension which tacked on an 37

There is a clear disparity between sports and gender in regard to the notoriety and profits gained from either. The ways in which this would be dealt with in compensation will be addressed in Part V.

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additional $8.8 billion. While this is distributed to different participant institutions, players in the tournament will not see any money garnered from the display of their talents.38 By comparison, because of his teams’ success on the court and stature in the profession, Mike Krzyzewski, the coach of Duke Men’s basketball, is paid $8.9 million annually, while the players actually creating the product are each compensated with the cost of attendance of attending Duke: just over $60,000.39 The PAC 12, the athletic conference of which UCLA is a part, is currently on a 12-year contract with ESPN/FOX, valued at $3 billion, which breaks down to $20.8 million a year per school.40 Due to his role in creating this deal, PAC 12 Commissioner, Larry Scott, is paid $5.3 million annually. Meanwhile, studentathletes at the most expensive PAC 12 institution, University of Southern California (USC), receive scholarships of around $65,000 for the cost of their attendance, even though their product (athletic performance) is what the TV networks are purchasing. These numbers are only from television deals and do not include boosters’ donations. Granted, they are from the two highest grossing sports, but the point stands that state schools receive an enormous financial benefit from basketball and football, enough that they are willing to pay coaches and commissioners more than they pay any other employee in the entire state.41 For example, California Governor Gavin Newsome earns $210,000 per year.

The discrepancy between coach and player compensation reveals an incredible amount of pay inequity between the NCAA and professional levels.

A direct comparison can be seen in the city of Los Angeles between UCLA 38

Rodger Sherman, NCAA WILL NOW MAKE $1 BILLION FROM TV RIGHTS (2016), SB Nation, https://www.sbnation.com/college-basketball/2016/4/12/11415764/ncaa-tournament-tvbroadcast-rights-money-payout-cbs-turner (last visited Mar 11, 2020).

39 Marc Edelman, COLLEGE BASKETBALL PLAYERS GET NONE OF THE NCAA TOURNAMENT REVENUE -- IS IT TIME TO UNIONIZE? FORBES (2018), https://www.forbes.com/sites/marcedelman/2018/03/18/college-basketball-players-get-noneof-the-ncaa-tournaments-revenues-is-it-time-to-unionize/#15e563b35b47 (last visited Mar 11, 2020).

40 Kristi Dosh, A COMPARISON: CONFERENCE TELEVISION DEALS ESPN (2013), https://www.espn.com/blog/playbook/dollars/post/_/id/3163/a-comparison-conferencetelevision-deals (last visited Mar 11, 2020).

41 HIGHEST-PAID EMPLOYEE IN YOUR STATE? IT'S PROBABLY A COACH , ESPN, http://www.espn.com/espn/feature/story/_/id/19019077/highest-paid-us-employees-domi nated-college-football-college-basketball-coaches (last visited Mar 11, 2020).

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES football and one of the city's NFL teams, the Los Angeles Rams. Chip Kelly, the current coach of UCLA football, signed a contract in 2017 with an average of $4.78 million per year for five years,42 making him the highest paid employee of the state of California. Meanwhile, athletes on the UCLA football team get cost of attendance scholarships averaging around $38,000. This means that Chip Kelly is paid about 125.8 times the amount that each of his players is paid (in the form of scholarships). To contrast with the same metrics on a professional team, Sean McVay, the head coach of the Los Angeles Rams, also signed a five year contract in 2017 valued at $1.2 million a year. 43 In context, his salary is less than those of seventeen players on the Rams, the highest paid of whom makes $10.2 million.44 In the NCAA, a potential solution would attempt to scale the compensation of athletes on a particular team to that which the coach of that team receives.

IV. Parallels and Solutions Although the financial benefit these institutions receive from certain sports is huge and obvious, at the onset, it may be difficult to reconcile compensating an individual for profits they bring to an institution with the scholarships they are already given. Fortunately, a loose parallel exists in the case of technology transfers.

A technology transfer is defined as an assignment of technological intellectual property (IP), developed and generated in one place, to another party through legal means such as licensing or franchising.45 In other words, it 42

Ben Kercheval, UCLA SIGNS CHIP KELLY TO FIVE-YEAR DEAL TO BECOME NEXT BRUINS COACH CBSSPORTS.COM (2017), https://www.cbssports.com/college-football/news/ucla-signschip-kelly-to-five-year-deal-to-become-next-bruins-coach/ (last visited Mar 11, 2020).

Jenna West, RAMS EXTEND SEAN MCVAY AND GM LES SNEAD THROUGH 2023 SPORTS ILLUSTRATED (2019), https://www.si.com/nfl/2019/07/26/sean-mcvay-les-snead-contractextensions-rams (last visited Mar 11, 2020).

44 NFL 2019 Player Salaries, Pro Football Reference, https://www.pro-footballreference.com/players/salary.htm (last visited Mar 11, 2020).

45 What is Technology Transfer? Business Dictionary, http://www.businessdictionary.com/definition/technology-transfer.html (last visited Mar 11, 2020).

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allows an individual to gain patent rights to an invention that they create under the direction of an institution. Regardless of whether the individual used the resources of the university, they are still entitled to compensation from their invention. Licensing technology innovations on federally funded projects were standardized by Congress in 1980 through the Bayh-Dole Act. The Act allowed contractors who created an invention under a federally funded project to retain rights to the patent. Previously, rights to the patent would be retained by the project unless it was determined that turning the patent rights over to the individual contractor would serve better the public interest.

This came to a head in Stanford University v. Roche Molecular Systems (2011), in which the University contended that Roche, a student, had infringed on patent rights for diagnostic tests for HIV infections. Roche responded that they held joint patent rights, since one of their scientists (Mark Holodniy) had previously worked on the team that invented the tests at Stanford. The case started in district court, where the court maintained that Stanford could keep the title to the inventions unless they desired to give them to Holodniy. They also ruled the patent claims were invalid for obviousness. At this point, both parties appealed, and the case went to the 9th Circuit Court of Appeals. There, the appellate overruled the district court, stating that the Bayh-Dole Act does not void an otherwise valid transfer of rights, which was present in this circumstance. Stanford appealed the decision, and the case went to the Supreme Court in 2011. The Court affirmed the rulings of the Circuit Court, stating that patents do not unilaterally become vested with the university. 46 Chief Justice Roberts went so far as to say that US patent law, even since 1787, has initially vested the inventor with IP rights; the Bayh-Dole Act does not change this fact.

The Supreme Court’s ruling in Stanford v. Roche made it official that when an individual invents a product at a university, they are entitled to the patent and the rights thereafter. To be sure, individuals in Roche’s position do not necessarily get a “free ride” like their peers in the athletic department do via scholarships, but their work does yield immediate benefits to Stanford, so there 46 Board of Trustees of the Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc., 563 U.S. 776 (2011)

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES is some similarity in terms of regulating student labor. The decision’s reach does not come into conflict with any salaries, scholarships, or other compensation the individual is afforded by the university, whether they are an undergraduate student, graduate student, post-doctoral researcher, or professor. So, why is it so different when it comes to the product that athletic teams produce? They are not employees of the university, as decided by the National Labor Board. They cannot be classified as trainees according to the six-factor test laid out by the Supreme Court. But, when they as members of the institution create a product that brings in profit to the university, they do not receive any of it. As such, the lack of compensation for student-athletes violates precedent and regulations set by multiple bodies on state and federal levels for numerous reasons.

A solution would be very difficult to implement, as seen by the pushback from the NCAA on CA SB 206 and in light of the historical progression of American labor law. Under this system, students at all levels for all sports would not lose their scholarships, but instead would receive additional compensation when the sports they play yield excess profits. However, an institution would be under no obligation to pay student-athletes who do not bring in profits to the university that are less than the total cost of attendance scholarships provided to them. For example, a golfer at a Division II university would not be entitled to the same sort of compensation as would a Division I men’s basketball player whose team makes the NCAA tournament. Thus, this necessitates determining the total amount of profit a team brings to an institution. If the profit is greater than the total amount paid out in cost of attendance scholarships, the surplus would be distributed to student-athletes on said team. This could follow one of two methods.

The first method could be through a model laid out by David J. Berri in his article Paying NCAA Athletes. Berri advocates for models which pay athletes in proportion to how many wins they contribute to the team or how many minutes they play for the team.47 Either of these models would compensate the athlete 47 David J Berri, Paying NCAA Athletes, 26 MARQUETTE SPORTS LAW REVIEW 480–492 (2016), http://scholarship.law.marquette.edu/sportslaw/vol26/iss2/11 (last visited Mar 10, 2020).

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proportionally for their work, either by the nominal labor (minutes) or the net labor (wins produced) they are bringing for the university. Additionally, it may have a positive effect on the competitive balance of the sport in the NCAA. A star high school athlete who previously would have accepted a scholarship and waited two years to play at a highly-ranked school might be incentivized to go to a lower-ranked school where they could play immediately, as this would allow them to be compensated promptly for minutes played or wins contributed.

The second option would be to award compensation uniformly: regardless of how much one plays or how talented the individual is, everybody on the team would be paid an equal cut of the profit brought in by their team. This system may drastically disturb the competitive balance of the NCAA, as it would incentivize student-athletes to attend the universities that bring in the most profit, regardless of whether they would actually see playing time, as opposed to the model proposed above in which the competitive balance may actually be improved. However, paying uniformly would be a better model to affirm the NCAA’s classification of amateurism by retaining its admirable components: protecting student-athletes from disruptive, outside actors and creating an atmosphere that still places an emphasis on education.

Conclusion NCAA student-athletes are entitled to compensation when the profits of the sport they play are greater than the value of the scholarship they are given.

Without this system, both the NCAA and the institution for which the studentathlete plays are exploiting the individual. In previous cases involving NEL, the six-factor test introduced by the US Supreme Court in Walling v Portland Terminal Co made it clear that individuals who provide a direct benefit to their institution ought to be entitled to compensation of some kind. This same concept applies across industries and to different classifications, such as trainee or intern. In Donovan v. American Airlines, it was decided that even when the trainee received something from the institution, such as a scholarship or room and board, the individual could still be entitled to compensation.

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NO FREE LUNCHES: A CASE FOR COMPENSATING NCAA STUDENTATHLETES Current lawsuits and legislation on this issue focus primarily on the athlete’s likeness and whether they can unionize. Instead, the conversation should be centered on what the institution gains from the student-athletes. The profits, particularly in football and men’s basketball, go far beyond what is given to the student-athletes in scholarships. Therefore, a model of paying each athlete on a high profit grossing team a set amount should be adopted. This would put the NCAA and its member institutions in line with other NEL compensation structures while still preserving the spirit of amateurism the NCAA lays out in its bylaws. Ultimately, this policy cuts down on exploitation of student-athletes while adhering to non-employee labor precedent.

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UCLA UNDERGRADUATE LAW JOURNAL Shant Eulmessekian*

A Step Toward Peace: The Remedial Right of Secession ABSTRACT. The major sources of conflict in our world today are intrastate armed conflicts. It is in the pursuit of peace and stability that I endeavor to solve one such source of intrastate conflict: self-determination movements. In order to promote non-aggression and goodwill, I make an argument for the inclusion of the remedial right of secession. In order to solidify it as an obligation, I provide an interpretation of the remedial right of secession within International law. Next, I address the theoretical implications of the remedial right of secession compared to the ramifications of its opposite: territorial integrity. I ground my theory in reality by examining the case studies of Eritrea, South Sudan, Abkhazia, and Artsakh, in which the benefits of the remedial right of secession and the negative effects of territorial integrity become clear. With this, I conclude that the remedial right of secession should be granted to all peoples and the international community should respect this right.

Introduction The year is 1991, the Soviet Union has collapsed, and Artsakh has declared independence from Azerbaijan after a referendum vote. The following war between

*Shant K. A. Eulmessekian is a senior at UCLA graduating with a B.A. in political science. He is currently a member on the UCLA Mock Trial team and served as the Election Board Vice Chair for USAC. He will be attending law school in the fall to attain a J.D./L.L.M. Editor: Patrick Begian is a third-year political science major and history minor at the University of California, Los Angeles. He has a profound interest in international conflict resolution and the ever-changing relationship between free speech and technology. Patrick plans on attending law school after graduating from UCLA.

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the two states continues to this day, broken up by cease-fires that are not respected. Moreover, Artsakh has established its own government, flag, and institutions (de facto state) – it is an example of a secessionist movement and a territory that has not been recognized by a single United Nations (hereafter referred to as “UN”) member state. Unfortunately, it is not the only secessionist movement that has gone unaddressed while exacerbating global instability. In this paper I will be discussing one such solution, in an effort to address similar cases of secession movements: the remedial right of secession.

Initially, I provide an interpretation of international law that links the idea of self-determination movements with secession. This, in turn, provides a conditional approval of cases of self-determination where UN member States would be obligated to “respect the right” of secession, if the parent state consistently violates the individual and human rights of a people within their country. Having provided this interpretation, I will dive into the theoretical recommendations for self-determination movements. This will require a critique of the current preference of international law of territorial integrity over self-determination movements. In doing so, I provide three instances where the remedial right of secession could be realized. Having done this, I will turn to four case studies in order to examine the custom of international law on instances of self-determination and how the remedial right of secession would have been applicable.

Specifically, I will explore the case studies of Eritrea, South Sudan, Abkhazia, and Artsakh. These self-determination movements are similar in many ways; they all are instances of self-determination movements occurring after the period of decolonization, they have all been oppressed by their parent state, and they all had de facto control of their land during their secession movement. Eritrea and South Sudan differ from Abkhazia and Artsakh as they are both recognized by the international community. Upon further analysis, it becomes clear that the UN, and the international community at large, prefers territorial integrity over justice in a (perhaps) feigned attempt at stability.

Furthermore, all four cases have at least two of the three qualifications for the

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remedial right of secession. I conclude by stating that the international community should grant a remedial right of secession. 1 I. International Law Addressing Self-Determination The law surrounding justified claims to self-determination is ambiguous.

For one, it does not clearly assert a link between the idea of self-determination and secession, which has led to competing theories of the meaning of selfdetermination. Furthermore, most of the international laws and principles that were written on the idea of self-determination were created during the period of decolonization (roughly from the 1960s to the 1970s). Interpreting the law in the context of decolonization, therefore, has become a popular way of explaining the limited scope of the idea of self-determination (applying only to states that are under “alien” – i.e., colonial –rule). 2 I will address these conceptions by presenting the relevant law surrounding self-determination.

The UN discussion on the matter of self-determination has its highest level of relevance in two interrelated but distinctly separate documents. The Declaration on Colonial Countries and Peoples and Declaration on principles of International Law, Friendly Relations, and Co-operation Among States in Accordance With the Charter of the United Nations (hereafter “Declaration on Principles”). Although self-determination is mentioned in the UN covenants and the UN charter, the UN covenants reflect the former declaration, and the latter declaration addresses and only adds to the UN charter itself. Thus, by addressing the two, I will have addressed the overall discussion on the matter in terms of the UN’s governing documents.

The Declaration on Colonial Countries and Peoples, resolution 1514, was passed by the UN on December 14, 1960. Enacted during the period of decolonization, the resolution limits the applicability of the right of selfdetermination – ironically, the resolution was advocated for by countries that

TIM POTIER, CONFLICT IN NAGORNO-KARABAKH, ABKHAZIA, AND SOUUTH OSSETIA: A LEGAL APPRAISAL (2001).

2 Id. 1

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had just escaped the clutches of colonialism. Paragraph two of the resolution reads: (2) All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 3

The limitation of the document is alluded to in the first paragraph, which speaks specifically to “the subjection of peoples to alien subjugation, domination, and exploitation.” Whereas paragraph six further limits it by expressing that: (6) Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. 4

It is unsurprising then, that scholars have argued the declaration was not intended to provide a general right of self-determination for all. Citing juridical historiography they have, I believe convincingly, argued that the intention of the UN was simply to address the colonial movements of the world at the time, by encouraging “Non-Self-governing Territories” and “other territories which have not yet attained independence” to fight on – as they will be welcomed with open arms into the UN. However, the UN was still interested in the territorial integrity of its member states, so it added the qualification of paragraph six. Yet, there is another document that can be interpreted to override territorial integrity by granting the right of self-determination.

The Declaration on Principles, passed in 1970, addresses several prior resolutions and stands in “accordance with the charter of the United Nations.”

Similar to the Declaration on Colonial Countries and Peoples, it also addresses self-determination and follows it with a territorial integrity limitation. However, in this declaration, one can see some hope for the idea of secession. The Declaration states that: By virtue of the principle of… self-determination… all peoples have the right to freely determine, without external interference, their political status and to pursue their

G.A. Res. 1514 (XV), Declaration on the Granting of Independence to Colonial Countries and Peoples (Dec. 14, 1960).

4 Id. 3

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UCLA UNDERGRADUATE LAW JOURNAL economic, social and cultural development, and every State has the duty to respect this right in accordance with the provisions of the Charter. 5

It goes further to state: The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of selfdetermination by that people. 6

The declaration not only addresses self-determination, but also connects it with the idea of secession. This makes secession a sufficient condition for selfdetermination, but not a necessary one. Those who exercise their right of selfdetermination have an option of secession, but they can also pursue powersharing initiatives. However, for the purposes of this paper I will be primarily focusing on the right of secession, which is granted with an important qualification.

Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights [my emphasis]... 7

There is a conditional statement for the territorial integrity clause. Those States that respect the principle of equal rights are granted immunity from selfdetermination and secession. Passed in 1970 and addressing the UN Charter, the Declaration links the concept of self-determination to secession while simultaneously providing a condition for the realization of the right by peoples that are not necessarily under colonial domination. Those scholars that disagree argue that this interpretation is too simplistic. 8 Stating that the international community would only sanction a right of secession silently – without fanfare and attention. That the General Assembly of the UN would place themselves as a hostage to the relatively vague terms and provide an all embracing right to selfdetermination seems far-fetched. Others argue that the Declaration provides a right to secession for ethnic groups who have had their collective and individual G.A. Res. 2625 (XXV), Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations (Oct. 24, 1970).

6 Id. 7 Id. 8 POTIER, supra.

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A STEP TOWARD PEACE: THE REMEDIAL RIGHT OF SECESSION rights consistently violated by the parent state.9 I will refer to the former interpretation as the territorial integrity interpretation and the latter as the selfdetermination interpretation.

The self-determination interpretation is supported by the Case Concerning the Barcelona Traction, Light and Power Company 1970.10 The International Court of Justice (ICJ) affirmed that the right of peoples to self-determination has an erga omnes character. Meaning that every State has an obligation to the international community to protect the right of peoples to self-determination.11 The Case Concerning East Timor reaffirmed the erga omnes character of selfdetermination in 1995 and found self-determination to be “one of the essential principles of customary international law.” 12 There is clear precedent in the ICJ decisions that affirm a right of self-determination, yet the debate continues to this day between the two interpretations of the law. I do not believe that the debate can be resolved in a satisfactory way by pouring over the exact wording in the declarations or UN Charter. Pursuing this line of argumentation has resulted in frivolous debates over the difference between the words “people” and “peoples.” Specifically, these debates center around which word could be attached to an ethnic group and which one cannot.13 In reality, “people” and “peoples” can be interchangeable when referring to ethnic groups.14 Instead, I aim to resolve this debate by reviewing the implications of territorial integrity versus the self-determination interpretation. If one interpretation were to lead to greater stability and peace, then that should be the interpretation that is preferred.

See CHRISTIAN TOMUSCHAT, MODERN LAW OF SELF-DETERMINATION (1993).

Barcelona Traction, Light and Power Company, Limited (Belg. v. Spain), Judgment, 1970 I.C.J. Rep. 3, (Feb. 5) 11 Id. 12 East Timor (Port v. Aust.), 1996 I.C.J. Rep. 90, (June 30).

13 Gerhart Niemeyer, Kelsen, Hans Recent Trends in the Law of the United Nations. (A Supplement to The Lawe of the United Nations), 279 THE ANNALS OF THE AMERICAN ACADEMY OF POLITICAL AND SOCIAL SCIENCE 909 (1952).

14 POTIER, supra.

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UCLA UNDERGRADUATE LAW JOURNAL II. Theory I believe that international law should be interpreted to give a remedial right of secession for all people. In fact, the qualification of self-determination in the Declaration on Principles can be interpreted to provide a remedial right of secession. Namely, this would mean that if a parent state did not respect the human rights of a minority population within their state and consistently discriminated against them, that minority should be allowed to pursue a course of self-determination. Ultimately, this would be beneficial to the international system because it would hold states accountable for human rights violations and decrease the emphasis on violence for the achievement of resolution in selfdetermination movements.

A. What is a Remedial Right of Secession?

To provide every nation and minority population with the right of secession can have potentially dire consequences. For example, it would allow populist leaders to claim independence with no justified explanation other than a desire for more autonomy and power. However, to provide no people with the right of secession is just as likely to cause issues as it inhibits the political expression of minority populations whose human rights are consistently oppressed by the parent state. A remedial right of secession would provide a balance between the two extremes. In order to realize this remedial right, the international community should enforce states to respect a minimal requirement of justice both in interactions with those existing within the state as well as the interaction of those outside of its borders. 15 The minimal requirement of justice is a respect for basic human rights. To ensure that secession is only used as a remedial right, the international system will encourage states to provide alternatives to secession such as intrastate autonomy or greater power sharing. The three instances that secession is allowed is if, through a legal dispute, the international community rules that grave injustices were done to the community that is trying to secede, the territory was forcibly taken by the parent state (and the people See ALLEN. E. BUCHANAN, JUSTICE, LEGITIMACY, AND SELF-DETERMINATION: MORAL FOUNDATIONS FOR INTERNATIONAL LAW (2004).

15

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within the territory have expressed the desire to be autonomous), or there are major and persisting violations of intrastate autonomy agreements.16 These three qualifications are meant to address the “compliance with the principle of equal rights” clause in the Declaration on Principles. By preferring the territorial integrity interpretation, the international community does more harm than good towards the pursuit of peace.

B. International Communities’ Tacit Consent for Violence The four case studies reveal the international laws preference of territorial integrity over self-determination. The preference of territorial integrity is often cited as a preference of stability over justice.17 The international community is composed of states, and thus they believe it would be in their interests for the right of self-determination to never be realized or, at the very least, specified to the point of being irrelevant. They realize this right would risk some states being broken up, as is evident by Quebec in Canada or even Catalonia in Spain. The breaking up of some states would result in instability and perhaps even war.

Centrally, this is the justification for the preference of territorial integrity over the right of self-determination. However, the international communities' claim of peace and stability reveal themselves to be self-serving and not entirely accurate. The international system favors the government of the parent state and condones violence as a means of subduing self-determination movements. 18 This can be explained by looking at the implications and advantages of international recognition.

When an entity is recognized as a state by the international community, it is given certain abilities and status. It can create treaties, alliances, and, most importantly, it is provided a right to not be invaded by a foreign country.19 In the case of Artsakh, it has de facto control of its territory but is not recognized by the international community. Specifically, in the eyes of the U.N., it remains a See Id. See MARC WELLER ET AL., SETTLING SELF-DETERMINATION DISPUTES: COMPLEX POWERSHARING IN THEORY AND PRACTICE (2008).

18 See Id. 19 See BUCHANAN, supra.

16 17

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disputed territory within Azerbaijan. If the international community was to recognize Artsakh, it would be provided with some protection and Azerbaijan would receive heavy condemnation and resistance if it was to attack the new U.N. member state. Yet, if Azerbaijan was to launch a military offensive within its own territory, Artsakh cannot claim territorial integrity and non-intervention to prevent war. Artsakh would have to fight Azerbaijan as the international community looks on – silent in the ways that matter and loud in all the ways it does not. The preference of territorial integrity is in fact a carte blanche for the parent state to resolve the matter internally.20 This has generally resulted in war and open conflict. Demonstrated by the April war between Azerbaijan and Artsakh as recently as 2016. Territorial integrity, in fact, leads to less peace. If Artsakh was recognized by the international community, Azerbaijan would not be likely to engage in war and receive heavy sanctions by many of the global powers. It certainly would not want a spotlight on its military offensive, which it would receive if it was to engage in war with a U.N. member state.

C. Holding States Accountable for Human Rights Violations The remedial right of secession would be an effective tool of holding states accountable for human rights violations. If the international community enforces a respect for basic human rights and provides a remedial right of secession to minority communities, the parent state would be weary in pursuing policies of discrimination and oppression. Namely, it would mean that minority communities would have a potentially non-violent form of resistance against the parent state. As reflected by the doctrine of territorial integrity, states resist the loss of their territory. If the loss of their territory resulted from policies that violate basic human rights, the international community would have a new and effective form of regulation. It would function as a deterrent for states that wish to violate human rights. Those that are not deterred would be held accountable

An exception to this idea is the case of Yugoslavia. The international community tried to prevent the use of force against Croatia and Slovenia. However, the application of this to other cases is low to the point that this exception is insignificant.

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by the minority population within the state as well as the international community at large. Since the matter will be decided through court, the international community would gain more effective methods of punishment. If a state decided to begin the ethnic cleansing of a region, and that region wished to secede, the international communities’ recognition and admission of a new state would severely undercut the efforts of the parent state. Thus, a remedial right of secession would achieve peace more consistently than territorial integrity and would also hold states accountable for their actions toward their minority communities.

A criticism of this remedial right can be the difficulty in defining terms such as “grave injustices” or “major and persisting.” However, this criticism begs refinement rather than exclusion. To throw out the idea of remedial secession because the qualifications are difficult to define, excludes the cases that clearly apply. The cases that fall under the “compliance with the principle of equal rights” clause include Eritrea, South Sudan, Abkhazia, and Artsakh.

II. Case Studies A. Eritrea Located on the Horn of Africa, Eritrea is a country found to the West of Sudan, North of Ethiopia, and North West of Djibouti. With a population of 3.4 million, Eritrea had been in a bitter struggle for independence since the establishment of a federal union between itself and Ethiopia. Although it had sovereign control of land (referred to as “liberated territories") since 1964, it was not recognized by the international community until 1993. This was when the UN-sponsored referendum was conducted, and 99% of Eritrea's population had voted for independence. But why had it taken 29 years?

These questions can be answered by viewing the history of the post-colonial struggle of Ethiopia and Eritrea. By the year 1935, the onset of World War II, Ethiopia and Eritrea were under the colonial rule of fascist Italy.21 Haile Selassie, Zdenek Červenka, Eritrea: Struggle for Self-Determination or Secession?, 12 AFRICA SPECTRUM 37, (1997).

21

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the emperor of Ethiopia, was exiled after Benito Mussolini took control of the region. The Emperor’s reputation would emerge among the international community and African nations as a “hero of the resistance of Africans against Italian fascism.” The reputation would prove instrumental in federating Ethiopia with Eritrea.22 When Eritrea and Ethiopia were freed from Mussolini in 1941, the Eritreans expected autonomy to be returned to them after many years of harsh colonial rule. This realization was to come many years later however, as the Ethiopian and U.S. governments had other plans in mind. The UN General Assembly was given the task of settling the question of Eritrea.

Their main purpose was to “ascertain more fully the wishes and the best means of promoting the welfare of the inhabitants of Eritrea. . . " and report to the General Assembly a proposal that would meet the criteria.23 Several proposals were set forth: one that would partition the country into many parts, one that federated Ethiopia with Eritrea, and one that gave Eritrea independence after UN trusteeship. An author writing on the history of the federation of Ethiopia and Eritrea stated that it was “important to note that the idea of federation. . . was originated by the U.S., which Ethiopia accepted in principle.” 24 The U.S. was looking to gain a foothold in the Horn of Africa, and that meant catering to the needs of Emperor Haile Selassie. Ethiopia wanted control of Eritrea because of Eritrea's access to the sea for potential shipping routes.

Haile Selassie justified this unification by claiming that Ethiopian tribes originated from Eritrea, and that sixty years of colonial separation does not separate “our way of life and mutual feeling.”25 However, historical evidence suggests that Eritrea has been an independent country for at least 300 years.26 Despite the historical evidence, Haile Selassie's political leverage was incredibly influential as his views on the future of Eritrea were given disproportionate

22 Id. 23 Semer

Haile, The Origins and Demise of the Ethiopia-Eritrea Federation 15 ISSUE: A JOURNAL OF Opinion 9, (1987).

24 Id. 25 ČERVENKA, supra.

26 Documents show European explorers in the 1500s that identified war between “independent countries" of Eritrea (ruled at the time by a chief called “Bahri Negassi") and Ethiopia, which contradict the claims made by Haile Selassie.

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A STEP TOWARD PEACE: THE REMEDIAL RIGHT OF SECESSION weight by the Western World. 27 The head of the Independence Bloc of Eritrea, Ibrahim Sultan Ali, viewed the plan for a federation as an “ambiguous scheme," and unfit to contribute to the maintenance of peace and security for Eritrea.28 To a certain degree, Ibrahim was correct in labeling the federation a scheme for two reasons. First, the international standing of Ethiopia and its resistance to the Italian war of aggression was taken into consideration more heavily than the recognition of the right of the Eritrean people to self-determination. 29 Second, Ethiopia did not plan to respect the autonomy and the rights of the Eritrean people. On December 2nd, 1950, the U.N. passed General Assembly Resolution 390 A(V), creating a federation between Eritrea and Ethiopia. Ultimately, this federation did not last, as Emperor Haile Selassie began the region's descent into oppression by slowly dismantling the Eritrean constitution. Eventually, the Eritrean governments flag and name were changed, labor unions were dissolved, and freedom of the press was subverted. Although these actions were in violation of the UN decision on Eritrea to maintain autonomy, Ethiopia relied on the support of the U.S. as well as the charismatic nature of its Emperor Haile Selassie.

The U.S. supported Ethiopia because it wanted to establish military bases and a large communications center in the region. 30 The U.S., due to the bipolarity of the Cold War, had the majority necessary in the international sphere to stop proposals that did not support its own foreign policy.

Furthermore, Haile Selassie's political influence, combined with lobbying efforts, subdued Eritrean mobilization. Most African countries that were unfamiliar with the region’s conflicts and histories accepted the Ethiopian emperor's explanation that the secession movement was the “work of foreign agents.” 31 Having just escaped the clutches of colonialism, many African countries were susceptible to such arguments. The eventual human rights violations, along with the annexation of Eritrea, led to the creation of the 27 ČERVENKA, supra.

28 HAILE, supra.

Eritrea and the Right to Self-Determination, 25 REVIEW OF AFRICAN POLITICAL ECONOMY, (1982).

30 ČERVENKA, supra.

31 ČERVENKA, supra.

29

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Eritrean People’s Liberation Front (or Eritrean PLF); an organization that used guerilla warfare in order to establish territorial sovereignty over its borders.

An analysis of the reasons why Eritrea did not gain independence and international recognition (after the fall of Italian colonial rule), will be salient to demonstrate why it took so long for secession to occur in the first place.

The aforementioned interpretation of the Declaration on International Principles seems to give the right for Eritrea to secede around the time it had taken de facto control of its territories. It is not simply because it was able to establish military control that the interpretation would give the state the right to secede, but it is also the fact that Ethiopia had violated the conditionality of our interpretation. Ethiopia had not only forcibly taken the territory of Eritrea, but also violated the intrastate autonomy agreement established by the UN. Thus, the case of Eritrea falls under both qualifications listed in the remedial right of secession clause. The Eritrean PLF rose to represent the Eritreans desire for self-determination, which expressed itself as a desire to separate from the parent state. According to the Declaration, “every State has the duty to respect this right in accordance with the provisions of the Charter.” Yet, the international community failed to recognize Eritrea as a state for twenty-nine years until it was forced to do so. During the Eritrean’s struggle for independence, the Ethiopian government of the time was being attacked from all sides. After a coup overthrew the Emperor of Ethiopia in 1974 the government was led by Mengistu Haile Mariam. Besides the EPLF, the Mengistu regime was fighting against three other groups engaged in armed opposition. Two of the resistance movements, Tigre People’s Liberation Front and the Ethiopian People’s Democratic Movement, joined to create the Ethiopian People’s Revolutionary Democratic Front (Ethiopian PRDF) – a formidable force to bring an end to the Mengistu regime. The Ethiopian PRDF and the Eritrean PLF would often work together in order to fight against the government in place. The multiple battle fronts and escalating pressure from the resistance groups proved too much for the Mengistu regime. In 1991, the Ethiopian PRDF stormed Addis Ababa and established an interim government. In the same year, the Eritrean PLF took control of Eritrea’s main city. The interim government composed of the Ethiopian PRDF were sympathetic to the calls for secession from the Eritrean

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PLF. At the Conference on Peace and Democracy that took place in Addis Ababa, the government of Ethiopia set out the rules for the separation of Eritrea and Ethiopia. In April of 1993, under a referendum supervised by the United Nations, Eritreans voted overwhelmingly for independence, and they were admitted to the UN as the Organization’s 182nd Member state.

In the first place, Eritrea did not become an independent state after the end of Italian colonialism because of a collaborative effort of Ethiopian and U.S. influence. The influence of Ethiopia in that region is evident from its ability not only to ward off colonialism longer than other African countries, but also in its resistance against Italy during World War II. Thus, Ethiopia, and its Emperor, were given respect and, more importantly, a large role in the discussion of what was to happen to Eritrea post-Italian colonialism. 32 Furthermore, Haile Selassie's continued disregard for the contents of the UN resolution set in place to defend the autonomy of Eritrea was repeatedly ignored by the UN. This was not only due to Haile Selassie's lobbying efforts, but also the influence of the U.S. on the UN during the Cold War. Due to U.S. strategic interests, the plight of the people of Eritrea was ignored. In response, Eritrea took up arms against the oppression of the Ethiopian government.

Second, the self-determination rights of the Eritrean people were only respected after the Eritreans were successful in taking down the Mengistu regime. The Ethiopian government established after Mengistu consented to the referendum and the right of secession, which is why Eritrea was allowed to become a member state. When Eritrea invited the UN in 1991 to observe the referendum that was to take place in 1993, the UN stated that it could not participate until Ethiopia gave permission. Even when Ethiopia had explicitly given the right for Eritrea to secede via internationally supervised referendum at the Conference on Peace and Democracy, the UN still had to get permission to observe. If the international community had recognized the right of the Eritrean people to secede when Haile Selassie had violated the autonomy agreement, the Ethiopian government would have been deterred from engaging in open conflict with the new state.

32

ÄŒERVENKA, supra.

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UCLA UNDERGRADUATE LAW JOURNAL B. South Sudan Located in East Africa and directly beneath Sudan, South Sudan has been internationally recognized since July 14, 2011. Yet, it has had a troubled relationship with its parent country (Sudan) since 1956, riddled with racial, social, and religious discrimination.

Both South Sudan and Sudan were under British colonial rule beginning in 1898. 33 However, it is important to note that prior to Britain's colonial rule, the area currently called Sudan and South Sudan were quite different from one another in almost every way. In South Sudan, there existed indigenous African cultures mixed with Christianity.34 On the other hand, North Sudan was primarily populated by Arab Muslims (and still is). Not only were they different religiously, culturally, and linguistically, but they also shared an unfriendly relationship. South Sudan's embittered attitude with North Sudan originated primarily before British colonial rule. Specifically, North Sudan would frequently invade South Sudan in search of slaves or riches, which heightened tensions between the two regions. Britain, claiming to recognize the tense relationship between the two entities, created and enforced the “Southern Policy," meant to keep North and South Sudan separate in order to preserve both their cultures (and ultimately their peace).

Britain’s Southern Policy is indicative of the national differences between the two states. Additionally, it also provides fertile historical and legal evidence of two independent and autonomous states. Yet, much like the case of Eritrea, the influence of local state actors and major powers in the international community would stump the attempts by the people of South Sudan from recognizing their right of self-determination. South and North Sudan were relieved of foreign colonial presence on January 1, 1956, with the end of the Anglo-Egyptian colonial administration. However, prior to Britain exiting the region, Sudan held an Administrative conference in 1946. With the tacit acceptance of the British colonial administration, terms were laid out at the

Sami L. Laki, Self-Determination: A Solution to the Sudan Problem, 3 NORTHEAST AFRICAN STUDIES, NEW SERIES 7 (1996).

34 Id. 33

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Administrative conference that would allow Sudan to annex South Sudan after the removal of British colonial presence. 35 Thus, when Britain, Sudan, and South Sudan convened at the Juba conference one year later, South Sudanese demands to be given autonomy and exercise self-determination were rejected outright. In this act alone, there is evidence that the South Sudanese territory was forcibly taken by North Sudan. The conference stated several explanations to justify the annexation of South Sudan. The main purpose was revealed in the transcript as the need for Sudan and South Sudan to join in order to gain enough resources and wealth to “really" become self-governing and self-dependent.36 To justify the unification of two ethnically, culturally, and religiously different people, the conference explained that the geopolitical and economic nature of the region would have them “inextricably bound" up with the Middle East and Arabs of North Sudan anyway. Retrospectively, it is easy to see the sinister intent of North Sudan in its desire to annex South Sudan. After the British transferred authority to Sudan, the northern Islamic region did not hesitate with its plans and began a military takeover of the South Sudanese government in 1958. This hostility was partly because North Sudan was actively working to “Islamicize and Arabize the people of South Sudan.” 37 This policy led to gross human rights violations - demonstrated by what is referred to as the first genocide of the 21st century and the 1.5 million South Sudanese that were forcibly removed from Khartoum, Sudan. Throughout the struggles between South Sudan and Sudan, the Addis Ababa agreement was an example of a peace agreement signed between the two entities. However, this agreement that provided the South with a considerable degree of autonomy was violated by the former president of Sudan Gaafar Nimeiry. 38 South Sudan, therefore, had a valid claim by meeting all three qualifications of the remedial right of secession clause. Although the violations of intrastate autonomy agreements occurred in

35 Id. 36 Gurtong

Trust, Juba Conference 1947, http://www.gurtong.net/LinkClick.aspx?fileticket=OBZ+7v1SXis=&tabid=124.

LAKI, supra.

38 DENG VANANG, SOUTH SUDAN: THE MAKING OF A NATION: A JOURNEY FROM ETHNIC POLITICS TO SELF-RULE, STATE, AND DEMOCRACY (2015).

37

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1972, South Sudan gained international recognition forty years later on July 9, 2011.

By taking a closer look at the Juba conference, one can determine why the desires of the South Sudanese people were rejected in favor of the merger of North and South Sudan. By reading the transcript of the conference, though one may sincerely believe that it was a genuine effort by the British and North Sudan to bring peace and prosperity to the region, this proves to not be the case. First, it is important to note that due to the nature of the colonial relationship of Britain with North and South Sudan, the colonial power was only interested in the extraction of resources to increase its own wealth. 39 Since Britain viewed North Sudan as a substitute for the cotton industry it had lost in America, it invested in infrastructure to facilitate fast and efficient resource extraction. The South on the other hand, was not viewed as a major source for income, and thus left to its own devices. With no investment in the infrastructure of South Sudan, the economy and the country were crippled.

Thus, when the end of British colonialism approached, arguments were made that South Sudan cannot stand on its own and must be joined with another state for its best interests. Of course, this was decided without the input of representatives from South Sudan. In fact, the decision to annex South Sudan had been made well before the Juba Conference, making the conference itself a farce. As a scholar writing on the conference puts it, the “issue had been decided. . . in December 1946. . . that separation of the South was no longer a viable proposition.” 40 If one was to dig a little deeper, one would find that Britain was negotiating with Egypt about military presence in the Suez Canal.

Thus, in order to please both Egypt and North Sudan, they abandoned the Southern Policy and began the process of unification that would cost the lives of millions of people. If South Sudan were provided the option of secession earlier, since it was clear that the lands were not only forcibly taken, but that the government of Sudan did not respect the autonomy of the South, North Sudan’s ethnic cleansing initiatives would amount to a declaration of war. The remedial

39 Id. 40 Id.

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right of secession would deter North Sudan from violence not only with the fear of secession of the South, but also with the international spotlight it would gain by waging war with its Southern neighbor. Furthermore, the international community would be able to hold the North accountable for their actions by providing the South with the option to secede outright.

C. Abkhazia This de facto state is found in the Greater Caucasus. Abkhazia is to the south of Russia and shares a border with it for more than 100 miles. The country of Georgia is found to the south-east and the Black Sea makes up its western border. Overall, the territory is 3359 square miles large, with the capital as Sukhum (Sukhumi). Since October 1993, Abkhazia has enjoyed de facto independence after a two-year war with Georgia. Although, currently, Russia recognizes Abkhazia's independence, members of the UN regard the border between Abkhazia and Georgia as an administrative one. 41 The history of the Georgian-Abkhazia conflict reveals why only certain countries recognize Abkhazia, including UN Security Council member Russia.

When looking back before the Cold War, before the Soviet Union and both World Wars, Abkhazia enjoyed de facto autonomy for over sixty years. It began as a formal protectorate of the Ottoman Empire in the early 19th century, but after its incorporation into the Russian Empire in 1810, it enjoyed de facto autonomy until 1864. After the Russian Empire worked to remove the autonomy, Abkhazians participated in the Lykhny uprising in 1866. This was not well received by the Russians. Over the course of a few years, 60% of the region's population was forced to leave. This forced exile coincided with the abolition of serfdom, allowing individuals that were previously tied down to specific plots of land, to move anywhere they would like (including the nearly vacated territory of Abkhazia). This immigration into the vacant territories was further exacerbated by famous public figures, such as Jacob Gogebashvili, encouraging

See Markedonov, Sergey, The Conflict in and over Abkhazia, in FROZEN CONFLICTS 71, (Anton Bebler ed., 2015).

41

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UCLA UNDERGRADUATE LAW JOURNAL permanent resettlement of Georgians in Abkhazia. 42 After the collapse of the Russian Empire, Abkhazia was incorporated into the new Georgian state. This was followed by repressive actions against the Abkhaz language and culture, both by policy makers and ordinary citizens of the Georgian state.

The repression was meant to hamper the Abkhaz national movement, but instead it created tensions between the new state of Georgia and the Abkhazian region within it. The ethnic tensions caused the Abkhazian elites to constantly demand autonomy throughout the 20th century. These demands were finally addressed by Moscow after the people of Abkhazia organized into the “Aydgylara," translating to popular forum, that called for “Leninist principles of national policy" and “political, economic, and cultural sovereignty."43 The new approach to Moscow to meet their demands, combined with Georgia's continued search in the west for allies, warmed Russia's policies toward Abkhazia. The policy on the region transitioned from Russia stating that Abkhazia is not an autonomous region to recognizing it as a sovereign state.

Attempts to broker peace between Abkhazia and Georgia by Russia, as well as the UN, failed. This failure is represented by the military confrontation between Georgia and Abkhaz in 1992 to 1993. Although Georgia experienced victory in the beginning of the conflict, this was not to last. The military confrontation ended with Abkhazia having control of most of the territory it had lost. There were a great number of casualties on both sides, and it should be noted that around 250,000 Georgians were forced to flee Abkhazia. Today, the territorial integrity of Georgia is recognized by an absolute majority of the UN member states.

The self-determination movement in Abkhazia is muddled not only by its history, but also its ethnography. Specifically, it is different from the other cases that were examined (Eritrea, Somalia, and Artsakh), as the ethnic Abkhazians need to form coalitions with other ethnicities in the state in order to secure legitimacy and governance. This is because they do not have an overwhelming majority population in the de facto state. They barely have a simple majority

42 See 43 Id.

Id.

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with 50.71%. Although, it is fair to point out that many Abkhazians were removed from the territory which accounts largely for the ethnographic imbalance. The influence of Russia and the Ottoman Empire largely contributed to the forced removal of the Abkhazian people from the area they had inhabited. The fusion of Abkhazia with Georgia represents a qualification for the remedial right of secession. It was compelled to enter a confederation with Georgia in 1931, and its position was slowly disintegrated to become an autonomous republic within the structure of the Georgian SSR. 44 Here, there is a parallel with the state of Eritrea that was confederated with Ethiopia. Namely, Ethiopia agreed to the federation, with plans to decrease the autonomy and strength of Eritrea, in order to gain access to a trade route with the sea (along with other resources).

Similarly, Georgia desires greater access to the Black Sea. Turkey, a regional power, supports Georgia due to the Muslim community found there, but also wants the region to have a peaceful resolution because of economic interests (such as the Baku-Ceyhan pipeline).

The U.S. does not recognize Abkhazia and supports the territorial integrity of Georgia. The Strategic Partnership agreement signed with the US in January 2009, places Georgia as a special partner of the US outside of NATO. While Russia, witnessing the growing relationship between Georgia and the US, has endeavored to create a relationship with Abkhazia by recognizing it and providing military support. Above all, it has allowed Abkhazian people to apply for Russian citizenship, further deterring any attempt by Georgia to recapture the territory, as it would obligate Russia to defend its citizens. The fact that the Russian citizenship works as an effective deterrent for Georgia also lends credibility to the idea that the international recognition of Abkhazia as a state could also deter Georgia from further violence. Other than the attempt to balance US interests in the region, Russia is also interested in greater access to the Caucasus and the Black Sea, which would help with economic expansion. 45 It becomes evident with the case of Abkhazia that the regional and international powers preference for territorial integrity is respected (or not respected) due to Chirikba Viacheslav, Geopolitical Aspects of the Abkhazian Statehood: Some Results and Perspectives, 8 IRAN & THE CAUCASUS 341 (2004).

45 See MARKEDONOV, supra.

44

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personal political and economic interests – rather than out of a preference for peace or stability. Instead, if the remedial right of secession was a preferred interpretation of international law, Georgia would be less successful in appealing to the interests of global powers in order to suppress the liberation movement of Abkhazia. Furthermore, Russia’s ability to deter Georgia’s violence by recognizing the state of Abkhazia and allowing them to apply for Russian citizenship reflects the potential of international recognition as a deterrent.

Thus, a remedial right of secession would hold Georgia more accountable and deter violence between the two entities.

D. Artsakh The central debate that arises between Artsakh and Azerbaijan comes as a fundamental debate between who has a claim over the territory. Although the region of Nagorno-Karabakh, also known as Artsakh, has a predominantly Armenian population – Azerbaijani historians have cited historical evidence to cement their claims on the territory. Although this has not been done with the previous case studies, I find it necessary to dive into this debate briefly in order to provide context.

1. Azerbaijan Claims to Artsakh Azerbaijani historians trace their roots back to inhabitants of the ancient country of Caucasian Albania, not to be confused with the country in the Balkans. They claim that they were the descendants of the Caucasian Albanians.

The Caucasus region was a strategic location for many empires as it was a bridge between the East and West, as well as the fact that it gave powers access to the Black Sea.46 Thus, the diverse mix of ethnicities living there were subject to the domination of many foreign powers. The country of Caucasian Albania was no exception. When the Arabs conquered the country in 642 A.D., many Albanians converted to Islam. However, there was a number of Albanians in the eastern half of Caucasian Albania that remained Christian and refused to convert.

Azerbaijani historians claim that it was in fact these Christian Albanians that 46 MICHAEL P. CROISSANT, THE ARMENIA-AZERBAIJAN CONFLICT: CAUSES AND IMPLICATIONS (1998).

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were “Armenianized.” Thus, the people living within Artsakh are in fact “Armenianized” Azeris and the territory in fact belongs to Azerbaijan. 47 2. Armenian Claims to Artsakh Armenian historians claim that after Caucasian Albania had split in 642 A.D., the Christian Albanians integrated with the Armenians. Since then, there has been a consistent Armenian presence within that region. Primary sources indicate that Armenians lived in that territory throughout the next 1,400 years.

Not only have Armenians been living in that territory, but they have had autonomy in the Artsakh region since the Sassanids in the seventh century. The Jalalian Family provides evidence of Armenian presence and autonomy in more recent times. The family embarked on a campaign of restoration of Armenian cultural works since the thirteenth century and their descendants became the local administrators of Karabagh for the next 400 years (even recognized by the Shah Abbas of Persia in 1603).48 3. Where Does One Stand on This Debate?

The historical claim to Artsakh needs to be clarified, as Azerbaijan’s opposing stance leads to confusion on the proper solution. I argue that Azerbaijan’s historical claims are weakened in two ways: recency of the nationality of Azerbaijan and relevance of historical accounts.

Azerbaijani scholars try to assert a distinctive ethno-religious community that they trace their lineage back to. This is necessary because, in order to assert their claims to the territory, they must establish that Azerbaijani’s have been living there historically. This claim is complicated by the fact that Azerbaijan is a relatively new identity that was created in the early 19th century. The Caucasian Albanians, who they claim to be their ancestors, vanished from the historical scene in the ninth century.49 The people that inhabited that area had no distinctive features whether it came to religion or culture, as the people within that region continued to identify primarily with the powers that conquered them (Turkey and Iran). This is reflected by the difficulty of the development of a distinctive Azeri national consciousness as recent as the 16th 47

Id.

48 Id. 49 Id.

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century. The Azeri people identified as Turks and even began speaking a dialect of the Turkish language. Simultaneously, they kept certain aspects of Iranian culture. The people who lived in that region chose to find points of similarity between the powers that were around them rather than develop a distinctive identity.50 The terms “Azeri'' and “Azerbaijan” became a reality in 1918 when the state of Azerbaijan was briefly established after Russia left Transcaucasia during the Bolshevik Revolution. Thus, the Azeri historians’ claim of the Caucasian Albanians being “Armenianized” presupposes an Azeri identity. In fact, the ready and purposeful adoption of Iranian and Turkish religion, language, and culture indicates a historical pattern of consensual integration for 1,300 years. This becomes more evident when examining that the Armenians trace their origins back to a group of Indo-Europeans that migrated into Transcaucasia in the 6th century B.C. Although, at this point there was no unique distinction between other Indo-European peoples within the Transcaucasia, by the fourth century A.D. Armenians had emerged with a “unique, identifiable ethno-religious community.” 51 They remained as such until present day, despite the many centuries of domination under foreign powers.

The relevance of historical claims must also be called into account. Here it is important to note that the debate between Armenian and Azeri scholars has led to the simplification of the ethno-religious history in the region, in order to cater to their respective interests. It is difficult to paint a distinct ethnicity onto the region from the fact that Transcaucasia has such a diverse array of ethnicities that have developed and undeveloped over the years. Therefore, it is necessary to turn to the relevance of the historical claims. The fact that Armenians have been occupying the territory for over a millennium brings the relevance of Armenian claims to the forefront.

4. How Did Artsakh End Up Within the Borders of Azerbaijan?

The Mudros armistice of October 30, 1917 saw the defeat of Ottoman Turkey and withdrawal of their troops from the Transcaucasus. This was an

50 Id. 51 Id.

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opportunity for Armenia, Georgia, and the newly created state of Azerbaijan to lay claim to disputed territories and solidify their control before the Paris Peace Conference.52 Armenia, which was already weakened by the first genocide of the 20th century could do little against the “Army of Islam” that invaded Eastern Armenia. The Turkish aggressors forced the Karabakh leadership to submit to Azerbaijani rule with the promise of fair treatment. However, within less than a week the Turks began to make mass arrests, public hangings, and disarm the populace. This invoked a successful Armenian insurgency that was able to hold off the Ottoman Turks until they left the territory. Before Armenia could incorporate Artsakh, however, the British had moved into the territory determined to improve their own strategic and economic interests.53 This resulted in a policy approach that was favorable to the oil-rich Azerbaijan. Great Britain attached Nagorno-Karabagh (Artsakh) to the Republic of Azerbaijan.

The Karabakh Armenians immediately resisted the attempt and threatened to respond violently if this route were pursued fully. Although Azerbaijan’s military strength caused the Armenians to submit to provisional rule, the conflict between the two groups continued with repeated attempts of resistance from the Karabagh Armenians. This led to the weakening of the states to the point that Baku and Karabagh were overtaken by the Bolsheviks on April 27, 1920. When Armenia was also taken by the Bolsheviks in December, the separation of Artsakh from Azerbaijan became an internal decision of the Soviet Union. During a meeting of the Caucasian Bureau of the Soviet Union on July 4th, 1921 a majority vote decided to transfer the Nagorno-Karabagh region to the Armenian SSR.54 However, Stalin, motivated by his divide and conquer strategy, reversed the decision without deliberation or a formal vote. NagornoKarabakh remained a part of the Azerbaijan SSR. Since then, there have been consistent attempts by Karabakh to secede from Azerbaijan.

These consistent attempts have led to rising enmity between Azerbaijan and the Armenians living within the borders of Artsakh. This culminated in a series

HAIG E. ASENBAUER, ON THE RIGHT OF SELF-DETERMINATION OF THE ARMENIAN PEOPLE OF NAGORNO-KARABAKH (1996).

53 Id. 54 Id. 52

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of pogroms that resulted in thousands of Armenians and Azerbaijanis migrating to their respective territories. Pogroms in 1988 resulted in 300 Armenian deaths and many others raped and looted. In 1990, at least 50 Armenians were murdered (although the exact number of victims is not known) in Baku with the tacit consent of the Azerbaijani police force. Simultaneously, Azerbaijan’s military moved toward Nagorno-Karabagh to “massacre the Armenians.” This escalation of violence led to an all-out war which continues to be interrupted with periodic ceasefires. Artsakh managed to launch an effective resistance and captured the strategic city of Shusha in the beginning of May 1992. Artsakh has had de facto control of the territory since then.

5. How Does Law Apply in the Context of the Real World?

The interpretation of international law that is preferred by my argument suggests that Artsakh has a right to self-determination and secession. The people of Artsakh have a historical claim to the territory, have consistently demanded autonomy over the region, and have been discriminated against by the Azerbaijani government. For the case of Artsakh all three qualifications of territory forcibly take, grave injustices, and major and persisting violations of intrastate autonomy agreements are met.

The “forcibly taken” claim is shown through the many years of semiautonomous rule it has had over the territory despite being conquered by many empires. Besides the autonomous rule, evidence of a predominantly Armenian population living within that territory is clear – and the conflict over the region (whether through diplomatic appeal or physical confrontation) has demonstrated a desire of the Armenian population to regain the autonomy it once had in the region. Why Artsakh is found in Azerbaijan’s territory in the first place is because of the decisions of global powers motivated by their own strategic and economic decisions. Great Britain gave the territory to Azerbaijan and tacitly allowed Azerbaijan’s military initiatives in the region. The Soviet Union, driven equally by the divide and conquer policy, as well as a desire to restrict secessionist and national claims, hindered the attempts of Artsakh

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A STEP TOWARD PEACE: THE REMEDIAL RIGHT OF SECESSION seceding from Azerbaijan. 55 All the while, these decisions have led to escalating tensions between the territories and countless deaths.

The pogroms and the consistently discriminatory policies of Azerbaijan is a clear indication of the countries disregard for equal rights and the grave injustices done by the country to the Armenian minority. Azerbaijan has a consistent display of persecution toward minorities within the country, who do not have full political rights or electoral opportunities.56 This, coupled with consistent attempts to massacre the Armenians in Artsakh, as well as forced migration of Azeris into the territory to shift the population balance, betrays the policy position Azerbaijan has toward the Armenians. Failure to resolve the issue will result in further violence. It is evident that Azerbaijan is uninterested with power-sharing avenues or respecting the human rights of the people living within their own country (much less the Armenians living within Artsakh – whom they view as enemies).57 With this context, Artsakh fully qualifies for the remedial right of secession and this right should be respected by the recognition of the government by U.N. member states. However, Artsakh remains a “disputed territory.”

6. Why is the Law Not Interpreted in the Way I Have Described Above?

As is evident from the case of Eritrea, Artsakh is unable (as well as unwilling) to launch a military offensive capable of overtaking Baku. If this was to occur, the international community would undoubtedly grant recognition of Artsakh, as the matter would be decided via peace negotiations. Furthermore, due to the authoritarian nature of Azerbaijan’s government, the election of a party that is favorable to Artsakh independence is unlikely. The current regime strongly opposes the right of self-determination for Artsakh and will continue to do so if it remains in power. The parent country refuses to consent to the secession of Artsakh and the international community has followed suit in not recognizing it as a separate country. Thus, there is evidence of a preference of

55 Id. 56 Azerbiajan,

FREEDMONHOUSE.ORG, https://freedomhouse.org/country/azerbaijan (last visited Feb. 14, 2020).

57 ASENBAUER, supra.

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territorial integrity over self-determination. It becomes evident that International law places no responsibility on member states to recognize entities as states, even if they meet all the qualifications of statehood. However, it does place a responsibility on states to not recognize “illegal” entities. Recognition is only allowed if the parent state has indicated that it is unwilling or incapable of exerting control over or reclaiming the territory. It is understandable that this would be the international community's approach to self-determination. After all, the U.N. is made up of states, and states would not be willing to subvert the integrity and borders of their state for the desire of peoples to pursue their own political freedom.

Artsakh reveals itself as an entity that is qualified for the remedial right of secession, yet it lacks international recognition. A decisively political question that is decided by powers determined to advance their own interest. The international community justifies their stance on territorial integrity as a preference of “stability and peace.” However, by refusing to recognize Artsakh, it is inviting more instability and violence – by providing Azerbaijan with carte blanche to handle the matter internally.

Conclusion “Possessing the right of self-determination is a legal problem, the international recognition of self-determination, a political question, the accomplishment of the right to self-determination, though, is a question of power.” 58

The political question of the recognition of self-determination is no small matter. Ultimately, one can only provide explanations for what ought to be. The preference of territorial integrity by the international system is not something that can be easily overcome. It is not the case that the powers at play have simply not considered the benefits of a remedial right of secession. Simply, territorial integrity is preferred by the international community as it is more convenient for world powers to advance their interests through that interpretation of international law. However, the interpretation of the remedial right of secession I have provided is a more effective method toward the pursuit of peace and 58

Id.

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stability. I have shown that the remedial right of secession will contribute more to peace by holding states accountable and decreasing the reliance on violence for self-determination movements in general. Through my analysis of the cases of Eritrea, Abkhazia, South Sudan, and Artsakh, it is evident that the road to liberation is not undertaken on a whim. The citizens and armies of both the parent country and the secessionist entity are shaken by death and starvation.

Their homes are burnt, their lives are uprooted. The people who wish to secede do so out of a, at the very least perceived, necessity. Thus, there are two entities who stand firmly opposed to one another, the parent state and the secessionist movement. The international community's stance as a bystander is no solution at all. It is time to dispose of the international communities' insincere territorial integrity interpretation and make genuine steps toward peace. It is time to provide those who suffer under the hands of tyranny and oppression hope. It is time that the international community begins to serve the people and not the states.

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The Foster Care System in America: Identifying Effective Legislation and Flaws for Suggestions ABSTRACT. Child welfare systems profoundly affect the lives of the children they serve and can have significant ramifications on their long-term development. In this paper, I evaluate the United States of America’s long-standing foster care system in a myriad of aspects. Specifically, this paper will analyze pieces of strong legislation behind foster care in the United States, and how they address children’s need for individual attention and permanency. Moreover, I will identify how the foster care system rose to prominence and came to dominate the child welfare system in the United States, as well as legislation that strengthens the system. I will then identify the existing flaws in the foster care system and make suggestions about how these inconsistencies can be revised to improve the system, which will ultimately improve long-term solutions for the children it services.

Introduction Developing children require an enormous amount of individualized care and attention; thus, in the event that parents are unable to properly care for their children, the United States of America has established a child welfare system to provide appropriate care. Ensuring that children are properly cared for implicates

* Kalysa To is a third-year studying english and psychology at UCLA, as well as pursuing a minor in public affairs. In addition to the Undergraduate Law Journal, she is also involved on campus with the Daily Bruin and the UCLA chapter of Her Campus Media. Kalysa is interested in continuing to learn about legal fields and about legal research in the future.

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THE FOSTER CARE SYSTEM IN AMERICA: IDENTIFYING EFFECTIVE LEGISLATION AND FLAWS FOR SUGGESTIONS many different issues including health, culture and family participation. 1 As this paper will discuss, a quality foster care system is important because lack of proper care of children can have ramifications for their long-term development.

In evaluating childcare systems, individualized attention and permanency are two important and crucial parts of any system. Specifically, individual attention is critical to child development because each parent’s treatment and behavior toward the child should be tailored to the child; no child can be parented in exactly the same way. Furthermore, it is also important for children to experience a sense of continuity and permanency throughout their childhood because it allows children to feel more secure in their environment. 2 However, in orphanages, it is difficult for children to have individual attention. Although orphanages no longer exist in America, they do exist in Greece, where the ratio of caregiver to infant is about 4:1 or 6:1 when it should be 1:1, making personalized care to each child difficult.3 In addition, since the caregivers at orphanages are constantly trading off shifts, the children at orphanages do not often feel a sense of permanence of security. The institutionalization of orphanages prevents children from receiving individual care and a sense of permanence; thus, the foster care system achieves better outcomes than the orphanage system in providing an environment more conducive to individual care and permanence.

The definition of appropriate care for children is crucial to the evaluation of the foster care system, yet it is so broad; therefore, in defining appropriate care, it may be more productive to define what it is not and what might cause a child to be placed in the foster care system. For example, neglect, abuse, and abandonment constitute some of the primary reasons for the disproportionate

McCarthy, Meeting the Healthcare Needs of Children in the Foster Care System: Summary of State and Community Efforts Key Findings, GEORGETOWN UNIVERSITY (2002) https://gucchd.georgetown.edu/products/FCSummary.pdf.

2Mary Benson McMullen, The Many Benefits of Continuity of Care for Infants, Toddlers, Families, and Caregiving Staff, NATIONAL ASSOCIATION FOR THE EDUCATION OF YOUNG CHILD. (2018), https://www.naeyc.org/resources/pubs/yc/jul2018/benefits-continuity-care.

3 Marinus H. Van Ijzendoorn et al., Children in Institutional Care: Delayed Development And Resilience, 76 Monographs of the Society for Research in Child Development 8–30 (2011).

1Jan

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UCLA UNDERGRADUATE LAW JOURNAL number of children entering the foster care system. 4 These behaviors can have ramifications on children’s physical and psychological well-being, both in the short and long term. Therefore, in evaluating the foster care system, it is important to evaluate how these behaviors are prevented and how children are given care and attention from their foster parents.

Since the initial establishment of the foster care system of the U.S. in the early 1900s, the system has undergone reforms, incorporating scientific research about child development and psychological well-being. In this paper, I will examine the foster care system to assess the effective improvements brought about by legislative reform over time. While evaluating the efficacy of child care systems, I will focus primarily on the two factors of individualized care5 and permanence.6 While some legislation has been effective in addressing these two factors, there are still many flaws that must be addressed to further develop and improve America's foster care system. Thus, I will also provide suggestions for changes in legislation that will lead to better outcomes for the children in the system such as providing necessary subsidies for foster parents, establishing stricter regulation to help foster children find permanent homes, and more vigorously enforcing existing federal standards.

In Section I, I will provide context for and highlight some of the key pieces of legislation in the foster care system that have contributed to and define the child welfare system today. Namely, I will first discuss how the orphanage system eventually disappeared in America, making way for the foster care system, and the different legislation that helped to improve and make the foster care system more effective over time. In Section II, I will discuss the flaws that still persist in the foster care system, particularly flaws that inhibit children’s access to a permanent location and to individual care. In Section III, I will Mark D. Simms et al., Health Care Needs of Children in the Foster Care System 909, THE AMERICAN ACADEMY OF PEDIATRICS (2000), https://pediatrics.aappublications.org/content/106/Supplement_3/909/tab-article-info.

5 National Center on Early Childhood Development, Teaching, and Learning, Individualizing Care for Infants and Toddlers - Part 1, U.S. DEPARTMENT OF HEALTH AND HUMAN. SERVICES. (2018), https://eclkc.ohs.acf.hhs.gov/sites/default/files/pdf/nosearch/individualizing-care-infants-toddlers-part-01.pdf.

6 The Pennsylvania Child Welfare Resource Center, Module 9: Out-of-Home Placement and Permanency Planning, UNIVERSITY OF PITTSBURGH http://www.pacwrc.pitt.edu/curriculum/CTC/MOD9/Handouts/HO07_ImprtncPrmncy.pdf.

4

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THE FOSTER CARE SYSTEM IN AMERICA: IDENTIFYING EFFECTIVE LEGISLATION AND FLAWS FOR SUGGESTIONS provide suggestions in legislation that the U.S. can implement to address the weaknesses of the current system. Finally, I will suggest further steps that America can take to improve legislation in child welfare.

I. The History of Foster Care in America Although the foster care system in America is still in need of improvements, it has made notable progress over time. In this section, I will analyze the history of foster care in America in order to understand how different pieces of legislation have shaped the foster care system and to provide a view of the current system.

Before the foster care system was implemented in the United States, children were placed in orphanages. These orphanages would house a number of orphaned children, all of whom would live together. In the mid-1800s, a movement, developed by reformer Charles Loring Brace and the New York Children’s Aid society, sent poor, orphaned children to the west to live with families pre-approved by other local families.7,8 The reformers believed that the children would benefit more from living with families rather than on the streets or in overcrowded orphanages. Ultimately, Brace’s work marked a turning point in the history of the childcare system in America, precipitating the foster care system that exists today.

The Orphan Trains ceased in 1929 because there was less of a need for adoptable children in the West.9 However, by the beginning of the 20th century, people began to protest the institutionalization of orphanages, condemning how regimented the schedules were and how the children in these orphanages were being treated.10 The Progressive Movement, which encouraged reforming 7Marilyn Irvine Holt, Children and Youth in Adoption. Orphanages, and Foster Care: A Historical Handbook and Guide 17–27 (2006).

8American Adoptions, Inc, What Does Adoption Mean? https://www.americanadoptions.com/adoption/adoption-meaning.

9 Rebecca S. Trammell, Orphan Train Myths and Legal Reality, 5 THE MODERN AMERICAN 3–13 (2009), https://digitalcommons.wcl.american.edu/cgi/viewcontent.cgi?article=1023&context=tma.

10 Dale Keiger, The Rise and Demise of the American Orphanage, JOHNS HOPKINS MAGAZINE (1996), https://pages.jh.edu/jhumag/496web/orphange.html.

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society so that segregation of children into asylums would no longer be necessary, developed at the beginning of this century. Specifically, reformers in this movement were particularly interested in deinstitutionalizing society, and the orphanage system was one of the large institutions that they particularly sought to break down.

Deinstitutionalization meant that, instead of regimented schedules in orphanages, more people were endorsing the idea of keeping children in families. In the 19th century, the United States began replacing orphanages and almshouses with foster care and foster homes, ushering in the complete disappearance of orphanages and takeover of the foster care system by the end of the 20th century.11 According to the United States’ Child Welfare Information Gateway, foster care is defined as “a temporary service provided by States for children who cannot live with their families.” The foster care system features various types of care, such as group homes, where multiple children live with trained social workers, and kinship care, where children live with their relatives. However, the most common type of foster care in America, and the focus of this paper, involves the child living with a family unrelated to them. In this section, I will outline key pieces of regulation that mark the changing path of the foster care system throughout American history.

A. Child Abuse Prevention and Treatment Act - 1974 One of the defining pieces of legislation of the foster care system is the Child Abuse Prevention and Treatment Act (CAPTA) of 1974, which was born out of a series of conferences to discuss treatment of children. 12 From 1909 to 1971, the White House Conference on Children and Youth was held each year between the U.S. president and delegates around the country for a discussion about

supra, at 449-63.

U.S. Department of Health and Human Services , The Child Abuse Prevention and Treatment Act, National Child Abuse and Neglect Training and Publications Project (2014), https://www.acf.hhs.gov/sites/default/files/cb/capta_40yrs.pdf.

11Myers, 12

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THE FOSTER CARE SYSTEM IN AMERICA: IDENTIFYING EFFECTIVE LEGISLATION AND FLAWS FOR SUGGESTIONS improving the lives of children around the nation. 13 A 1965 national survey revealed an estimate that between 2.5 to over 4 million incidents of abuse resulted in some degree of injury. 14 Thus, the 1970 White House Conference was concerned about the family and issues of maltreatment in the family. 15 Ultimately, CAPTA later emerged from these conferences.

CAPTA helped to shape the foster care system by authorizing federal funds to improve state response to the abuse and neglect of children. 16 Namely, CAPTA defines the abuse and neglect of children and aims to provide the funding necessary for agencies and organizations to prevent such abuse and neglect. When children are no longer in custody of their legal guardians, social workers come in to fill that gap for them. CAPTA represents the significant impact that state workers can have on the lives of children and attempts to improve the relationship between workers and children by tapping into federal funds. Through its focus on improving the behavior and increasing the knowledge of state workers, CAPTA made significant progress toward improved treatment of orphans and is still in effect today.

B. Child and Family Services Reviews - 1994 Although the U.S. child welfare system experienced many changes in the response to child abuse and neglect, these policies were ineffective without evaluation or review and the Child and Family Services Reviews provided such safeguards. Specifically, the Child and Family Services Reviews (CFSRs), passed by Congress in 1994, served as an amendment to the Social Security Act and allowed the U.S. Department of Health and Human Services to review child

Jennifer Mchael & Madeleine Goldstein, Reviving the White House Conference on Children, CHILD WELFARE LEAGUE OF AMERICA, https://www.cwla.org/reviving-the-whitehouse-conference-on-children/.

14Mary Porter Martin et al., 1978 Annual Review of Child Abuse and Neglect Research, National Center on Child Abuse and Neglect (1978), https://www.ncjrs.gov/pdffiles1/digitization/59328ncjrs.pdf.

15 Barbara A. Chandler, The White House Conference on Children: A 1970 Happening, 20 The Family Coordinator 195–207 (1971), https://www.jstor.org/stable/582065.

13

16

42 U.S.C. § 5106a (2011).

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UCLA UNDERGRADUATE LAW JOURNAL and family service programs in the state through the Children’s Bureau.17 The CFSRs were an attempt to review state child welfare agencies and evaluate whether they met national standards. They require child welfare agencies in all states to submit performance reviews that demonstrate adherence to federal standards to promote well-being, safety and permanency for children.18 States that are unable to show adherence to federal standards are required to map out a plan toward improving their system to meet the national standards. States are then given two years to implement this plan; failure to improve their system in accordance with federal standards can result in a penalty and fine.

C. Adoption and Safe Families Act - 1997 In addition to the treatment of children and the evaluation of policy, legislation was also needed to find permanency for children, and the Adoption and Safe Families Act (ASFA) emerged out of this necessity. The ASFA introduced many changes to the child welfare system after it was enacted in 1997, specifically attempting to find permanent homes for children. In the 1900s, there was a significant increase of children placed in foster care and many of the children were unable to find permanent homes, with many children staying in foster care for at least three years.19 Centrally, the ASFA was implemented to place stronger emphasis on permanency for children in the foster care system by shortening the timeline for which children should find a permanent home.

The Adoption and Safe Families Act of 1997 mandated that “reasonable efforts shall be made to place the child in a timely manner in accordance with the permanency plan.” 20 As a result of this act’s emphasis on finding permanent homes, foster care was eliminated as a long-term option. Instead, child welfare Child and Family Services Reviews, History of the CFSRs, https://training.cfsrportal.acf.hhs.gov/section-1-round-2-archives/686 (last visited March 25, 2020).

18 Sandra Bass et al., Children, Families, and Foster Care: Analysis and Recommendations 4–29 (2004), https://www.jstor.org/stable/1602752.

19 Kim Phagan-Hansel et al., One Million Adoptions Later: Adoption and Safe Families Act at 20, THE CHRONICLE OF SOCIAL CHANGE (2018), https://chronicleofsocialchange.org/adoption/one-million-adoptions-later-adoption-safefamilies-act-at-20/32582.

20 H.R. 867, 105th Cong. (1997) (enacted).

17

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THE FOSTER CARE SYSTEM IN AMERICA: IDENTIFYING EFFECTIVE LEGISLATION AND FLAWS FOR SUGGESTIONS agencies had to work to find permanent homes and solutions for the children quickly rather than have children stay in the foster care system for extended periods of time. This piece of legislation was significant in improving the longterm health of children because research has demonstrated that children are in need of permanency in their lives in order to form secure attachments to their caregivers and to prevent attachment disorders. 21 While the foster care system plays a major role in the lives of the children that move through it, their foster families and foster parents are typically only temporary fixtures in their lives. Specifically, the average child spends about three years in the system, typically moving between at least three families before eventually being reunified with their family or adopted out of the system. 22 The lives of children in the foster care system are constantly changing; however, research has shown that young children require stability and permanency in their lives for better long-term behavioral outcomes. 23 Thus, another key component of ASFA is the definition of “reasonable efforts to preserve or reunify families,” as well as efforts to achieve permanency in the lives of the children.24 ASFA was introduced as a key piece of legislation which focuses on bridging the distance between foster care and permanency. State workers and child welfare agencies are required to implement efforts that will help children find a permanent solution for their situation—whether that means finding them a permanent new home or reunifying them with their biological family. This piece of legislation is crucial in helping children in the foster care system find permanency in their lives, which is essential to their development and for later

21Charles Zeanah, Disturbances of Attachment in Young Children Adopted from Institutions, 21 JOURNAL OF DEVELOPMENTAL AND BEHAVIORAL PEDIATRICS (2000), https://www.researchgate.net/profile/Charles_Zeanah/publication/12434999_Disturbances_o f_attachment_in_young_children_adopted_from_institutions/links/54c11e290cf25b4b8071b6 b4.pdf.

22 ABC News, Facts on Foster Care in America, ABC NEWS (May 30, 2006), https://abcnews.go.com/Primetime/FosterCare/Story?id=2017991&page=1.

23 David M. Rubin et al., The Impact of Placement Stability on Behavioral Well-being for Children in Foster Care, AMERICAN ACADEMY OF PEDIATRICS (2007).

24 U.S. Department of Health and Human Services Children’s Bureau, Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children, CHILD INFORMATION GATEWAY (2020), https://www.childwelfare.gov/pubPDFs/reunify.pdf.

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outcomes in their health and well-being. Namely, in addressing permanency as a necessary part of children’s lives, the ASFA provides clarifications and specificities regarding child welfare rules and legislation. In conclusion, ASFA is a significant and effective piece of foster care legislation in the United States.

The foster care system is effective because it targets two specific needs of children: the need for permanency and the need for individual attention. The Adoption and Safe Families Act specifically helps children find permanent homes and permanent solutions, while the Child Abuse Prevention and Treatment Act and the Child and Family Services Reviews Act work in conjunction to provide the necessary care and individual attention that each child needs.

Additionally, American foster care legislation succeeded in providing safe quarters in which children can develop and grow because it allows families to provide individual care for their foster children. In building an environment where children can receive personalized care and attention, American foster care creates this “adequate caregiving environment.”

As discussed, the legislation that has been implemented thus far is in some ways effective. Specifically, 55% of foster children were able to reunite with their birth parents in 2016.25 The previously mentioned statistic emerges from the effective legislation that has been put in place focused on helping children find permanent homes and in establishing federal regulations to improve the performance of state workers in their treatment of children.

Although the foster care system in America has come far, there still exist many flaws in the system.

II. Flaws in the American Foster Care System There have been significant improvements in the American foster care system throughout its history, but flaws are still evident in the present system.

A prominent flaw of the current system involves the kind of environment that

North American Council on Adoptable Children, 2016 Saw More Children in Foster Care and More Adopted (January 08, 2018), https://www.nacac.org/2018/01/08/2016-saw-morechildren-in-foster-care-and-more-adopted.

25The

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THE FOSTER CARE SYSTEM IN AMERICA: IDENTIFYING EFFECTIVE LEGISLATION AND FLAWS FOR SUGGESTIONS children are placed. Research about children facing adversity suggests that “the sooner you can get them into an adequate caregiving environment, the better their chances are for developing normally.”26 The environment in which a child is placed is very significant in increasing children’s chances at rehabilitation and in determining the best possible long-term outcomes for children. Thus, in this next section, I analyze flaws in the context of the types of caregiving environment provided by the child welfare system.

A. Lack of Payment for Parents Leads to Lack of Individualized Attention for Children Even though the American child welfare system does have some effective legislation designed to provide individual attention and care for the children, the lack of substantive payment to foster parents is a prominent weakness of the system. Specifically, foster parents are given a subsidy that often barely covers the living expenses of the child.27 Subsidies that foster parents receive differ from state to state, but 61% of adopted foster children receive $500 a month or less as a subsidy payment, 24% receive between $500 to $750 a month, and only 15% receive more than $750 a month. 28 The U.S. Department of Agriculture conducted a Consumer Expenditures Survey in 2015 which found that a middleincome household spends approximately $12,980 annually per child, which equals about $1,082 per month.29 Even though the state tends to cover healthcare for foster care youth, this is still not enough money for the family. 30

Charles Alexander et al., Romania's Abandoned Children (2014).

Peeples, Getting Paid to Be a Foster Parent: State-by-State Monthly Guide, WEHAVEKIDS (2019), https://wehavekids.com/adoption-fostering/What-does-being-a-foster-parent-reallypay.

28 Karin Malm & Sharon Vandivere, Children Adopted from Foster Care: Adoption Agreements, Adoption Subsidies, and Other Post-Adoption Supports, ASSISTANT SECRETARY FOR PLANNING AND EVALUATION RESEARCH 1–17 (2011), https://aspe.hhs.gov/system/files/pdf/76251/rb.pdf.

29 Mark Lino, The Cost of Raising a Child, U.S. DEPARTMENT OF AGRICULTURE (2020), https://www.usda.gov/media/blog/2017/01/13/cost-raising-child.

30 U.S. Department of Health and Human Services Children’s Bureau, Health-Care Coverage for Youth in Foster Care— and After, CHILD INFORMATION GATEWAY 1–16 (2015), https://www.childwelfare.gov/pubPDFs/health_care_foster.pdf.

26 27

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UCLA UNDERGRADUATE LAW JOURNAL B. Inability to Find Permanency in the American Foster Care System Additionally, another flaw in the American foster care system is its inability to effectively find permanent homes for children. The system is not designed to retain fostered children until they age out; rather, the legislation is focused on finding permanent living situations for these children as quickly as possible.

Unfortunately, permanency is not often achieved. Children in the foster care system move from home to home an average of three times. In 2017, the median amount of time a child spent in foster care was 14.3 months. 31 In addition, in fiscal year 2016, 10,549 children were set to remain in long-term foster care and were unable to find permanent homes.32 Lydia Joyner, a former foster child, shares her experiences in foster care, which shed light on the failures of the American foster care system in providing stability and permanency in the lives of the children it serves.

Lydia Joyner’s experiences highlight the flaws in the American foster care system that should be addressed in future foster care legislation. Namely, since she was forced to move from home to home, the foster care experience forced her to re-evaluate her identity each time she moved to a different family. Joyner felt so distant from the families that she was living with that she found solace in the trash bag that she carried from home to home.

While the foster care system has the added benefit of increased individualized care—as opposed to orphanages, institutions which lack personalized care—Joyner’s experience represents how experiences in a foster home can still lack individualization. Specifically, the foster parents she stayed with did not bother to learn her story, even forcing her to change her name.

Instead, Joyner was forced to assimilate and grow into their world. Many laws have been enacted in order to promote permanency for fostered children and to teach state workers how to better care for these children. However, the foster care system has failed to fully implement and adhere to this legislation.

U.S. Department of Health and Human Services Children’s Bureau, Foster Care Statistics 2017 CHILD INFORMATION GATEWAY 1–11 (2019), https://www.childwelfare.gov/pubPDFs/foster.pdf#page=7&view=Length%20of%20stay.

32 See Supra note 26.

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THE FOSTER CARE SYSTEM IN AMERICA: IDENTIFYING EFFECTIVE LEGISLATION AND FLAWS FOR SUGGESTIONS In addition to the lack of personalized care and attention of the foster care system, Joyner also elucidated the maltreatment she was faced with under the American foster care system. Prior to her entrance into the foster care system, Joyner was “inseparable” from her cousin, but they were immediately driven apart when they became foster children, which further entrenched her initial sense of dissociation, distance, and discomfort.

Unfortunately, Joyner’s story represents one of many stories of maltreatment in the foster care system. Specifically, the City of New York’s Department of Investigation found that cases of maltreatment are not only common, they are continually increasing. According to a fiscal report released from the City of New York’s Department of Investigation (DOI), “479 children were abused or neglected while placed with FFC providers in Fiscal Year 2016 (FY16) – a figure that rose to 599 in the following Fiscal Year (FY17).” 33 The New York City Administration for Children’s Services (ACS) is responsible for a total of about 8,500 children and about 7% of these children are being mistreated. With the lives of so many children under the care of foster workers, the issue of alleviating maltreatment within the system grows increasingly urgent and pressing.

Although foster care legislation recognizes the importance of permanency in the lives of these children, Lydia Joyner’s experiences and the data from the City of New York shine light on the failures that still persist in the system.

C. Inability to Meet Federal Standards for Preference Also, while the CSFRs have been an effective piece of legislation in the United States by setting standards for performance and regulations towards the treatment of children in the foster care system, there are still flaws in the implementation of this law. Despite the establishment of the CFSRs by Congress in 1994, as of 2004, no state had met the federal standards for

Press Release, The City of New York Department of Investigation, DOI Report Find the City Administration for Children’s Services Did Not Sufficiently Hold Foster Care Providers Accountable for Safety of Children in Their Care (October 12, 2018) (on file with author).

33

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performance. By the fiscal year of 2015- 2016, only two states demonstrated “substantial conformity with outcomes� that children are protected from abuse and neglect. It was also discovered that five states conformed with outcomes for children to receive services to address their educational needs.

Despite these low numbers, there has been promising progress towards improving the foster care system to meet the needs of children. However, in order to fully reap the potential benefits and powers of the CFSRs, the rules must be enforced more strictly, and performance reviews should be conducted more regularly so that the system may continue to improve. Ultimately, the severe maltreatment that is still rampant in the nation, as well as the inability of all states to meet the federal standards for performance, suggests that much more work and progress needs to be done in improving the American foster care system.

In this section, I discussed the flaws of the child welfare systems in the United States of America and made suggestions about how the system might be strengthened by implementing other legislation to provide individualized attention and permanency for children. In the following section, I will discuss some future directions that the United States of America should take to improve the child welfare system.

III. Improving Care for Children: Recommendations Although children’s need for individual attention and care has been addressed in previous legislation, flaws still remain in the system, and recommendations should be made to address these failures of the system.

Individual attention and care are partially addressed under the current foster care system, as it is designed to place a single child in a foster family. With legislation that has set the goal of helping children find permanent homes and permanent families, as well as by setting federal standards with which to regulate state workers, the foster care system of America has been able to make some notable strides.

However, the foster care system could benefit from providing subsidies for foster parents. Romania's childcare system provides a template for the

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THE FOSTER CARE SYSTEM IN AMERICA: IDENTIFYING EFFECTIVE LEGISLATION AND FLAWS FOR SUGGESTIONS American system to emulate governing compensation. Specifically, its legislation offers a substantial amount of payment to maternal assistants who care for a foster child, which benefits the foster child.34 Furthermore, Romanian maternal assistants are restricted from working other jobs and instead receive monthly payments so that they can devote time and attention to caring for these children. Maternal assistance is treated as a paid job, with the parents making 600 lei (equivalent to about $200 a month), similar to how much a school teacher or nurse makes. 35 Data has found that after the creation of the maternal assistant position in Romania, as an increasing number of children were placed under the care of maternal assistants, the number of children living in institutions has decreased and more children are living in family environments. 36 The creation of the maternal assistant position in Romania allows children to receive complete care and attention from one reliable caregiver, and this position has benefitted Romania’s children and its child care system.

Since foster children in the United States suffer from their foster parents’ lack of time and resources, the system can benefit from implementing similar compensation guidelines. Specifically, the payments that foster parents receive should be enough to cover both their living expenses as well as the child's.

Romania’s system of funding and payments to their foster parents has benefitted the maternal assistants and the children, and American can follow this model to reap similar benefits. By providing more sufficient resources, foster parents can devote the crucial time and attention to their children.

The child welfare system in America has flaws that should be corrected to better the treatment of children in its care. America’s present legislation is

Meghan Collins Sullivan, ORPHANED BY HISTORY: A Child Welfare Crisis in Romania, 176 World Affairs 78–84 (2014), https://www.jstor.org/stable/43555095.

35 Meghan Collins Sullivan, Romanian Project Reunites Abandoned Children With Families, AMERICAN UNIVERSITY RADIO (2013), https://wamu.org/story/13/12/17/romanian_project_reunites_abandoned_children_with_fa milies/.

36 UNICEF, Romania Example: Child Protection within a Family Environment, UNITED NATIONS CHILDREN’S FUND (2012), https://www.unicef.org/childfamily/index_24538.html 34

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effective, and it should focus on more strictly enforcing those laws to reap their benefits.

In addition, the United States can address the issues of maltreatment which are still prominent strictly enforcing existing laws and federal regulations. By more strongly enforcing federal guidelines to prevent child abuse, the issues of foster care can be reduced, and the treatment of foster children can be improved.

Conclusion The American foster care system is designed so that each child can receive individual attention from their foster parents. The system’s implementation of policies that addresses individual care and attention for children, as well as a plan for permanency, have been effective in developing an effective caregiving environment for children.

Although flaws still exist in the American foster care system, the United States can continue to improve their children welfare system by implementing new legislation. A major flaw in the American foster care system is that foster parents are not receiving enough compensation. Since children, and especially orphaned children, are in need of personalized attention and time, the American foster care system should provide enough compensation for foster parents such that they can spend more time caring for children than worrying about making a living to provide for their family.

In addition, the United States’ child welfare system could benefit from legislation that more strictly enforces the Child and Family Services Reviews (CFSRs). Although these reviews very strongly benefit the foster care system by establishing guidelines for state workers, these reviews are ineffective if they are not strictly enforced.

Many pieces of legislation have been able to effectively improve the American foster care system. However, further compensation for foster parents, as well as increased enforcement on federal regulations, can help improve focus on individual attention and permanency for foster children, leading to a continuously progressing foster care system. While previous legislation does contribute to the effectiveness of the current foster care system, new legislation

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THE FOSTER CARE SYSTEM IN AMERICA: IDENTIFYING EFFECTIVE LEGISLATION AND FLAWS FOR SUGGESTIONS could be implemented to supplement and to improve the foster care system as it continues to grow and improve in America.

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UCLA UNDERGRADUATE LAW JOURNAL Marieme Diallo*

Religion and Secular Law: A Comparative Analysis of the Application of Islamic Law ABSTRACT. Islam is the fastest growing religion on Earth. Modern states face a growing demand to be more inclusive of Muslim populations through the incorporation of Islamic inspiration within their respective legal frameworks. This is just one example of the growing debate on religious inspiration within legal frameworks across the world. This principle challenges the Western, secular legal philosophy that might not apply to diverse populations, especially within the Islamic World. This article explores the application of Islamic Family Law in three countries: Nigeria, Senegal, and Saudi Arabia. Each of these countries represent three broad applications of Islamic Law: mixed systems of legal application, secular systems of legal application, and systems that completely rely on Islamic legal application. In this analysis, I argue that religion and domestic law (including secular law) can be compatible. These two seemingly conflicting legal philosophies can be reconciled through a secular legal system that provides the option of pursuing cases through a Sharia Court, as demonstrated in Senegal. The growing conflict between secular and religious law within sovereign states necessitates such analysis. Such *Marieme Diallo is a graduating senior from the University of California, Los Angeles with a major in political science and a minor in history. In addition to writing for the Journal, she is the membership director of the UCLA Pre-Law Society. Marieme plans to attend law school after graduation and pursue a career in international law.

Editor: Younes Mahmoudieh is a graduating senior at UCLA who will receive a degree in political science with magna cum laude honors. His research paper, “The Nuclear Deal: A Crossroad or Deadlock in Relations with Iran,� was recently published by the International Studies Journal and his other work has been featured in the Georgetown Journal of International Affairs, the London School of Economics, and Foreign Policy News. Younes plans to continue his legal research as a future law school student.

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW legal compromise and cooperation can also be applicable to Western societies, such as the United States, who face similar challenges.

Introduction One of the fundamental hallmarks of the modern, Western legal system is the idea of secularism. In the United States, the Constitution mandates the separation of Church and State in the very first amendment. 1 Though this ideal is constantly emphasized within a religiously diverse country such as the United States, many countries outside the West incorporate and often rely on religious elements as inspiration for their legal systems. For example, countries such as Saudi Arabia and Nigeria have traditionally held a large population of citizens who identify as Muslim and thus incorporate significant elements of Islamic Law within their legal systems. Many studies involving the legal systems in the Islamic World tend to focus on the stark differences between secular law in the West and Islamic Law in the East and ignore the diverse application of Islamic Law in various regions where the application of which is far from uniform and homogenous. In this article, I analyze the nuances of the application of Islamic Law within the Islamic World and the corresponding unexplored differences.

Through comparisons of different applications of Islamic Law, we are able to analyze how states bridge the divide between the population’s demands and the leadership’s preferred system. Depending on the country, this decision can come from the head of state, such as a King (as is the case in Saudi Arabia), or from separate, federal states within a country (such as Nigeria) who seek to independently enforce their own legal systems within the framework of the national legal system. However, not all states in the Islamic World have interests or legal ideologies that completely align, and diverse understandings of religion often lead to conflict. States with large Muslim populations tend to follow one 1

United States of America 1789 (Rev. 1992), Constitute Project, https://www.constituteproject.org/constitution/United_States_of_America_1992 (last visited Feb. 22, 2020).

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of three main patterns in the application of Islamic Law: legal systems that rely almost completely on Islamic Law within their constitutions, mixed legal systems that incorporate major elements of Islamic and secular law in their application of domestic law, and finally, legal systems that are secular in nature despite a significant Islamic cultural presence. These diverse applications of Islamic Law will be explored through the lens of Family Law using three countries from the Islamic World: Saudi Arabia, Nigeria, and Senegal. Family law is often the most common and prominent example of the use and application of Islamic law throughout Western scholarship and the Islamic World. The use of family law within this analysis allows us to tackle an important topic which is relevant for every country and easily provides a standard of comparison. These three countries were chosen because of the diverse nature of their integration of religious law within their respective judicial systems and as countries that align perfectly into the three different categories for the application of Islamic Law. I argue that the preferred application of Islamic Law which could reconcile any potential contradiction with domestic law, in the interest of the parties who are subject under the jurisdiction of both legal systems, would be a mixed system that allows those who wish to pursue justice through Islamic courts the option to do so in a voluntary fashion while maintaining the state’s supreme authority over all legal matters. This ties into the overarching discourse on the role of religion within secular legal systems. Meeting the growing demands of diverse populations for more religious inclusion within legal frameworks is a contemporary struggle for many countries around the world. This issue is also evident in countries outside of the Islamic World, such as France. These cases are often highly publicized. One relevant, contemporary example is the legality of the hijab in the French public sphere.2 Through our analysis of the application of Islamic Law throughout the Islamic World, we can evaluate a growing trend for more religious inclusion within all types of legal frameworks, and possibly find remedies for the issue of religious inspiration within secular legal systems.

Aurelien Breeden, Another Hijab Furor Hits France, over a Mother on a School Trip, New York Times (Oct. 19, 2019), https://www.nytimes.com/2019/10/19/world/europe/france-hijabschool-trip-mother.html.

2

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW The rest of the article will support the argument through three main different parts and subsections. Part I of the paper will provide a brief background on Islamic Law and the different applications for it within the context of the article.

Part II will include an analysis of the legal systems of Nigeria, Senegal, and Saudi Arabia with an example of a family law court case from each country that exemplifies its legal system and its application of Islamic Law. Finally, part III will explain recommendations for how states can reconcile the conflict between religious and domestic laws within the Islamic World and around the globe.

Background For the purposes of this article, the use of the term “Islamic Law”, which is also commonly known as Sharia Law, refers to traditional or orthodox Islam.

All of the countries and topics discussed fall under the dominant school of Sunni Islam. This does not mean other schools of Islam, such as Shia, do not follow similar aspects of Islamic Law. However, the distinction is important to note due to the many differences in the interpretation of the religion, as well as to acknowledge any religious minority groups who might not fall under the same category.

Sharia Law is meant to encapsulate all parts of a practicing Muslim’s life including but not limited to family, morals, dress, worship, punishment, and finance. 3 Thus, the importance of following and adhering to Islamic Law is essential to practicing the faith. In addition, Sharia law is sourced from the two holiest Islamic texts: the Qur’an and the Sunnah. The Qur’an, which is thought to be the direct word of God as revealed to the Prophet Muhammad provides authority on compulsory practices for all practicing Muslims. The Sunnah, on the other hand, is a text that chronicles the actions, practices, and recommendations of the Prophet Muhammad. These texts carry the weight and authority of God making the content of these texts religious laws, but there is Calder et al., Law, Oxford Islamic Studies Online, http://www.oxfordislamicstudies.com/article/opr/t236/e0473 (last visited Feb. 4, 2020).

3Norman

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much controversy over the purity and authenticity of the texts. The Qur’an itself is thought to have been orally revealed to the Prophet Muhammad over a period of decades. It was not until many years after the death of the Prophet that the content became codified into a written text which may seemingly undermine its accuracy. This ongoing debate has the potential to change how Muslims perceive and interpret Islamic Law as they know it based on these two very important sources.

As a result of the vast diversity of sources and various questions of authenticity, there are four main schools of thought of Islamic Jurisprudence within the Sunni branch of Islam that all vary in their understanding of modernday issues. The schools include: the Maliki, the Hanbalī, the Hanafi, and the Shafi.4 Many West African nations fall within the Maliki school of jurisprudence. Meanwhile, Saudi Arabia falls within the Hanbalī school of jurisprudence. Evidently, this affects how Islamic Law is interpreted and applied within certain countries within the Islamic World. Islamic jurisprudence, also known as fiqh in Arabic, is usually left to a group of respected Islamic scholars.

A mufti is a well-regarded, usually male, scholar with legal knowledge of the Qur’an and the Sunnah and the capability of juristic reasoning (known as Ijtihad). They can issue rulings (fatwas) but mainly respond to pressing legal issues and “build the information model while the judge applies it.” 5 Only a judge (a qāļī) can issue judgements (ray al-qala) on particular cases. These two individuals work together to provide a legal understanding of Islamic Law for Muslims who are not necessarily scholars of the Qur’an or the Sunnah.

Allowing scholars to issue recommendations and rulings within Islamic Law gives a handful of individuals great control over the application of Islamic Law. Since the interpretations rely heavily on these scholars, their positions, and their qualifications, this brings to question who is qualified, and even what qualifications are necessary to sit as a judge or issue rulings. Even if a scholar is sufficiently qualified, there is not always complete agreement on the ideas and 4

Ricardo René Laremont, Islamic Law and Politics in Northern Nigeria (Illustrated ed. 2011).

Understanding Islamic Law, Islam Supreme Council of America, https://wpisca.wpengine.com/?p=115 (last visited Jan. 9, 2020).

5

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW interpretations of Islamic Law between such experts. The lack of a clear consensus is just one of many debates within the subject of Islamic Law. States within the Islamic World have to compare their internal laws with the “direct word of God” and apply their law in accordance to or indifferent to Islamic Law. Given this information, we can see how Islamic Law itself as a topic has a variety of different understandings and perspectives that must all be taken into consideration when discussing its legal application. This raises various questions regarding the context of Islamic Law within the Islamic World which I hope to answer through a more direct analysis of three specific examples. For example, how does Nigeria apply its own federal civil and criminal laws as a country, when several states within it rely on Sharia Law in civil and criminal matters? In Senegal, how does the state balance its system of secular law (based on the French civil law system) with growing demands for increased implementation of Sharia Law from its citizens? Finally, in Saudi Arabia, how does the state exercise control over its population by promoting the Sunni school of jurisprudence, Hanbalī, with the suppression of other schools of Islamic legal thought? These three countries will serve as examples of different applications of Islamic Law throughout the Islamic World and exemplify the struggle between the application of Islamic Law and secular law for Islamic states.

I. Different Applications of Sharia Law within the Islamic World To continue, given the numerous schools and theories of Islam, varying interests of Islamic states, and different interpretations of Islamic Law, there are a variety of ways Islamic Law is applied all over the world. There are three main applications of Islamic Law. The first is a mixed secular and Islamic legal system, which is used in states like Nigeria. Another is a state with a secular legal system despite large Islamic cultural influence. This is demonstrated in Senegal where secular courts do not rely upon Islamic principles of law for civil and criminal matters. Finally, there are states such as Saudi Arabia, where the legal system completely relies upon Sharia Law. I will analyze these legal systems through

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the lens of family law for two reasons. First, family law is typically the focus of scholars in the field, as these areas tend to have similar patterns of legal jurisprudence across the different schools of Islam. In addition, this legal subject tends to be the most relevant and prominent in regard to Islamic Law today.

A. A Background of the Nigerian Legal System To analyze my argument further, we begin with the most populated country in all of Africa: Nigeria. This country practices a mixed legal system through the use of Customary Law, English Law, Common law, and Islamic Law. Despite a secular federal judicial system, there are states that apply Islamic law to civil and criminal cases within their territory. Nigeria’s mixed legal system can be attributed to the British who enforced English common law on the population.

Before British colonization, many West African countries had their own customary legal systems under different kingdoms, for example, the Kingdom of Oyo.6 However, when the British began colonizing the territory and introducing British legal framework into Nigeria in 1872, the framework was combined with the previous Customary Law. The previous legal system and application of law within Nigeria did not just disappear once the country was colonized by the British but was instead simultaneously applied with British Law. This occurred due to the presence of Islam in the country since the 8th Century.7 Until the presence of the British in the region, various Islamic Caliphates (or states) occupied the Northern part of Nigeria, establishing Islamic legal thought and scholarship. It is well known that the Sokoto Caliphate from the 19th century was one of the main sources for modern-day Islamic jurisprudence in Northern Nigeria and the modern-day Nigerian state Sokoto. 8 Currently, only 12 states in the northern region of Nigeria refer to Sharia Law for civil and criminal cases while states in the South loosely follow or refuse

Griffin Bivens, Pre-Colonial Nigerian History, Pennsylvania State University AFR 110: Intro to Contemporary Africa (Sept. 24, 2014), https://sites.psu.edu/afr110/2014/09/24/precolonial-nigerian-history/.

7Islam in Nigeria, Harvard Divinity School Religious Literacy Project, https://rlp.hds.harvard.edu/faq/islam-nigeria (last visited Feb. 2, 2020).

8Id. 6Spencer

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW to enforce Sharia Law within their courts.9 However, states outside of the original 12 have begun to adopt similar Sharia Courts within their states as well, including the Kwara state in the Midwest of Nigeria. Despite this mixed system, just over 50% of the population in Nigeria identify as Muslim as of 2020. 10 Nigeria is the most populous country in all of Africa. As a result, it plays an important role in the growing development of Islam within the Islamic World.

Islamic Law within the Northern states of Nigeria falls under the Maliki school of Islamic Law and jurisprudence. The Maliki school was created by Malik ibn Anas al-Asbahi in the 8th century and tends to lean towards a more conservative view of Islamic Law that places an emphasis on “the principle of isitislāh, or ‘consideration of the public interest.’”11 This means that although the school is conservative, it still allows flexibility in Islamic legal rulings and judgements. After the election of the first Nigerian president post-military dictatorship, the governor of the Zamfara state, Ahmed Sani Yerima, signed “A Law to Establish a Sharia Penal Code for Zamfara State, Law No.10.” 12 This now required the application of criminal law and civil law to rely on Sharia Law. Soon 11 other states in the North followed suit. Some critics complain that this act by Governor Yerima of the Zamfara state was an attempt to increase his popular support among the growing Muslim majority within the state.13 This conveys the growing importance of Islam within the country and exhibits how politicians within various states in the country are attempting to balance federal laws of Nigeria with a growing demand for more religious laws within the state.

Regardless, these 12 states still maintain criminal and civil law and only apply this legal jurisdiction over Muslim populations. In the context of Islamic family law applied within the Northern states of Nigeria, the case Adisa v. Adisa Moses A. D. Bello & N. M. Jamo, Administration of Justice in the Customary Courts of Nigeria: Problems and Prospects: Legal Essays in Honour of Hon. Justice Moses A.D. Bello OFR, President, Customary Court of Appeal, Abuja (A. M. Madaki ed., 2009).

10 Nigeria, Pew-Templeton Global Religious Futures Project, http://globalreligiousfutures.org/countries/nigeria#/?affiliations_religion_id=0&affiliations_ye ar=2010®ion_name=All%20Countries&restrictions_year=2016 (last visited Jan. 9, 2020) 11Calder et al., supra note 3.

12Laremont, supra note 4.

13Id. 9

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UCLA UNDERGRADUATE LAW JOURNAL (2007), 14 from the Sharia Court of Appeals in the Kwara state, best represents Nigeria’s mixed legal system. This case will be discussed further in the next section as an example of a family law case that reflects the inconsistent application of Islamic Law throughout Nigeria. There are sources of federal law that help regulate family law within the country such as the Matrimonial Causes Act in 1970 and the Matrimonial Causes Rules in 1983. 15 Unfortunately, the federal laws that regulate family law within Nigeria tend to be vague and are not all-encompassing of the different situations that may arise in family law.

Therefore, customary laws tend to fill in the gaps. In parts of Northern Nigeria where Sharia Law is used as inspiration for civil and criminal laws, Northern states use a separate jurisdiction under the 1999 Nigerian Constitution where “Section 262 of the Constitution grants the Shari’ah Court of Appeal the right to decide questions of personal law for Muslims, including marriage, guardianship, inheritance, and succession.” 16 The Sharia Court of Appeal is the main body that rules on family law matters within Islamic Law. Judges in Northern states often rule on cases based on precedent and widely believed Sharia principles (under the Maliki legal jurisprudence) due to the fact that the Sharia Law used to rule on family law is not codified. As a result, the application of legal cases, such as family law cases, solely relies on the judges’ interpretation of Sharia Law. Furthermore, the Sharia courts within the states (the Sharia Courts of Appeal) must still abide by the rulings of the Federal Court of Appeal and the Supreme Court of Nigeria.17 To conclude this example, it is important to note that only Muslim citizens within Northern Nigeria fall under the jurisdiction of Sharia Law; those who identify with a different religion can choose to go to a Oba, Judicial Practice in Islamic Family Law and Its Relation to ʿUrf (Custom) in Northern Nigeria 272-318 (3 ed. 2013).

15Efe Etomi et al., Family Law in Nigeria: Overview, Thomson Reuters Practical Law, https://uk.practicallaw.thomsonreuters.com/6-6134665?transitionType=Default&contextData=(sc.Default)&firstPage=true&bhcp=1 (last updated May 1, 2019).

16Musawah Thematic Report on Article 16 & Muslim Family Law: NIGERIA, Musawah (July 2017), https://tbinternet.ohchr.org/Treaties/CEDAW/Shared%20Documents/NGA/INT_CEDAW _NGO_NGA_28013_E.pdf.

17Yemisi Dina et al., Guide to Nigerian Legal Information, Hauser Global Law School Program, https://www.nyulawglobal.org/globalex/Nigeria1.html (last updated Dec. 2015).

14Abdulmumini A

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW federal court, where federal laws regarding family, civil, and criminal law will be applied. A review of the legal system within Nigeria demonstrates how this country balances the laws of the country with the growing demand of Islamic Law within its states. The next country to be reviewed, Senegal, represents a quite different approach exemplifying the diverse ways that Islamic laws are applied within the Islamic World.

B. A Background of the Senegalese Legal System Contrastingly, Senegal claims to have a completely secular legal system.

The spread of Islam to this region can be traced back to the 11th century18 and has withstood the test of time having witnessed the Trans-Atlantic slave trade, colonization, and the modern formation of the Senegalese government.

Currently, about 94% of the population identifies as Muslim, most falling under the branch of Sunni Islam.19 Similar to Nigeria, Senegal was ruled by various kingdoms before colonization, such as the Namandirou Kingdom, and Islamic states or caliphates such as Fouta-Toro. 20 Each applied their own form of Customary and Islamic Law. After Senegal gained its independence from the French in 1960, it adopted a civil legal system similar to that of the French that revolves around the idea of secularism. There exists a presence of Customary and Islamic law in rural areas, but within the state or federal level, the country applies its laws based on the French standard of legal secularism. Even today, in rural villages in Senegal, rulings from muftis and religious leaders tend to be held in higher regard than the laws of the state.

Despite the large Muslim population, the state emphasizes the secularity of its legal system and Constitution in order to ensure equality before the law in Hill, The Spread of Islam in West Africa: Containment, Mixing, and Reform from the Eighth to the Twentieth Century, Stanford Program on International and Cross-Cultural Education (Jan. 2009), https://spice.fsi.stanford.edu/docs/the_spread_of_islam_in_west_africa_containment_mixin g_and_reform_from_the_eighth_to_the_twentieth_century.

19Senegal Population 2020, World Population Review, http://worldpopulationreview.com/countries/senegal-population/. (last visited Feb. 2, 2020).

20History of Senegal from Prehistory to Independence, Bou El Mogdad, https://www.bouelmogdad.com/history/?lang=en ( ).

18Margari

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UCLA UNDERGRADUATE LAW JOURNAL regards to religion, sex, origins, and/or race.21 The Senegalese Constitution and legal system are based upon the French Civil Law system and are applied uniformly throughout all of the departments and courts within the country.

There are criminal, civil, and family codes that are applied consistently by every court within the country and within all 11 administrative districts.22 Many of the family laws that govern the country come from the 1972 Family Code which establishes a uniform set of codes judges must follow in the legal application of family law.23 Various Muslim leaders and scholars within the country are held in high esteem and often have very close ties to governmental leadership in the country.24 For this reason, their opinions and judgements on issues are still regarded as important, regardless of the courts’ rulings. Religious leaders and groups, such as the Islamic Committee for the Reform of Family Code in Senegal, have increased in popularity among rural citizens in the country. This has led to pushes for changes in the Constitution and federal laws to include Sharia Law within the legal framework of the country. As a result, a new amended Family Code in 2001 includes Article 571, which discusses issues of succession and inheritance in regard to Islamic Law. The Article grants those who identify as Muslim or wish to follow Sharia Law the right to do so in cases regarding succession and inheritance.25 The Family Code of Senegal remains secular in nature, but the addition of this article within the code represents the growing pressure the State faces to incorporate Sharia Law principles within its legal framework. This is evident in a 2005 court case26 which allowed a family to determine their inheritance based on Islamic Law. In other words, Senegal

Secularism in Senegal: Withstanding the Challenge of Local Realities A Legal Approach, Buffett Institute for Global Affairs, 1-12 (Mar. 2009), http://www.bcics.northwestern.edu/documents/workingpapers/ISITA_09-006_Dieye.pdf.

22 Horace Sègnonna Adjolohoun, Visiting the Senegalese Legal System and Legal Research: A Human Rights Perspective, Hauser Global Law School Program(Apr. 2009), https://www.nyulawglobal.org/globalex/SENEGAL.html#_2._Overview_of.

23Dièye, supra, at 1-12.

24Id. at 1-12.

25Senegal: Family Code, Civil Registration and Vital Statistics Knowledge Base, https://unstats.un.org/unsd/vitalstatkb/KnowledgebaseArticle50806.aspx (last updated 2016).

26Pays: Sénégal Jurisdiction: Cour de Cassation., Juricaf, https://juricaf.org/arret/SENEGALCOURDECASSATION-20050720-104 (last updated Nov. 22, 2019).

21Abdoulaye Dièye,

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW demonstrates how it reconciles Islamic Law with the secular laws of its state through the added provision within its Family Code. Saudi Arabia represents an alternate understanding as to how Islamic Laws are applied in relation to domestic law through its legal system which contrastingly completely relies on the Qur’an for its legal jurisprudence.

C. A Background of the Saudi Arabian Legal System The final example will include a country that fully relies on Sharia Law for its legal system: Saudi Arabia. It is well established that the country’s population is (almost) 100 percent Muslim27 and has been this way since the introduction of Islam in the region centuries ago. Saudi Arabia is a relatively new state created in the early 20th Century. Before the formation of the modern Saudi Kingdom, the al Rashīd and al-Jijäz family controlled different parts of the Arabian Peninsula. The Sa ‘ūdī family, led by Abd al-Azīz, regained control of the peninsula after gaining possession of the two Holy Cities, Mecca and Medina, declaring it the Kingdom of Saudi Arabia in 1932.28 This family is the source of the Hanbalī school of Sharia Law in the region. 29 For Saudi Arabia, “the Holy Qur’an is the constitution of the Kingdom and Shari’ah (Islamic Law) is the basis of the Saudi legal system.” 30 The very basis of the legal structure within the country is completely based on the Qur’an with a judicial jurisprudence that follows the Hanbalī school of Islamic legal jurisprudence. Consequently, the country is known throughout the Islamic World for exhibiting one of the more traditional and conservative views of Islam

Saudi Arabia Population 2020, World Population Review, http://worldpopulationreview.com/countries/saudi-arabia-population/ (last visited Feb. 2, 2020).

28Hermann Frederick Eilts, Sa῾Ūd, ῾Abd Al‐῾Azīz Ibn ῾Abd Al‐Raḥmān Āl, Oxford Islamic Studies Online, http://www.oxfordislamicstudies.com/article/opr/t236MIW/e0707?_hi=2&_pos=2#match (last visited Feb. 4, 2020).

29 Id. 30 Islam, The Embassy of the Kingdom of Saudi Arabia, https://www.saudiembassy.net/islam (last visited Jan. 9, 2020).

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within its society. An essential feature of the Hanbalī school of legal jurisprudence is its view concerning the sources of Islamic Law, which it expands to include the direct quotations and fatwas of the Companions (the original followers of the Prophet Muhammad).31 Saudi Arabia is home to two of the holiest sites in Islam: Mecca (the site of the Grand Mosque) and Medina (the site of the Prophet’s Mosque); therefore, the country has a unique importance within the context of the Islamic World.

The domestic laws are applied uniformly across the entire population of the country and to an extent apply to foreigners who visit the country as well: “There is no comparable right for non-Muslims or foreigners, whose cases are handled in regular Shari'a courts.” 32 Court systems rule on cases based on Sharia Law principles in specialized courts such as the administrative judiciary or the Board of Grievances.33 There are also specialized courts that deal with the Shia minority within the country whose beliefs regarding Islamic Law differ.

The administrative judiciary has come under scrutiny over time from the international community for its legal practices that infringe upon the rights of women, infringe on the freedom of speech and free press, and carry out harsh criminal punishments.

The country does not have a formal or written code on family law but instead makes new decisions and judgements based on Sharia Law and a judge’s opinions or expertise.34 On the other hand, there exists a Council of Senior Religious Scholars which is composed of jurists who establish legal principles to guide judges on cases.35 The court system follows a different layout depending on the case and the parties involved. For family law cases, most fall under the

31Calder

et al., supra at 3.

Basics of Saudi Arabian Legal System, The Law Office of Jeremy D. Morley, https://www.international-divorce.com/Basics-of-Saudi-Family-Law-System.htm (last visited Feb. 2, 2020).

33 Abdullah F. Ansary, A Brief Overview of the Saudi Arabian Legal System, Hauser Global Law School Program (July 2008), https://www.nyulawglobal.org/globalex/Saudi_Arabia.html#_Toc200894567.

34 Id. 35 Id. 32

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW Courts of Guarantee and Marriages.36 If the case is appealed, then it goes to the First-Instance Courts. Next is the Courts of Appeals within the cities of Mecca and Riyadh which is followed by the last court in the judicial hierarchy, the Supreme Judicial Council (which almost never directly issues rulings on family law cases).37 With that being said, judges have broad discretion on how they apply Islamic Law and judgements within each family law case. Judges are constrained by specific codes and orders issued by the royalty but are otherwise free to rule as they please. As a result, many family law cases within the country are associated with different judges across the court system and are not codified across the country. Consequently, family law court cases in Saudi Arabia are not usually published; although some are reported by major news outlets when cases involve a Western, foreign citizen. This undermines the uniformity and fairness of the court system which mainly relies on the interpretations of various Islamic jurists. The family law cases portrayed in Western media demonstrate Saudi Arabia's strict commitment to abiding by its interpretation of Sharia Law in all matters, especially family law.

Given the above, we can analyze how states in the Islamic World impose their own legal authority through different applications of Islamic Law by examining Nigeria, Senegal, and Saudi Arabia. Nigeria applies Islamic Law in a limited scope but still maintains secular state laws which have primacy over Islamic Laws. Senegal implements a completely secular legal system with elements of Islamic Law but still faces a growing demand for the increased inclusion of Sharia Law and finally, Saudi Arabia imposes its legal authority through the complete application of fundamental Islamic Law with the Qur’an as its constitution —but takes it a step further by imposing stricter punishments than the rest of the Islamic World. Compromise can be achieved across these different legal systems which apply Islamic Law in a variety of diverse ways. This will be analyzed further in the second part, which describes examples of family

36 37

Id. Id.

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law court cases from each country in an attempt to show how Islamic Law plays a factor in civil law within each country.

II. An Analysis of Different Applications of Islamic Family with Country Examples A. A Family Law Case within Nigeria In terms of Nigeria, the main case that is crucial to my analysis of the application of family law within the state is Adisa v. Adisa (2007). The case involves the issue of marriage and inheritance. The court ruled that a marriage “is an Islamic marriage if the parties are Muslims and all formal requirements of marriage under Islamic law are observed.� 38 This provides the legal standard for which cases should be heard in a Sharia Court. This case, although rather recent, provides a legal stance and precedent for court cases regarding marriage to be heard within their respective courts. Such cases where Islamic Law is cited tend to only be heard within the Northern part of Nigeria. The Kwara state, where the case takes place, is one of the few states outside of Northern Nigeria that uses the Sharia Court of Appeal to handle civil cases that deal with their Muslim population. This demonstrates the lack of uniformity across the country on states who implement Islamic Law to family and civil matters. Depending on which state you reside in, there are different courts governing family matters.

Outside of the 12 states (and growing) that do not adopt sharia criminal and civil codes, customary and federal law is applied to family law and marriage cases.

Thus, the state handles the clash between secular law and religious influences with an undefined, common legal standard for the application of different types of law within the country. This relatively recent case set a precedent and forced those who identify as Muslim within Northern states to be subject to the jurisdiction of Sharia Courts. In addition, the case does not establish or formally state what requirements for marriage under Islamic Law will be recognized within Northern courts. Furthermore, in addition to the limitations of where 38Oba,

supra, at 272-318.

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW Islamic Law can be applied, how Islamic Law is applied varies from court to court and state to state depending on how closely a judge follows the Maliki school of jurisprudence. This is just one of many examples of how Islamic Law is applied within Nigeria, and within a mixed legal system. This case exemplifies Nigeria as a state that has not yet reconciled state laws that use Islamic Law principles with its federal family law standards.

B. A Family Law Case within Senegal Within the secular state of Senegal, the Family Code Article 571 is the only law within the entire country that mentions Islamic Law, allowing those who wish to do so to have their inheritance or succession determined by Islamic Law. In a case from July 20th, 2005 involving what is known in Senegal as the Cour de Cassation, or a court that rules on civil and family law matters, an appeal was made evoking the Article 571 of the Family Code. 39 A family, only known by the initials “ZCB” appealed a previous court case that claimed their matrimonial link was not established regarding inheritance.40 The family’s attorney cited Article 571 in favor of the family, stating that the deceased was Muslim and practiced Islam throughout their entire life, hence inheritance should be ruled based upon Islamic Law. The attorney supported this evidence by stating that (translated to English): ‘“she, the deceased behaved in her lifetime as a fervent Muslim; that she scrupulously respected the five pillars of Islam by making the pilgrimage to Mecca; this is attested by a person worthy of faith in the Khalif Général des Layènes, and is not disputed by the applicant.”’ 41 The attorney even cited an important Islamic religious figure, a Khalif, to further prove his point. Nevertheless, the court struck down this appeal and the family’s defense. According to the judge, in order to rule the family law case according to Islamic jurisprudence, it “...must result from a choice which, although emanating from a Muslim practitioner, must take the following expressions: 39Pays:

Sénégal Juridiction: Cour de Cassation., Juricaf, https://juricaf.org/arret/SENEGALCOURDECASSATION-20050720-104 (last updated Nov. 22, 2019).

40Id. 41Id.

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UCLA UNDERGRADUATE LAW JOURNAL Speech - writing - gesture;...” 42 As a result, the appeal was dismissed, as the family had not expressed their desire for their inheritance to be governed by Islamic Law through speech, writing, and gesture. Just one was not enough to win over the court.

This low-level court case had monumental effects on the application of Islamic Law within the country. The three criteria regarding the use of Article 571 makes it very difficult for citizens within Senegal to appeal for Islamic Jurisprudence in terms of inheritance. This proves to be a difficult obstacle because it requires one to be an overt and arguably very devout Muslim in order to meet the criteria of gesture. It requires one to have contact with important religious figures for the criteria of speech. Finally, it requires one to possess the skills to be able to write about their devotion or inheritance or have the money to afford a lawyer who can do so. When taking into account the large literacy percentage gap between female and male citizens of Senegal, the legal application of Islamic Law can be perceived as unfair and biased towards male individuals who are more likely to profit. In conclusion, Senegal makes every effort to make sure the laws within the country are applied uniformly and secularly making it extremely difficult for Islamic Law to be applied within its system. Still, the very presence and inclusion of this law demonstrates the growing demand for more religious inclusion within the application of Senegal’s laws and codes. This family law case in particular sets an extremely high standard for other cases of family inheritance to be ruled on based on Islamic Law. For this reason, this country’s application of Islamic Law is limited under the Senegalese Federal government’s own secular laws. This case reveals the difficulty in Senegal to have cases heard under Islamic Law jurisdiction, whereas in half of the states in Nigeria and in all of Saudi Arabia, Islamic jurisprudence is already implied.

42Id.

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW C. A Family Law Case within Saudi Arabia In this last example of the application of Islamic Law through the lens of family law, we look to a recent court case that has gathered international recognition for its treatment of an American woman in her custody battle in Saudi Arabia. Around August 2019, an American woman named Bethany Vierra initiated a custody case in Saudi Arabia to gain custody of her daughter, Zeina. 43 Under Saudi Arabian laws, both parents are citizens of the country, so the case was ruled based on domestic Islamic Laws regarding guardianship. The laws regarding guardianship of children tend to favor men over women, as men are given guardianship over women and children for a wide scope of activities and situations including travel and child custody. 44 The judge ruled that the child would be in the custody of Ms. Vierra’s mother-in-law in Saudi Arabia while finding that both parents were unfit for custody. The application of Islamic family law in this case has come under scrutiny by the international community due to the legality of evidence brought by Ms. Vierra which she claimed, “was legally worthless unless she could bring in male witnesses to back her up.” 45 Also, many family law cases within Saudi Arabia rely on the Qur’an and a loose set of codes for judges to rule upon leaving wide discretionary powers for judges whose rulings tend to typically favor men. This case involves a woman with dual citizenship, which brought wide media attention from the West, but also represents family law cases in the country in general. Precedent used in many cases in Saudi Arabia have rulings on family law that tend to favor men over women. They also rely on very traditional, conservative interpretations of Qur’an where women tend to have less legal rights in regard to family law compared to men. These rulings based on the Qur’an and royal decrees tend to be loosely applied throughout the country, despite the legal system relying on the two main sources of Islamic Law, the Qur’an and the Sunnah. Eventually, Vivian Yee, American Woman Loses Custody Battle for Daughter in Saudi Arabia, The New York Times (July 14, 2019), https://www.nytimes.com/2019/07/14/world/middleeast/saudiarabia-women-children-custody.html.

44 Id. 45 Id. 43

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Saudi Arabia has to come to terms with the fact that its legal system and application of Islamic Law infringes upon the rights of minority groups and women, which does not make Islamic Law equal and fair to everyone within its country. This case in Saudi Arabia represents and shows the Islamic World what can occur when the legal application of family law solely relies on a single Islamic scholar’s interpretation of the Qur’an and the Sunnah.

This case in Saudi Arabia is most similar to Nigeria in the fact that it promotes an uncompromising view and application of Islamic Law. Islamic jurisprudence is already implied and guaranteed for all parties to the extent that it can limit the rights of certain parties who bring their cases into Sharia Court.

With that being said, we must learn to find a balance between implied Islamic jurisprudence and an optional form of jurisprudence that does not prohibit one’s inalienable right to pursue their own justice through law thus the need for a mixed legal system that incorporates characteristics of both.

III. Reconciling State’s Laws, Islamic Law, and Secularism: Recommendations As illustrated before, these are just a few examples of how state governments in Muslim-majority countries attempt to reconcile their own domestic laws with Islamic Law. In the case of Nigeria, the state government allows various states to decide whether to abide by Islamic Law in criminal and civil matters, which can lead to constitutional differences and conflict. In Senegal, the state government attempts to reconcile Islamic Law with secular law with the inclusion of small family code amendments. Finally, Saudi Arabia reconciles Islamic Law with its own state laws by making the two synonymous and identical. Nonetheless, I argue that a mixed system of legal structure is the most compatible with a state’s own legal structure in the Islamic World. This structure would provide Islamic legal courts as an option or avenue in civil and family law matters for all who chose to participate with a Constitution that reflects the secular principles of a country but offers protections for large majority Muslim populations. It is important to note that not all countries can benefit from or uniformly implement a mixed secular system that incorporates

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW Islamic Law. Regardless, it is important to note that secular legal systems can be compatible with Islamic Law within the Islamic World.

I recommend a legal structure or system that is more flexible to the diverse religious and populations that seek justice through other means. Simply presenting the option of different avenues to the secular court systems within a country is enough to allow more inclusion and fairness into legal systems throughout the world. Most states can benefit from a uniform legal system that incorporates the diverse customs, cultures, and religions within a country. In the Islamic World, excluding states like Saudi Arabia with a constitution solely based on the Qur’an, a mixed system of secular and Islamic Law can be compatible. Whether it is written into the Constitution or a state’s laws, Sharia Courts can be an optional route of justice to those who want their civil law appeals and cases heard through those means. States should follow in the footsteps of Senegal where both parties of a case can have their civil court case applied under Islamic Jurisprudence when the state deems both parties fit a specified set of criteria and both parties agree to the jurisprudence. Despite the separate religious court system, all courts would still ultimately be under the jurisdiction of the state.

I argue that a mixed legal system does not marginalize minority groups who are not Muslim. This system does not make Islamic criminal punishments mandatory for parties who do not wish to fall under Islamic Jurisprudence; this in time aids in the protection of women and lower-class populations who are often subject to human rights abuses under these punishments. Finally, I argue that it provides states with a compromise for the growing conflict between secular law and religion, by not directly conflicting with Islamic Law, yet exerting their own legal systems and laws with Islamic inspiration. A mixed structure is better than a secular structure because it addresses the concerns of a Muslim majority country in the Islamic World where secularism is not a dominant theme. Nevertheless, there are limits to this recommendation: this might not apply or work well in countries like Saudi Arabia who completely rely on the Qur’an and do not have a culture of secularism within their legal structure. This mixed legal system would also work best with civil law matters,

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unlike criminal law cases that might violate federal or domestic laws and require a punishment. However, there is no single perfect legal system that applies to every country in the world. The diversity of various populations would not allow for it and “one size does not fit all.” However, many Islamic States rely on mixed or secular systems of the application of Islamic Law and would benefit from the gradual incorporation of religion within their legal framework.

Finally, the analysis of these three broad categories for the application of Islamic show the pros and cons of each system, and how countries try to balance the concept of fair and equal justice within Islamic Law. With each system, issues over the treatment of parties and their right to justice under the law come into play. I believe the best system out of the three that best protects the rights of Muslim populations within the Islamic World is reflected within Senegal’s application of family laws. Senegal is by no means a golden standard for the application of Islamic law within a legal system, but the idea of providing Muslim populations with the option to pursue their family law or civil cases through Sharia Law or with local Muslim legal scholars is enough to ensure the right to justice under the law for it population. Although, as aforementioned, the strict criteria and guidelines to seek justice through Islamic Law can be reformed to be more accessible for those who seek it.

A. Secular vs. Religion: A Worldwide Debate In even broader terms, the incorporation of religion into legal systems is an important debate in countries all around the world and is not limited to just the Islamic World. Countries like France and the United States have to decide the extent to which their legal structures will affect the diverse religious backgrounds of their countries. For example, the First Amendment of the United States Constitution guarantees that the state cannot take any action against or prohibit the freedom of religion, press, or speech.46 Therefore, how can the United States ensure that the legal structures of its country do not

46United

States of America 1789 (Rev. 1992), Constitute Project, https://www.constituteproject.org/constitution/United_States_of_America_1992 (last visited Feb. 22, 2020).

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RELIGION AND SECULAR LAW: A COMPARATIVE ANALYSIS OF THE APPLICATION OF ISLAMIC LAW infringe upon the rights of its citizens, especially its Muslim minority? Allowing the option for Muslim citizens to file a civil court case within a Sharia Court allows Muslim minorities to express their religion freely, so long as the Sharia Court still follows and upholds the rules of its respective state and the country.

Although the idea might sound extreme, simply including the option within the application of laws within the country is a topic that can still be discussed further. In France, the country takes a very strict stance on the application of its laws throughout the country based on a civil law system and its idea of laïcité, which refers to the strict separation of church and state and the idea of secularism. 47 At the same time, France has a very diverse population of citizens that come from all over the world including its former colonies within the Islamic World. As a result, France simply cannot maintain a universal legal system based on the idea of secularism, which completely ignores the diverse backgrounds of its population.

Conclusion The conflict between secular applications of law and religion is not regionspecific to the Islamic World. By analyzing this issue through the lens of the Islamic World, we can see that there are solutions to this issue that include a mixed legal application of domestic and religious law. This is supported through the analysis of three different types of legal systems within the Islamic World, the mixed legal structure of Nigeria, the “secular” legal system of Senegal, and, finally, the completely Islamic Law-dependent Saudi Arabia. Within Nigeria, there is a lack of consistency between the federal government’s regulations towards family law and individual state desires to implement Islamic Law. Senegal offers a small window of opportunity for parties to be subject to Islamic Jurisprudence in cases of inheritance, but through the enforcement of strict

T. Salton, France’s Other Enlightenment: Laïcité, Politics and the Role of Religion in French Law, 5 J. Pol. & L. (2012) 47Herman

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criteria that is often difficult to meet. Finally, Saudi Arabia’s civil court system which completely relies on Sharia Law is notoriously known for discriminating against minority populations as well as women. As we continue to analyze legal systems and their effectiveness for providing equal justice under the law, it is important to develop ideas of a mixed legal system that balance Islamic Law with secular or state laws to ensure that the ultimate goal of justice and equality under the law is met, especially within the Islamic World.

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In Sickness and in Health: Divorcing America from Catholic Hospitals ABSTRACT. The United States healthcare system has grown home to rising numbers of Catholic-affiliated institutions in recent years. These religious hospitals’ medical staff are required to abide by standardized Ethical and Religious Directives (ERDs), many of which contradict laws protecting reproductive rights. With strict bans on abortions, sterilizations, and other services, Catholic hospitals are being sued across several states for discrimination against women and trans individuals due to these religious-based clinical restrictions. In many cases, their refusals to provide treatment have greatly risked patient’s healthcare. This article argues against the existence of, and public funding for, Catholic hospitals based on their violations of several laws, including Conditions of Participation for Medicare and Medicaid, the Emergency Medical Treatment and Active Labor Act (EMTALA), and various statewide informed consent policies. In addition, it suggests solutions to address the problems behind the Catholic healthcare system such as increasing hospital independence and enacting federal comprehensive disclosure policies.

*Aneri Suthar is a fourth-year UCLA student studying Human Biology and Society, International Development Studies, and Entrepreneurship. Her current campus involvements include USAC, UC Womxn's Leadership Conference, Bruin Mental Health Advisory Committee, and Fellowship for International Service and Health (FISH). Upon graduation, Aneri plans on taking a gap year before pursuing law school.

Editor: Sean Patrick currently attends UCLA as a political science student and plans to study health law and bioethics in the future. Before writing for the UCLA Undergraduate Law Journal, he worked as a part-time library aide, competed in speech and debate competitions, and volunteered to assist farmers in Ecuador.

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UCLA UNDERGRADUATE LAW JOURNAL Introduction Suffering from preeclampsia, high blood pressure, and excruciating headaches for several months, Jennafer Morris knew she could not risk another pregnancy. 1 Accordingly, she requested a tubal ligation following her C-section delivery at Arkansas Mercy Hospital in 2014. To Morris’ shock, her physician explained that she could not proceed with the procedure due to the Catholic hospital’s sterilization restrictions. She then informed Morris that she needed to seek treatment from another facility—the closest being 30 minutes away. In severe pain and at risk of imminent stroke or seizure, Mercy Hospital left Morris with no choice but to continue her delivery at the hospital without a subsequent tubal ligation.

Morris’ case presents a new, dangerous norm for patients as Catholic hospitals increasingly grow in the United States. Today, Morris’s experience no longer stands as an anomaly, and advocacy groups such as the American Civil Liberties Union (ACLU) are responding by suing the Catholic hospitals for their inadequate health services. On a more conceptual level, these institutions also pose complications; as they gradually acquire secular hospitals and merge with other religious healthcare systems, they present unfamiliar ethical, legal, and constitutional problems for Americans to solve.

These issues are slowly becoming more salient as Catholic religious hospitals spread across America. How fast is the Catholic religious healthcare system growing? Between 2001 and 2016, the number of Catholic-affiliated hospitals increased by twenty-two percent and continues to do so rapidly.2 In fact, at least ten of the country’s twenty-five largest healthcare systems are now Catholic. These healthcare systems are able to grow quickly by addressing secular hospitals’ compounding need for efficiency, reduced overhead costs, and leveraged scale themselves. These problems essentially push secular Kaye, Julia, Brigitte Amiri, Louise Melling, and Jennifer Dalven, Health Care Denied, AMERICAN CIVIL LIBERTIES UNION (Nov. 2, 2016), https://www.aclu.org/issues/reproductive-freedom/religion-and-reproductive-rights/healthcare-denied.

2 Ross, Casey, Catholic Hospitals Are Multiplying, Impacting Reproductive Healthcare, STAT (Sep. 14, 2017), https://www.statnews.com/2017/09/14/catholic-hospitals-reproductive-healthcare/.

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IN SICKNESS AND IN HEALTH: DIVORCING AMERICA FROM CATHOLIC HOSPITALS hospitals to sign contracts with Catholic healthcare systems, and merge under their supervision. In turn, the Catholic healthcare systems accumulate more resources to extend their services in America.

Needless to say, patients are now increasingly using these hospitals as they become more widespread. In fact, one in six patients are now treated in Catholic health centers.3 Many communities, especially those in isolated rural regions, have no choice but to seek care from these health centers. Anyone lacking the time, money, or resources for hospital transfers also faces a similar situation.

Unfortunately, Catholic hospitals limit these groups’ access to meaningful healthcare as they refuse to perform standard procedures such as inpatient abortions, tubal ligations, infertility treatment, and miscarriage management.

Low income women and women of color are most likely to suffer from these Catholic facilities’ restrictions.4 As it is, women of color already face substandard pregnancy outcomes, and more barriers when accessing reproductive care compared to whites. Catholic hospitals’ healthcare restrictions exacerbate these inequities even further; women of color are more likely than white women to give birth at Catholic hospitals, and thus disproportionately receive treatment that is “dictated by bishops rather than medical professionals” across at least nineteen states.5 These disparities are more evident on a state-by-state basis: in New Jersey, for example, women of color comprise half of all reproductive-age women, but represent eighty percent of births at Catholic hospitals. In Maryland, Black women accounted for 3,000 more births at Catholic hospitals than white women. Finally, forty-five percent of Hispanic women who gave birth in Wisconsin did so at Catholic hospitals compared to only thirty-three of white women.6 That women of color, Hafner, Katie, As Catholic Hospitals Expand, So Do Limits on Some Procedures, THE NEW YORK TIMES (Aug. 10, 2018), https://www.nytimes.com/2018/08/10/health/catholic-hospitalsprocedures.html.

4 Ross, supra.

5 Shepherd, Kira, Elizabeth Reiner Platt, Katherine Franke, and Elizabeth Boylan, Bearing Faith: The Limits of Catholic Healthcare for Women of Color, PUBLIC RIGHTS AND PRIVATE CONSCIENCE PROJECT, COLUMBIA LAW SCHOOL, 5 (Jan. 19, 2018), https://www.law.columbia.edu/sites/default/files/microsites/gendersexuality/PRPCP/bearingfaith.pdf 6 Id. at 19.

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particularly Black women, face increased health disparities is a well-documented fact that demonstrates their particular need for high-quality, evidence-based reproductive care—not care hindered by religious restrictions.

Clearly, these religious healthcare restrictions threaten the health of many Americans today. To illustrate this further, I first describe the Catholic healthcare institutions’ current breadth in Part I. In the same section, I also discuss the legislative loopholes they utilize, their specific clinical restrictions, and how these restrictions conflict with standard medical guidelines. Using several cases, I then argue against the existence of, and continued public funding for, Catholic healthcare institutions by explaining how they breach several state and federal laws in Part II. Finally, Part III offers policy recommendations that can ameliorate the ethical harm and legal issues posed by Catholic healthcare institutions.

I. Background A. Types of Religious Healthcare Institutions Religious institutions in the United States healthcare system vary in their degree of affiliation with religious beliefs and adherence to religious-based practices. Whereas some of these hospitals are initially founded on faith, the majority that follow religious restrictions do so due to mergers and sales into larger, primarily Catholic-owned, networks. The latter willingly adhere to the Catholic networks’ restrictions as they see the advantages to integrating into their larger systems. These benefits include clinical standardization improvements, alleviation of administrative burdens, increased access to innovative medical technology, and larger payments from value-based health plans. 7 If these merged hospitals ever choose to sever ties with the Catholic healthcare system, they may still be obligated to abide by their restrictions based

Sale of Religious Hospitals to Non-Religious Buyers, MERGERWATCH, http://www.mergerwatch.org/sale-of-religious-hospitals/.

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IN SICKNESS AND IN HEALTH: DIVORCING AMERICA FROM CATHOLIC HOSPITALS on prior contracts. In the Northwestern University Law Review, Elizabeth Sepper referred to these hospitals as “zombie religious institutions.” Chicago’s West Suburban Hospital exemplifies such facilities. After Catholic Resurrection Health purchased the community hospital in 2004, West Suburban’s policies permanently changed. Although no longer associated with Catholic Resurrection today, West Suburban continues to follow religious restrictions unwillingly. Accordingly, its physicians remain unable to provide certain procedures such as abortions and sterilizations. Neither protests from the hospital’s own medical staff nor the purchase of West Suburban hospital by a secular, for-profit investor ended Catholic ownership over the institution.8 Undoubtedly, this contract-driven spread of religious influence in the healthcare system makes zombie religious institutions troubling.

B. Clinical Restrictions The U.S. Conference of Catholic Bishops refers to the restrictions that Catholic-affiliated hospitals must follow as Ethical and Religious Directives, or ERDs. 9 These series of theological and moral guides on healthcare delivery directly impact American medical care by imposing varying restrictions that extend beyond, but primarily focus on, limitations on reproductive healthcare.

Any physician requesting to practice at a Catholic institution must sign an agreement to abide by these ERDs, and failure to comply with the restrictions invalidates their ability to practice in these hospitals.

Indeed, they must follow the specific limitations on medical protocols, referrals, and procedural limitations that the Conference identifies in the ERD’s “Issues in Care for the Beginning of Life” and “Issues in Care for the Seriously Ill and Dying” sections. The Conference’s Biblical interpretations on human life, dignified marriage, responsible parenthood, and death provided in these Sepper, Elizabeth, Zombie Religious Institutions, Vol. 112, No.5, NW. U.L. REV., 930, 2017.

Ethical and Religious Directives for Catholic Healthcare, UNITED STATES CONFERENCE OF CATHOLIC BISHOPS (Nov. 17, 2009), http://www.usccb.org/issues-and-action/human-life-anddignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifthedition-2009.pdf.

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parts translate to their hospitals’ ban on heterologous fertilization, homologous artificial fertilization, surrogate motherhood, direct sterilization, euthanasia or assisted suicide, contraceptive services and counseling, and abortion.

The Conference’s restriction on abortion seems especially salient. Defining it as “the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus,” 10 the Conference completely forbids abortion, even in cases involving sexual assault, when the mother’s life is in danger, or for research use. Depending on the local bishop’s interpretation, emergency care for ectopic pregnancies and miscarriage management may also be restricted due to ERDs. Hospitals’ levels of adherence to ERDs vary, with some strictly interpreting them with little room for exception and others willing to look the other way for certain procedures, leading to inconsistent standards of care.11 Regardless, the National Bureau of Economic Research estimates an overall thirty percent decrease in inpatient abortion rates in Catholic hospitals and a thirty-one percent decrease in Catholic hospitals’ tubal ligations between 2001 and 2016.12 C. Conflicting Interests Between ERDs and Medical Guidelines Compliance with these ERDs poses a serious issue, as there exists a research-based consensus that access to contraceptive knowledge and services dramatically reduces disadvantageous conditions such as STDs, STIs, and unintended pregnancies. In fact, the Institute of Medicine strongly encourages the Department of Health and Human Services to add “the full range of FDAapproved contraceptive methods as well as patient education and counseling for all women with reproductive capacity” under ACA coverage. 13 The Institute

Id. at 26.

Hafner, supra.

12 Hill, Elaine, David Slusky, and Donna Ginther, Reproductive Health Care in Catholic-Owned Hospitals, THE NATIONAL BUREAU OF ECONOMIC RESEARCH, 4(Sep. 2017), https://doi.org/10.3386/w23768 13 Clinical Preventive Services for Women: Closing the Gaps, INSTITUTE OF MEDICINE, 10(Feb. 26, 2020), https://www.nap.edu/read/13181/chapter/2#9 10 11

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IN SICKNESS AND IN HEALTH: DIVORCING AMERICA FROM CATHOLIC HOSPITALS simply believes it necessary for the health and well-being of women.

Unfortunately, contraception is among the various medical processes for which the ERDs conflict with widely accepted medical guidelines. Banning Catholic health institutions from “promoting or condoning” contraceptive methods, the ERDs disregard evidence-based guidelines for health promotion and harm prevention as recommended by countless, esteemed medical organizations.

The ERDs also risk individuals’ health by refusing to make exceptions for medical necessity in extenuating circumstances. For instance, the ERDs’ prohibitions on abortion do not include guidelines for exceptions in cases where the pregnancy risks the patient’s health or life. Tamesha Means suffered from such stringency. In 2016, she began to miscarry at eighteen weeks gestation and rushed to Mercy Health in Muskegon, Michigan—the only hospital in her community. However, because Mercy operates under ERDs that ban pregnancy termination, the hospital sent her home without informing her that her fetus seemed unlikely to survive and that termination would be the safest option.

Means came to the hospital twice more, suffering in severe pain and developing an infection, only to be rejected. She did not receive treatment until she began delivering as she was being discharged.

Jessica Mann suffered from the Catholic hospitals’ strict adherence to the ERDs as well. For Mann, who experienced brain tumors, another pregnancy meant potential death. When pregnant with her third child, Mann’s doctors highly recommended an immediate postpartum tubal ligation.14 However, Genesys Regional Health Center in Michigan refused to make exceptions to its religious ban on sterilization procedures, forcing Mann to travel to another hospital to give birth. This undermining of women’s health demonstrates how treatment denials at Catholic hospitals are a dangerous pattern.

14

Julia Kaye et al., supra at, 18.

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UCLA UNDERGRADUATE LAW JOURNAL D. Legislative Loopholes Despite the urgency in addressing the problems behind ERDs, the federal government cannot easily resolve the situation. It cannot modify ERDs since Catholic hospitals are eligible for immunity from its regulations, including medical conscience legislation and employee antidiscrimination laws. They receive these immunities because religious institutions are allowed to claim religious exemption from otherwise applicable laws.

After the Supreme Court ruled that for-profit corporations could avoid paying for insurance coverage of contraception in the 2014 Burwell v. Hobby Lobby Stores, Inc. case, these religious institutions sought further legal exemptions.15 The Hobby Lobby case undoubtedly set a bold precedent for religious exemptions and guided other increases in religious freedom over the past six years. Since then, the interactions between private contracts and state or federal legislation predominantly result in “below normal levels of regulatory compliance.” 16 They undoubtedly represent the exceptions through which many religious hospitals are able to deny patients procedures that are otherwise declared legal by state and federal law.

To be sure, there are other legislative means by which institutions can circumvent employer regulations by acquiring legal status. For instance, the Civil Rights Act’s Title VII allows any organization that “affiliates with a religious group, declares a religious mission, and has some religious qualities” to discriminate in favor of job applicants and employees who share their faith.17 This provision enables the Catholic healthcare system to carefully select the physicians and other hospital staff who are likely to comply with the restrictions within the ERDs. The Federal and State Religious Freedom Restoration Acts (RFRAs) also immunizes religious institutions from numerous government-imposed burdens on religion. Passed in 1993, the RFRAs prevent other federal legislation from Arnd, Anya, Legal Precedent, Legal Precedent, Religious Freedom, and the Hobby Lobby Court Decision, CITIZENS PROJECT (Jul. 2014), http://www.citizensproject.org/2014/07/15/legalprecedent-religious-freedom-and-the-hobby-lobby-court-decision/ 16 Sepper, supra, at 948.

17 Id. at 954.

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IN SICKNESS AND IN HEALTH: DIVORCING AMERICA FROM CATHOLIC HOSPITALS substantially burdening an individual’s free exercise of religion, “even if the burden results from a rule of general applicability.” 18 Since the Supreme Court considers religious for-profit corporations as “individuals” after the Hobby Lobby ruling, Catholic hospitals can now seek regulatory exemption through RFRAs as well.

Finally, conscience clauses allow religious institutions—particularly hospitals—to avoid certain procedures to which they morally object, such as abortions. After the Department of Health and Human Services established its Conscience and Religious Freedom Division in 2018, religious institutions’ freedom expanded. Simply put, it extended healthcare workers' so-called conscience protections which now allow religious hospitals to avoid providing medical services they have conscience or religious objections to. 19 E. Stakeholders Stakeholders supporting Catholic healthcare systems range from religious organizations to conservative politicians to healthcare administrators. The Catholic Church itself obviously acts as the hospitals’ primary influencer, and the United States Conference of Catholic Bishops creates the Ethical and Religious Directives (ERDs) and its hospitals’ faith-based restrictions. Catholic healthcare facilities are primarily associated with, and supported by, the Baptist Church, Seventh Day Adventist Church, Church of Jesus Christ of Latter-day Saints, and many others. 20 Meanwhile, numerous women’s and reproductive rights organizations, including Planned Parenthood and NARAL Pro-Choice America, actively criticize these Catholic healthcare systems. Even Catholic groups themselves, such as Catholics for Choice and Religious Coalition for Reproductive Choice

Carter, Joe, 5 facts about the Religious Freedom Restoration Act, THE ETHICS AND RELIGIOUS LIBERTY COMMISSION OF THE SOUTHERN BAPTIST CONVENTION, (Jan. 18, 2018), https://erlc.com/resource-library/articles/5-facts-about-the-religious-freedom-restoration-act.

19 Hafner, supra.

20 Kira, Shepherd et al., supra, at 12.

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UCLA UNDERGRADUATE LAW JOURNAL speak out against Catholic directives in healthcare. 21 The ACLU is also among the most proactive national organizations vocally opposing Catholic healthcare systems; it reports comprehensively on healthcare denials, legally represents patients victimized by Catholic-affiliated hospitals, distributes Know Your Rights materials for pregnant individuals, and advocates against further mergers into Catholic networks. 22 In the meantime, research on religious healthcare institutions continues to grow with efforts from Advancing New Standards in Reproductive Health (ANSIRH), a research group within UCSF’s Bixby Center for Global Reproductive Health. Their work is undoubtedly useful as quantitative data on these subjects remain sparse: racial and socioeconomic disparities in treatment at Catholic-affiliated facilities, health outcomes based on the various religious affiliations of nonsecular hospitals, and what happens long-term to patients who are denied care.23 II. Legal Issues A. Public Role in Funding Faith-Based Medical Institutions Aside from posing health problems, religious-affiliated hospitals also present financial-related issues to the American public. For one, Catholic hospitals charge Medicare and Medicaid large sums, amounting to over $115 billion in gross patient revenues in 2011. In addition, the Catholic Health Association receives enormous tax breaks since the government recognizes it as a “nonprofit, charitable organization.”24 Most importantly, Catholic hospitals

Is Your Health Compromised? - Catholics for Choice, CATHOLICS FOR CHOICE, (2017), http://www.catholicsforchoice.org/wp-content/uploads/2017/01/2017_Catholic-HealthcareReport.pdf.

22 Julia Kaye et. al, supra, at 5.

23 Freedman, L. (n.d.), RESEARCH CONSORTIUM ON RELIGIOUS HEALTHCARE INSTITUTIONS, https://www.ansirh.org/research/research-consortium-religious-healthcare-institutions.

24 Stone, Judy, Molecules to Medicine: When Religion Collides with Medical Care: Who Decides What is Right for You?, SCIENTIFIC AMERICAN BLOG NETWORK, (Apr. 2, 2012), https://blogs.scientificamerican.com/guest-blog/molecules-to-medicine-when-religion-collideswith-medical-care-who-decides-what-is-right-for-you/.

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IN SICKNESS AND IN HEALTH: DIVORCING AMERICA FROM CATHOLIC HOSPITALS receive $45 billion in public funding annually.25 In fact, nearly half of these hospitals’ total revenues come from public sources. 26 Allowing public funding for Catholic healthcare institutions financially endorses Catholic principles in healthcare, which undoubtedly violates the First Amendment’s Establishment Clause. The Establishment Clause specifically acts as the central provision concerning the separation of church and state and prohibits government actions that favor one religion over others. Older cases involving reproductive access including Roe v. Wade allude to the importance of the separation of church and state in medical ethics. While the current Supreme Court has curtailed its scope significantly, the Establishment Clause still remains and forbids the government from “respecting an establishment of religion.” 27 Aside from the unconstitutionality behind the public finances they receive, Catholic hospitals also violate the various requirements in allocating federal funding for health centers. Known as Conditions of Participation, these federal mandates require Medicare and Medicaid center services to “[inform] patients of their health status,” and “[meet] the emergency needs of patients.”28 The Centers for Medicare and Medicaid Services (CMS), which imposes these regulations, has received numerous complaints about Catholic hospitals withholding information from patients in recent years. Allegations against these hospitals specifically claim that they keep patients from knowing appropriate health and treatment options, respond inappropriately to emergency situations, and mismanage miscarriages and ectopic pregnancies. 29

Sale of Religious Hospitals to Non-Religious Buyers, supra.

Miscarriage of Medicine, AMERICAN CIVIL LIBERTIES UNION, 10 (Dec. 19, 2013), https://www.aclu.org/report/miscarriage-medicine.

27 U.S. Const. amend. I. 28 Miscarriage of Medicine, supra, at 10.

29 Id. at 3.

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UCLA UNDERGRADUATE LAW JOURNAL B. Emergency Medical Treatment and Active Labor Act (EMTALA) Another violation is evident in one section of the Conditions of Participation specifically related to pregnancy issues: The Emergency Medical Treatment and Active Labor Act (EMTALA). Passed by Congress in 1986, EMTALA ensures individuals’ access to public emergency treatment regardless of income.

It requires Medicare and Medicaid participating hospitals to provide medical screening examinations for emergency medical conditions (EMCs). 30 These include labor, providing stabilizing treatments, or appropriately transferring patients when necessary. Since the religious hospitals involved in Tamesha Means, Jessica Mann, and Jennafer Morris’ cases refused to perform emergency medical treatment for labor despite their Medicare funding, they violated EMTALA. The critical circumstances in the aforementioned cases required that miscarriage management and postpartum tubal ligation be provided as outlined under EMTALA, but no such treatment was executed C. Discriminatory Refusals In Jennifer Pizer, Lambda Legal’s Law and Policy Project Senior Counsel and Director, summarizes the central legal conflict in Catholic hospitals and their restrictions: “Our twin constitutional commitments to liberty— specifically religious liberty—and to equality may be seen to pose challenging puzzles when the religious demands of some threaten harm to others.” 31 While Catholic hospitals defend their refusal to perform procedures through the RFRA laws, state nondiscrimination laws that protect women and transgender patients often override these religious exemptions.

The now-famous 2017 California Supreme Court case Minton v. Dignity Health is a prime example of this dynamic. The case was brought by thirty-five-

EMTALA Fact Sheet, AMERICAN COLLEGE OF EMERGENCY PHYSICIANS, www.acep.org/life-asa-physician/ethics--legal/emtala/emtala-fact-sheet/.

30

Pizer, Jennifer, Hobby Lobby and Religious Accommodation in the Age of Civil Rights, Vol. 9, No. 1, HARVARD LAW AND POLICY REVIEW, 1 (2015), https://harvardlpr.com/wpcontent/uploads/sites/20/2015/04/9-1_Pizer.pdf

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IN SICKNESS AND IN HEALTH: DIVORCING AMERICA FROM CATHOLIC HOSPITALS year-old transgender patient Evan Minton, who scheduled a hysterectomy at Mercy San Juan Medical Center. As a hospital in the Dignity Health network, Mercy canceled the appointment after Minton disclosed his gender identity to a nurse. The hospital soon diagnosed him with gender dysphoria, defined by the Diagnostic and Statistical Manual as “an individual’s affective or cognitive distress that may accompany the incongruence between their experienced or expressed gender and their assigned gender.”32 While the hospital routinely performed hysterectomies for cisgender patients with certain conditions such as cancer, Mercy’s president Brian Ivie prevented Minton’s doctor from performing the procedure on him. He claimed that “it was scheduled as part of a course of treatment for gender dysphoria, as opposed to any other medical diagnosis.” 33 The fact that Mercy proceeded with hysterectomies in other cases imply that they discriminated against Minton and his transgender identity. 34 With support from several local media outlets and political advocates such as the ACLU, Minton filed a verified complaint against Dignity Health on the grounds of sex discrimination as defined by California’s Unruh Civil Rights Act. Under the Unruh Act’s Section 51, subdivision b, all persons within the state’s jurisdiction are guaranteed “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” 35 Mercy San Juan Medical Center violated this section of the Unruh Act by denying Minton his hysterectomy, as outlined in his allegations of the hospital’s gender identity-based discrimination. Dignity Health defended itself by claiming that the constitutional right to religious freedom protected the hospital’s adherence to ERDs and its decision to deny hysterectomies, as outlined in Directive 53’s ban on direct sterilizations.

Gender Dysphoria, DSM LIBRARY, (May, 2013), https://dsm.psychiatryonline.org/doi/10.1176/appi.books.9780890425596.dsm14 33 Avery, Daniel, Court Rules Transgender Man Can Sue Catholic Hospital That Canceled His Surgery at the Last Minute, NEWSWEEK, (Sep. 23, 2019), https://www.newsweek.com/transgender-man-sue-hospital-evan-minton-1460664.

34 Minton v. Dignity Health (Cal. 2019).

35 Unruh Civil Rights Act § 51.b (1872).

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In their ruling for Minton, the California Supreme Court relied on their previous holding in a similar 2008 case: North Coast Women's Care Medical Group vs. Superior Court. In that case, the court held that the “California Constitution’s guarantee of free exercise of religion does not exempt physicians from conforming their conduct to the Unruh Act's antidiscrimination requirements, even if compliance substantially burdens their religious beliefs.” 36 Therefore, it was established that California’s commitment to free and equal access to medical care overrides any physician’s religious objections.

In 2019, the court ultimately ruled in favor of Evan Minton. The court also determined Dignity Health's decision to discriminate against patients based on their gender identity to be illegal. Overall, the case exemplifies the potential for supersedence of state antidiscrimination policies over religious freedom laws when those laws are applied unequally as they were applied to Minton for being transgender when he sought a hysterectomy.

D. Informed Consent In addition to discrimination, religious hospitals contradict numerous state laws that require hospitals to disclose religious or conscience-based service limitations. The amended Illinois Health Care Right of Conscience Act in 2016 requires that hospitals notify patients when requested services will be denied on a conscience basis. Meanwhile, amendments to Baltimore, New York, Montgomery County, Austin, and the California Health and Safety Code laws require health centers to openly inform patients that they do not provide abortions and contraceptive services and require insurers to inform patients of religious or conscience-limited coverage.37 Washington’s amendment goes even further by requiring hospitals to list religiously restricted services on their websites. Evidently, however, Catholic hospitals have yet to systematically adopt these mandated increases in transparency. Indeed, most Catholicaffiliated hospitals across the U.S. do not provide information on their websites North Coast Women’s Care Medical Group v. San Diego Superior Court, 81 CAL. RPTR. 3D 708 (2008).

37 Sawicki, Nadia N, Religious Hospitals and Patient Choice, VOL. 46, NO.6, HASTINGS CENTER REPORT 46, 9 (2016).

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IN SICKNESS AND IN HEALTH: DIVORCING AMERICA FROM CATHOLIC HOSPITALS or advertising materials about which medical procedures are restricted or forbidden.

Moreover, one must sift through ambiguous terms such as “hope” and “spiritual care” on advertising materials to even determine whether a hospital is, in fact, Catholic. For instance, Dignity Health’s website features no clear statement of faith, and it takes four clicks to arrive at their Clinical Pastoral Education Program link, a section that vaguely mentions the “theologically informed” care offered at their hospitals. 38 Other religious healthcare centers also fail to clearly state their religious and conscience-based limitations. In fact, the New York Times report that fewer than three percent of healthcare facilities explicitly state which procedures they refuse to perform, and only a quarter even mention ERDs at all. 39 Of the few hospitals who do list policies on their websites, most are not in easily accessible places or only exist on the corporate parent’s website, leaving the onus on patients to know what to look for rather than on hospitals to make basic information readily available. This, combined with the fact that mergers lead many Catholic-affiliated hospitals to secularize their names, make it nearly impossible in many cases to assess whether a hospital would refuse to perform certain procedures until those procedures are actually refused. In fact, a recent study found that thirty-seven percent of surveyed women with Catholic primary hospitals were unaware of their hospital’s religious affiliation, demonstrating how lack of transparency robs patients of their right to make informed decisions regarding their medical care. 40

38 Mission Vision and Values, DIGNITY HEALTH, https://www.dignityhealth.org/about-us/ourorganization/mission-vision-and-values.

39 Hafner, supra.

40 Wascher, Jocelyn M., Luciana E. Hebert, Lori R. Freedman, and Debra B. Stulberg, Do Women Know Whether Their Hospital is Catholic? Results from a National Survey, CONTRACEPTION 98, NO.6, 498--503(MAY 29, 2018), https://www.dignityhealth.org/aboutus/our-organization/mission-vision-and-values.

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UCLA UNDERGRADUATE LAW JOURNAL E. Patient Self Determination Act Catholic religious healthcare institutions violate more than just religious disclosure laws. They also infringe upon the 1990 Patient Self Determination Act. The statute encourages the formation of patients’ advance directives (living wills) to preemptively make decisions regarding medical care and end-oflife treatment in case they ever become incapable of making those decisions themselves. It requires all healthcare agencies receiving reimbursements from Medicare and Medicaid to, among other requirements: (1) inform patients of their rights under State law to make decisions concerning their medical care; (2) periodically inquire as to whether a patient executed an advanced directive and document the patient's wishes regarding their medical care; (3) not discriminate against persons who have executed an advance directive; (4) ensure that legally valid advance directives and documented medical care wishes are implemented to the extent permitted by State law; and (5) provide educational programs for staff, patients, and the community on ethical issues concerning patient self-determination and advance directives. 41

The legal obligation for hospitals receiving public funding, as outlined by the PSDA, seeks to respect advanced directives and provide patients with educational information regarding their rights. ERD #59, which states that free and informed judgment regarding end-of-life procedures should be respected “unless it is contrary to Catholic moral teaching,” and #60, which outright forbids euthanasia or assisted suicide altogether, directly contradicts this federal law.42 III. Recommendations In reviewing the several problems behind religious healthcare, one must question how to address them. One solution involves reinforcing hospital independence. For one, professional work in a hospital falls within the medical staff and the hospital policy’s jurisdiction. Further, some states’ Business and Professions Codes include clauses that increase the authority of medical staff, allowing them to be independent over issues directly related to patient care. In 41 42

Patient Self Determination Act § 3 (1990).

Ethical and Religious Directives for Catholic Healthcare, supra, at 21.

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IN SICKNESS AND IN HEALTH: DIVORCING AMERICA FROM CATHOLIC HOSPITALS California, for example, Business and Professions Code section 2282.5 grants medical staff the right to “establish and enforce criteria and standards for hospital privileges, and enforce those criteria and standards” and “establish and implement clinical criteria and standards to oversee and manage quality of care.” 43 The laws would increase physicians’ independence and right to act in accordance with patients’ best medical interests, as opposed to ERDs. As argued by the California Medical Association on behalf of plaintiff Rebecca Chamorro in her 2016 case against Dignity Health, the enforcement of ERDs falls “within the purview of the self-governance rights of medical staff at Dignity Health Hospitals.” 44 Expanding such clauses in other states would allow physicians’ expertise to supersede religious restrictions when those restrictions impact quality of care and patient safety.

Another potential solution to the issues behind religious hospitals involves using “sunsetting clauses.” Religious hospitals struggling financially often sell out to private investors under the condition that the hospital maintains religious restrictions on care after the sale, leading to aforementioned “zombie institutions.” Secular bodies acquiring religious hospitals can affect the “sunsetting,” or relaxation of religious restrictions mainly in two ways: removing restrictions after a designated period of time or linking religious restrictions strictly to a hospital’s name. However, this “sunsetting” requires advance planning and consulting with state regulators and advocacy groups on the buyers’ part, who usually just agree to religious hospitals’ sale conditions without taking these actions.

In addition to sunsetting clauses, another solution involves improvement in disclosure policies. While some states have legislation requiring hospitals to disclose certain procedure limitations, no comprehensive federal disclosure policy exists to ensure that all hospitals state their restrictions. A federal disclosure law would be critical in allowing patients to make informed, autonomous decisions about the care they receive, especially because the California Business and Profession Code § 2282 (FindLaw).

Chamorro v. Dignity Health, No. 15-549626, 2016, https://www.aclunc.org/docs/20160427chamorro_cma_intervention.pdf

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majority of aforementioned cases of treatment denials could have been avoided had patients known their hospital’s limitations. Various organizations have advocated for comprehensive disclosure laws, arguing that patients “have a right to be told in advance of any religiously-based hospital policies that would restrict their ability to receive medical information or services.”45 Making comprehensive disclosure a requirement for Medicare participation or even hospital licensing overall would ensure this. The Patient Self-Determination Act, which requires publicly funded hospitals to respect advance directives, provides a model for such a policy. Congress could pass an act similar to the PSDA mandating that hospitals provide patients with written notice of conscience- or religious-based limitations before admission in order to participate in Medicare and Medicaid, thus increasing patient decision-making power. 46 Conclusion These solutions could possibly mitigate the consequences behind the growing healthcare mergers in the United States over the last decade. Clearly, these hospitals’ ERDs restrict a number of medical services, particularly reproductive and gender-affirming procedures. Adhering to these limitations, the hospitals significantly reduce access to reproductive care. Undoubtedly, access to reproductive care is an inextricable component of public health.

Reputable health organizations such as the Centers for Disease Control, American Public Health Association, and World Health Organization agree that safe sex, the freedom to choose if, when, and how to reproduce, and the ability to carry out a healthy pregnancy and delivery are fundamental rights essential to the well-being of women and society as a whole. 47 In this sense, Catholic healthcare institutions are demonstrated sites of danger for women, trans folks, and other communities. They have produced Sale of Religious Hospitals to Non-Religious Buyers, supra.

Sawicki, supra, at 9.

47 Reproductive and Sexual Health, AMERICAN PUBLIC HEALTH ASSOCIATION, https://www.apha.org/topics-and-issues/reproductive-and-sexual-health.

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IN SICKNESS AND IN HEALTH: DIVORCING AMERICA FROM CATHOLIC HOSPITALS countless cases of mistreatment, mismanagement, and misinformation resulting in physical and emotional harm. The advent of religious health facilities, compounded with medical and public policies based on ideology instead of evidence, have further crippled a healthcare system already notoriously rife with inaccessibility, inequity, and suboptimal outcomes. Undoubtedly, Catholicaffiliated hospitals play a clear and profound role in the recent systematic, conservative, and regressive shifts in America’s healthcare policies. Increasing hospital self-governance, sunsetting religious restrictions when possible, and establishing federal disclosure policies are several recommendations to ensure that healthcare institutions carry out their primary moral and legal obligation: to provide all patients with the highest standard of evidence-based, comprehensive, accessible care.

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UCLA UNDERGRADUATE LAW JOURNAL Olivia Mello*

Rectifying Disparities in K-12 Public Education Funding ABSTRACT. Brown v. Board of Education of Topeka is considered a monumental case in U.S. Supreme Court jurisprudence. The Fourteenth Amendment served as the basis for this victory because “separate but equal� schools were inherently disparate. However, inequities are still present in the educational system. In the United States, some districts perform among the best in the world, while others rank on the lowest levels. Students in public K-12 schools experience socioeconomic segregation that is not merely de facto since it rests on discriminatory public finance system laws. In this article, I argue in favor of educational accountability and equitable funding changes for the public-school system in the United States. Since property taxes dictate the amount of funds a school receives, lower-income communities consistently receive fewer resources. Proportionately dispersing the funds obtained through property taxes at schools throughout each state will assist in equalizing educational resources and quality.

*Olivia Mello is a fourth-year student at Chapman University, graduating with a Bachelor of Music in piano performance and a minor in political science. She serves as a Newman Civic Fellow, as President and Founder of the First-Generation Mentor Program, President of Chapman's Pre-Law Society, and as a Chapman University Student Ambassador. She plans on applying to law school this fall.

Editor: Laura Hartley is a third-year student at the University of California, Los Angeles majoring in psychology with a minor in professional writing. She is an intern for the Clarkson Law Firm and also serves as an editor for the Undergraduate Research Journal of Psychology at UCLA. She plans to apply to law school in the future and is particularly interested in the intersection of psychological science and the legal field.

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RECTIFYING DISPARITIES IN K-12 PUBLIC EDUCATION FUNDING Introduction In the Chicago Ridge School District, about 62 percent of the student population comes from minimal financial means and, for a third of their students, English is not their first language.1 The Superintendent of the Ridge School District stated, “We don’t have a lot of the extra things that other districts may have, simply because we can’t afford them.” 2 Additionally, many of the teachers in this district must commute and teach at multiple schools. 3 An hour away resides Rondout District 72 where there is only one school, and it is within one of Chicago’s most wealthy communities.4 The Rondout School spends $31,491 on each student, while an average of about $11,965 is spent per student in the Ridge School District.5 Teachers in the Rondout School District make an average of $23,884 more than the Assistant Principals and $28,495 more than the teachers of the Ridge School District.6 According to Great!Schools, a nonprofit organization that generates statistics and formulates ratings on school districts, 100% of the schools in Chicago Ridge School District 127-5 rank below average in school quality based on multiple measures. 7 Senate Bill 1, which was signed into law by the Governor of Illinois in August of 2017, established an evidence-based funding model. Each year, a new formula dictates how much money is needed for a school district to perform as a highquality educational institution. 8 It sets a funding adequacy level for each school district, which takes into account the percentage of students who are low

Illinois Report Card 2018-2019, Rondout SD 72 and Chicago Ridge SD 127-5, https://www.illinoisreportcard.com/District.aspx?source=environment&source2=realreceiptsa dequacytarget&Districtid=07016127502 2 Cory Turner et al., Why America’s Schools Have a Money Problem, NPR (April 11, 2016), https://www.npr.org/2016/04/18/474256366/why-americas-schools-have-a-money-problem 3 Id. 4 Id. 5 Illinois Report Card 2018-2019, Rondout SD 72 and Chicago Ridge SD 127-5, https://www.illinoisreportcard.com/District.aspx?source=environment&source2=realreceiptsa dequacytarget&Districtid=07016127502 6 Id. 7 Great!Schools.org Foundation Report on Chicago Ridge School District 127-5, https://www.greatschools.org/illinois/chicago-ridge/chicago-ridge-school-district-127_5/ 8 Id. 1

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UCLA UNDERGRADUATE LAW JOURNAL income, English-language learners, and disabled.9 It also examines other key elements, such as the costs for professional development, class size ratios, and technology.10 Then, it looks at how much each district can afford to pay in property taxes and leaves the state to pay the remaining difference to meet the adequacy target.11 The districts with the lowest adequacy percentages are prioritized to receive the newly-allocated money that the law generates.12 According to the Chicago Sun-Times, an additional $660 million is needed to bring all districts to an adequacy standard. 13 The issue with this model may be that the formula still allows a significant amount of property taxes to be allocated to the same highincome districts. The schools in low-income communities still fall short of the adequacy standard because the state funds are insufficient, and property taxes are needed to supplement it.

The problems of inequitable educational funding are present throughout the United States. According to a report released by The Education Trust: Across the country, the U.S. spends approximately 7 percent—or $1,000 less per pupil on students educated in our nation’s highest poverty districts than those educated in the wealthiest…. For a school district with 5,000 students, this totals to a $5 million short changings for our students who already have less. 14

Average funding for students of color shows an even larger funding disparity, with about $1,800 spent per student. These trends are clearly connected to a history of discrimination and desegregation. Although schools were mandated to become integrated as a result of Brown v. Board of Education of Topeka (I), segregation implicitly exists today through the inequitable educational funding 9 Matt Masterson, How SB1 Would Rewrite Illinois’ Broken Education Funding Formula, WTTW PBS (June 7, 2017), https://news.wttw.com/2017/06/07/how-sb1-would-rewrite-illinoisbroken-education-funding-formula 10 David Kall, Illinois: Gov. Rauner Signs New School Funding Formula into Law, BUS. ADVOCATE (September 7, 2017), https://mcdonaldhopkins.com/Insights/Blog/Tax-andBenefits-Challenges/2017/09/07/Illinois-Gov-Rauner-signs-new-school-funding-formula-intolaw 11 Id. 12 Masterson, supra 13 Peter Hancock, Money Matters: How School Funding Inequities Affects Students, Taxpayers, CHI. SUN., October 1, 2019, https://chicago.suntimes.com/2019/10/1/20894476/illinois-moneymatters-how-school-funding-inequities-affect-students-taxpayers.

14 Ivy Morgan & Ary Amerikaner, Funding Gaps 2018, The Education Trust (February 27, 2018), https://edtrust.org/resource/funding-gaps-2018/

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RECTIFYING DISPARITIES IN K-12 PUBLIC EDUCATION FUNDING methods produced by states. 15 Economic de facto segregation in public schools occurs as a result of tax laws regarding local property values. Local education funding methods throughout the United States is a violation of the Fourteenth Amendment because educational attainment is directly related to receiving equal protection under the law.

In this article, I will highlight how the application of the Fourteenth Amendment has changed over time by first identifying the state of constitutional law before Brown v. Board of Education of Topeka (I). I will discuss the application (or lack thereof) of the Fourteenth Amendment’s Equal Protection Clause in Plessy v. Ferguson. I will then detail the strategy used by the NAACP to persuade courts to declare racial segregation unconstitutional. Next, I will discuss Sweatt v. Painter as an example of this strategy and identify the legal framework used in Mendez v. Westminster, which ultimately paved the way for Brown. I will further analyze Brown v. Board of Education of Topeka (I) and how de jure segregation was eliminated in order to give greater context as to how those same arguments can be applied to topics other than race. The discussion in Part I will ultimately present how the view of social rights evolved and provide a framework for the court’s ability to impact them today. Scrutinizing the elimination of de jure segregation illuminates the potential for progress regarding the integration of students from underprivileged backgrounds.

Following, in Part II, the implications of the Brown decision on current educational issues will be discussed. I will analyze how this case strongly relates to the school finance issue. In this section, I will utilize social science findings in my argumentation as the Mendez and Brown integration advocates did. I will focus on the obstacles faced by students in tax poor districts and contend that de facto segregation a misnomer in this situation. I will argue that de jure segregation is a more appropriate term because the state funding system for K-12 public education requires students to be treated unequally from district to district.

Part III will analyze cases that discuss school financing and re-examine the opinions of the Fourteenth Amendment rulings of Sweatt, Mendez, and Brown.

Specifically, I will detail the arguments made in Serrano v. Priest, a major victory 15

Brown v. Board of Education, 347 U.S. 483 (1954).

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for educational rights, and examine some of its criticisms. Following, I will scrutinize the constitutional arguments made in San Antonio Independent School District v. Rodriguez and argue against the Court’s dismissal of the Serrano test.

Part IV will provide a legislative solution to the aforementioned issues which re-distributes public school funds on a more equitable basis and argues for its constitutionality. Legislative measures are needed because, as evidenced by 14A EPC and the cases regarding school finance, judicial intervention alone is insufficient to create equal opportunity. Education should be available to all children equally, despite their socioeconomic status. Brown v. Board of Education of Topeka (I) and the cases before it highlighted the notion that obtaining an education is vital to maintaining the principles of democracy and natural rights the United States was founded upon.

I. The Evolution of the Fourth Amendment’s Application in Education History has proven that the judicial branch of the United States allows public opinions, social norms, and political beliefs to shape interpretations of the Constitution. Justice Oliver Holmes asserted, “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” 16 The previously mentioned concept is illustrated in the evolution of civil rights. Throughout history, the judicial branch has used the law to reinforce and justify racism through rulings which perpetuate the idea that rights must be gained socially rather than through the judicial or legislative process.17 This is most evident in many of the civil rights cases decided before Brown v. Board of Education of Topeka.

The Fourteenth Amendment of the United States Constitution was ratified in 1868 as one of the Reconstruction amendments, and it aimed to guarantee the

OLIVER WENDELL HOLMES, THE COMMON LAW, 1 (1881).

Herbert Hovenkamp, Social Science And Segregation Before Brown, 1985 Duke L.J. 624, 625 (1985).

16 17

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civil rights of former slaves. The Equal Protection Clause of the Fourteenth Amendment states, “[Nor shall any State] deny to any person within its jurisdiction the equal protection of the laws.” 18 This was a promising step toward desegregation, but the Reconstruction amendments were largely unsuccessful at first. In Plessy v. Ferguson, the Fourteenth Amendment’s Equal Protection Clause was overtly brought into question for the first time. 19 Homer Plessy engaged in civil disobedience by violating Louisiana's Separate Car Act which prohibited him from sitting in the “whites only” railroad cars.20 In the Court’s opinion, Justice Brown claimed that there is nothing inherently unequal about separate facilities.21 Specifically, he stated that inequality is something that is done socially; therefore, it cannot be controlled through judicial means. Justice Brown believed that one’s merit must achieve equality, not through judicial remedy, and if feelings of inferiority were present, it was due to one’s personal beliefs alone.

He acknowledged that civil and political rights are necessary for citizens but refused intervention to make this possible. But arguably, you cannot have civil and political rights without social rights. Clearly, Justice Brown’s belief was ultimately misguided because feelings of inferiority in people of color were not self-induced, but a product of institutionalized racism. Segregating facilities on the basis of skin color inherently emphasizes the social construction of their subordination.

As a result of this case, prejudice was sanctioned through the “separate but equal” doctrine, and the rise of “Jim Crow” laws began. These laws were established after the Reconstruction period and aimed to further marginalize African Americans through mandated segregation. Between 1876 and 1954 the National Association for the Advancement of Colored People (NAACP) rose to become an incredibly strong organization as they began their journey to end segregation.22 Their tactful litigation movement first focused on desegregating U.S. Const. amend. XIV, § 1 Plessy v. Ferguson, 163 U.S. 537 (1896).

20 Id. 21 Plessy, 163 U.S. 537 at 551-163 22 Rameier, “The Fourteenth Amendment and the ‘Separate but Equal’ Doctrine,” 50 Mich. L. Rev. 203 at 238-41 (1951).

18 19

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educational institutions. Before elementary schools were integrated, the NAACP needed to tackle higher education to set the right precedent. They started focusing on suing discriminatory law schools because no judge would agree that “separate but equal” applies when comparing, for example, Harvard to an extremely low-ranked law school. This blatantly pointed out the absurdity of Plessy v. Ferguson. 23 In Sweatt v. Painter, the NAACP was successful in litigating how the University of Texas Law School was unequal in prestige and quality as opposed to the “law school for Negroes.” 24 The University of Texas Law School had significantly more professors, more students, and more books. 25 The separate law school had only one alumnus who had been admitted to the bar as opposed to the University of Texas’ great pool of successful alumni. 26 The court held that this proved to be a violation of the Equal Protection Clause, and Herman Sweatt needed to be admitted to the University of Texas Law School. Equal educational opportunity was acknowledged as essential for a legal education and this judicial order gave hope for future Fourteenth Amendment challenges regarding segregated schools.

In compilation with the precedent Sweatt v. Painter presented, Brown v.

Board of Education of Topeka was also made possible due to the legal arguments presented at the appellate level in Mendez v. Westminster.27 In this case, eightyear-old Sylvia Mendez was denied entry into an all-white school in Orange County, California because of her Mexican heritage. Mendez v. Westminster was the first case to present social science findings in court as evidence to argue that segregation in schools contributed to feelings of inferiority and affected the quality of their education. 28

Plessy, 163 U.S. v. Painter, 399 U.S. 629 (1950).

25 Jonathan L Entin, Sweatt v. Painter, the End of Segregation, and the Transformation of Education Law, 5 Rev. Litig. 3, 72 (1986).

26 Sweatt, 339 U.S. 27 Frederick P. Aguirre et al.,Mendez v Westminster: A Living History, 2014 Mich. St. L. Rev. 401, 428 (2014).

28 Charles Wollenberg, Mendez v. Westminster: Race, Nationality and Segregation in California Schools, 53 California History 317-32 (1974).

23

24 Sweatt

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Anthropologist Dr. Ralph Deals served as an expert witness on the case and testified that the practices of discriminatory schools would lead to severe and detrimental consequences to both the Mexican American students and society as a whole.29 As a result, Judge McCormick firmly stated that, “A paramount requisite in the American system of public education is social equality. It must be open to all children by unified school association regardless of lineage.”

Segregated schools were consequently found to be a violation of the Fourteenth Amendment of the United States for the first time.30 Following Mendez v.

Westminster, California’s Governor, Earl Warren, signed a bill that made California the first state to desegregate its public schools.31 Earl Warren eventually went on to sit on the United States Supreme Court and delivered the opinion in Brown v. Board of Education of Topeka (I).

Like in Mendez v. Westminister, social science findings were brought to the Court in Brown v. Board of Education of Topeka (I) arguing that psychological studies have demonstrated that segregation has detrimental effects on black student learning. In Brown v. Board of Education of Topeka (I), the NAACP argued that this, along with the lack of educational opportunity, was a violation of the Fourteenth Amendment. 32 In the opinion of the Court, Chief Justice Warren explained that the logic behind cases such as Sweatt v. Painter should be applied with “added force” in educational settings for children and high school youth.33 As a result of Brown, all public schools needed to be integrated, Plessy v.

Ferguson was overturned, and Constitutional law was forever changed.34 Segregation in public schools became recognized as unconstitutional and the “separate but equal” doctrine was eradicated. Despite this ruling, public opinion did not entirely shift, and there was significant opposition integrating public schools.

Id. Maria Blanco, The Lasting Impact of Mendez v. Westminster in the Struggle for Desegregation, AMERICAN IMMIGRATION COUNCIL (2016), https://www.americanimmigrationcouncil.org/research/lasting-impact-mendez-v-westminsterstruggle-desegregation 31Aguirre, supra, at 321-32.

32 Id. 33 Id. 34 D. Marvin Jones, Plessy’s Ghost: Grutter, Seattle and the Quiet Reversal of Brown, 35 Pepp. L. Rev. 583, 610 (2008).

29 30

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Following the delivery of the opinion, school finance reform was a preferred solution to the problems of separate and unequal schools faced by racial minorities.35 The Supreme Court had not given the states direct instructions on how desegregation should proceed. A year later, in Brown II, the courts mandated for desegregation to occur with “all deliberate speed.” 36 Brown provided a platform for segregation to be torn down in the courtrooms in other areas of state laws.

II. Exploring Implications of Brown in the Current Education System of the United States Unfortunately, many schools were slow to implement integration in an effective manner. Nineteen years later, Milliken v. Bradley I addressed how, despite the elimination of de jure segregation, school systems remained racially divided.37 The constitutionality of de facto segregation permeated through the majority opinion of the Court as they attempted to reconcile the rights of the school districts with those of the plaintiffs. The Court did not want to address substantive constitutional law questions but preferred to focus on what was in their jurisdiction as a federal judicial body.38 Desegregation issues continued after Brown because of the Court’s judicial restraint in infringing on the autonomy of existing structures. School finance litigation also lacked a judicial remedy for this reason. The United States Supreme Court was reluctant to contravene the state’s right to control education.

Over time, segregation issues have continued to manifest and are evident in school funding. School funding methods discretely produce outcomes comparable to the racially segregated schools which existed post-Brown in cases such as Milliken I. 39 De facto racial segregation occurred in part because it was a result of local policies such as district borders, which indirectly contributed to Joseph T. Henke, Financing Public Schools in California: The Aftermath of Serrano v. Priest and Proposition 13, 21 U.S.F. L. Rev. 1 (1986).

36 Brown v. Board of Education of Topeka (II), 349 U.S. 294 (1955).

37 Milliken v. Bradley, 418 U.S. 717 (1974).

38 Norman C. Amaker, Milliken v. Bradley: The Meaning of the Constitution in School Desegregation Cases, 2 Hastings Const. L.Q. 349 (1975).

39 Milliken, 418 U.S. 35

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the lack of integration. Similarly, it is not mandated by law for schools to be separated by socioeconomic status, but it is a byproduct of local property tax circumstances, which are mandated by law. It is no surprise that lower-income individuals tend to live in lower-priced housing. Therefore, schools in lowincome areas continually receive fewer resources due to the lower property values which, consequently, result in lesser property tax revenues and educational outcomes.

According to the Association for Supervision and Curriculum Development, “Funding differences in the United States generate huge disparities in the qualities of school buildings, facilities, curriculum, equipment for instruction, teacher experience and qualifications, class sizes, presence of auxiliary professionals, and other resources.� 40 The rate of total expenditures per student, range of courses offered, extracurricular activities, and library resources are other examples of education that are affected by differences in funding.41 At-risk students make up a large portion of students in tax-poor districts.

They are sometimes pushed to meet standards in reading and mathematics at the expense of eliminating time spent on other subjects such as history.42 This is a form of learning suppression which primarily occurs at schools that do not have the resources to accommodate struggling students. A curriculum focused on pushing for testing standards rather than allowing diverse and meaningful intellectual experiences does not produce equal opportunity.

Students from low-income households often struggle in areas outside their academics as well. The stability of their home life is directly tied to their performance in school.43 Lack of proper nutrition, lack of physical safety, lack of nurture from secure adults, a smaller range of vocabulary from lack of exposure, and low expectations for the future all serve to inhibit student learning.

Bruce J. Biddle & David C. Berliner, A RESEARCH SYNTHESIS / UNEQUAL SCHOOL FUNDING IN BEYOND INSTRUCTIONAL LEADERSHIP (MAY 2002), http://www.ascd.org/publications/educational-leadership/may02/vol59/num08/UnequalSchool-Funding-in-the-United-States.aspx 41 Harold W. Horowitz, Unseparate but Unequal - The Emerging Fourteenth Amendment Issue in Public School Education, 13 UCLA L. Rev. 1147 (1966).

42 Id at 217.

43 John Medina, Brain Rules 71 (2008).

40

THE UNITED STATES,

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Therefore, many students in tax-poor areas need to have access to talented teachers and individualized programs to mitigate some of the potential adverse effects of being raised in a low-income household.

K-12 education is the foundation of creating competent thinkers in modern society. Depriving children of a solid education robs them of the likelihood that they will be intellectually robust and capable contributors to society. 44 Education is necessary for the function of many basic civil and political rights; it is the primary way to become economically and socially mobile. The Fourteenth Amendment’s reference to “life, liberty, and property” are concepts attained through achieving a solid education in the twenty-first century. In the United States, jurists examine liberty to determine which rights “are included under a particular term in a particular clause in our most fundamental law.” 45 These freedoms exist within a context, and history has shown that the concept of what rights are and their acceptable level of infringement has changed. Rights must be extant without restraint unless dictated by law. Furthermore, existing and future codified liberties should be examined through their prevalence and necessity of the times in alliance with our constitution.

Education is a public good, and Sweatt v. Painter provided the grounds for a more in-depth analysis of this principle. Instead of merely considering whether access to education exists, this case was the first where the Court investigated the substance of education. Sweatt v. Painter, in compilation with Brown v. Board of Education of Topeka, allows future court decisions to apply judicial scrutiny when examining the content, structure, and quality of education in public schools. The Brown decision examined education discrimination as a whole and illustrated what constitutes full citizenship and equal membership. It did not explain when it is and when it is not appropriate to apply this standard. The experience of discrimination can reach beyond race. The elimination of de jure education discrimination in this decision and the opinion's analysis of equal educational opportunity and its substantive place in society calls for a more indepth analysis of current school funding mechanisms.

Martin Haberman et al., Star Teachers of Children in Poverty, 2 (2008).

Charles E. Shattuck, The True Meaning of the Term “Liberty” in Those Clauses in the Federal and State Constitutions Which Protect “Life, Liberty, and Property”, 4 Harvard L. Rev. (1891).

44 45

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Local codifications such as district borders (which were examined in Milliken I) and school funding methods are implicit de jure segregation. De facto segregation of the socioeconomically stratified in the K-12 public school system is not entirely by choice, but it is a result of surrounding circumstances and, therefore, a misnomer. In Keyes v. School District No. 1 Denver, Colorado, Justice Douglas explained that there is no constitutional difference between de facto and de jure segregation concerning schools.46 Poor people are not segregated “by choice” if their financial means do not allow them to send their children to better-financed schools. In a capitalist system, there will always be socioeconomic disparities despite the myth of meritocracy; however, the United States Constitution provides the basis for people to have equal protection under the law regardless of income.

The perpetuation of unequal school opportunities since Brown through a wealth-based funding system is a subtle form of state action which nurtures socioeconomic segregation. Inferior education is a condition that occurs through a mechanism maintained by the state, which consequently brings the Equal Protection Clause into question. In Brown v. Board of Education of Topeka (I), Justice Warren stated, “It is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” 47 This established a precedent to conclude that students who are not provided the same quality of education on the basis of socioeconomic status are, thus, not given equal protection of the law under the Fourteenth Amendment. Codifications which impact the quality of poor children’s education are a violation of the Equal Protection Clause despite the claims or motivations for such funding inequities. Financing methods are inversely related to educational needs, and the systemic issue of socioeconomic stratification is at its core a problem of educational attainment. The state has contributed to the situation and, therefore, must take steps to find a remedy.

47

Brown v. Board of Education, 347 U.S. 483 (1954) (Warren, E., dissent).

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UCLA UNDERGRADUATE LAW JOURNAL III. Evaluation of Cases in Public School Finance Regarding Egalitarianism in K-12 Education The issue of school finance in consideration of the Fourteenth Amendment is not new to the courts. It was first successfully discussed in Serrano v. Priest (Serrano I).48 Some viewed it as one of the most profound court cases regarding education law since Brown. Similar to Brown, Serrano I recognized the quality of education as a fundamental right with special attention to the disparities resulting from income and wealth inequality.49 The California Supreme Court decided the immense funding disparities throughout districts in Southern California were in fact a violation of the Equal Protection Clause.50 The decision emphasized that money, if distributed wisely, has the potential to improve the current state of public education. It also found that the California state funding system produced substantially inferior educational outcomes for individuals in tax-poor districts. This case is significant because it is the first instance of the Court applying suspect classification analysis to the topic of wealth in regard to the Equal Protection Clause and is first to declare that the funding methods based on local taxes are unconstitutional at both the state and federal levels.

Criticisms of Serrano I include arguments that point to how other locally funded services such as police and fire departments could be unconstitutional as well under this precedent. However, in the opinion, education was distinguished as a “fundamental” constitutional right. Expressly indicated constitutional rights are not mutually exclusive of rights that allow them to exist, such as education. Furthermore, the argument that this decision is too radical because the precedent potentially allows for other “fundamentals” to be constitutionally protected, such as food and shelter, is a slippery slope logical fallacy. The question addressed in Serrano I concerns personal wealth’s tie to a system provided for by the government. Food and shelter are fundamentals primarily maintained by the private market. If, in the unlikely event, that the representation reinforcement theory of constitutional interpretation was to

Serrano v. Priest, 5 Cal.3d 584 (1971).

Id. 50 Id. 48 49

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make the guarantee of other fundamentals possible, then it would certainly not be achieved by this case alone. Additionally, it would be the role of the legislative and executive to take on the burden of finding a remedy, not the judicial; therefore, changes to such a degree must withstand a bi-partisan political process. As shown by other cases regarding the Fourteenth Amendment, legislative measures are often needed to implicate Court decisions. Since Serrano, California has rectified the wealth-related funding differences between school districts by centralizing property tax funding through legislation.

When a similar case was brought up in Texas two years after Serrano I, and finally the United States Supreme Court, the majority decided differently.

In San Antonio Independent School District v. Rodriguez, the parents of Mexican American children argued for the unconstitutionality of the function of wealth concerning the quality of education. 51 Texas proponents argued on appeal that education is not a fundamental right, and suspect class should not be applied.

They maintained that the system of financing is a state right, and a legitimate interest was served in maintaining the current funding mechanisms.

The Court denied the notion that the limited financial status of a district is a protected class. They asserted that unequal funding of school districts was not a violation of the Fourteenth Amendment’s Equal Protection Clause because receiving an inadequate education is an implicit outcome of a funding system and not necessarily the intended and explicit goal. 52 Additionally, education is not a right plainly stated in the United States Constitution.

The Fourteenth Amendment indicates that the ratifiers were interested in granting full citizenship to “all persons born or naturalized in the United States.” 53 However, at the time of the Constitution’s drafting, education was not seen as an important part of citizenship. Since the ratification of the Fourteenth Amendment, education has become increasingly valued in American society, and inequalities should have no place in modern society. The opinion of Chief Justice Warren declared the increasing significance of San Antonio Independent School District v. Rodriguez 441 U.S. 1, (1973).

Id. 53 Ronald Turner, Justice Antonin Scalia’s Flawed Originalist Justification for Brown v. Board of Education, 9 Wash. U. Jur. Rev. 179, 218 (2017).

51

52

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UCLA UNDERGRADUATE LAW JOURNAL education in Brown v. Board of Education of Topeka (I).54 He highlighted that they “must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws.” 55 As the use and presence of technology increases, so does the standard to which students entering the workforce must meet. 56 Since Brown, the Court has held a long tradition of acknowledging the importance of education. Justice Thurgood Marshall dissented in Rodriguez that: ...the right of every American to an equal start in life… is far too vital to permit state discrimination on grounds as tenuous as those presented by this record. Nor can I accept the notion that it is sufficient to remit these appellees to the vagaries of the political process, which, contrary to the majority’s suggestion, has proved singularly unsuited to the task of providing a remedy for this discrimination. 57

This is the same theory of justice that was applied in Brown. 58 Justice Marshall also explained in his dissenting opinion that the Court’s decision should not be an obstacle for school funding to be re-evaluated under a state’s constitution.

Justice Marshall’s comments highlight an issue faced by the cases which preceded Brown. In San Antonio Independent School District v. Rodriguez, the Court’s opinion insinuates that sociopolitical issues are not within their jurisdiction to resolve. Similarly, Justice Brown’s arguments in Plessy v. Ferguson align with this interpretation. Brown v. Board of Education of Topeka sought to address educational inequalities, but funding systems still pose a barrier which has yet to be acknowledged by the United States Supreme Court.

The Supreme Court did not act correctly in this decision in light of the comments made in the landmark decision of Brown v. Board of Education of Topeka. 59 However, if Rodriguez did end in a favorable decision, then the schools would be in a similar situation as they were after the decision made in Brown.

Brown v. Board of Education, 347 U.S. 483 (1954).

Id (Warren, E., opinion).

56 Daniel Aaronson & Brian J Phelan, Wage Shocks and the Technological Substitution of Low-wage Jobs, 129 The Economic Journal (2017).

57 Id (Marshall, T., dissent).

58 Brown v. Board of Education, 347 U.S. 483 (1954).

59 Id. 54 55

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Brown II ordered “all deliberate speed” and cases following it addressed how to achieve integration, but the Court ultimately could not find remedies beyond judicial decrees. Legislative processes were necessary to mitigate some of the adverse effects of a history of discrimination. Like creating busing plans to achieve integration, determining school finance schemes to equalize educational opportunity is beyond the scope of the Court’s power and must be taken up by state legislation. However, without sufficient guidance and direct order of the United States Supreme Court, which acknowledges that education is a constitutional right, a legislative remedy may be difficult to achieve.

Like the decision in Mendez, Serrano is an example of what other courts have the potential of achieving. As Mendez proceeded Brown, Serrano likewise provided the framework for the arguments made in Rodriguez. 60 Following the Rodriguez decision, subsequent jurisprudence regarding school finance in some state courts aligns with California's actions in Serrano. 61 New Jersey is an example with the case, Robinson v. Cahill. 62 The Court decided favorably for revising the school finance system citing that unequal educational opportunity was a violation of the state’s constitution. However, this decision required significant judicial oversight and continued for years in subsequent Robinson cases in New Jersey. Judicial supervision was cumbersome, and it highlighted the need for legislation to be established.

IV. Policy Proposal To address the problem of the lack of fiscal neutrality as posed by the ruling in San Antonio Independent School District v. Rodriguez, 63 I propose that all schools should be funded on an equal basis through legislative means because this issue is beyond constitutional adjudication and judicial remedy. Although education is not an enumerated power of Congress in the Constitution, I propose a policy that gives incentives for states to economically balance public San Antonio Independent School District v. Rodriguez 441 U.S. 1, (1973).

Serrano v. Priest, 5 Cal.3d 584 (1971).

62 Frank J. Macchiarola & Joseph G. Diaz, Disorder in the Courts: The Aftermath of San Antonio Independent School District v. Rodriguez in the State Courts, 30 Val. U. L. Rev. 551 (1996).

63 Rodriguez, 441 U.S. 60 61

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schools. To receive 100% of all federal school funding, states would need to combine all property taxes on a statewide level and distribute funds equally to each district depending on the number of students they have. It would not be coercive to the states if they did not receive 5% of federal school funding because federal funding comprises less than half of the total funding they receive for public schools.

The precedent set in South Dakota v. Dole would allow the withholding provision to be constitutionally acceptable. In Dole, the Supreme Court did not find that withholding five percent of federal funding for highways in order to encourage states to all have the same drinking age was a violation of the Constitution. This case established criteria that Congress can withhold federal funding if legislation is for "the general welfare." Arguably, a better-educated society contributes to the general welfare by improving the economy, raising the standard of living, and increasing political activism and civic engagement. Under the Spending Power, Congress would be within their constitutional right to do the same for school funding. The state's property tax revenues will be separated between non-school related distributions and school-related distributions. This proposal solely affects the allocation of property taxes that go toward education.

The school-related distributions will be given directly to the districts for them to allocate funds according to the number of students each school has. The states who do this will receive all federal funding for education.

The solution is straightforward, but there may substantial barriers to the proposed policy. Some wealthy families will most likely be opposed to the idea of having their tax dollars being dispersed somewhere other than their children’s schools. The state will presumably be pressured into challenging the legislation because wealthy people tend to have more power than the people who would be benefiting from this Act. However, this can be countered with constitutional and precedent oriented arguments made by the Department of Justice. The government’s involvement in education is not unfounded. For example, the No Child Left Behind Act mandated schools to meet certain requirements or else risk federal education funding being withheld. Pursuing the equitable funding policy proposal would be within Congress’ rights because it is not prohibited by other constitutional provisions and is in the pursuit of the “general welfare.”

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To prevent an undue burden on the states to distribute funds, a small grant may be in order to provide the resources to properly determine a per state formula which would accurately predict how much money is needed for a school district to perform as a high-quality educational institution. Contrary to the measures enacted in Illinois, the allocations would not solely come from federally funded money, but from property taxes which would not leave certain districts at a deficit.

Additionally, to address a normative question, it would be beneficial for all state legislatures to outline a standard to which the courts could ascertain whether there has been a violation of a child’s right to equal access to education.

It could address the quality of facilities, presence of substantial differences in textbook offerings and general supplies, and a range of curriculum (i.e., the presence and breadth of Advanced Placement and compensatory education classes). This would create a judicially manageable standard for potential litigation regarding the subject. Outlining a state educational standard in relation to school funds would be entirely permissible under the Rodriguez decision.

In Board of Education v. Nyquist, the Court cited Rodriguez when stating that the high concentrations of students within a district were a violation of the Equal Protection Clause. The Rodriguez opinion established that the United States Constitution requires a minimal education to be provided. 64 However, this leaves many questions as to how a minimum education is defined. Addressing this question state by state will solve this discrepancy.

Legislation such as this would allow the state to identify which districts are most lacking and allocate more state funds to those in most need until those districts were able to meet adequacy standards, like the model in Illinois. This would preserve the right of the state to control education, as well as ensure little to no disparities between per-pupil spending and overall educational quality for students’ entitlement to equal protection under the law.

As the conception of the Fourteenth Amendment has evolved over time, so has the concept of wealth discrimination. Wealth discrimination is relative to the current standards of living. As an increasingly affluent nation, the idea of 64

Id.

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“equal protection under the law” has evolved. This article is not to suggest that the government should make every effort to equalize every opportunity; this may be an undue burden. The argument is to seek protection and create equity for a primary and fundamental interest, such as education.

Conclusion We must consider the importance of education to the modern citizenry.

Education is at the core of democracy and inextricably linked to the attainment of rights explicitly mentioned in the United States Constitution. Education is what mobilizes citizens to act politically, and making it available on unequal terms is a direct violation of the Fourteenth Amendment. As expressly stated in the opinion in Brown, education is, “the most important function of state and local governments.” When children grow and enter the workforce or college setting, their lack of education becomes more apparent. The decision in Brown created better access to education, but the elimination of de jure segregation has in no way equalized educational resources.65 De facto segregation is not done entirely “by choice” because capitalism creates a system in which poor people must find housing that fits their means. There is no intrinsic necessity for K-12 education quality to be tied to the level of wealth a family has. The defenseless status of children makes them a protected class, and their injury must be remedied. The strict scrutiny test utilized by California’s high court in Serrano is an example other states should follow.

This societal issue is complex, but the relationship between the quality of education and the Equal Protection Clause is clear. Brown II was undoubtedly unsuccessful. There has not been “deliberate speed” 66 to desegregate public schools because it still exists today through de jure school financing. The lineage from the Plessy decision to the Rodriguez holding show how segregation and equal protection theory have evolved. The language used in Brown can ultimately apply to cases outside of the scope of racial discrimination. The

Joe R. Feagin & Bernice McNair Barnett, Success and Failure: How Systemic Racism Trumped the Brown v. Board of Education Decision, 2004 U. Ill. L. Rev. 1099, 1130 (2004).

66 Brown v. Board of Education II 349 U.S. 294 (1955) (Warren, E. Opinion).

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explicit eradication of de jure segregation succeeded, but mechanisms that continue to perpetuate a form of implicit de jure segregation remains. The inherent de jure segregation of schools is invalid by the precedent set by Brown, which expressly indicates that denying a child access to equal educational opportunity is a violation of the Equal Protection Clause.

Although without pernicious intent, public K-12 schools remain separate and unequal. Children in tax-poor districts are in a disadvantaged group that needs protection. With consideration of the value of an education in present times, it is evident that the caliber of it is fundamental to obtaining access to one’s constitutional rights. The quality of education one receives during their K-12 career should be a protected constitutional right acknowledged by each state court and constitution. Still, until then, prompt federal legislative action is necessary to mitigate some of the adverse effects faced by millions of students to completely eradicate educational inequities.

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UCLA UNDERGRADUATE LAW JOURNAL Andres Gonzalez*

Looking Back to Move Forward: European Data Law as a Model for the United States ABSTRACT. The instantaneous transaction of personal information and data on a global scale has necessitated the refinement of data legislation in an effort to address undue breaches of public privacy. With a forward-facing outlook, the European Union (EU) has established various enforcement mechanisms to accommodate the growing concern for the lack of regulatory oversight with regard to data processing and sharing. The European Union’s passage of the General Data Protection Regulation (GDPR) encompasses a national framework which secures private information, forcing businesses to comply with its principles. Despite Europe’s gradual measures to consolidate national legislation among member states, the United States has chosen to enact sector-specific data protection laws and regulations. Efforts to safeguard American citizens’ data has been enforced mainly through state-level legislation, leaving industrial activities largely unregulated. The issue of data privacy has taken a backseat in the American political agenda, having been only recently given a national platform amidst controversy over the practice of data mining among major conglomerates. This paper evaluates the nuances of data

*Andres Gonzalez is a third-year UCLA student double-majoring in political science and history with a film, television, and digital media minor. He is a mentor for at-risk children for the Youth Empowerment Program and Vice Chairman of the Pi Kappa Alpha judicial board. Andres plans to attend law school after graduation.

Editor: Katherine Bui is a fourth-year UCLA student studying political science and global studies. In addition to the Undergraduate Law Journal, is active in the nation’s first Asian American sorority, Chi Alpha Delta. With her experience in government and non-profit work, she looks forward to applying to law school to continue her work in public service, with the ultimate goal of judgeship.

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES privacy law and presents the most vital developments contributing to the European integration of national data law as evidenced by the GDPR. The history of European data protection law stems from the enactment of the Universal Declaration of Human Rights (UDHR) in 1948 as an international collective to extend the vocabulary of fundamental rights to that of privacy and its preservation by all applicable means. The UDHR theoretically championed the idea that private affairs were exempt from government and institutional encroachment. The initiative for creating sanctions to ensure European states’ compliance with data law would be a hallmark feature reflected in future decades’ developments. This would entail greater efforts to define and regulate abuses of personal information while transitioning from statewide to federal level implementation with the creation of the European Union in 1992. Thus, the EU would oversee substantial efforts to coordinate measures for the protection of personal information. The European Union’s passage of the GDPR serves as a prime example of the means by which the California Consumer Protection Act (CCPA) can serve as a model for future comprehensive national data legislation in the United States.

Introduction The European Union has made great strides toward consolidating data protection law, creating proper enforcement mechanisms to uphold the GDPR, while industrial practices and protections on data processing are largely unregulated in the United States. Since the European regulation’s passage in 2018, state compliance has been imperative toward the enforcement of privacy rights. Data protection has ascended within the global political agenda as an essential fundamental right that needs to be safeguarded amidst the emergence of modernity. Government oversight is especially crucial in providing clarity, competent security measures, and adequate training to handle and organize sensitive information. The year 2020 marks the EU’s efforts to enforce such measures that have already gone into effect, severely penalizing firms that violate its most crucial principles.

Despite collective efforts toward addressing this technological dilemma accompanying the expedited and increasingly efficient transfer of information, the American response has consisted mainly of sectoral regulations enforced at the state-level. Given the recent controversy with Facebook and its negligence

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in protecting the data of millions of its users, national concern for a more tangible data law has driven individual states to follow in the steps of their European counterparts, as evidenced by the passage of the California Consumer Privacy Act (CCPA). In order to assess the proper steps, the United States must take to achieve a similar legislative consensus to the EU, we must look towards Europe. It is crucial to understand the developments within European states to address data privacy issues as greater attention was focused on the protection of information as a response to automated processes. This elicited a greater public awareness toward electronic data, culminating in the creation of the OECD standards for data transparency and accountability and the gradual shift toward a comprehensive data law with the establishment of the European Union.

In Part I, I analyze the underlying precedent that creates a right to privacy recognized by internationally signed conventions. In Part II, I review the history of Europe’s data protection policies through the development of its legislative framework and incorporation of individual member states into the larger jurisdictional umbrella of the European Union. In Part III, I explore the legal precedent in American jurisprudence that suggests the fundamental right to privacy. In Part IV, I explore the pathways the United States can take towards the federal regulation of third-party companies to protect consumers from exploitative practices. Specifically, the viability of the California Consumer Protection Act (CCPA) both at the state level and compared to the broader jurisdictional and material scope of the EU’s General Data Protection Regulation (GDPR).

I. Europe and Data Protection Law With the emergence of the global age, technological advancements have made great strides in increasing efficiency and productivity. Namely, the introduction of computer mainframes in the 1970s introduced the world to the nuances of data processing and automated record-keeping, which enabled the development of a network of data banks specializing in the collection and processing of personal information. While this served to greatly expedite the flow of information necessary for cross-border trade, it also created a significant

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES threat in the form of a breach of privacy, which garnered the need for adequate legislation to reform a legal system ill-suited for the coming technological age.

As governments and public administrations integrated computer processing and began to rely heavily on massive data banks for transactions abroad, comprehensive legislation became a necessity, along with reaching a compromise. National concerns for personal privacy came at odds with the creation of proper procedures to ensure sufficient access to information to sustain international trade. European data protection law stemmed from attempts at regulating automated data collection which at the time it was introduced, represented a legal grey area in the existing legal privacy frameworks of European states.

A. The Universal Declaration of Human Rights In order to understand the legal approach and development of Europe’s data protection laws, we must first cover the precedent by which underlying notions of privacy were established, and, more specifically, the nature of human rights law in promoting international standards by which countries must abide by to protect civil liberties. The modern underpinnings of privacy and its application toward data protection law is expressed by the provisions of the Universal Declaration of Human Rights (UDHR) of 1948, adopted by the United Nations General Assembly. The provisions acknowledge the existence of universal values that governing bodies have an obligation to protect. Specifically, the declaration emphasizes the “inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world...that human rights should be protected by the rule of law” 1 binding member states to ensure the promotion of these fundamental liberties through their observance of human rights. Though ideals of privacy are not allocated the qualification of being an absolute right, UDHR incorporates specific provisions that equate the right to privacy to freedom of expression and G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948), https://www.ohchr.org/EN/UDHR/Documents/UDHR_Translations/eng.pdf.

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family life. This is clearly expressed in Article 12 which states, “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” 2 Moreover, Article 12 communicates the individual right to a private life along with many of its associated freedoms and is quantified by Article 19 on the right to freedom of expression, stating, “Everyone has the right to freedom of opinion and expression; this includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” 3 Article 19 entails that one may “receive and impart information” through any media outlets, and extends that action to international jurisdiction. Though the UDHR’s provisions on freedom of expression are seemingly a potential breach of Article 12’s established privacy threshold, these disparities are reconciled in Article 29 (2) which solidifies legal constraints to privacy as an individual right that is subject to limitations in accordance to the law. This is articulated by the decree, “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” 4 Though the extent of individual privacy rights is subject to abstractions with varying conceptions of law dictating its application beyond family life, the Universal Declaration of Human Rights is significant in its massive scope of fundamental liberties which served as a model for future European developments in data protection and litigation. The UDHR expanded the vocabulary associated with fundamental freedoms to entail one’s right to privacy through whatever applicable means. Most importantly, it established the notion that elements pertinent to individual privacy were exempt from government intervention.

G.A. Res. 217 (III) A, supra note 4, ¶ 12.

G.A. Res. 217 (III) A, supra note 5, ¶ 19.

4 G.A. Res. 217 (III) A, supra note 8, ¶ 29.

2 3

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES B. European Convention on Human Rights Adherence to the provisions in the Universal Declaration of Human Rights is further advanced by the Council of Europe’s promotion of the European Convention on Human Rights (ECHR) in 1950 which invited individual states to enforce rights and freedoms under their jurisdictions. Such provisions included the right to life, freedom of thought, freedom of expression, of assembly and association, and the prohibition of discrimination among many others. 5 Effective in 1953, the convention inspired the creation of enforcement mechanisms for compliance among member states. An example of such a system is the formation of the European Court of Human Rights in Strasbourg, creating government oversight over breaches of the ECHR and ensuring their respective applications under member states’ respective jurisdictions. Thus, rulings under the ECHR were binding on states and heavily influenced amendments to legislation, serving as references to the reform of national governments’ legal systems. Additionally, at the request of the Committee of Ministers of the Council of Europe, the Court could potentially provide advisory opinions toward the proper execution of the protocols and their interpretations. Article 8(1) and (2) of the ECHR is derived from UDHR’s Article 12 addressing private life, stating: (1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others. 6

This article thus reaffirms the data information of individuals as inherently private, yet contingent upon the terms set out by legislation, which concern the 5

Sian Rudgard, Origins and Historical Context of Data Protection Law, in EUROPEAN PRIVACY: LAW AND PRACTICE FOR DATA PROTECTION PROFESSIONALS 5, 3-17 (International Association of Privacy Professionals, 2012).

6 Eur. Consult. Ass., Eur. Conv. on H. R., 2nd Sess., (1950), https://www.echr.coe.int/Documents/Collection_Convention_1950_ENG.pdf.

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greater interests of the public in the government’s role in establishing order.

This ideal of privacy communicated by Article 8 is extended to cross-border interests and freedom of expression in Article 10(1) which states: “(1) Everyone has a right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” 7 Though Article 10(1) ensures protection against institutional action, Article 10(2) qualifies these terms by expressing their definition as contingent upon the law and judicial process: (2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 8

The European Convention on Human Rights and the Universal Declaration of Human Rights are paramount initiatives in the consolidation of data privacy law as a tangible concern to be addressed throughout Europe in the wake of technological modernity and the incessant flow of information accompanying industrial activity and commercialization abroad. The Universal Declaration of Human Rights ultimately influenced individual European states to take action in order to consolidate proper mechanisms for ensuring data privacy.

Strasbourg’s European Court of Human Rights developed the ideological contingency that the protection of personal information depended on the legislative adaptation of the governing body in response to modernity.

II. Road to the Development of National Legislation in Data Protection The Council of Europe was a manifestation of Foreign Minister Winston Churchill’s famed idea of a “United States of Europe.” 9 With the functioning of three separate committees consisting of the European Coal and Steel See Id. See Id. 9 EUROPEAN COMMISSION, THE FOUNDING FATHERS OF THE EU, https://europa.eu/europeanunion/sites/europaeu/files/docs/body/winston_churchill_en.pdf.

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES Community (ECSC) established by the 1951 Treaty of Paris and the European Economic Committee (EEC) and European Atomic Energy (Euratom) Committee by ratification of the 1957 Treaty of Rome, political progress was stagnant necessitating the consolidation of legal integration.10 Many of the foundational legal doctrines for this integration are reflected in the respective landmark decisions by the European Court of Justice during the 1960s and 1970s. Among the most significant are the 1963 decision Van Gend en Loos v Nederlandse Administratie der Belastingen and the 1964 decision Flaminio Costa v ENEL which led to the ratification of the Merger Treaty, establishing a Single Council and a Single Commission out of the three branches of the European Communities.

The European Court of Justice’s decision in the 1963 case Van Gend en Loos v Nederlandse Administratie der Belastingen was significant for the establishment of the legal principle of ‘direct effect’ which legitimized the European Economic Community established under the Treaty of Rome, creating legal rights which could be enforced by both individuals and legal entities before the Communities’ Court of Justice. 11 The case arose due to the reclassification of a chemical into a customs category that entailed higher charges. The dispute was between postal and transportation company Van Gend en Loos and the Dutch Tax Authority (Nederlandse Administratie der Belastingen), and the European Court of Justice deemed that this action had breached the treaty’s provisions which required member states to gradually reduce customs charges among themselves.

Therefore, the Court ruled that breaches were actionable by both individuals and member states of the Community before national courts.12 This is significant because the case clarified a more effective enforcement mechanism for state compliance previously absent in the treaty’s provisions. The

10Treaty of Rome

Establishing the European Economic Community, Mar. 25, 1957, 1957 O.J. SPEC. ED. (C 224).

11 Case 26/62, Van Gend v. Netherlands Inland Revenue Admin., 1963 E.C.R. (Neth.), https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:61962CJ0026&from=EN. 12 Damian Chalmers & Luis Barroso, What Van Gend en Loos stands for, 12 INT’L J. CONST. L. 105, 105-34 (Jan. 2014) (discussing conception of EU legal order).

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mechanism made it so that federal mandates were directly effective at the state level and heightened European Economic Community law at the national level.

This expansion of jurisdiction established a precedent for greater state compliance and would be especially vital to future collective attempts at imposing statewide mechanisms for other vastly different affairs, particularly that of privacy and measures to protect personal information.

Greater demands for compliance were supplemented by the Flaminio Costa v ENEL (1964) decision which established the primacy of Community law, a preceding institutional framework to the future European Union which was pivotal to European integration. The case arose with regard to Italian Citizen Flaminio Costa’s opposition for the nationalization of the electricity sector in Italy, affirming that the creditor for his electricity bill was the company Edisonvolta and not the state-established company, Enel. Costa argued that this violated the Treaty of Rome and the Italian Constitution.13 The Italian Constitution Court’s judgement maintained that though provisions of the Treaty of Rome were incorporated into Italian law in 1958, it did not prevail over the electricity nationalization law of 1962 due to the legal doctrine of lex posterior derogat legi anterior/priori or “implied repeal.” 14 This doctrine states that where an act of Congress conflicts with an earlier one, the later one will take precedence, making the previous one legally obsolete. This cemented the European Court’s obligation to oversee cases which put into question the application of EU law in the European Community’s member states. The premise behind “implied repeal” served to legitimize Community law and substantiate it with the passage of the Merger Treaty, which unified the executive institutions of ECSC, EEC and Euratom in 1965, effective in 1967.

The treaty preserved the three institutions’ legal independence while merging their judicial, administrative and legislative bodies. Combined with their shared control over the European Court of Justice and the Parliamentary Assembly, the

WEBSTROKE LAW: CASE 6/64 COSTA V ENEL, https://webstroke.co.uk/law/cases/costa-venel-1964-ecj (last visited Jan. 2020).

14 Alec Samuels, Implied Repeal, 40 STATUTE L. REV. 206, 206-12 (Sept. 15, 2017) (discussing concept of implied repeal).

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES signing of the treaty symbolized the beginning of the modern European Union and its implications for the continent’s future integration.

A. Resolutions on the Protection of Individual Data Privacy in the Private and Public Sector With the establishment of a Single Commission of the European Communities, advances toward national legislation in privacy law began to take effect. Among the most influential were the Resolutions of 1973-1974 with regard to the public and private sector. Resolution 73/22 was instituted by the Committee of Ministers of the Council of Europe in their 7th Conference of European Ministers of Justice. The resolution sought to promote unity among member states to prevent diversions in legislation. Furthermore, the resolution entailed the annexation of Resolution 3 on the protection of privacy with an emphasis on the increased compilation of data into computers. The document consisted of many significant articles outlining the most prominent concerns over the increased inflow of data. The most notable ones ensured the appropriateness and relevance of the information stored, prohibited the dissemination of information relating to private life or deemed discriminatory, specified the period in which the information is stored, and, most importantly, provided that stored data be utilized solely for the purpose by which it is stated in the contract, prohibiting access to third parties.15 The latter provision was paramount to preventing abuses in processing and data collection and applied to electronic banks in the private sector. Additionally, operating staff of electronic data banks adhered to a specific code of conduct, utilized security systems barring access to unauthorized parties, and statistical data was only to be released in aggregate form as to prevent personal identification. Prior to Resolution 73/22, data privacy law was introduced in accordance to member states’ respective legal systems which warranted the provision of a legal 15

Eur. Parl. Ass., On the Protection of the Privacy of Individuals vis-à-vis Electronic Data Banks in the Private Sector, 224th Sess., Res. (73) 22 (Sept. 26, 1973), https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentI d=0900001680502830.

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consensus to prevent further digression. The acknowledgment that electronic data processing was becoming instrumental for transactions in the private sector only magnified the public demand for greater awareness on the extent the information was stored and a greater legal premise for its regulation. This public concern is echoed in the passage of Resolution 74/29 the following year which applied similar standards to the public sector, the most important being the requisite disclosure of such storage of information under a given public document, statement, or regulation in accordance to the particular states’ legal system. 16 Though the EU, at that instance, lacked a definite national piece of legislation by which member states could abide by, Resolution 74/29 served to communicate individuals’ right to inquire about the information stored about them and the basis by which it would be used and shared. Thus, Resolutions 73/22 and 74/29 established principles for the protection of personal data and arguably served as a framework for the development of future national legislation for automated data bank collection.

B. OECD Guidelines on Data Protection With an enhanced public perception for data inflows, the role of the Economic Cooperation and Development (EOCD) guidelines were designed to promote legislation that would foster economic growth and stability for both member and nonmember countries. Issued in 1980, the guidelines focused on the protection of privacy and transborder flows of personal data. Though not legally binding, they were developed as a broader set of principles that would extend beyond Europe in its influence of data protection law. The most defining and influential principles dictating the future standard for data law were: 1. Notice: the right for data subjects to be given notice upon collection of their data.

2. Purpose: full disclosure of the means by which data is used and no other reason.

3. Consent: prohibiting the disclosure of data without one’s consent 4. Security: the consolidation of proper measures to avoid potential abuses of information.

5.

Disclosure: the clarification on the individual/entity collecting the data.

Eur. Parl. Ass., On the Protection of the Privacy of Individuals vis-à-vis Electronic Data Banks in the Public Sector, 236th Sess., Res. (74) 20 (Sept. 20, 1974), https://rm.coe.int/16804d1c51.

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES 6. Access: allowing data subjects to view the information held about them as well as the ability to correct any inaccuracies.

7. Accountability: obligation to implant mechanisms empowering data subjects to hold data collectors accountable for privacy violations.

This is considered the first real effort in providing suggestions on how best to manage data security and privacy. Though its formal sanctions were not binding, it compelled European states to abide by the standards through their own local means which served as a catalyst for greater public awareness about the insecure state of personal information as envisioned by current legislation at the time.

The principal aim of these guidelines was similar to Resolutions 73/22 and 74/29 in that it sought to ensure the protection of privacy and individual freedoms while facilitating trade and the transference of data across borders.

Additionally, one of the OECD’s primary contributions to the legislation was that it made no distinction between automated and nonautomated, which eliminated the potential violation of data laws through nonautomatic processes. 17 To acknowledge that such personal information could travel through both electronic and physical mediums, ensured that data controllers could not subvert national legislation through nonautomatic procedures. Most importantly, the OECD enumerated principles that would be vital in laying the groundwork for future attempts at protecting personal information and imposing a proper means to uphold them before the law.

C. European Integration and its Repercussions on the Legislative Process While previous efforts have been made to create a collective framework for legislative standards that individual members were to abide by, such provisions were advisory in nature and though digressions between respective domestic laws were reduced, the EU lacked a legally binding regulation to safeguard the

17

OECD GUIDELINES ON THE PROTECTION OF PRIVACY AND TRANSBORDER FLOWS OF PERSONAL DATA, https://www.oecd.org/sti/ieconomy/oecdguidelinesontheprotectionofprivacyandtransborderflo wsofpersonaldata.htm (last visited Jan. 21, 2020).

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privacy of its citizens. The passage of the Maastricht Treaty in 1992, overseen by the European Council, served to reform and amend the treaties which established the European Communities. Its structure consisted of three pillars of jurisdiction which included its renaming of the European Economic Community to European Community to reflect its relevance in non-economic affairs, the Common Foreign and Security Policy and Cooperation in the Fields of Justice and Home Affairs. The creation of such a pillar system stemmed from member states’ desire to extend the power of the previous European Economic Community to matters of judicial cooperation, foreign policy, and criminal justice. Apart from establishing the European Union, it also imposed a common national currency and most significantly modified the institutions within the EEC and its decision-making processes.18 Institutional changes were introduced in the form of the extension of Parliament’s oversight over the commission. Additionally, commissionership terms were adjusted to five years so as to coincide with that of Parliament members and to enable more cohesive action toward implementing legislation. As far as enforcement mechanisms, the European Court of Justice was authorized the power of imposing fines on noncompliant member states and cooperated with a newly-created regional committee to advise commissioners and the Council of Ministers on “issues relevant to subnational, regional or local constituencies.” 19 The expansion of issues overseen by Parliament creates significant changes to the legislative process. Since the EU’s decision-making body consists of a cooperative relationship between Parliament and the Council of Ministers, representatives from EU states are granted the authority to commit their respective governments to the actions agreed upon during meetings. Despite achieving great strides toward European Integration, the establishment of the European Union bore no explicit mention of fundamental rights as a whole.

With the aim of refining and strengthening the European Union’s core structure, the passage of the Treaty of Lisbon in 2007 amended the EU’s two core actions, establishing the Treaty on the Functioning of the European Union Matthew J. Gabel, European Union, ENCYCLOPÆDIA BRITANNICA (Jan 31, 2020), https://www.britannica.com/topic/European-Union/The-Maastricht-Treaty.

See Id.

18

19

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES (TFEU) which grants the European Convention on Human Rights (ECHR) legal binding through Article 6(1) which states: “The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.” 20 Though not incorporated directly into the Treaty of Lisbon, the ECHR is given equal legal value to the Treaties, extending ratification to international organizations such as the European Union by member state ratification.

Moreover, TFEU’s Article 16(2) also provides that: “The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data.

Compliance with these rules shall be subject to the control of independent authorities.” 21

The Treaty of Lisbon prioritizes justice and security, facilitating the establishment of one framework to assess all EU activities. Thus, Article 16(2) cements the protection of personal data, devolving additional powers to national authorities to enforce data protection law within institutions of the EU. The Treaty is significant because, prior to its amendment to the treaty establishing the European Union, there was no mention of fundamental rights. The Treaty of Lisbon therefore emphasizes core values of human dignity and privacy, granting it international jurisdiction and further enabling its efforts to instill collective change and initiative toward future developments of data protection law.

Consolidated Version of the Treaty on the Functioning of the European Union art. 6, Dec. 13, 2007, 2012 O.J. (C326), https://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX:12012E/TXT. 21 Id. 20

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UCLA UNDERGRADUATE LAW JOURNAL D. EU General Data Protection Regulation (GDPR) The establishment of the European Union set the stage for the development of a uniform data protection legislation. Efforts for the harmonization of data law culminated in the passage of the General Data Protection Regulation (GDPR) which imposed its guidelines across the continent on May 25, 2018, compelling businesses within EU member states to abide by strict rules concerning the personal information of its citizens. The GDPR broadly defines Personally Identifiable Information (PII), as any information relating to the individual in the public, private, and professional sphere. Examples include home addresses, financial information, biometric identifiers, geographic location, commercial activities and consumption, as well as any other identifiers that may qualify as being PII sensitive. Furthermore, the reach of the legislation transcends Europe’s borders, applying to international organizations engaging in business practices on European soil even if they are not headquartered there.

This significantly impacts the scope of the legislation as non-EU member states and any international organizations providing an exchange or interaction of goods or services are subject to the regulation and its requirements. Such requisites for GDPR compliant companies or “data controllers,” include security measures such as “pseudonymization” which refers to a means by which data can be processed in a manner that eliminates the risk of identifying an individual without necessitating more data. 22A prime example is encryption, rendering the original data set unintelligible and only reversible by a decryption key, exemplifying the GDPR’s provision that such additional data be stored separately from the pseudonymized information. As a means of providing greater transparency, individuals also have the right to request a copy of the information stored about them, the purpose for its collection, and whether third parties have access to their information. Provisions have also enabled greater data portability and the “right to be forgotten” as citizens can also request the transfer of information from one data processor to another and may also request that information be deleted indefinitely. Most importantly, the consumer is 22

2016 O. J. (L 119) 59, https://eur-lex.europa.eu/legalcontent/EN/TXT/PDF/?uri=CELEX:32016R0679.

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES granted the right to object, preventing the entity from processing their data for purposes of sales and marketing. The company is also obligated to recognize that a consumer’s granting of consent does not authorize the use of the personal information for non-service-related purposes. Thus, the consumer is attributed the right to manage the affairs of his personal information before processing and the terms by which it is authorized to be processed by a particular company and third parties.

The regulation also imposes some bureaucratic changes within companies, mandating the assessment of a site’s data security through the appointment of a Data Protection Office (DPO) who can be newly hired or an existing staffer with the capabilities to carry out the function. Apart from implementing greater oversight, companies are also required to request site visitors’ consent in the gathering of their information. Data breaches must be notified to Data Protection Agencies within 72 hours and failure to comply results in severe penalties and creates a significant liability for companies, with a maximum penalty assessed as high as 4% of the annual global revenue generated by the company, or 20 million euros. 23 However, assessments of penalties are dependent on the severity of the infraction, as violations vary from a failure to notify a supervising authority to not taking proper measures to rectify said breach. With the various efforts made toward safeguarding consumer data and privacy, companies are obligated to be increasingly transparent with their practices considering the major liability improper security procedures may pose to its operations both legally and financially. The legacy of the GDPR stems from its achievements in encouraging consumers to equate the encroachment of their personal data to an outright violation of their fundamental right to privacy.

23

Mark Kaelin, GDPR: A Cheat Sheet, TECHREPUBLIC (May 23, 2019), https://www.techrepublic.com/article/the-eu-general-data-protection-regulation-gdpr-thesmart-persons-guide/.

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UCLA UNDERGRADUATE LAW JOURNAL III. Precedent for Privacy as a Fundamental Right in the United States The origin of privacy rights is shrouded in abstractions, being loosely defined as a fundamental human right associated with human dignity and individual liberty. Furthermore, the acknowledgment of privacy has been staunchly supported by proponents of individual autonomy and civil liberties, whose belief in privacy is contingent upon the notion that government has no right in dictating affairs of private conduct or property —a concept of ownership that is diversified with future technological innovation. The early decades of the 20th century in the United States consisted of strict constructionist interpretations of property and privacy, upheld by the Court in a conservative manner so as to not digress from the Constitution's initial schematization of intentions and literal interpretations of its text.

Moreover, the early conceptions of the right to privacy were associated with the family unit, as previous cases, Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), laid the groundwork for the idea that the affairs of the home were a fundamental liberty set aside specifically for the parents. 24 This doctrine cultivated the modern conception of privacy as being a distinctive feature in the private sphere, in which the government has no legal authority to dictate.

Additionally, while privacy was increasingly defined as an inalienable right shielded from governmental encroachment, accounts for the anachronisms inherent in strict constructionism in the midst of technological change were swiftly developing inside the courtroom. Most notably, Justice Louis Brandeis provides a dissenting opinion in Olmstead v. United States (1927) which accounts for an amplified conception of privacy with the development of innovation: Protection against such invasion of the sanctities of a man’s home and the privacies of life was provided in the Fourth and Fifth Amendment, by specific language. But time works changes, brings into existence new conditions and purposes. Subtler and more far-reaching means of invading privacy have become available to the government. 25

24

Austin Cline, Supreme Court Decisions on Right to Privacy Cases, LEARN RELIGIONS (June 25, 2019), https://www.learnreligions.com/supreme-court-decisions-on-privacy-3865849.

25 Olmstead v. United States, 277 U.S. 438, 474 (1928).

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES In the case in question, defendant Roy Olmstead was indicted on the charge of violating the National Prohibition Act through the distribution and sale of alcohol. The landmark decision ultimately ruled that wire-tapped phone conversations without judicial approval were constitutional in that they did not constitute an unreasonable search and seizure as laid out explicitly in the Fourth Amendment. Justice Brandeis’ dissenting opinion accounts for the deficiency inherent in the Court’s ability to account for an evolving interpretation of the Constitution that recognizes the impact of modern technology on anachronistic understandings of rights.

This deficiency has only been exponentially magnified with the current problems of securing data protection. The increase of innovation has not been met with equal regulation, resulting in greater potential breaches of privacy with no oversight. Justice Brandeis’ dissenting opinion addresses the dilemmas facing an increasingly industrious and innovative nation and most significantly qualifies this prognostication of growth and advancement of the sciences by addressing the harm such achievements may have on the fundamental protections accorded to its citizens. Data protection in the United States needs to address this inevitable problem emerging with the age of globalization and its superfluous exchange of information. Despite the admirable efforts of their European counterparts to impose national standards to safe-guard personal information, the American response has been minimal, warranting the need for greater action to supplant the unregulated norm for business practices relating to the handling of information.

A. Data Mining and Deregulated Activity Greater concern for the safeguarding of personal information in the United States arose following events in 2012 in which Facebook CEO Mark Zuckerberg authorized the purchase of the personal data of millions of Facebook users, without their knowledge or consent. The buyer, Cambridge Analytica, utilized its access to this database as a resource to facilitate the development of a “psychological warfare tool” targeting voters in an effort to aid President

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UCLA UNDERGRADUATE LAW JOURNAL Donald Trump in the 2016 presidential election. 26 Cambridge Analytica’s London-based parent company, The Strategic Communication Laboratories Group (SCL), has a long history of trying to understand and influence behavior, having worked for many companies and political candidates around the world.

Though the company works closely with many government and military clients, Europe has many strict privacy protections on personal information while America is much less regulated, giving access to vast hubs of consumer data to whichever company or candidate with the financial means to afford it.

Unregulated data mining in the U.S. is especially dangerous due to its delicate democracy and the tendency of its citizens to rely on social media as their only source of news. With access to personal details of people’s lives, candidates are able to micro-target communities to display political ads, posts, and news articles on social media. International debate has ensued, discussing the needs for increased regulation of data collection, and weighing the repercussions that these regulations may have on advertising conglomerates. In the case of Cambridge Analytica, the United States served as a great loophole for companies to continue their practices with far less restrictions than those imposed on the companies operating within Europe.27 This has elicited greater public demands for the government to impose competent security measures to allow the consumer to view the information stored about them as well as strict guidelines to enforce the compliance of companies within the U.S. Cambridge Analytica harvested information from nearly 50 million Facebook users through a personality quiz. They were able to accomplish this thanks to Facebook’s conflicting app permissions which incorporated activities such as external news sources, quizzes and surveys via third party sources, which fail to secure consumer data.28 Though Facebook was singled out for its intrusive marketing practices, stockpiling of personal information had become 26

Johannes, Reconstructing Cambridge Analytica’s ‘psychological warfare tool,’ CORRELAID (Mar. 28, 2018), https://correlaid.org/blog/reconstructing-cambridge-analytica/.

27 Will Oremus, The Real Scandal Isn’t What Cambridge Analytica Did, SLATE (Mar. 20, 2018), https://slate.com/technology/2018/03/the-real-scandal-isnt-cambridge-analytica-its-facebookswhole-business-model.html.

28 Timothy B. Lee, Facebook’s Cambridge Analytica scandal, explained [Updated], ARSTECHNICA (Mar. 20, 2018), https://arstechnica.com/tech-policy/2018/03/facebooks-cambridge-analyticascandal-explained/.

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES the norm in many organizations as a means to gauge public interests approaching 2018. 29 In response to public and consumer outrage, Facebook adopted GDPR provisions within U.S. territories, and agreed to pay a $5 billion penalty imposed by the Federal Trade Commissions for violating consumer privacy rights. The 2018 Cambridge Analytica scandal was a catalyst for the imposition of stricter data security programs on the most prominent social media and marketing platform. Recognizing the strength of public backlash from this incident, the U.S. government sought to adopt a more suitable framework for handling matters of data privacy within its borders.

B. California Consumer Privacy Act As the strongest piece of data legislation enacted in any U.S. state at the moment, the California Consumer Privacy Act (CCPA) was signed into law on June 28, 2018 as an amendment to the California Civil Code, filling in a gap in the Code to safeguard the information of its residents. The aim of the act was to increase transparency over the contents of the personal data collected, clarifying the means by which it is used, as well as empowering the individual to access such information stored about him. This is especially crucial to business practices as individuals have the ability to delete personal information stored about them, actively exercising their right to privacy. The CCPA’s definition of personal information includes but is not limited to data that relates or can be reasonably linked with a particular consumer or household30. These include: 1. Real name or alias, email address, postal address, social security number, passport number of any other official identification, and online identifier.

2. Commercial information including records of personal property or transactions on products or services. Additionally, other documentation relating to consumption history or tendencies

Natasha Singer, What You Don’t Know About How Facebook Uses Your Data, THE NEW YORK TIMES (Apr. 11, 2018), https://www.nytimes.com/2018/04/11/technology/facebook-privacyhearings.html.

30 California Consumer Privacy Act § 1798.140 (2018).

29

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UCLA UNDERGRADUATE LAW JOURNAL 3. Biometric information: an individual’s physiological, biological or behavioral characteristics, including DNA (i.e. imagery of the iris, fingerprint, vein patterns, voiceprint, retina, facial recognition, etc.).

4. Internet or “electronic network” activity information including browsing and search history, and information relating to a consumer’s interaction with websites and advertisements.

5. Geolocation data, professional/employment-related information, education information not publicly available, and any inferences drawn from personal information that may lead to the creation of a consumer profile derived from psychological trends, behavior, aptitudes and predispositions.

The CCPA amplified its measures in order to ensure compliance, extending its jurisdiction over any business headquartered in California as well as other forprofit entities that do business in California or interact with local consumers’ personal data. These for-profit entities must meet at least one of the following thresholds: possessing an annual gross revenue exceeding $25 million, having bought/sold personal information of 50,000 or more consumers or households, or attributing more than half of its total annual revenue to the sale of consumers’ personal information. Once qualified, entities are required to adhere to measures of accountability such as providing a link on the company’s web page enabling users to opt out of subsequent terms involving the sale of their information. This requirement places a functional and visible mechanism for consumers to safeguard their data, directly prompting them to allow or deny access, as opposed to unknowingly signing away their personal information in a long-winded legal terms and conditions. The increase of transparency not only regulates digital media activity but also requires companies to create methods for submitting data requests in the event that an individual has an inquiry about their personal data and/or its deletion. Other responsibility measures range from implementing processes to solicit guardian consent for minors under 13 years old, the obligation to update privacy policies with pertinent information and a full disclosure of a California resident’s rights. Additionally, entities are prohibited from requesting opt-in consent within 12 months of a California resident’s unauthorization.

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES With provisions emphasizing accountability firmly in place, the CCPA recognizes and protects consumer privacy and aims to regulate the methods and means by which businesses interact with sensitive data, imposing a number of legal remedies and pecuniary repercussions in the case of violations. This includes the conditional authorization of companies, associations and activists in exercising opt-out rights on behalf of California residents and ensuring that privacy notices are clear and accessible, communicating alternatives to accessing the feature in other formats. The CCPA has also provisioned to mitigate data security breach cases as each intentional violation can be fined up to $7,500 and non-intentional cases up to $2,500. In the circumstance that a company falls victim to data theft, it can also be ordered in civil class action lawsuits for the payment of statutory damages ranging from $100-750 per resident or incident. This is contingent upon the extent of the damage and whatever additional relief the Court deems necessary. Effective as of January 1, 2020, the California Consumer Protection Act has made great strides in the protection of personal data among its residents, serving as the only comprehensive consumer privacy law within the United States. The Act serves as a prime example showcasing the demand and necessity for an allencompassing privacy law. The US transaction of personal data through business activity is profoundly deregulated in comparison to the initiative set forth by the European Union and its global standard for privacy law.

IV. The Viability of the CCPA as a Model for a Future Comprehensive National Privacy Law in the U.S. Cognizant of the fact that American data protection law is still in its infancy, the California Consumer Protection Act (CCPA) consolidates various procedures toward addressing the landscape of data protection in the rest of the unprotected United States. Though the European Union’s General Data Protection Regulation (GDPR) encompasses a broader scope of what it defines as personal information, the CCPA serves as a legislative template for future national privacy law. Given the decades of regulatory data reform reflected in

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the GDPR’s extensive legal sanction over EU membership and abroad, the CCPA demonstrates much promise in consideration of its development since 2018. The California statute should be viewed as a significant first step for the country, jumpstarting the efforts by the government to establish a national framework for all U.S. citizens.

A. Digressions in Material and Territorial Scope, the Articulation of Rights for Consumers, Supervisory Authority and Enforcement Through Civil Remedies Under Articles 2, 4(1), 4(2) and 4(6) of the GDPR, the EU defines personal data as any information that can be directly and indirectly linked to the identity of an individual. Therefore, the GDPR applies to the processing of personal data which includes the collection, recording, adaptation, erasure and alteration of personal information. While it is very similar to the CCPA’s definition and application of data processes, the GDPR does not exclude particular types of personal data from the scope of its application such as “processing conducted through non-automated means that are not part of a filing system and processing conducted by a natural person for a purely personal or household purpose.”31 This all-encompassing standard for personal information is not the case with the CCPA’s prioritization on imposing restrictions on the sharing and selling of information that is contingent upon business activity and compliance. For example, provisions like the right to opt-out are only explicitly offered in the specific circumstance of selling or sharing information to these for-profit entities. 32 Additionally, the CCPA clearly mandates the exclusion of certain types of data transactions from the statute’s scrutiny, such as protected medical information, details pertinent to clinical trials, information that is already made publicly available by the law, and personal information protected by the Driver’s Privacy Protection Act.33 With the CCPA’s more limited scope, it is more

31

Alice Marini et al., Comparing Privacy Laws: GDPR v. CCPA, DATAGUIDANCE & FUTURE OF PRIVACY FORUM (2018), https://fpf.org/wpcontent/uploads/2018/11/GDPR_CCPA_Comparison-Guide.pdf.

32 California Consumer Privacy Act § 1798.145 (2018).

33 Driver’s Privacy Protection Act 18 U.S.C. § 2721(1994).

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES oriented toward preventing the fragmentation of industry, excluding processing activities from its definition of “selling” such as business transactions of personal data to a third party as part of a merger, acquisitions and bankruptcy, among other related purposes. It also vaguely justifies the exemption of thirdparty activity under the premise that it is necessary for business. While there are many inherent flaws with the relative abstraction to which the CCPA defines and justifies third party activities for the sake of business, it also obligates entities to uphold the consumer’s right to opt-out. In the event that personal information is expressly used for a purpose different than what was originally promised upon the time of collection, the permission to proceed with the party’s operations necessitates a renewal of the Californian consumer’s authorization.

All in all, the GDPR is more effective in ensuring the protection of all data regardless of its application within different fields, while the CCPA protects business transactions and ensures that inflow of information for the purposes of commercial activity are not fragmented by extraneous precautions for privacy.

Moreover, the CCPA’s emphasis on the parameters allocated to the term “selling” signals an inherent flaw in the scope of its protections, as it directly targets the selling of information but its provisions are not legally binding to other uses of their information. 34 This is a factor that the GDPR has rectified in Articles 12 and 21, as data subjects are permitted the right to object to any information used in the interest of the “controller” or third party. This significantly expands the umbrella under which certain flows of information can qualify under. However, what the GDPR achieves in scope it lacks in consolidation, as the CCPA’s right to opt-out is absolute while the EU’s is contingent upon the grounds by which the information is used. What the circumstance deems “legitimate” is greatly subjective and advantages itself with the ambiguity and broadness of the GDPR. Though the GDPR and the CCPA both rely on a supervisory authority to enforce and assist organizations’ compliance, the Attorney General and data protection authorities under both differ in their enforcement powers. Articles 34

California Consumer Privacy Act § 1798.120 (2018).

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83 and 84 of the GDPR impose monetary penalties for non-compliance, issuing an administrative fine of 2-4% global annual turnover or 10-20 million euros (whichever is higher) depending on the severity of the violation.35 Conversely, as mentioned earlier, the CCPA exacts civil penalties issued by the court with a lower starting point of $2,500 or $7,500, depending on intent. Thus, while the European regulation is much more severe in its penalty, the CCPA does not specify a maximum on the amount of penalties charged under each violation.

The California regulation has proportional supervisory measures to that of the EU, with the Attorney General overseeing civil action lawsuits. The data protection authority under the GDPR oversees such cases and may call upon additional authorities in the event that more than one Member state is involved in the violation. Along with measures to ensure compliance of standards of privacy, individuals are also allowed to pursue civil remedies in the form of monetary reparations. Unfortunately, in the CCPA individuals only have a remedy if their violation applies to non-encrypted personal data being subject to unauthorized access, theft, or infiltration as a result of inadequate business security measures. The business is given a 30 days’ notice of violation, ample time to perform a corrective action, eliminating the possibility of a suit, while the GDPR can impose judicial remedies for any violation under the GDPR.36 In short, the GDPR abides by stricter regulations in assessing privacy violations, while the CCPA commits to action necessitated by the breach’s relation to inadequate security measures and the context in which the data was infiltrated.

In many ways, the CCPA suffers from its narrow definitions of personal data, transactions, and grounds by which it exempts certain categories friendly to Silicon Valley interests. However, the GDPR is not without fault as well, with its broadness posing as both an achievement of greater legislative transparency and a detriment to the protection of data with regard to what it deems a legitimate exemption of business activity via third party interaction.

35 36

Regulation 2016/679, General Data Protection Regulation, art. 83, 2016 O.J. (L 119).

See Id. § 1798.150.

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES B. Recommendations The California Consumer Protection Act is a laudable achievement towards increasing government sanctions over businesses to protect consumer privacy rights with regards to sensitive personal information. Although it is only a state statute, its potential for improvement lies in its jurisdictional scope. One of the factors that prevents the CCPA from expanding its reach is that the specifications for the entities it obliges to comply to its provisions are too narrow. They include for-profit entities that are resident or do business within the state of California but must reach a threshold based on annual revenue or a certain proportion of profits stemming from the selling of consumer data. In a state bursting with startups, this leaves out many smaller tech companies that contribute to California’s economic dominance as the fifth largest economy in the world, with a GDP of $2.9 trillion. 37 Though the circumstances within the EU may entail some exemptions to small businesses, the GDPR extends its jurisdiction to a wider array of parties. This includes all government and nongovernment legal entities, individuals in the EU and any data processing legal entity. The CCPA’s focus on for-profit entities also eliminates non-profit organizations from the discourse concerning data privacy. Many of these organizations may not actively interact with consumer data in conducting business, but they may produce goods and services aimed at California residents. The CCPA will be due for a series of amendments in the coming years, one of which will hopefully stress the need for data security for privacy’s sake and not just exclusively in relation to business activity.

Another significant digression the CCPA has with the GDPR is the former’s terms of its articulation of individual rights, as the California law lacks depth in its definition of the right to opt-out and consumers’ ability to correct data. In many cases, the CCPA’s opt-out feature concerns the sale of personal information and neglects to address issues of profiling and targeted

Evans, 16 Mind-Blowing Facts about California’s Economy, BUSINESSINSIDER (Apr. 26, 2019), https://markets.businessinsider.com/news/stocks/california-economy-16-mind-blowingfacts-2019-4-1028142608.

37Pat

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UCLA UNDERGRADUATE LAW JOURNAL advertisement.38 This is especially obstructive to security measures as the right to opt-out is not included in advertising practices that do not entail the selling of data. It would be crucial to implement an internal appeals process for additional protections on consumer privacy mirroring the ones guaranteed by the GDPR. EU data protection authorities possess corrective powers stated in articles 5184: “Issuing warnings, reprimands, to order the controller and processor to comply, to the controller to communicate a data breach to the data subject, impose a ban on processing, order the rectification or erasure of data, suspend the transfer of data and impose administrative fines.” 39 The CCPA grants this role to the Attorney General who is empowered to assess violations under California law and to present the case to the Court. Apart from the evaluations of the Attorney General, the CCPA, needs a more intensive procedure for the management of appeals. All eyes are on California, the tech hub of the United States and the world. Although the CCPA is a valiant effort to protect consumer privacy rights, it would serve as a stronger beacon signal to others looking to legislate, if it was not as narrow and mindful of companies’ profit margins.

Conclusion The creation of an all-encompassing data law in the United States is crucial in the midst of the great innovative and technological advancements society has made. We live in a time in which the flow of information is superfluous, compelling lawmakers to scrutinize the viability of our nation’s current protections on sensitive data. Personal information travels through a wide array of mediums and to deny American citizens the reassurance of proper security measures to safeguard their personal information is a violation of one’s fundamental right to privacy. The European Union has already taken the lead in creating meaningful sanction toward achieving information security. Its passage of the General Data Protection Regulation (GDPR) exemplifies effective ways to install supervisory authorities, ensure compliance by data 38

California Consumer Privacy Act § 1798.155 (2018).

EU – US: GDPR v. CCPA, DATAGUIDANCE (Dec. 2019), https://platform.dataguidance.com/notes/eu-us-gdpr-v-ccpa.

39

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LOOKING BACK TO MOVE FORWARD: EUROPEAN DATA LAW AS A MODEL FOR THE UNITED STATES controllers and create a proper penalization system which appropriately enforces individuals’ rights to control the access and use of their personal information. Under the Court’s current understanding of the Fourth Amendment, the internet is not a protected space, and neither is any data on it.

With a deadlocked Congress and conservative Court, it is crucial that states like California spearhead the way and serve as a model for others, instead of waiting on the federal government. The California Consumer Protection Act (CCPA) offers a narrower protection of personal information, but still exemplifies a significant progression toward achieving consumer and data privacy protection within the United States.

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