jlieditors, Author at Minnesota Journal of Law & Inequality

First Down, First Amendment: A Case Comment on Kennedy v. Bremerton School District

By jlieditors

By Karissa Grapes*

Background

On June 27, 2022, the Supreme Court ruled that a public school football coach possesses a right to pray with his players after games.^[1] This decision significantly complicates what religious activities are allowed in schools and when schools can regulate employee expression. The decision erodes the separation of church and state in public schools.

Factual and Procedural History

In this case, Petitioner Joseph Kennedy lost his job as a high school football coach.^[2] The termination followed after he knelt at midfield after football games to offer a personal prayer.^[3] Initially, he prayed on his own.^[4] Over a period of time, some players asked to join him.^[5] Petitioner responded with, “This is a free country. You can do what you want.”^[6] This practice eventually grew to most of the team, and even members from opposing teams joined.^[7] The district sent directives to stop engaging in religious expression, which petitioner ignored.^[8]

Petitioner sued in federal court alleging the school district’s action violated his free-speech and free-exercise rights.^[9] The district court concluded “that a reasonable observer… would have seen him as… leading an orchestrated session of faith.”^[10] Petitioner appealed, and the Ninth Circuit affirmed.^[11] Petitioner sought certiorari, which was denied but accompanied by a statement stressing that a denial does not necessarily mean the Supreme Court agrees with the decision below.^[12] The case returned to the district court; the court rejected Petitioner’s free speech claim, and it found the school district had a compelling interest in prohibiting his post-game prayers, thus rejecting his free exercise claim.^[13] The Ninth Circuit affirmed.^[14] The Supreme Court granted certiorari.^[15]

Holding

The Court examined the following question: “Is a public-school employee’s prayer during school sports activities protected speech, and if so, can the public school employer prohibit it to avoid violating the Establishment Clause?”^[16] The Court held that the Free Exercise and Free Speech Clauses of the First Amendment protect an individual engaging in a personal religious observance from government reprisal; the Constitution neither mandates nor permits the government to suppress such religious expression.^[17]

Disregard for Judicial Precedent

The Supreme Court erred in its decision. First, the majority did not decide the case on the three-part Lemon test as it has historically done since 1971.^[18] In Lemon v. Kurtzman, two states had passed laws which allowed tax-funded reimbursements to church-affiliated schools.^[19] In hearing the case, the Supreme Court decided that the aid to these schools violated the first amendment. The Court considered three factors: (1) the secular purpose doctrine,^[20] (2) the principal or primary effects doctrine,^[21] and (3) the excessive entanglement test.^[22] These factors became known as the Lemon test, which, as the factors indicate, examines the law’s purposes and its entanglement with religion.^[23] The inquiry under Lemon was whether a reasonable observer would see the challenged governmental action as an endorsement of the religion.^[24] In Kennedy, Justice Gorsuch opined that the courts should determine whether a law or practice violates the Establishment Clause by looking at the “historical practices and understandings” of the drafters of the Constitution.^[25] This new test has little practical guidance to schools until lower courts apply the holding.

As the dissent explains, Justice Gorsuch misconstrued the facts.^[26] The question before the court was “whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee’s personal religious beliefs into a school event.”^[27] The answer is clearly no. Teachers and coaches possessing broad free exercise and free speech rights cannot be reconciled with the Establishment Clause requirements of the school.^[28]

Further, the government must remain neutral about religion due to how susceptible to influence children are. Looking at these facts in particular, students are susceptible to feel compelled to join in the post-game prayer.^[29] Students may feel obligated to join their coach—a person in power—in addition to teammates. There is a pressure to pray. As one parent put it, “The coach is a leader. The coach is a mentor. If he goes to the 50-yard line, he has a message he wants to deliver, and so the players would follow.”^[30] While we cannot enter Coach Kennedy’s mind, the prayer may result in favoritism amongst those who are religious and engaging in the prayer compared to their non-religious and non-praying teammates. Coach Kennedy’s actions harm students with practicing minority faiths or those who have no faith. The First Amendment specifically protects individuals from the pressure of engaging in a practice they do not agree with.

Conclusion

For the time being, it is unclear what religious activities schools can regulate. The holding suggests that teachers and other school employees have broader freedoms in expressing their personal views at work. Schools will have to tread lightly and consider specific factors when deciding whether or not to restrict—such as behavior that occurs outside the classroom, outside working hours, and/or “non-student-facing settings.”^[31]

[1] Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022).

[2] Id. at 2415.

[3] Id. at 2416.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id. at 2416–19.

[9] Id. at 2419.

[10] Id.

[11] Id.

[12] Id.

[13] Id. at 2420.

[14] Id.

[15] Id. at 2421.

[16] Kennedy v. Bremerton School District, Oyez, https://www.oyez.org/cases/2021/21-418 (last visited Oct 16, 2022).

[17] Kennedy, 142 S. Ct. at 2421–33.

[18] Lemon v. Kurtzman, 91 S. Ct. 2105 (1971).

[19] Geoffrey McGovern, Lemon v. Kurtzman I (1971), First Amendment Encyclopedia, https://www.mtsu.edu/first-amendment/article/437/lemon-v-kurtzman-i#:~:text=Kurtzman%2C%20403%20U.S.%20602%20(1971,church%2Drelated%20educational%20institutions.%E2%80%9D (last visited Nov. 17, 2022).

[20] Sch. Dist. Abington Twp. v. Schempp, 83 S. Ct. 1560 (1963).

[21] Bd. of Educ. of Cent. Sch. Dist. No. 1 v. Allen, 88 S. Ct. 1923 (1968).

[22] Walz v. Tax Comm’n of New York, 90 S. Ct. 1409 (1970).

[23] Id. at 2112.

[24] Cnty. of Allegheny v. ACLU, 109 S. Ct. 3086, 3121 (1989).

[25] Kennedy, 142 S. Ct. at 2428.

[26] Kennedy, 142 S. Ct.. at 2434 (Sotomayor, J., dissenting).

[27] Id. at 2441.

[28] Ira Lupu & Robert Tuttle, Kennedy v. Bremerton School District – A Sledgehammer to the Bedrock of Nonestablishment, American Constitution Society (June 28, 2022), https://www.acslaw.org/expertforum/kennedy-v-bremerton-school-district-a-sledgehammer-to-the-bedrock-of-nonestablishment/.

[29] Amy Howe, Justices Side with High School Football Coach Who Prayed on the Field with Students, SCOTUSblog (June 27, 2022, 11:24 AM), https://www.scotusblog.com/2022/06/justices-side-with-high-school-football-coach-who-prayed-on-the-field-with-students/.

[30] Devin Dwyer, Supreme Court Rules First Amendment Protects Public School Coach’s Post-Game Prayers, ABC 7 News (June 27, 2022), https://abc7news.com/high-school-football-coach-prayer-supreme-court-decision-joe-kennedy-first-amendment/11998307/#:~:text=The%20First%20Amendment%20protects%20free,if%20the%20prayer%20is%20voluntary.

[31] Kirsten White, Clear as Mud: Navigating In-Schhol Employee Expression in the Wake of Kennedy v. Bremerton School District, Fox Rothschild LLP (July 15, 2022), https://www.foxrothschild.com/publications/clear-as-mud-navigating-in-school-employee-expression-in-the-wake-of-kennedy-v-bremerton-school-district.

* Karissa Grapes, Note & Comment Editor and J.D. Candidate, UMN Law School Class of 2023

“It’s Absolutely Immoral”: The Denial of Mental Health Treatment in U.S. Prisons

By jlieditors

By Nicole Carter*

Introduction: U.S. Prisons Deprive Inmates of Adequate Mental Health Treatment

In 2016, John Rudd was sentenced to eight months in federal prison for violating a term of his probation.^[1] While he had been diagnosed with Post Traumatic Stress Disorder (P.T.S.D.) and Schizophrenia, Rudd was placed on a “care level 1” unit for inmates without “significant mental-health needs.”^[2] Subsequently, he was not provided with psychiatric medication or any other form of treatment for his mental health.^[3] By April of 2017, Rudd notes his psychosis had strengthened and the voices that accompanied it “were getting louder”.^[4] His symptoms became so severe that he confided his suicidal ideation to the prison staff, leading to his placement in a suicide watch room.^[5]Later, the staff found him banging his head against the wall, “trying to snap his neck,” and injected him with haloperidol to end the episode.^[6] Rudd was moved back to “care level 1” within 24 hours.^[7]

While purporting to be rehabilitative, the U.S. prison system is depriving individuals with mental illnesses of the treatment they need, subjecting them to unnecessary and significant harm. According to the American Psychological Association, “64 percent of jail inmates, 54 percent of state prisoners and 45 percent of federal prisoners” report mental health concerns.^[8] However, as of February 2018, the Federal Bureau of Prisons reported mental illnesses they deemed “severe enough to require regular treatment” in only 3% of inmates.^[9] Notably, about 50% of individuals detained in state or federal prisons who had been taking psychiatric medications to treat a mental illness before incarceration were not given access to that medication once detained.^[10] Further, individuals with diagnosed mental illnesses living in federal prisons “are lucky to get even one hour of mental health treatment a month,” and are often kept in solitary confinement due to psychosis symptoms, further exacerbating underlying mental illnesses.^[11] This leaves the vast majority of inmates struggling with mental illnesses in prison without adequate treatment, leading many to face relapse or, like Mr. Rudd, escalation of symptoms to the point of crisis. As current legal approaches to this issue fail to produce change, significant policy change is required.

Current Legal Tests Fail to Protect Individuals with Mental Illnesses in Prison

In Estelle v. Gamble, the Supreme Court held that the failure of prisons to address an individual’s medical condition can amount to violation of the eighth amendment right to be free from cruel and unusual punishment, reasoning that “[i]n the worst cases, such a failure may actually produce ‘physical torture or a lingering death’… In less serious cases, denial of medical care may result in pain and suffering which no one suggests would serve any penological purpose.”^[12] However, in practice, strict legal tests shield prisons from accountability. In Farmer v. Brennan, the Supreme Court laid out the standard for cruel and unusual punishment.^[13] Under the first “objective” prong, the court asks whether the conditions at issue create a “substantial risk of serious harm.”^[14] Under the second “subjective” prong, the court asks whether the prison officers inflicting the harm (the failure to provide care) were deliberately indifferent to the risk of harm.^[15]

Given the systemic nature of the prison system’s failure to provide adequate mental health care, this test does not capture the majority of the harms of this issue due to its focus on the “deliberate indifference” of specific individual officers. Courts are, accordingly, hesitant to hold prisons accountable for conditions that clearly deprive inmates of necessary mental health care. For example, in Herndon v. Heyns, the petitioner’s claim alleging a violation of eighth amendment rights due to the subjection of an individual suffering from mental illness to solitary confinement was denied because the petitioner did not allege wrongdoing on behalf of a specific prison staff member.^[16] Further, the court held that the prison’s “denial of an administrative grievance” for inadequate medical care was not synonymous with a “denial of a request for medical care” sufficient to establish a constitutional violation.^[17] While obscure, this strict rule is echoed in further caselaw.^[18] Under such standards, the law as it stands is not protecting incarcerated individuals who need mental health care.

Moving Forward

As the legal tests available fail to capture these harms, policy change is necessary to address this issue. Notably, the solutions do not lie within prisons. Rather, local and national governments must examine the policies that disproportionately subject individuals with mental illnesses to the carceral system, and instead invest in creating affordable, accessible, and culturally competent mental health care systems.

A 2021 report by The Atlantic identifies several policies driving the disproportionate incarceration of individuals with mental illnesses.^[19] Initially, when a mental health emergency is reported, police officers are almost always the first to respond.^[20] Given their lack of training in mental health, this creates a situation geared toward dysfunction, in which people who vitally require mental health treatment are instead jailed due to conduct that is consistent with their symptoms.^[21] Further driving this issue are so-called “broken windows” policing policies that crack down on low level crimes on the theory that doing so will reduce the frequency of serious crimes.^[22] Under these policies, individuals can be incarcerated for crimes such as disorderly conduct for “erratic behavior” often associated with mental illness, disproportionately subjecting people with mental illnesses to the carceral system.^[23] Additionally, the “War on Drugs” has subjected millions of individuals struggling with mental illnesses to the carceral system.^[24]Approximately 75% of incarcerated individuals with mental illnesses also struggle with a substance use disorder, as substances are commonly used as “a form of self medication.”^[25] Incarcerating individuals for drug-related crimes deprives these individuals of the opportunity to receive treatment for substance use and underlying mental illnesses, and subjects them to preventable suffering.

On the incarceration of those suffering from mental illness, Psychiatrist Stuart Grassian opines, “It’s… absolutely immoral… they just get worse and worse.”^[26] A humane approach to mental health requires policies that emphasize treatment and community. Currently, the city of Eugene, Oregon employs a program in which “unarmed outreach workers and medics respond to many mental-health emergencies” rather than police.^[27] As almost 25% of police shootings involve an individual with a mental illness, such models keep these individuals safe from officers who are untrained in how to deescalate a mental health emergency, and are much more likely to result in an individual receiving access to mental health services than an arrest.^[28] In addition to employing similar models, local governments can take action to end “broken windows” policing policies.

On a national level, given the widely understood negative impacts the intense criminalization of drug crimes has on the United States, and its disproportionate impacts on people of color and those suffering from mental illnesses, steps must be taken to decriminalize drugs and instead allow access to treatment for underlying substance abuse disorders and mental illness.

In order to do so, it is important that policymakers examine creating models of community mental health care systems that are affordable, accessible, and culturally competent. While long term institutionalization can echo the disparities and cruelty experienced in prisons, community-based systems and emphasis on the temporary nature of emergency mental health services can offer alternatives. Most importantly, the approach to treating the most stigmatized mental illnesses must shift away from the dehumanizing assumption that such individuals are “inherently dangerous” and must be separated from society.^[29] Health Affairs details successful community based programs in which “multidisciplinary team[s] of mental health professionals” provide care to individuals within their homes or “where the person is most comfortable,” an option well suited to those facing housing instability, and that reduces rates of incarceration and hospitalization.^[30] The Canadian Observatory on Homelessness also advocates for a multidisciplinary approach to community based mental healthcare that includes such treatment, as well as housing resources, peer support programs, crisis services, daytime “clubhouses,” employment support, and more.^[31] While the U.S. mental health system is far from such goals, it is necessary that we begin working in this direction as the current mental health crisis expands and exponentially more individuals are arbitrarily and cruelly detained.

Conclusion

After leaving prison, a non-profit organization helped Mr. Rudd access biweekly therapy and appropriate medication to treat his Schizophrenia and P.T.S.D.^[32] Subsequently, he began receiving disability benefits and now rents an apartment.^[33] By ensuring that individuals have access to humane, non-carceral mental health treatment, the U.S. can significantly decrease its prison population and avoid preventable harms such as those endured by Mr. Rudd.

[1] Christie Thompson & Taylor Eldridge, Treatment Denied: The Mental Health Crisis in Federal Prisons, The Marshall Project (Nov. 21, 2018), https://www.themarshallproject.org/2018/11/21/treatment-denied-the-mental-health-crisis-in-federal-prisons.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Am. Psych. Ass’n, Incarceration Nation, 45 Monitor on Psych. 56 (2014).

[9] Thompson & Eldridge, supra note 1.

[10] Nat’l All. on Mental Illness, Mental Health Treatment While Incarcerated (2022), https://www.nami.org/Advocacy/Policy-Priorities/Improving-Health/Mental-Health-Treatment-While-Incarcerated.

[11] Christine Herman, Most Inmates With Mental Illness Still Wait For Decent Care, NPR, (Feb. 2, 2019) https://www.npr.org/sections/health-shots/2019/02/03/690872394/most-inmates-with-mental-illness-still-wait-for-decent-care

[12] Estelle v. Gamble, 429 U.S. 97, 103 (1976) (quoting In re Kemmler, 136 U.S. 436, 10 S. Ct. 930 (1890)).

[13] Farmer v. Brennan, 511 U.S. 825, 828 (1994).

[14] Id.

[15] Id.

[16] Herndon v. Heyns, No. 1:15-cv-1183, 2016 U.S. Dist. LEXIS 135877, at *16 (W.D. Mich. Aug. 22, 2016).

[17] Id.

[18] Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (“The mere denial of a prisoner’s grievance states no claim of constitutional dimension.”); Alder v. Correctional Medical Services, 73 Fed. Appx. 839, 841 (6th Cir. 2003); see also Martin v. Harvey, 14 Fed. Appx. 307, 309 (6th Cir. 2001) (noting that denial of an appeal of a grievance for inadequate medical care does not equate to a denial of a request for medical care).

[19] See Alisa Roth, The Truth About Deinstitutionalization, The Atlantic (May 25, 2021), https://www.theatlantic.com/health/archive/2021/05/truth-about-deinstitutionalization/618986/.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Herman, supra note 11.

[27] Roth, supra note 19.

[28] Id.

[29] Roth, supra note 19.

[30] Heather O’Donnel, Kristin Davis, & Samantha Mestan, Building The Community-Based Mental Health Workforce To Expand Access To Treatment, Health Affairs (Oct. 24, 2019), https://www.healthaffairs.org/do/10.1377/forefront.20191022.281887/full/.

[31] Canadian Observatory on Homelessness, Community-Based Mental Health Care (2022).

[32] Thompson & Eldridge, supra note 1.

[33] Id.

*Nicole Carter is a staff member on JLI Vol. 41.

Laufer Gives ADA Testers a Second Green Light

By jlieditors

By Matthew Schmitz

***Disability communities differ on whether they prefer person-first (“person with a disability”) or identity-first (“disabled person”) language.^[1] Here, I have opted for identity-first language but want to acknowledge that each member of the disability community may have a different preference.

The First Circuit bucked the trend of its sister circuits on a crucial question of standing to bring claims connected to the Americans with Disabilities Act (ADA) on October 5th, 2022.^[2] The decision to extend standing to website testers, under the Reservation Rule, brings the First Circuit into harmony with the Eleventh Circuit but leaves it at odds with the Second, Fifth, Tenth, and D.C. Circuits.^[3] The circuit court and Supreme Court responses to this division going forward will have serious implications for the legal efforts to promote ADA compliance and access for disabled people.

The Circuit Split on Tester Standing

Congress, while crafting the ADA to combat discrimination in public spaces and ensure reasonable levels of accommodation for disabled individuals, vested the ADA’s regulatory authority in the Attorney General.^[4] Among the many regulations the Attorney General has promulgated since receiving that authority is one commonly referred to as the Reservation Rule.^[5] This rule requires businesses that provide lodging to present enough information on their reservation services to allow disabled people to determine if a room meets their needs.^[6] The standard is meant to ensure that disabled people can reserve lodging as efficiently and conveniently as all members of society.^[7]

One result of this rule has been the involvement of ADA testers, who push for accommodation by bringing federal suits across the country concerning the Reservation Rule.^[8] These testers face a hurdle, however, when opposing parties challenge their Article III standing.^[9] Courts faced with these challenges struggle especially with whether these testers have suffered an “injury in fact” sufficient to give them a live case and controversy under the Constitution.^[10] These injuries, following the Supreme Court’s decision in Spokeo, Inc. v. Robins, can be intangible but must be more than a mere violation of statutory procedure.^[11]

Building on Spokeo, the most recent Supreme Court opinion related to tester standing came through TransUnion LLC v. Ramirez, which involved a class action under the Fair Credit Reporting Act.^[12] The TransUnion court applied the Spokeo standard and found that the plaintiffs failed to allege more than a procedural violation.^[13] The Court did not stop there, however. It also cited the plaintiffs’ failure to point to “downstream consequences” or “adverse effects” that resulted from TransUnion’s denial of information required under the statute.^[14] This expanded the Court’s analysis beyond the previous concrete harm standard from Spokeo and arguably reflects a larger trend against tester standing.^[15]

The Second, Tenth, and Fifth Circuits also perpetuated this trend when they subsequently applied the downstream consequences and adverse effects considerations from TransUnion to deny standing for website testers in similar circumstances to Laufer.^[16] Each circuit relied on slightly different grounds. In Harty v. W. Point Realty, Inc., the Second Circuit focused on the plaintiff’s lack of interest in putting the information to use.^[17] The Tenth Circuit, in another case brought by Laufer, pointed to the absence of the kind of misrepresentation that has substantiated concrete injury in previous similar cases.^[18] The court also added that a violation of statutory right is not enough for a concrete harm.^[19] Finally, the Fifth Circuit, in Laufer v. Mann Hosp., LLC, held that Laufer was not able to prove the information had enough relevance to turn information denial into an injury.^[20]

The Laufer Court’s Response

The First Circuit, in Laufer, was not persuaded by the logic of previous decisions from other circuits.^[21] Instead, it relied on the Supreme Court’s precedent in Havens Realty Corp. v. Coleman, which concerned a Fair Housing Act claim brought by a tester working to eliminate racial steering.^[22] Looking at the injury in both Havens Realty and Laufer, the court struggled to find a difference between a Black tester being denied truthful information about long-term renting availability and a disabled tester being denied information about short-term renting availability.^[23] The court stressed that the similarities between Havens Realty and Laufer should push circuit courts to apply the Havens Realty standard until the Supreme Court holds otherwise.^[24]

The Supreme Court’s holding in Federal Election Commission v. Akins also supports the First Circuit’s understanding that information denial can be a sufficient concrete injury for purposes of standing.^[25] In Akins, the Court found that statutorily required information about donor lists for political organizations would likely be useful for the plaintiffs, meaning the denial of that information was equivalent to an injury.^[26] An additional Supreme Court holding, surrounding the Federal Advisory Committee Act, also supports this concept that bare denial of information access can create enough harm for Article III standing.^[27]

Other circuit courts see things differently. In the aforementioned tester standing cases, the Second and Tenth Circuit distinguished from Havens Realty by reasoning (1) that the simple status of being a tester does not create sufficient harm, (2) that ADA tester plaintiffs were not victims of misrepresentation, and (3) that there are no downstream consequences for ADA testers.^[28] The First Circuit found this logic unpersuasive, but also took pains to note that, even under the stricter adverse effects standard pulled from TransUnion, Laufer asserted a sufficient injury in this case.^[29] The “feelings of frustration, humiliation, and second-class citizenry” that Laufer experienced are, the court held, downstream consequences and adverse effects as the federal courts have applied that standard.^[30]

The First Circuit concluded its analysis by addressing the final two concerns raised by the defendant in Acheson Hotels: (1) particularized injury and (2) standing relative to injunctions.^[31] With respect to particularization, Acheson argued that Laufer based her claim on a generalized injury too large to meet the standard set by Lujan v. Defenders of Wildlife.^[32] In response, the court drew a careful distinction between Laufer, as a disabled person, and someone who only witnessed an act of discrimination.^[33] The court, in that context, found Laufer’s situation particularized enough and implied that the witness’s situation would not be.^[34]

With respect to standing for injunctive relief, Acheson argued that Laufer did not face the required risk of future injury, since it had taken steps to remedy the reservation concerns.^[35] Answering that concern, the court held that Laufer’s intent to return to both Acheson’s website and its third-party partners, in accordance with her thorough testing procedures, was enough.^[36] This is especially true, the court pointed out, since Acheson had not yet addressed the existing issues with its third party platforms, even as it corrected noncompliance in its own site.^[37]

Continuing to Push for ADA Compliance

The concerns expressed by the parties in Laufer are far from unique to this case. The practice of ADA testing has generally been met with some pushback by courts, who mention the lack of rigor in their complaints, the potential insincerity of claimants, and the flood of claims that testing creates.^[38] Nevertheless, people knowledgeable in ADA compliance efforts recognize the crucial role that testers can play in promoting equality for disabled people.^[39] Because litigation is the only forum for repairing non-accommodation under the ADA—and because of the serious frustration that inaccessibility can produce for disabled people—the potentially troubling qualities of some testers and their attorneys may be necessary to fix ongoing compliance issues.^[40] This is even more true considering businesses have been on notice for over a decade that courts are willing and able to enforce digital accessibility.^[41]

Laufer may still offer another key opportunity for developing these compliance efforts if the Supreme Court chooses to issue a writ of certiorari before Acheson’s requested January 18, 2023 deadline.^[42] The reach of the First Circuit’s decision and any potential Supreme Court clarification could also influence similar standing concerns in data privacy and security, credit reporting, and informational statutory rights violations in general.^[43] In the meantime, plaintiffs and businesses alike may struggle to understand the potential reach of litigation on ADA website compliance.

Additionally, plaintiffs like Laufer may continue to bring their claims in friendly circuits whenever possible, making Laufer an important tool in their efforts to bring website reservation services in line with Department of Justice regulations and the text of the ADA itself.^[44] The fight over tester standing in ADA compliance cases is far from over, and by doubling the number of friendly circuits through which Laufer and her peers can continue to push the issue, Laufer will play a key role in that ongoing struggle.

**Matthew Schmitz is a Staff Member for the Journal of Law and Inequality

[1] Jevon Okundaye, Ask a Self-Advocate: The Pros and Cons of Person-First and Identity-First Language, MASSACHUSETTS ADVOCATES FOR CHILDREN (Apr. 23, 2021), https://www.massadvocates.org/news/ask-a-self-advocate-the-pros-and-cons-of-person-first-and-identity-first-language.

[2] Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 263 (1st Cir. 2022).

[3] Bernie Pazanowski, Circuit Splits Reported in U.S. Law Week—October 2022, Bloomberg L. News (Nov. 1, 2022), https://www.bloomberglaw.com/product/blaw/bloomberglawnews/us-law-week/X2121QSO000000?bc=W1siU2VhcmNoICYgQnJvd3NlIiwiaHR0cHM6Ly93d3cuYmxvb21iZXJnbGF3LmNvbS9wcm9kdWN0L2JsYXcvc2VhcmNoL3Jlc3VsdHMvMzA3MjVhNGYxNzVkMDQ3MmZkZjM4ODhiZDE2OGNjMjgiXV0–436475ddb03965053ba03db6177fec2f752d26fc&bna_news_filter=us-law-week&criteria_id=30725a4f175d0472fdf3888bd168cc28&search32=u0qIiHFNFvDD17_r3nWqhg%3D%3DQJ1xwqmewFmZAO6rPgP_zoLcxHwI0hhgrf_NN2BxGo0Iugx1_cJR7hAqM4fpGJv5aDoGRmpcKIH0mNYrNX4-6tog1pImIjfHGyVpx_B79cYkYvOwTwN1u6nDEr0dThD1.

[4] 42 U.S.C. § 12186(b) (2022).

[5] Laufer v. Acheson Hotels, LLC, 50 F.4th at 264–65 (citing 28 C.F.R. § 36.302(e) (2022)).

[6] 28 C.F.R. § 36.302(e)(1)(ii) (2022).

[7] Laufer v. Acheson Hotels, LLC, 50 F.4th at 264–65 (citing 28 C.F.R. pt. 36, app. A (2010), Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities.).

[8] Laufer v. Acheson Hotels, LLC, 50 F.4th at 265.

[9] See, e.g., Id.

[10] Id. at 266.

[11] Id. at 267–68 (citing Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)).

[12] 141 S.Ct. 2190 (2021).

[13] TransUnion LLC, 141 S.Ct. at 2214.

[14] Id.

[15] Elizabeth Bowersox, Tenth Circuit Kills ‘Tester Standing’ in Accessibility Lawsuits, McAfee & Taft EmployerLINC (Feb. 9, 2022), https://www.mcafeetaft.com/tenth-circuit-kills-tester-standing-in-accessibility-lawsuits/.

[16] Laufer v. Acheson Hotels, LLC, 50 F.4th at 271 (citing Harty v. W. Point Realty, Inc., 28 F.4th 435, 444 (2d Cir. 2022); Laufer v. Looper, 22 F.4th 871, 879–81, 883 (10th Cir. 2022); Laufer v. Mann Hosp., LLC, 996 F.3d 269, 273 (5th Cir. 2021)).

[17] Harty, 28 F.4th at 444.

[18] Laufer v. Looper, 22 F.4th at 878–80.

[19]Id.

[20] Laufer v. Mann Hosp., LLC, 996 F.3d at 273.

[21] Laufer v. Acheson Hotels, LLC, 50 F.4th at 272–73.

[22] Id. at 268–69 (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 373–74 (1982)).

[23] Id. at 269.

[24] Id. at 271.

[25] Id. at 269–70 (citing Fed. Election Comm’n v. Akins, 524 U.S. 11, 20–21 (1998)).

[26] Id. at 270.

[27] Pub. Citizen v. U.S. Dep’t of Just., 491 U.S. 440, 449–50 (1989).

[28] Laufer v. Acheson Hotels, LLC, 50 F.4th at 272–74.

[29] Id. at 274–75.

[30] Id. at 275.

[31] Id. at 276.

[32] Id. at 276 (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992)).

[33] Id.

[34] Id.

[35] Id. at 277.

[36] Id.

[37] Id.

[38] Sheri Byrne-Haber, Who Tests the ADA Testers? Medium (July 9, 2021), https://sheribyrnehaber.medium.com/who-tests-the-ada-testers-dcb9db8d3749.

[39] Id.

[40] Id.

[41] Id.

[42] Acheson Hotels, LLC v. Laufer, SCOTUSblog (Dec. 21, 2022), https://www.supremecourt.gov/docket/docketfiles/html/public/22-429.html. Several parties have also filed amici curiae briefs that explore various angles of this issue.

[43] Melanie A. Conroy, First Circuit Court of Appeals Rules Website Tester Has Standing for ‘Informational Injury’, Deepens Circuit Divide, Nat’l L. Rev. (Oct. 28, 2022), https://www.natlawreview.com/article/first-circuit-court-appeals-rules-website-tester-has-standing-informational-injury.

[44] Bowersox, supra note 15.

Unhoused and Handcuffed

By jlieditors

By Eleanor Khirallah

Under the guise of addressing homelessness and mental illness in New York City, on Tuesday, November 28, 2022, Mayor Eric Adams announced a new directive that allows the involuntary hospitalization of people suspected to be mentally ill on the street or subway. The city directive authorizes peace officers and police officers to take “people who appear[] to be mentally ill” and who are “conducting themselves in a manner likely to result in serious harm to [themselves] or others” into custody “for the purpose of a psychiatric evaluation.”

The implications are not entirely clear, though the directive specifies that “serious untreated physical injury, unawareness or delusional misapprehension of surroundings, or delusional misapprehension of physical condition or health” are grounds for forcible hospitalization. Furthermore, no dangerous act must be observed for officers to have the authority to hospitalize people.

The directive describes the process as the “removal of a person who appears to be mentally ill and displays an inability to meet basic living needs,” and aims to give the city’s law enforcement, mobile crisis teams, and emergency responders guidance on evaluating and taking individuals who appear to be exhibiting mental health symptoms to hospitals for further evaluations. These workers will apparently be trained on assisting people in a mental health crisis.

Adams himself admitted that the legality of the directive is questionable, stating that “case law does not provide extensive guidance regarding removals for mental health evaluations based on short interactions in the field.” However, in the directive, Adams relies on an expanded interpretation of Kendra’s Law, a NY State Law that “allows court-ordered outpatient mental health treatment for people deemed dangerous to themselves or others.” He says that New York law “explicitly states that it is appropriate to use this process if a person does not seem to be addressing their own basic needs.” His examples of people who may “removed” included, “[t]he man standing all day on the street across from the building he was evicted from 25 years ago waiting to be let in; the shadow boxer on the street corner in Midtown, mumbling to himself as he jabs at an invisible adversary; [and] the unresponsive man unable to get off the train at the end of the line without assistance from our mobile crisis team.”

Once taken to the hospital, individuals would undergo a psychiatric evaluation “for the purpose of admission,” and then may be forced to take medicine, undergo inpatient supervised psychiatric treatment, or begin outpatient treatment, though it’s not clear if this is an avenue for long-term care and supportive services. The directive is silent as to how long someone may be hospitalized, or any recourse to challenge the hospitalization. New York case law on the underlying mental health laws around involuntary hospitalizations do prescribe a process for requesting a hearing to challenge the hospitalization, and do not allow indefinite confinement, though it is not entirely clear on its face if the directive follows this authority.

The policy likely will face a wave of litigation – on top of already significant pushback – though it’s not clear how successful these efforts will be. In O’Connor v. Donaldson (1978), the Supreme Court held that “a finding of ‘mental illness’ alone cannot justify a State’s locking a person up against his will and keeping him indefinitely in simple custodial confinement.” . In that same case, the court said that a State cannot confine a “nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends.” Because this directive allows the involuntary hospitalization of people who haven’t committed any dangerous act, it is inconsistent with this ruling. However, Elyn Saks, a law, psychology, and psychiatry professor at the University of Southern California, told the Washington Post that the directive may be constitutional, stating, “homelessness is used as the standard for danger posed to the person.” Ultimately, it’s not clear where courts will land, though often state hospitalization laws are “elastic enough to permit involuntary holds that could legally stretch into weeks.”

Forced hospitalization and the increase in the state’s ability to police, remove, and involuntarily detain individuals believed to be suffering from mental illness – and often unhoused and/or in extreme poverty – may reinforce inequities and alienate the most marginalized individuals from care. The process often looks like an arrest, with people being accosted by the police and handcuffed; however, the due process rights thereafter are significantly different.For example, one individual was hospitalized for a month and never had the opportunity to see or speak to a lawyer for her release. Once individuals are forcibly taken to the hospital, it’s not even clear that there will be enough hospital beds to meet the need, begging the question of where these individuals will end up.

It is also likely that this directive will not be enforced equally. As of November 30, 2022, 1,641 individuals in New York City alone were under an active court order under Kendra’s Law. About 44% of these people are Black, and about 32% are Hispanic. A report in 2005, about six years after the law’s passage, demonstrated that Black people were “nearly five times as likely as white[] [people] to be the subject of orders of treatment stemming from Kendra’s law.” Because Adams’ directive allows law enforcement to approach and detain people, it’s likely that it will follow Kendra’s Law’s trend of disproportionately targeting people of color.

Notably, Eric Adams has aggressively evicted unhoused people from encampments, failed to substantively increase access to affordable housing, proposed a $615 million dollar cut to the Department of Homeless Services, and increased the budget of the NYPD to target unhoused people on subways and to perform sweeps of encampments. Despite all of these actions that demonstrate a lack of regard for the unhoused and/or mentally ill population of New York City, Eric Adams now claims that his directive is a response to a “moral obligation” to help these people. As NYCLU Executive Director Donna Lieberman described it, “With no real plan for housing, services, or supports, the administration is choosing handcuffs and coercion.”

**Eleanor Khirallah is the Managing and Research Editor for the Minnesota Journal of Law and Inequality.

D.C. Statehood: A Half-Made Promise Losing Momentum

By jlieditors

By Sergi Torres*

On Thursday, April 22, 2021, the House of Representatives made headlines when they voted to pass H.R. 51, a bill that would grant statehood to Washington, D.C.^[1] Over 19 months later, that bill and its progress seems almost entirely halted. Today, over 700,000 D.C. residents remain without a single congressional vote.^[2] Larger than the states of Vermont and Wyoming and comparable to Alaska, South Dakota, and Delaware, D.C. receives 3 electoral college votes for president.^[3] Yet, that’s where their federal representation stops. Residents of the nation’s capital elect a non-voting Delegate to the U.S. House of Representatives and receive no representation in the U.S. Senate.^[4] Ironically, residents in the District remain disenfranchised from the democratic process while living among monuments dedicated to democracy.

Over 700, 000 United States citizens unable to cast a vote for a voting member in Congress should be enough motivation for action. Still, the demographic makeup of the D.C. community highlights the injustice and inequality accepted by federal leaders. Made up of 47% Black residents, 11% of Hispanic origins, 4% Asian, and 41% white, D.C. stands to be one of the most diverse states admitted to the union.^[5] Without a vote in Congress, the city is substantially disadvantaged without any meaningful input in Congressional affairs and the laws that still impact its residents. Congress also has control of city policy. Congress ultimately controls D.C.’s budget and has the power to block meaningful legislation. Without voting power, D.C. residents remain subject to unaccountable national politicians for both national laws and local policy. Putting this burden on the most underrepresented and historically marginalized groups in the United States is a reality no one should accept. Arguments against D.C. include the constitutional and the political, while the real harm of denying residents representation remains unaddressed. The push for D.C. statehood appears stalled, while its importance for equity remains.

Arguments Against D.C. Statehood

Arguments touted against admitting D.C. as a state range from reasonable to absurd, from legal to political.^[6]The primary argument against D.C. statehood is the Constitutional argument. Article I, Section 8 Cl. 17, known as the Enclave Clause, of the United States Constitution states that the Congress must have authority over the District.”^[7] In part, the Enclave Clause was enacted in response to the poor protection of the Continental Congress when state and local governments failed to protect its members. To maintain its Constitutionality, H.R. 51 carves out a smaller federal enclave that would host a small complex of federal buildings, so the rest of the D.C. area can become a state.^[8] This ensures federal protection and governance of the federal enclave independent of D.C. the state.

Second, opposers of D.C. statehood have launched partisan political arguments claiming it is unfair for D.C. to become a state because it would likely result in adding two Democratic senators.

Should the citizens of West Virginia be denied their Democratic Senator because the state hasn’t given an electoral vote for a Democrat in a presidential election in over 20 years?^[9] Would Kentuckians be denied their right to their Democratic Governor Andy Beshear because they voted for Donald Trump with over 60% of the vote? Elections in a newly created state that has overwhelmingly sent its electoral votes to Democrats could be as fluid and unpredictable for Republicans as races in typically Republican favored states are for Democrats. Conceding two Democratic Senate seats is lazy politicking.

Finally, some arguments against D.C. statehood flirt with absurdity. While a strict constitutionalist may argue the single state solution goes against the intent of the framers, current Republican politicians have claimed statehood efforts are “full-bore socialism” and that “D.C. wouldn’t even qualify as a singular congressional district.”^[10]

The Harm of Denying D.C. Statehood

Denying D.C. its federal representation withholds from its citizens the same rights their neighbors in Virginia and Maryland enjoy. Equal protection of voting rights has been and remains at the center of contemporary legal battles since the passing of the Voting Rights Act of 1965 (VRA). Recently, those rights enshrined in the VRA seem to be at risk. On October 4, the Supreme Court heard oral arguments in the case of Merrill v. Milligan. After blocking a ruling by a three-judge district court that Alabama’s new congressional map likely violates the VRA, the Supreme Court “appeared inclined to permanently set aside the district court’s ruling.”^[11] The new makeup of the Supreme Court and their potential to make legal challenges against unfair and unrepresentative congressional redistricting maps more difficult should be more reason to adopt D.C. statehood.

Lack of Momentum for H.R. 51

So why isn’t D.C. statehood getting anywhere? Unfortunately, the answer seems to be all politics. D.C. statehood is on the backburner of the current Democratically controlled legislative and executive branch of government despite the Biden Administration’s support.^[12] With Republicans set to take control of the House in January, D.C. statehood appears delayed indefinitely.^[13] For now, any push for D.C. statehood will need bipartisan support. In the meantime, the fight for meaningful representation for almost 1 million citizens should take center stage in any new administration committed to voting rights.

Conclusion

No matter any future legal interpretation of the VRA or political headwinds, the case for D.C. statehood should be made loud and clear. No stare decisis, statutory interpretation, or mental gymnastics required. Strawman, red herring, and ad hominem attacks against representation should be left behind. Residents in the nation’s capital deserve to vote for candidates who will represent their interest and vote for them in Congress. Without meaningful representation in Congress, the residents of D.C. remain discriminated against by not being able to participate in democracy.

[1] H.R. 51, 117th Cong. (2021). Clara Foran, House passes bill that would grant DC statehood, CNN (Apr. 22, 2021), https://www.cnn.com/2021/04/22/politics/dc-statehood-house-vote/index.html.

[2] Government of the District of Columbia, Why Statehood for D.C., https://statehood.dc.gov (last visited Dec. 18, 2022).

[3] Foran, supra note 1.

[4] Statehood DC, supra note 2. See also, U.S. Const. Amend. XXIII.

[5] Statehood DC, supra note 2. See generally, Kaia Hubbard, The 10 States With the Most Racial Diversity, U.S. NEWS (Aug. 19, 2021), https://www.usnews.com/news/best-states/slideshows/the-10-most-racially-diverse-states-in-the-us?slide=3 (listing the top ten most racially diverse states in the United States).

[6] Meagan Flynn & Teddy Amendabar, Will D.C. become a state? Explaining the hurdles to statehood., Wash. Post (Apr. 22, 2021).

[7]Zachary B. Wolf, DC Statehood: Why it should (and should not) happen, CNN, (Apr. 23, 2021), https://www.cnn.com/2021/04/23/politics/washington-dc-statehood-101/index.html; see also U.S. Const. Amend. XVII, cl. 17.

[8] Flynn & Amendabar, supra note 6.

[9] 270towin, https://www.270towin.com/states/West_Virginia (last visited Dec. 18, 2022).

[10] Flynn & Amendabar, supra note 6, (quoting Republican Minority Leader Mitch McConnell) and Daniel Dale, Fact-checking Nancy Mace’s claim that DC wouldn’t ‘qualify’ as a single congressional district, CNN, (Apr. 21, 2021),

https://www.cnn.com/2021/04/21/politics/fact-check-nancy-mace-dc-statehood-population-congressional-district/index.html (quoting and fact-checking U.S. Representative Nancy Mace of South Carolina)

[11] Amy Howe, Conservative justices seem poised to uphold Alabama’s redistricting plan in Voting Rights Act challenge, SCOTUSblog (Oct. 4, 2022, 5:19 PM), https://www.scotusblog.com/2022/10/conservative-justices-seem-poised-to-uphold-alabamas-redistricting-plan-in-voting-rights-act-challenge/

[12] See Kevin Breuninger, Biden administration backs D.C. statehood, urges ‘swift’ action as House prepares to vote on bill, CNBC (Apr. 20, 2021), https://www.cnbc.com/2022/11/16/midterm-house-elections-2022-republicans-take-control-of-the-house.html.

[13] See Kevin Breuninger, Republicans take control of the House, NBC News projects, CNBC (Nov. 16, 2022),https://www.cnbc.com/2022/11/16/midterm-house-elections-2022-republicans-take-control-of-the-house.html. See also Flynn & Amendabar, supranote 6 (quoting Republicans on the issue of DC statehood).

*Sergi Torres is a staff member on JLI Vol. 41.

Explainer: The Teamsters Local 320 Agreement

By jlieditors

By Selma El-Badawi*

Teamsters Local 320 Priorities

Every day, I walk past and through University of Minnesota facilities, all carefully maintained by UMN’s service workers. UMN’s service workers are members of Teamsters Local 320, a big-tent labor union that represents Minnesota public and law enforcement employees.^[1] Approximately 1,400 UMN staff members, or 5.7 percent of UMN employees, are Teamsters.^[2] Teamsters Local 320 workers work in “food services, facilities, land care, housing, and other units.”^[3] In June 2022, the Teamsters began negotiating with the University of Minnesota for a new contract.^[4]

The Teamsters presented six main priorities for a new contract: 1) 20 dollars per hour minimum wage; 2) five percent increase at the top of the pay scale; 3) cost of living increases; 4) summer work for dining staff; 5) health insurance protection; and 6) ending favoritism and the “hiring in steps” process.^[5] First, prior to the new contract, the minimum wage for members of Teamsters 320 was $15.93 per hour.^[6] Considering the economic hardships that many UMN workers face, an increase to $20 per hour could provide some reprieve.^[7] Second, a five percent increase at the top of the pay scale would provide the most senior workers with otherwise stagnating pay increases an incentive to stay at UMN.^[8] Third, cost of living increases would allow the pay to better reflect the rising price of living in the Twin Cities metropolitan area.^[9]

Fourth, summer work for dining staff would mean that dining employees remain employed all year round. Prior to the new contract, dining hall workers lost many work hours, every summer. The Teamsters are proposing that these workers would be temporarily reassigned to other departments over the summer to maintain their number of hours. Fifth, “protecting health insurance” would ensure that any proposed changes to the health insurance policy must go through the Teamsters for bargaining. Finally, ending favoritism and “hiring in steps” would mean that any raises, promotions, or other types of preferential treatment would be allocated in order of seniority. In the “hiring in steps” process, UMN would be able to hire new employees at higher levels of the pay step system. Thus, an employee hired at step five would immediately earn more than current employees in any of the lower steps. This is not UMN’s current hiring strategy, nor has it ever been a previous hiring strategy.^[10] Hiring steps was a new proposal by UMN for the 2022 contract.

University of Minnesota’s “Last and Final Offer”

On October 7^th, 2022, UMN’s Vice President of Human Resources, Kenneth E. Horstman, sent a “last and final offer” to the Teamsters, in addition to all UMN faculty, students, and staff. Horstman described the offer as follows:

Our latest offer includes an average wage increase of over 5% for Teamsters employees (3.85% across-the-board plus additional increases for specific job categories through department funds). The offer brings the average Teamsters hourly starting wage to nearly $21.67 an hour, a 7.3% increase. This does not include step increases or take into account our offer of a one-time lump sum payment of $500 for those at the top of their pay scales.^[11]

Following this offer, Local 320 released their own statement, rejecting the offer and condemning UMN’s alleged union busting.^[12] UMN’s offer failed for the Teamsters on several fronts: first, as noted in the Teamsters’ response, a 5% average increase falls short of the 8.26% inflation rate at the time of the offer.^[13] In addition, it is only an average increase of 5%—many workers would only receive the 3.85% minimum increase. Second, UMN’s $21.67 per hour wage is an average; while some workers would be earning more than that, half of the covered workers would be earning less. Third, the proposed $500 lump sum payment does not come close to the Teamsters’ proposed 5% increase. With the top earning full-time Teamsters making $25.14 an hour, amounting to $1005.60 per week without overtime, a $500 payment would represent a .9% increase in their salary.^[14]

What the Teamsters Got

On November 4, 2022, Local 320 voted to approve a new proposed contract.^[15] With a total of 802 votes, painstakingly counted on a Facebook Live video, 670 votes were cast for “yes” and 132 for “no,” meeting the 50 percent threshold required to ratify a tentative agreement.^[16]

This new contract lasts over the course of three years, backdated from July 1, 2022 until July 1,2025.^[17] In the first year, the contract requires the “implementation of new pay scales with a $20/hour minimum wage and 5% increases at the top, as well as market adjustments for many job classifications.”^[18] At the second year, the contract requires “market adjustments or a 4% cost-of-living increase, whichever is greater.”^[19] Finally, for the third year, the contract requires a “4% cost-of-living increase for everybody. . . [which] would increase if the Board of Regents approved a higher budget.”^[20] Historically, most Teamsters 320 contacts take place over the course of two years, though the 2021 contract covered a single year.^[21]

As mentioned, the new contract also includes a $20 per hour minimum wage and five percent increase for top earners, which match the union’s first two priorities.^[22] Twenty-six job classifications will receive market adjustments of five percent or greater for employees at the top step of the pay scale in the first and second years of the contract.^[23] All other jobs will receive the aforementioned four percent increases in the first and second years of the contract, as well as a 3.85 percent increase in the first year.^[24] This provision comes as a concession by the Teamsters and follows the language of UMN’s previous offer to them.

Next, the new contract guarantees a minimum of 30 hours per week for all 12-month UMN dining employees over the summer. This fulfills the fourth priority for the Teamsters. Using a round system based on seniority and subsequent preferences, dining employees will work for other on-campus departments during the summer.^[25]

The Teamsters maintained their health insurance in the new contract.^[26] This includes dental insurance.^[27] This coverage will remain active throughout the entire period covered by the contract.^[28]

Juneteenth, commemorating the actual end of chattel slavery in the United States, was designated as a paid holiday for 2023 and 2024.^[29] Its designation for 2025 depends on whether the UMN Board of Regents decides to recognize it as an official holiday for the broader university.^[30]

Next, the new contract states that if UMN begins offering mass transit passes for other Twin Cities employees, they must also offer them to union workers.^[31] This section is somewhat diminished by the fact that the university does not currently offer other employees mass transit passes. While this could change in the future, the proposal is largely moot.

Next, the Teamsters will be given one seat on the Twin Cities Campus Sustainability Committee and one seat on the Twin Cities Campus Waste Committee. Because waste management is operated by the Teamsters, this will allow the workers most affected by the Committees’ work a voice on said committee. Additionally, the Teamsters and UMN agreed to work together in forming a 10-person Job Posting Workgroup.^[32] As stated in the contract, “[t]his group shall meet and make recommendations to the Senior Director of Employee and Labor Relations for posting jobs to maximize opportunities for both internal and external candidates. These recommendations shall be made no later than June 30, 2023.”^[33] UMN also agreed to drop its “hiring in steps” plan, in accordance with the Teamsters’ sixth priority.^[34]

The contract also provides a raise to employees who meet advanced licensing standards in specific roles. Chief of Record or Master of Record employees will receive an extra $1.00 per hour, while working in each respective role.^[35] This is a $0.50 improvement from the previous contract.^[36] Similarly, Project Squad Building and Grounds workers will get an additional $0.50 per hour while working in their project squad role.^[37] The new contact also expanded pay for on-call workers. Under the contract, any worker who is on-call will get paid for a quarter of the time they are on-call for, up to six hours for each full day on call.^[38]

Conclusion

On December 15, 2022, the University of Minnesota Board of Regents unanimously approved the Teamsters 320 collective bargaining agreement.^[39] The new pay rates will be processed during the January 2 – 15, 2023, payroll period and back pay will be processed during the January 16 – 29, 2023, payroll period.

As a University of Minnesota student and employee, the equitable employment of my fellow UMN workers has great significance. Under this new contract, progress will hopefully be made.

—

[1] Teamsters Local 320, Facebook, https://www.facebook.com/teamsters.local.320 (last visited Nov 18, 2022).

[2] Ken Horstman, Update on negotiations with Teamsters 320, Univ. of Minn. Off. of Hum. Res. (2022), https://hr.umn.edu/Update-negotiations-Teamsters-320 (last visited Nov 29, 2022).

[3] Id.

[4] Id.

[5] Teamsters Local 320, Teamsters Local 320 Tentative Agreement with University of Minnesota Overview with Q and A., (2022), https://www.youtube.com/watch?v=CZiBChAS3qo (last visited Nov 27, 2022).

[6] Teamsters Wages 2021, https://media.linkedunion.com/teamsters320/file-manager/Teamsters%20Wages%202021.pdf (last visited Nov 29, 2022). Store Specialists earn $15.92 as a minimum wage, though this may be a transcription error. $15.93 is the minimum wage for the following positions: Senior Cashier/Food Aide, Attendant, Senior Attendant, Laborer, Guard, Building and Grounds Worker, Maritime Worker 1, Parking Attendant, Senior Parking Attendant, Laboratory Attendant, Senior Laboratory Attendant, Food Service Worker, Senior Food Service Worker, Baker, Junior Cashier/Food Aide, Intercollegiate Athl Equp Wrkr [sic], Library Bookbinder, and Utility Worker.

[7] See e.g., Gillian Haveman, UMN dining staff receive “poverty wages,” contributes to poor service, union says, Minn. Daily (2022), https://mndaily.com/273851/news/umn-dining-staff-receive-poverty-wages-contributes-to-poor-service-union-says/ (last visited Nov 29, 2022) (“A survey Teamsters conducted in July indicated 458 current and former University employees have struggled to afford basic necessities while working at the University. . . The survey reports 61% of current University service workers do not earn enough to pay for basic expenses. In the past year, 22% reported going hungry and not eating because they could not afford food. More than 8% of those surveyed reported being homeless at least once while working for the University.”).

[8] Without considering any other proposed salary increases, this would raise Step 4 Attendants (the lowest paid workers at the top of their respective classification’s pay scale) from $17.76 per hour to $18.65 per hour. Teamsters Wages 2021, supra note 6.

[9] See Haveman, supra note 7.

[10] Curt Swenson, University of Minnesota Bargaining Unit Strike Authorization Vote (2022), https://media.linkedunion.com/teamsters320/file-manager/UMN%20Strike%20Auth%20Cover%20Letter.pdf.

[11] Horstman, supra note 2.

[12] Brian Aldes, TEAMSTERS LOCAL 320 RELEASES STATEMENT IN RESPONSE TO THE UNIVERSITY OF MINNESOTA’S EMAIL, Teamsters Local 320 (2022), https://www.teamsterslocal320.org/news-details/news/TEAMSTERS-LOCAL-320-RELEASES-STATEMENT-IN-RESPONSE-TO-THE-UNIVERSITY-OF-MINNESOTAS-EMAIL/20366/58321 (last visited Nov 18, 2022).

[13] Id.

[14] Haveman, supra note 7.

[15] Teamsters Local 320, University of Minnesota Tentative Agreement Ballot Count, Facebook (Nov. 3, 2022), https://www.facebook.com/teamsters.local.320/videos/university-of-minnesota-tentative-agreement-ballot-count/403843371818771/.

[16] Id.

[17] Teamsters Tentative Agreement Summary.

[18] Teamsters Local 320, supra note 5.

[19] Id.

[20] Tentative Agreement Summary, supra note 17, at § 23.

[21] Teamsters Local 320, supra note 5.

[22] Tentative Agreement Summary, supra note 17.

[23] Tentative Agreement Summary, supra note 17, at § 4. That list of job classifications, with each respective market increase is as follows: Senior Cashier/Food Aide, 5.00%; Attendant, 7.04%; Sr. Attendant, 10.02%; Stores Specialist, 5.00%; Senior Building & Grounds Worker, 5.03%; Athletic Grounds Worker, 14.81%; Building & Grounds Worker, 5.00%; Mechanic 2, 5.00%; Senior Maintenance Equipment Operator, 5.00%; Assistant Gardener, 5.00%; Gardener, 5.48%; Senior Operating Engineer, 8.31%; Principal Operating Engineer, 8.30%; Mechanic 3, 5.00%; Laboratory Attendant, 5.00%; Laboratory Animal Attendant, 10.04%; Food Service Worker, 5.00%; Senior Food Service Worker, 5.00%; Senior Gardener, 6.11%; Heavy Equipment Mechanic, 5.00%; Junior Cashier/Food Aide, 5.00%; Intercollegiate Athletics Equipment Worker, 5.00%; Maintenance Equipment Operator, 7.87%; Senior Utility Worker, 5.00%; Delivery Service Driver, 6.01%; and Utility Worker, 5.00%.

[24] Supra note 17, §§ 2, 21-23.

[25] Tentative Agreement Summary, supra note 17, at § 12.

[26] Tentative Agreement Summary, supra note 17, at § 1.

[27] Id.

[28] Id.

[29] Tentative Agreement Summary, supra note 17, at § 13.

[30] Id.

[31] Tentative Agreement Summary, supra note 17, at § 15.

[32] Tentative Agreement Summary, supra note 17, at § 16.

[33] Id.

[34] Teamsters Local 320, supra note 5.

[35] Tentative Agreement Summary, supra note 17, at § 8.

[36] Id.

[37] Tentative Agreement Summary, supra note 17, at § 7.

[38] Tentative Agreement Summary, supra note 17, at § 19 (“An employee is in an on-call status if their supervisor has instructed the employee, in writing, to remain available to work during an off duty period. An employee who is instructed to be in an on-call status is not required to remain in a fixed location but must leave word where they may be reached immediately by telephone. . . .No employee can be assigned to on-call status for a period of less than eight (8) hours.”).

[39] U OF MN TWIN CITIES, Teamsters Local 320 (2022), https://www.teamsterslocal320.org/member-discount/U-OF-MN-TWIN-CITIES/U-OF-MN-TWIN-CITIES/1001908/details/23357 (last visited Dec 22, 2022).

* Staff Member for JLI Vol. 41, University of Minnesota Law School Class of 2024.

State v. Khalil: How a Minnesota Supreme Court Ruling Led to the Amendment of a Minnesota Criminal Sexual Conduct Statute

By jlieditors

By Remy Bell*

Background

On March 24, 2021, the Minnesota Supreme Court reversed and remanded a felonious sexual assault conviction and, as a result, the defendant was able to accept a plea bargain, serving only one year in prison.^[1] This ruling shined a spotlight on a loophole in Minnesota’s sexual assault statutes that made it easier for defendants to escape felony charges if the victim was voluntarily intoxicated.

Facts and Procedural History

Twenty-year-old J.S. voluntarily ingested a prescription narcotic and several alcoholic drinks before arriving with her friend to a downtown Minneapolis bar.^[2] J.S. was rejected from entering the bar due to her intoxication level and because she was under the legal drinking age.^[3] After being turned away, the defendant, Khalil, and two others invited and offered to drive J.S. and her friend to what they referred to as a “house party;” however, upon arrival at the home, it was evident that no party existed.^[4] After the group went inside, J.S. fell asleep and was “in and out of consciousness.”^[5] J.S. was later awakened to Khalil sexually penetrating her.^[6] Khalil continued to sexually assault J.S. even after she stated that she did not want to have intercourse with him.^[7]

Khalil was charged with the felony of “third-degree criminal sexual conduct involving a mentally incapacitated or physically helpless complainant” under Minnesota Statute §609.344, subdivision 1(b).^[8] Per the statute, a defendant is guilty if they had sexual intercourse with the complainant and “knew or had reason to know” that the complainant was mentally incapacitated.^[9]

At trial, the jury questioned whether the drugs and alcohol in J.S.’s system had to have been involuntarily ingested for her to meet the definition of “mentally incapacitated.”^[10] The trial court answered in the negative.^[11] Accordingly, the jury found Khalil guilty, and he later appealed, arguing that the jury instructions provided by the district court were incorrect.^[12] The court of appeals affirmed the trial court’s conviction, and Khalil appealed again to the Minnesota Supreme Court.^[13]

Holding

On appeal, the Minnesota Supreme Court was tasked with deciding whether an individual under the influence of drugs and alcohol is considered to be mentally incapacitated if the substances were ingested voluntarily.^[14] The Court explained that the answer must come from the plain language of the statute and highlighted the importance of its textual structure.^[15] Minnesota Statute §609.341, subdivision 7, defines “mentally incapacitated” as “a person under the influence of alcohol, a narcotic, anesthetic, or any other substance, administered to that person without the person’s agreement.”^[16]

The Court reasoned that the placement of the comma before the word “administered” indicated the legislature intended for the statute to apply only in circumstances where substances are involuntarily ingested by the complainant.^[17] Because J.S. was voluntarily intoxicated, the Court determined that the instructions provided to the jury were incorrect.^[18] Thus, Khalil’s conviction was reversed, and the case was remanded for a new trial.^[19]

Instead of proceeding with a new trial, Khalil pled guilty to fifth-degree criminal sexual conduct, which is a gross misdemeanor.^[20] Ultimately, he ended up serving only one year in prison rather than the fifteen years he faced with his original felony charge.^[21]

The Need for Amendment

Overall, conviction rates for sexual assault are very low. Prosecutors often do not press charges unless they are confident that a case will lead to a conviction.^[22] Of the small number of sexual assault cases that are actually prosecuted, only seven in 1,000 will result in a felony conviction.^[23] This injustice is exacerbated when state laws fail to provide equal protection to all victims of sexual assault.

Matters become even more complicated in cases involving voluntary intoxication. Whether drugs and alcohol are ingested voluntarily or involuntarily does not change the fact that these substances impact an individual’s ability to consent to intercourse.^[24] It logically follows that state laws should be drafted with language that is inclusive of all victims who were intoxicated during a sexual assault. However, at the time of State v. Khalil, the Minnesota statute made it challenging for prosecutors to successfully bring felony charges in cases where victims of sexual assault were voluntarily intoxicated unless there was also evidence of mental impairment or physical helplessness.^[25] Therefore, prosecutors could feel limited to bringing gross misdemeanor charges, which have lighter sentencing guidelines than felony charges.^[26]

Conclusion

The Minnesota Supreme Court ruling in State v. Khalil caused public outrage across the nation.[27] Pressure was placed on the state legislature to broaden the definition of “mentally incapacitated” to provide protection for sexual assault victims who were voluntarily under the influence of drugs and alcohol.[28] On September 15, 2021, §609.341, subdivision 7 was amended to include individuals “under the influence of any substance or substances” and remove the previous requirement that substances had to have been involuntarily administered in order for a victim to be considered mentally incapacitated.^[29]

While the amendment may not change the grave injustice that J.S. suffered in her case, it does make it less difficult for prosecutors to bring felony charges against perpetrators in cases where intoxicating substances were voluntarily consumed by the victim. It also helps to combat the gross misconception, fueled by centuries of unjust rape law, that the actions of sexual assault victims somehow contribute to the likelihood of an assault.^[30] Moreover, the amendment further validates that a victim’s choice to voluntarily consume intoxicating substances should not factor into the determination of a defendant’s guilt in sexual assault cases.[31]

* JLI Staff Member, University of Minnesota Law School J.D. Candidate – Class of 2024

—

[1] Sarah McCathey Morton, Injustice by Design: Voluntary Intoxication in American Sexual Assault Legislation (2022) (B.A. thesis, Columbia University) (on file with Columbia University Libraries) https://doi.org/10.7916/sr0d-6s66.

[2] State v. Khalil, 948 N.W. 2d 156, 159 (Minn. App. 2020).

[3] Id.

[4] Id.

[5] Michal Buchhandler-Raphael, The Scope and Limits of the Criminal Regulation of Sexuality, 40 Crim. Just. Ethics 164, 172 (2021), https://ssrn.com/abstract=3912122.

[6] Id. at 173.

[7] Id.

[8] State v. Khalil, 956 N.W.2d 627, 630 (2021).

[9] Id. at 631; see also Minn. Stat. section 609.344, subd. 1(b) (2020).

[10] Khalil, 956 N.W.2d at 631.

[11] Id.

[12] Id.

[13] Khalil, 956 N.W.2d at 631.

[14] McCathey Morton, supra note 1, at 3.

[15] Khalil, 956 N.W.2d at 634.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 642.

[20] McCathey Morton, supra note 1.

[21] Id.

[22] What to Expect from the Criminal Justice System, Rainn, https://www.rainn.org/articles/what-expect-criminal-justice-system (last visited Jan. 5, 2023).

[23] Id.

[24] McCathey Morton, supra note 1, at 5.

[25] Id. at 4; see also Minn. Stat. section 609.344, subd. 1(b) (2020).

[26] Id.

[27] McCathey Morton, supra note 1, at 30.

[28] Id. at 28; see also Minn. Stat. section 609.341, subd. 7.

[29] Minn. Stat. section 609.341, subd. 7(2) (2021).

[30] McCathey Morton, supra note 1, at 15; Stephanie Lynge, “Real Rape”: Bias That Allows Violent Offenders to Escape Real Accountability, 52 Cumb. L. Rev. 569 (2022).

[31] McCathey Morton, supra note 1, at 20.

Expungement of Marijuana Convictions: Lessons Learned from Minnesota Prohibition

By jlieditors

By Cedar Weyker*

Minnesota ratified the Eighteenth Amendment to the Constitution, which prohibited “the manufacture, sale, or transportation of intoxicating liquors” within the United States in January of 1919. Minnesota Republican Andrew Volstead was the official sponsor of the National Prohibition Act (“The Volstead Act”), which Congress passed in October of 2019 to implement and enforce the new Eighteenth Amendment.^[1] Both civil and criminal penalties were available to punish violators. However, the Volstead Act contained numerous loopholes. For example, doctors and pharmacists could legally prescribe whiskey as medication for various ailments, including anxiety and influenza.^[2] The government was even allowed to make alcohol when supplies were low.^[3]

Minnesota became a hotbed of spirituous activity during the Prohibition era. From the nationally-coveted “Minnesota 13”,^[4] an illegal moonshine product produced in Stearns County, to St. Paul’s Wabasha Cave Speakeasy,^[5] many Minnesotans flouted the Prohibition restrictions. Vast networks of bootleggers transported alcohol in and out of the state from both national and international sources.^[6] By 1930, the Association Against the Prohibition Amendment estimated that there were at least 50,000 individuals incarcerated for liquor-law violations in the United States.^[7] Contemporary voices complained that the justice system was unprepared for the influx of alcohol-related convictions and that enforcement was ineffective.^[8]

Prohibition ended in 1933 with the passage of the Twenty-first Amendment. But what happened to the individuals incarcerated for alcohol-related crimes when Prohibition was lifted? In most cases, they were forced to remain in jail and finish their sentences.^[9] With luck, prisoners might receive a government pardon, but such mercy was rare.^[10] There is no evidence that there was any process for expunging convictions.^[11]

Legal scholars have long drawn parallels between Prohibition-era criminalization and the war on drugs.^[12] However, although Prohibition lasted only thirteen years, Minnesota’s marijuana criminalization has endured for several decades. In 2021, Minnesota police made 6,055 arrests for marijuana crimes.^[13] But marijuana criminalization must be understood in its racial context. In 2020, the ACLU released a report that found that black Minnesotans were 5.4 times more likely to be arrested for a marijuana-related offense than white Minnesotans, despite similar levels of usage.^[14] Additionally, Minnesota ranked 8th in the country “for largest racial disparities in marijuana possession arrests.”^[15] Racial disparities in drug convictions lead to the continued marginalization of black communities. Even after incarceration ends, marijuana convictions have incredibly detrimental collateral consequences, such as restrictions on government aid, the ability to vote, employment opportunities, and federal financial aid.^[16]

Minnesota decriminalized possession of small amounts of marijuana in 1976, reducing the crime to a petty misdemeanor.^[17] In July of 2022, the Minnesota legislature legalized hemp-derived Delta-9 THC edibles.^[18] Recently, members of the Minnesota DFL pledged to legalize recreational marijuana by the end of 2023.^[19] On January 11, the bill passed the House Commerce Finance and Policy Committee.^[20]

As of early 2023, recreational marijuana use is legal in twenty-one states, Washington D.C., and Guam.^[21] As states begin to legalize recreational marijuana use, a patchwork of conviction relief strategies has emerged, some more equitable than others. States such as California and Colorado allow individuals to expunge marijuana convictions.^[22] Colorado allows individuals to apply for expungement of low-level possession convictions after paying a fee.^[23] California, on the other hand, has an automatic expungement process that requires state agencies to proactively review databases to identify expungeable convictions.^[24] Requesting expungement can be a time-consuming process that may require the expertise of a lawyer.^[25]

Michigan allows individuals to apply to have their records sealed.^[26] However, law enforcement and background-check companies may still view sealed records in some circumstances.^[27] In Washington, the governor grants individual pardons for misdemeanor possession convictions to those who actively request them.^[28] As of November of 2022, only 38 people have received such a pardon despite the fact that an estimated 3,500 people are eligible.^[29]

Retroactive remedies have commenced in the federal arena. In October of 2022, President Biden signed a presidential proclamation that pardoned federal convictions for simple marijuana possession.^[30] Marijuana is still classified as a Schedule I drug, but Congress is currently considering a bill that may change that. The Cannabis Administration and Opportunity Act would remove marijuana from the federal controlled substances list and allow for automatic expungement.^[31] However, the bill does not allow individuals who have received sentence adjustments for an aggravating role (e.g. being the organizer or leader of a criminal activity like drug dealing).^[32] Only time will tell whether this bill will pass into law.

Representative Zach Stephenson authored the bill currently passing through the Minnesota House.^[33] The new law would legalize recreational cannabis use for those over 21 and expunge existing low-level cannabis convictions.^[34] Like California, it calls for automatic expungement of certain non-felonious possession convictions.^[35] However, the proposed legislation would only expunge possession convictions. The bill also calls for the creation of a Cannabis Expungement Board, which would consider resentencing and expunging felony offenses. Again, this is only available to those convicted of certain possession offenses.^[36] In other words, if an individual was convicted of providing or selling marijuana to other individuals, expungement will not be an option under the proposed legislation.

If Minnesota legalizes recreational marijuana, the new legislation should allow for the expungement of non-violent distribution and manufacturing convictions. Society gains nothing by continuing to punish distributors of a legalized substance; “if society endeavors to undo the injustices done by these past convictions, then we must undo all the wrongs or the logic fails and the goal is neither effective nor fully achievable.”^[37] Individuals convicted for receiving or distributing marijuana often have difficulty obtaining employment due to their criminal history, even at newly legalized marijuana dispensaries.^[38] Advocate Katree Saunders explains that “it needs to be written into the laws that people with past cannabis convictions should not be re-penalized when other people are making billions of dollars off of it.”^[39]

In 2021, New Jersey passed the Marijuana Decriminalization Law, a statute that expunged convictions including the “distribution of marijuana less than one ounce.”^[40] There is nothing stopping the Minnesota legislature from adopting a similar provision without the one-ounce limit. If the legislature fears that such a broad, automatic expungement provision for distribution offenses would cause too many complications, they could limit the process in a number of ways. For example, the statute could create a system that automatically notifies individuals convicted of nonviolent distribution offenses that they are eligible to request expungement, free of charge. Once expungement is requested, a reviewing committee could evaluate the request and work with the courts to determine what effect such expungement would have on enhanced sentences.

Deemed the “Great Experiment,” today Prohibition is widely viewed as a failure. Our culture has accepted alcohol and retroactively “romanticizes” the Prohibition era.^[41] Hollywood glamorizes the gangsters of the 20s who defied Prohibition, shrouding them in an air of Robin Hood-esque whimsy.^[42] Society has largely forgotten about the bootleggers left in jail after Prohibition’s end. Minnesota should take steps to avoid repeating this mistake after recreational marijuana is legalized. As the marijuana industry marches forward, legislators should provide retroactive relief to individuals with criminal records for crimes that no longer exist. Failure to do so will only further entrench inequities and racial disparities.

* Articles Editor, University of Minnesota Law School J.D. Candidate, Class of 2023

—

^[1] Minnesota Historical Society, The Road to Prohibition, Blog: Collections Up Close (Aug. 29, 2012), https://www.mnhs.org/blog/collectionsupclose/the-road-to-prohibition.

^[2] Michael Lerner, Unintended Consequences of Prohibition, PBS, https://www.pbs.org/kenburns/prohibition/unintended-consequences.

^[3] Medicinal Alcohol,The Ohio State University https://prohibition.osu.edu/american-prohibition-1920/medicinal-alcohol#:~:text=There%20was%20one%20way%20to,%2D%2Don%20government%20prescription%20forms.

^[4] Jim Walsh, ‘Minnesota 13: From Grain to Glass’ Tells the Secret Bootlegging History of Stearns County, MinnPost (Jan. 27, 2017), https://www.minnpost.com/arts-culture/2017/01/minnesota-13-grain-glass-tells-secret-bootlegging-history-stearns-county/.

^[5] Wabasha Street Caves, Historic Twin Cities (Dec. 10, 2019), http://www.historictwincities.com/2019/12/10/wabasha-street-caves/.

^[6] Mark Wasson, Southeast Minnesota was Hotspot for Bootleggers During Prohibition Era, Post Bulletin (Oct. 12, 2022), https://www.postbulletin.com/news/the-vault/southeast-minnesota-was-hotspot-for-bootleggers-during-prohibition-era; Tom Olsen, Moonshine Poured Across Canadian Border During Prohibition, Overwhelming Authorities in the Northland, Park Rapids Enterprise (Sept. 20, 2021), https://www.parkrapidsenterprise.com/news/the-vault/moonshine-poured-across-canadian-border-during-prohibition-overwhelming-authorities-in-the-northland.

^[7] Association Against the Prohibition Amendment, Prohibition Enforcement: Its Effects on Courts and Prisons 19 (1930), https://digicom.bpl.lib.me.us/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1144&context=books_pubs.

^[8] Id. at 8. (“The whole process is futile and costly.”).

^[9] R. Allyce Bailey, “Serving Time and It’s No Longer a Crime: An Analysis of the Proposed Cannabis Administration and Opportunity Act, Its Potential Effects at the Federal and State Level, and a Guide for Practical Application by Local Government”, 25 UDC/DCSL L. REV. 5 (2022).

^[10] Id.

^[11] Deborah M. Ahrens, Retroactive Legality: Marijuana Convictions and Restorative Justice in an Era of Criminal Justice Reform, 110 J. Crim. L. & Criminology 379, 411 (2020).

^[12] See e.g. Seth Harp, Globalization of the U.S. Black Market: Prohibition, the War on Drugs, and the Case of Mexico, 85 N.Y.U. L. Rev. 1661 (2010) (“Instead of removing alcohol from the market, Prohibition increased alcohol’s potency and decreased its quality, resulting in a spike in drunkenness and accidental deaths while black market corruption and violence abounded. The same criticisms are often leveled at the War on Drugs.”); Emanuel Margolis, Connecticut’s War on Drugs: A Peace Proposal, 70 Conn. B.J. 372, 373 (1996) (“[T]he United States has been drawn into a ‘war on drugs.’ Not unlike the war on alcohol in the ‘twenties, this war has spawned similar evils – a vast black market, racketeering, violence, and widespread crime.”).

^[13] A.J. Herrington, Black Minnesotans Nearly 5 Times More Likely To Face Marijuana Charges Than White Ones, Forbes (Sept. 9, 2022), https://www.forbes.com/sites/ajherrington/2022/09/09/black-minnesotans-nearly-5-times-more-likely-than-white-ones-to-face-marijuana-charges/?sh=473a1d66606c.

^[14] Black People Five TImes More Likely to Get Arrested for Marijuana in Minnesota, ACLU Minnesota (Apr. 20, 2020), https://www.aclu-mn.org/en/press-releases/black-people-five-times-more-likely-get-arrested-marijuana-minnesota.

^[15] Id.

^[16] Bailey, supra note 9, at 9-10.

^[17] Minnesota Issues Resource Guides: Cannabis (Sept. 2022), https://www.lrl.mn.gov/guides/guides?issue=cannabis#:~:text=intoxicating%20cannabis%20products.-,Many%20states%2C%20including%20Minnesota%2C%20have%20decriminalized%20the%20possession%20of%20small,Minnesota%201976%2C%20chapter%2042).

^[18] Shauneen Miranda, Minnesota Lawmakers Voted to Legalize THC Edibles. Some Did it Accidentally, MPR News (July 2, 2022), https://www.mprnews.org/story/2022/07/02/npr-minnesota-thc-edibles-accident-delta-8.

^[19] Caroline Cummings, Minnesota Democrats Pledge Recreational Marijuana Will Become Legal in 2023, CBS News Minnesota (Jan. 5, 2023), https://www.cbsnews.com/minnesota/news/house-dems-introduce-legalized-recreational-pot-bill-gov-walz-says-hes-ready-to-sign-it-into-law/.

^[20] Kyle Jaeger, Minnesota Lawmakers Approve Marijuana Legalization Bill With Amendments In First House Committee Stop, Marijuana Moment (Jan. 11, 2023), https://www.marijuanamoment.net/minnesota-lawmakers-approve-marijuana-legalization-bill-with-amendments-in-first-house-committee-stop/.

^[21] Claire Hansen, Horus Alas & Elliot Davis Jr., Where Is Marijuana Legal? A Guide to Marijuana Legalization, U.S. News (Dec. 14, 2022), https://www.usnews.com/news/best-states/articles/where-is-marijuana-legal-a-guide-to-marijuana-legalization.

^[22] Ahren, supra note 11, at 407-408.

^[23] Id.

^[24] Id. at 431.

^[25] Beau Kilmer, Jonathan P. Caulkins, Michelle Kilborn, Michelle Priest & Kristin M. Warren,, Cannabis Legalization and Social Equity: Some Opportunities, Puzzles, and Trade-Offs, 101 B.U. L. Rev. 1003, 1011 (2021).

^[26] Expunge? Seal? States Re-examining Laws that Determine Fate of Conviction Records for Low-Level Marijuana Possession Offenses, The Council of State Governments (Nov. 18, 2022), https://www.csg.org/2022/11/18/expunge-seal-states-re-examining-laws-that-determine-fate-of-conviction-records-for-low-level-marijuana-possession-offenses/.

^[27] Id.

^[28] David Gutman, No Big Changes from Gov. Inslee Following Biden’s Call for Marijuana Pardons, The Seattle Times (Oct. 6, 2022), https://www.seattletimes.com/seattle-news/politics/no-big-changes-from-gov-inslee-following-bidens-call-for-marijuana-pardons/.

^[29] Id.

^[30] Presidential Proclamation on Marijuana Possession, U.S. Dep’t of Justice, Office of the Pardon Attorney (Nov. 2, 2022), https://www.justice.gov/pardon/presidential-proclamation-marijuana-possession#:~:text=On%20October%206%2C%202022%2C%20President,under%20state%20or%20local%20law..

^[31] Bailey, supra note 9, at 15-17.

^[32] Id. at 19-20.

^[33] H.F. 100, 93rd Legislature, 2023-2024 session (Minn. 2023), HF 100: Status in the House for the 93rd Legislature (2023-2024), Office of the Revisor of Statutes, https://www.revisor.mn.gov/bills/text.php?number=HF100&type=bill&version=0&session=ls93&session_year=2023&session_number=0. For a complete list of authors, see https://www.revisor.mn.gov/bills/bill.php?b=house&f=HF100&ssn=0&y=2023.

^[34] Id. at 609A.05.

^[35] Id. at § 609A.01.

^[36] Id. at § 609A.06 subd. 1.

^[37] Bailey, supra note 9, at 21.

^[38] Courtney Vinopal, As More States Legalize Marijuana, People with Drug Convictions Want Their Records Cleared, PBS News Hour (May 5, 2021), https://www.pbs.org/newshour/nation/as-more-states-legalize-marijuana-people-with-drug-convictions-want-their-records-cleared.

^[39] Id.

^[40] Expungement of Certain Marijuana or Hashish Cases, New Jersey Courts, https://www.njcourts.gov/courts/municipal/marijuana-expungement?language=es.

^[41] David Crary, 100 Years Later, Prohibition’s Legacy Remains, PBS News Hour (Jan. 14, 2020), https://www.pbs.org/newshour/arts/100-years-later-prohibitions-legacy-remains.

^[42] William Carroll, A Brief History of Prohibition in the Movies, Little White Lies (Jan. 11, 2017), https://lwlies.com/articles/a-brief-history-of-prohibition-on-screen/.

All in the Family: How Polyamorous Families Can Use Businesses Models and Contracts to Secure Legal Benefits

By jlieditors

By Jacqueline R. Brant*

While many Americans still view polyamory as a feature of small religious sects, an increasing number of people in the United States are now embracing polyamory. Recent surveys have shown that 1 out of 5 Americans have consented to plural relationships at some point in their romantic lives,^[1] and 3 out of 10 millennials are currently in non-monogamous relationships.^[2] 31% of millennials state that their relationship is, to some degree, non-monogamous, as opposed to 16% of baby boomers.^[3] While the face of polyamory has changed significantly, polyamorous families still face significant legal barriers beyond criminalization.

The term “polygamy” often has religious connotations – members of certain religions, including members of the Church of Jesus Christ of Latter Day Saints, some Hmong Americans, some sects of Islam, and some members of the Pan-African Ausar Auset Society, practice polygamy in which one man has numerous wives for religiously-motivated reasons.^[4] On the other hand, polyamory is an umbrella term for individuals who do not practice monogamy for a plethora of reasons. While popular culture has focused on polyamory as a feature of smaller religious groups, polyamory also exists as an identity within the LGBTQ+ community as well.^[5] Queer individuals who identify as polyamorous are oriented towards relationship structures that fall outside the general social structure of monogamy.^[6] Polyamorous relationships can look many ways – one person having many partners who do not overlap, polyamorous family units with more than two members, one person with a primary partner with other secondary partners, and more.^[7] Furthermore, polyamory is “not necessarily based on multiple marriages,” and polyamory as a queer identity emphasizes “the consensual nature of such a relationship choice.”^[8]

Despite the shift in social and cultural acceptability of non-monogamy, marriage to multiple partners is currently illegal in all 50 states, and federal law still criminalizes marriage to more than one person.^[9] With the exception of Utah, polygamy is a third-degree felony punishable by both fines and imprisonment.^[10] Utah is the only state that has updated their polygamy laws in accordance with these social changes, reducing the charge from a third-degree felony to an “infraction” similar to the severity of a speeding ticket.^[11] While news media focus on the sensational or inflammatory instances of polyamory and polygamy, they frequently ignore the very real legal and social inequities that these individuals face.^[12]

There are several arenas in which polygamous families are disadvantaged through a marriage ban, including health insurance, healthcare, tax filing, property laws, inheritance and estate laws, and housing law.^[13] In the realm of healthcare and health insurance, only spouses who are legally married may visit their partners in the hospital and be on their partner’s health insurance plan.^[14]

Child custody is another issue of complication for polyamorous families. Currently, only six states allow children to have more than two legal parents.^[15] In states where children cannot have more than two legal parents, parents in polyamorous family units have a lot to lose. While courts have given parents ample discretion in determining who may associate with their children, courts may still remove children from polyamorous families under the Uniform Marriage and Divorce Act (UMDA).^[16] While the UMDA prevents courts from “[considering] conduct of a proposed custodian that does not affect his relationship to the child,” courts may determine that the polyamorous lifestyle of a potential custodian can affect the “final determinations of ‘best interests.’”^[17] For example, in the Divelbiss case, a child was removed from a polyamorous family home on these grounds despite experts testifying that the child “had not been negatively influenced by her mother’s lifestyle”; the child was allowed to return to her parents only after the parents completed parenting programs and one adult of three living in the home moved out.^[18]

While many states do theoretically allow more than two official legal guardians of a child, many of the statutes and the case law addressing these issues do not apply to polyamory specifically – rather, they focus on solving issues with surrogacy, mistaken parentage, and methods to avoid the foster system after the death of biological parents.^[19] Thus, even in these states, polyamorous families still have a legitimate fear that their children can be removed from their custody.^[20] In the event that the family breaks up or the biological parent of a child passes away, a parent in the polyamorous unit has little to no parental rights over the child, no matter how long that parent lived with and took care of the child, permanently severing the parent-child relationship.^[21] In the case of death, the child would be placed in the foster care system rather than be placed with a person whom the child viewed as their parent.^[22] As noted above, children can also be denied other benefits from the recognition of a third parent as a legal parent, such as health insurance, child support, and more.^[23]

States have also struggled with how to address tax-filing issues with polyamorous families. These families are placed in the constant position of committing tax fraud – either filing jointly when unmarried or filing as single when they are married but not legally – because there is currently no tax group they neatly fit into, nor is there clarity as to how they should file at a federal level.^[24] The most common example of alleged tax fraud is women filing as single mothers in order to maximize the amount of federal funds they receive in order to support their children; because there is no way for state officials to verify or track unofficial or illegal marriages, polyamorous “wives remain single mothers in the eyes of the state, leaving them free to take liberties with welfare applications and understate income on tax forms.”^[25] Although many state prosecutors criminally target and prosecute polyamorous people using tax fraud statutes, it is not at all clear that polyamorists are really committing “tax fraud,” since many of these women do indeed qualify as single mothers under the tax law because their marriages are included within the definition of marriage under tax law.^[26] Thus, because polyamorous people do not fall neatly into any categories under the current tax law, polyamorous people are constantly and unavoidably policed for criminal tax fraud violations.^[27]

Finally, there is no legal mechanism that ensures each partner receives an equal and fair share of the jointly held property, including shared finances and homes.^[28] While judges are within their right to deny alimony in the case of a polyamorous family split – that is, court ordered spousal financial support – the judge may also deny palimony in these cases because there was no official marriage.^[29] Palimony – an equitable division of assets and financial support for cohabitating partners who were never married – can be denied by judges during polyamorous family break ups, “in effect, treating the [the polyamorous family] as less than cohabitants… [in order] to avoid legitimizing the illegal polygamous relationship.^[30]Additionally, palimony itself is not an option in all states – many states only recognize alimony, allowing little legal recourse for partners who lived together but were not legally marred.^[31] Finally, there are issues with shared assets in cases where only one partner of several are leaving the attempted partnership – here, it is unclear what a fair division of assets would be, considering the people who remain in the partnership still have active claims on those assets.^[32]

Thus, the issue for polyamorous families is not only do legal mechanisms not exist for these families to deal with healthcare, taxes, and marital property, but legal authorities will often refuse to even consider what equitable outcomes could look like for non-monogamous families.^[33] Because there is no official legal mechanism for division of assets, tax filing, or for child support, it is more difficult for individuals who leave a plural family unit to receive an equitable piece of the communal property and ultimately achieve financial stability and independence.^[34] Moreover, the lack of legal mechanisms for dealing with polyamorous family issues may actually leave the door open for increased policing and prosecution, such is the case with tax fraud violations as noted above.

Lawmakers, activists, and members of plural families should focus their attention not only on general legalization or decriminalization of polyamory family set ups, but also on fostering creative solutions to address their unique issues for things like child support, health care, and division of assets. Such laws would not necessarily be conditioned on legal marriage – rather, these types of laws could draw from housing and tenancy rights, as well as treating assets like an L.L.C.^[35]

While thinking of relationships in terms of a business model may seem counterintuitive, the legal benefits of thinking of multi-partner relationships in this manner are immense. Because “one of the legal benefits of a marriage is the ability to be viewed as a unit,” some lawyers have begun to structure “business” contract agreements for members of polyamorous families to mirror these same legal benefits. An LLC model allows polyamorous families to hold properties, have “a common health-insurance plan and bank accounts,” and “pay taxes as an L.L.C.”^[36] For example, one lawyer created an LLC in the name of a polyamorous family of three; all three members owned equal parts of the LLC, and the LLC in turn owns the family home and the family vehicle, and the contract additionally outlines the “parental rights and responsibilities of each person since in the current law of the land a child cannot have more than two official parents.”^[37] These types of agreements carry the full force of the law, and they allow polyamorous families to legally define their relationship.^[38] The issue with these LLC agreements is that it requires the household to engage in commercial activity and generate income by engaging in commercial activity; this can be difficult for families who are composed only of individuals who are homemakers or who work for outside employers.^[39] Thus, while LLC offers many solutions to legal issues faced by polyamorous families – especially for taxing purposes – creating a legal, functional LLC is not as simple as it might seem.

Other polyamorous families have utilized simple contracts as a framework to secure benefits that are traditionally reserved for marriage. Contracts are based on reciprocity, consent, acceptance of the agreement, and enforcement power which can trigger a breach if not followed.^[40] Thus, polyamorous couples can customize contractual agreements for the future, agreeing to certain provisions regarding rights, responsibilities, and financial entitlement; these contracts also carry the force of law, and are thus legally enforceable if they are broken by any party.^[41] The major downside to contractual agreements over LLCs is that while contracts are great methods of laying out responsibilities initially, they do provide flexibility for future changes in the relationship or financial situation of the family; they are limited to entitlements at the onset of the contract, not accounting for “obligations that may arise over time as the relationship evolves.”^[42] Additionally, it does not seem that contracts adequately address the tax issues either.

There are many creative solutions that the American legal systems, both federally and at a state level, could take to address the legal difficulties facing plural families.^[43] While some legal issues can be addressed through existing legal mechanisms by slightly tweaking the laws that already exist,^[44] other creative solutions should continue to be explored.^[45]While neither a contractual relationship nor an LLC-defined relationship perfectly addresses the needs of polyamorous families, they may serve as a starting point for legal recognition and protection of polyamorous families.

^[1] Katie Bishop Ethical Non-Monogamy: The Rise of Multi-Partner Relationships, British Broadcasting Corporation LoveLife (Nov. 9, 2022), https://www.bbc.com/worklife/article/20210326-ethical-non-monogamy-the-rise-of-multi-partner-relationships.

^[2] Jamie Ballard, One-Third of Americans Say Their Ideal Relationship is Non-Monogamous, YouGov American (Jan. 31, 2020),

https://today.yougov.com/topics/society/articles-reports/2020/01/31/millennials-monogamy-poly-poll-survey-data.

^[3] Id.

^[4] Andrew Solomon, How Polyamorists and Polygamists Are Challenging Family Norms, The New Yorker (Mar. 22, 2021),

https://www.newyorker.com/magazine/2021/03/22/how-polyamorists-and-polygamists-are-challenging-family-norms.

^[5] Adejoke Mason, What is Polyamory? Queer Relationship Experts Explain Everything You Need to Know, THEM (July 5, 2022).

^[6] Id.

^[7] Id.

^[8] D. Marisa Black, Beyond Child Bride Polygamy: Polyamory, Unique Familial Constructions, and the Law 8 J.L. & FAM. Stud. 497, at 500 (2023).

^[9] Is Polygamy Legal in the United States, HG.org Legal Resources, https://www.hg.org/legal-articles/is-polygamy-illegal-in-the-united-states-31807.

^[10] Polygamy: The Crime, Law Library – American Law and Legal Information, https://law.jrank.org/pages/9272/Polygamy-Crime.html.

^[11] Ben Wilson, After Utah Decriminalized Polygamy, Some See a Culture Shift, US News and & World Report (Apr. 24, 2022),

https://www.usnews.com/news/best-states/utah/articles/2022-04-24/after-utah-decriminalized-polygamy-some-see-a-culture-shift.

^[12] Laura Gozzi, Samuel Bateman: Polygamous Cult Leader Had 20 Wives, FBI Says, British Broadcasting Corporation (Dec. 7, 2022), https://www.bbc.com/news/world-us-canada-63885426; Polygamous ‘Prophet’ Leader Had Child Brides, Documents Say, National Public Radio(Dec. 8, 2022),

https://www.npr.org/2022/12/08/1141508061/polygamous-prophet-leader-had-child-brides-documents-say; Chris Baynes, Warren Jeffs: Child Bride Reveals Horrors of Life Under Fundamentalist Mormon Sect Leader, Independent UK (Feb. 20, 2018),

https://www.independent.co.uk/news/world/americas/warren-jeffs-child-bride-horrors-mormon-sect-leader-elissa-wall-a8219246.html; Jesse Hyde, A Polygamist Cult’s Last Stand: The Rise and Fall of Warren Jeffs, The Rolling Stone (Feb. 9, 2016), https://www.rollingstone.com/politics/politics-news/a-polygamist-cults-last-stand-the-rise-and-fall-of-warren-jeffs-230800/; Brooke Adams,Testimony Shows Man Took Teen Bride After “Marriage’ with Her Mom, The Salt Lake Tribune (July 8, 2006), https://archive.sltrib.com/article.php?id=4026754&itype=NGPSID.

^[13] Solomon, supra note 4.

^[14] Id.

^[15] Courtney G. Joslin and Douglas NeJaime, The Next Normal: States Will Recognize Multiparent Families, The Washington Post (Jan. 28, 2022), https://www.washingtonpost.com/outlook/2022/01/28/next-normal-family-law/; Jennifer Peltz, Courts and “Tri-Parenting”: A State-by-State Look, AP News (June 18, 2017), https://apnews.com/article/4d1e571553a34cfbb22b72249a791a44. The states that allow multi-parenting are California, Delaware, Maine, Vermont, and Washington. Courts in various states have grappled with child custody issues involving more than one parent not only in the polyamory arena, but in cases of stepparents and surrogacy as well, and some courts have been willing to grant more than two individuals legal guardianship over the child.

^[16] Black, supra note 8 at 503 – 504.

^[17] Id.

^[18] Black, supra note 8 at 503 (2023); Ian Jenkins, Children With Three Parents? A History of Multi-Parentage, Psychology Today (Feb. 22, 2021), https://www.psychologytoday.com/us/blog/better-or-worse/202102/children-three-parents-history-multi-parentage; see generally In re Marriage of Divelbiss, 308 Ill. App. 3d 198, 719 N.E.2d 375 (1999) (holding that the custody arrangement resulting in the removal of a child from the custody of polyamorous parents until the parents made changes to their family arrangement).

^[19] Peltz, supra note 15.

^[20] Black, supra note 8 at 503 – 504; Jenkins, supra note 18; Elisabeth A. Sheff, Child Custody Issues for Polyamorous Families, Psychology Today (May 22, 2017), https://www.psychologytoday.com/us/blog/the-polyamorists-next-door/201705/child-custody-issues-polyamorous-families.

^[21] Joslin and NeJaime, supra note 15.

^[22] Id.

^[23] Id.

^[24] Id.

^[25] Richard A. Vazquez, The Practice of Polygamy: Legitimate Free Exercise of Religion or Legitimate Public Menace? Revising Reynolds in Light of Modern Constitutional Jurisprudence, 5 N.Y.U. J. Legis. & Pub. Policy 225, 244 – 245 (2001).

^[26] Samuel D. Brunson, Taxing Polygamy, 91 Wash. U. L. Rev. 113, 144 (2013).

^[27] Brunson, supra note 26; Vazquez, supra note 25 at 245; Polygamy Czar Forecasts More Prosecutions Soon, The Daily Herald (May 14, 2003), https://www.heraldextra.com/news/2003/may/14/polygamy-czar-forecasts-more-prosecutions-soon/.

^[28] Solomon, supra note 4; Brian Palmer, Kramer vs. Kramer vs. Kramer: How Does Polygamous Divorce Work?, Slate (July 25, 2012),

https://slate.com/human-interest/2012/07/sister-wives-if-we-legalize-polygamous-marriage-how-will-polygamous-divorce-work.html.

^[29] Palmer, supra note 28; What’s the Difference Between “Alimony” and Palimony”?, Law Offices of David L. HIrschberg, P.A., (Mar. 22, 2017), https://www.dhirschberglaw.com/whats-the-difference-between-alimony-and-palimony/.

^[30] Palmer, supra note 28.

^[31] What’s the Difference Between “Alimony” and Palimony”?, supra note 29; Heidi Glenn, No, You’re Not in a Common-Law Marriage After 7 Years Together, National Public Radio (Sept. 4, 2016), https://www.npr.org/2016/09/04/487825901/no-you-re-not-in-a-common-law-marriage-after-7-years-of-dating. States recognizing common law marriage and palimony include Alabama, Colorado, DC, Iowa, Kansas, Montana, New Hampshire, Oklahoma, Rhode Island, South Carolina, Texas, and Utah.

^[32] Palmer, supra note 28.

^[33] Id.

^[34] Diane J. Klein, Plural Marriage and Community Property Law, 41 Golden Gate U. L. Rev., 33, 38–40 (Dec. 2010), https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=2027&context=ggulrev.

^[35] Solomon, supra note 4.

^[36] Id.

^[37] Gena Jaffe, Legally Protecting Polyamorous Families in a Monogamous World, Connecting Rainbows, https://connectingrainbows.org/legally-protecting-polyamorous-families-in-a-monogamous-world/.

^[38] Id.

^[39] Polyamory – The Family Business, Zeed Meyer Law PLLC (Mar. 1, 2021), https://zeedmeyerlaw.com/polyamory-the-family-business/.

^[40] John Enman-Beech, Drawing Contract and Polyamory Together Or: How I Found the Limits of Liberal Legality in Kimchi Cuddles Comics, 36:1 Canadian Journal of Law and Society 89 at 7 (2021).

^[41] Id. at 7 – 8.

^[42] Id. at 7 – 8.

^[43] See generally Klein, supra note 34 (outlining several methods and proposals that would help the United States judicial systems address property and child custody in plural marriages).

^[44] Id. at 62–78.

^[45] Solomon, supra note 4.

*Jacqueline R. Brant is an staff member of the Journal of Law & Inequality, Vol. 41.

Face It: Police Can’t Be Trusted with Facial Recognition Technology

By jlieditors

By Joseph Scanlon*

Introduction

Facial recognition technology is becoming an increasingly prominent part of everyday life. Used for purposes as useful and benign as unlocking a phone or sorting digital photos, facial recognition can also be utilized in a much more sinister manner, such as for government surveillance. Increasingly, facial recognition technology has maneuvered its way into the realm of government and law enforcement, where its benefits and drawbacks are magnified.

Government embrace of facial recognition technology varies throughout the world. In China, for example, law enforcement uses notoriously intrusive high-definition cameras to monitor citizens. Alarmingly, in the Xinjiang province, facial recognition algorithms are even used to identify and persecute individuals from religious minorities. In Europe, on the other hand, there is a growing movement to ban police use of facial recognition technology, although the practice is still used in a number of countries. As for the United States, jurisdictions are divided on whether the merits of facial recognition are worth the costs to individual liberty. Some states, like Florida and New York, have been utilizing the technology for nearly a decade, while others, like California, Oregon, and New Hampshire, have banned it. Nonetheless, recent research suggests up to half of American adults are already in a law enforcement facial recognition database.

Proponents for police use of facial recognition laud the technology for its ability to aid law enforcement via suspect identification and monitoring known criminals. Even if we accept that these gains are realized, however, the costs associated with the technology are enormous. Opponents of facial recognition cite the obvious privacy concerns and threats to free speech, along with fears of false positives (i.e., an innocent person is falsely identified) and negatives (i.e., a guilty person is not identified). Even worse, however, is that the technology is inherently biased against Black and Brown people, and these vulnerable communities will suffer the most severe consequences if the technology is unleashed on a large scale.

How is Facial Recognition Used by Police and Does it Work?

Police contend that facial recognition makes the public safer. Image databases can be developed by scraping millions of images from social media profiles and driver’s licenses, often without consent. The facial recognition software then runs facial analyses of images captured through video surveillance or other mediums to search for potential matches against the database.

Experts say that high image quality is the key to optimizing use of facial recognition. Unfortunately, unidentified suspects are often recorded on grainy or poor quality surveillance footage or photographs, which yields inaccurate and often unusable results. Indeed, research suggests that current facial recognition technology isn’t yet the law enforcement game-changer envisioned by proponents. In Florida, for example, the technology was implemented years ago and originally sought to include real-time video streams, but it was scaled back after lackluster results. Today, officials still query the system 4,600 times a month. Of these searches, however, only a small percentage help identify unknown suspects. Likewise, the shortcomings of facial recognition software were experienced firsthand by London police, whose attempts to identify individuals in a crowd with the technology were correct less than 20% of the time.

Use of the technology hasn’t been all bad news, however, as one-to-one verification of individuals, such as recognizing the rightful owner of a passport or smartphone, has become extremely accurate. Additionally, facial recognition technology has proven useful in solving crimes like check forgery and identity fraud. These limited uses provide some support that the technology can be utilized effectively in limited circumstances, but there remain significant dangers to unleashing broadly as a crime solving tool.

The Dangers of Facial Recognition

Unimpressive field results are not the only drawback of the invasive technology. An influential 2018 study found that leading facial-recognition software was much worse at identifying women and people of color than it was at identifying white, male faces. People of color are 10 to 100 times more likely than white males to be misidentified by facial recognition software. Additionally, government data shows that facial recognition software used by police produces more false positives when used on images of Black women. Misidentifications have real world consequences, and people of color are wrongfully targeted, arrested, or detained by police frequently. In one recent example, Detroit police’s use of face recognition led to the wrongful arrest of Robert Williams, a Black man arrested in his home in front of family.

Part of the blame for these outcomes rests in the racist roots of American policing. Even today, Black Americans are more likely to be arrested for minor crimes than their white counterparts, which leads to overrepresentation in police mugshot data. In turn, mugshot photos are used to feed facial recognition databases and subsequently identify suspects of more serious crimes. More egregiously, some cities disproportionately implement facial recognition technology in majority-Black areas, leading to even more misidentifications.

Additionally, the software is created by humans, which means that human biases are built into it. Although many of these biases are likely implicit, one software developer noted that a facial recognition engineer could purposely “make sure that . . . [certain people] were unrecognizable and . . . [others] were misidentified as criminals.” A study conducted by MIT lent credence to this statement, finding that a variety of different facial recognition softwares each exhibited racial biases, and struggled to accurately identify females and people of color. Unsurprisingly, another study found that the softwares worked best at recognizing middle-aged White men.

What Should Be Done About Facial Recognition?

Regulation of facial recognition technology is sparse, and legislatures have not kept up with its explosive growth in recent years. Left unchecked, the technology will further exacerbate systemic racism and disproportionately impact people of color, who are already subject to discrimination and human rights violations by police. These concerns have not gone unrecognized, and many advocacy groups have pushed for either a suspension of the technology until it can be further researched and refined, or an outright ban. Some have called on Congress to take action against government use of facial recognition technology, and several senators have introduced legislation intended to get the ball rolling.

Nonetheless, the path forward for government and police use of facial recognition technology is unclear. At a minimum, it seems certain that regulation is necessary. The private sector, namely tech giants, are currently lobbying for a weak regulatory landscape. Others advocate for looser regulations regarding the technology’s commercial use (e.g., by requiring user consent), but much stricter regulation for government use. Indeed, many state laws passed recently target government entities rather than those engaged commercially.

Still, others argue that regulation is not sufficient, and the only way to ensure protection of vulnerable communities is through an outright ban. Proponents of a ban argue that the technology is simply not reliable enough, and its minimal benefits come nowhere near justifying the costs. Even as the technology improves, however, many still feel a ban is necessary, because even the most accurate technology can still be used to propagate discriminatory police practices, and mere technical standards or regulations cannot prevent the technology from being utilized in nefarious ways. Given the seemingly never ending stream of police brutality that plagues American streets, calls for an outright ban are legitimate and persuasive. The unfortunate truth is that until there is a meaningful change to the way the police in this country operate, they simply cannot be trusted with such a powerful tool.

* JLI Online Editor, J.D. Candidate – University of Minnesota Law School, Class of 2023

Police Questioning of Juveniles

By jlieditors

By Emma Kruger

Police interrogation can be intimidating even for adults, but the experience of police questioning for a juvenile suspected of committing or witnessing a crime can be even more overwhelming. Police interrogation practices often do not differ for children, but children’s experience of them and their capacity to adequately make choices in the interrogation room, regardless of police pressure, is different than adults. Much research has been done on child development, and how children’s brains differ from adults. Children are not able to understand their rights and the consequences of their actions to the same degree as adults.[1] For these reasons, children are particularly vulnerable to coercive tactics used by the police.[2] These tactics can result in false confessions or false witness testimony from children because they are not able to process the experience of being questioned properly.[3] Courts and the Supreme Court have repeatedly treated children differently than adults in a variety of contexts, but this has not yet translated to the police station interrogation room. There should be greater procedural safeguards to ensure child witnesses are protected, child suspects maintain their rights, and the justice process is served.

Children are often not able to make the same reasoned and informed decisions as adults during interrogation.[4] Juveniles are more impulsive and often make decisions based on their emotions, which is only exacerbated by stressful situations.[5] Research has also shown that children have skewed perceptions of time, meaning that juvenile thinking “tends either to ignore or discount future events and implications.”[6] This results in rash decisions, often for immediate payouts at the cost of long-term consequences.[7] Children are also particularly susceptible to pressure from adults and police, who they see as authority figures.[8] Because of these differences, children falsely confess at a higher rate than adults.[9] In a study involving juveniles and adults, thirty-one percent of juveniles falsely confessed, which was twice the number of false confessions seen in their adult counterparts.[10] Juveniles are at a different place in their development than adults, and it follows that they should be treated differently in the legal system.

The Supreme Court has decided many cases on the rights of children, and it has often noted that children’s experiences differ from adults, and thus, their legal treatment should also differ. One of these cases is J.D.B. v. North Carolina from 2011.[11] In J.D.B., the Court ruled that the determination of custody must consider the age of a suspect who is a child, as long as the age of the suspect is apparent or known to the officer at the time of the interview.[12] The Court has also repeatedly stated that children should be treated differently when it comes to sentencing.[13] However, recognition of children’s differences does not describe the entirety of case law when it comes to minors’ legal treatment by the Court.

At other instances, the Court has declined to offer juveniles further protections despite their developmental differences.[14] The Court did not offer separate treatment for juveniles in Fare v. Michael C., where the Court stated that the totality of the circumstances test used to determine if a Miranda waiver was voluntary is the correct test for juveniles when evaluating their waiver of Miranda.[15] However, research has shown that children cannot truly understand their Miranda rights.[16] A study found that ninety-nine percent of twelve to nineteen-year-olds did not understand their right to silence and ninety-four percent of that study group did not understand the consequences of waiving their rights.[17] Despite this, courts frequently conclude that children have made such waivers knowingly and voluntarily.[18] The totality of the circumstances test for waiver found in Miranda, although in theory accounts for a child’s age, research indicates there is often no way for a child to make an adequate and knowing waiver.[19] Thus, treating children legally the same as adults, often disadvantages them and discounts their rights.

There are multiple options to remedy infringing on children’s rights and prevent producing involuntary and false confessions and statements from juvenile witnesses. One option is to simply not allow children under a certain age to waive their Miranda rights.[20] An alternative, if there were concerns of impeding police investigations, would be to allow juveniles to waive their right to remain silent, but not their right preventing self-incrimination.[21] This would mean that children could speak to police freely, but any confession or statement would not be admissible against them in court.[22] Another safeguard that could be implemented would be to ban interrogation methods that are manipulative in juvenile interrogations.[23] Requiring parents or legal counsel to be present during questioning could be utilized as well. However, some children may not have a trusted parent or parental figure in their lives, in which case having a parent present could add to the coercive atmosphere of the questioning. Regardless of the ameliorating method chosen, it is vital that the existing legal framework change to protect the rights of children questioned by police. As the legal framework for juveniles stands, they are far too vulnerable to manipulative tactics of police.

**Emma Kruger is a Staff Member of Volume 41 of the Minnesota Journal of Law & Inequality

[1] Maxwell J. Fabiszewski, Major Reforms for Minors’ Confessions: Rethinking Self-Incrimination Protections for Juveniles, 61 B.C. L. Rev. 2643 (2020).

[2] Id. at 2671.

[3] Id. at 2687 (“As a result, the self-incrimination doctrine leaves juveniles exposed to gross injustice by recognizing as legally voluntary and admissible confessions of dubious actual volition that are at best unreliable.”).

[4] Id. at 2643.

[5] Patrick M. McMullen, Questioning the Questions: The Impermissibility of Police Deception in Interrogations of Juveniles, 99 Nw. L. Rev. 971, 995 (2005)

[6] Id. at 995 (outlining that children in interrogations may have an immediate want to get out of custody or go home and end the interrogation, and thus may not adequately weigh the implications of a confession or false statement).

[7] Fabiszewski, supra note 4, at 2671.

[8] Id.; McMullen, supra note 5, at 997.

[9] Id. at 2658.

[10] Id. at 2658 n.55 (citing Joshua A. Tepfer, Laura H. Nirider & Lynda M. Tricarico, Arresting Development: Convictions of Innocent Youth, 62 Rutgers L. Rev. 887, 904 (2010)).

[11] J.D.B. v. North Carolina, 564 U.S. 261 (2011).

[12] J.D.B., 564 U.S. 261.

[13] Miller v. Alabama, 567 U.S. 460 (2012) (ruling that life without parole was a cruel and unusual punishment for a fourteen-year-old murder); Roper v. Simmons, 543 U.S. 551 (2005) (stating that the execution of minors is cruel and unusual); Graham v. Florida, 560 U.S. 48 (2010) (outlining that life without parole for a juvenile who committed a non-homicide offense violated the Eighth Amendment).

[14] McMullen, supra note 5, at 992. See generally, Fabiszewski, supra note 4.

[15] Id. at 2668 (citing Fare v. Michael C., 442 U.S. at 725 (1979).

[16] Id. at 2669.

[17] Id. at 2670.

[18] Id.

[19] Id. at 2671.

[20] Id. at 2679.

[21] Id. at 2690.

[22] Id. (stating that this would allow police to investigate the statements of juveniles and corroborate any confession or statement pointing out guilt with hard evidence, allowing for

[23] Id. at 2681 (opining that the Reid method, a common and particularly manipulative method of interrogations should be banned for police interrogations of juveniles).

Updated Minnesota Child Support Guidelines Starting January 1, 2023: What’s Changing and Who Will Be Impacted?

By jlieditors

*By Sydnie Peterson

Effective January 1, 2023, the Minnesota child support guidelines will undergo various targeted changes that aim to have a large impact on child support awards. Child support awards are court ordered and intended to adequately provide for children’s “care, housing, food, clothing, transportation, and additional support for medical costs” and child care.^[1] In 2021, about 220,000 Minnesota children benefited from child support awards, and officials “distributed more than $550 million in payments.”^[2] Child support is a significant enterprise that is of monumental importance for many Minnesotan families. Before this update, child support calculations were based on 2007 U.S. Department of Agriculture poverty guidelines, which no longer reflects modern families’ economic realities and needs.^[3] The legislature recognized this in 2021 when new legislation was introduced to update the guidelines to “improve parity between parents and make it easier for them to support their families.”^[4] This new legislation was based upon the findings of the Minnesota Child Support Task Force, comprised of “parents, legislators, and child support professionals” with the requisite knowledge and interest to ensure the updated guidelines serve Minnesota families.^[5]

The new Minnesota child support guidelines have the following goals:

Utilize updated economic data regarding the costs of child rearing for basic support calculations;
Furnish updated “minimum basic support amounts;”
Provide “a low-income adjustment for parents;”
Increase the maximum parents’ combined incomes; and
Fairly incorporate deductions for non-joint children, or children that are genetically related to one, but not both, parents, as well as those children that parents are “legally responsible [for] but do not have a child support order.”^[6]

The new guidelines aim to achieve these goals by first eliminating the use of antiquated data in child support calculations, and incorporating new data about the modern economic realities Minnesota families’ encounter.^[7] Second, the minimum basic support amounts were changed so that now, minimum amounts start at $50 for one child, with $10 increases for each additional child up to six children.^[8] In the case that a non-primary custodian has over six children, the judge will exercise discretion in setting a minimum basic support amount.^[9] For reference, prior to the updated guidelines, parents that were not the primary custodian paid $50 per month in minimum basic support for one to two children, $75 per month for three to four children, and $100 per month for five to six children.^[10] Third, the new guidelines include a “low-income adjustment for parents with combined incomes of $6,000 or less per month” to ensure that those who can afford the minimum basic support amounts are not ordered to further pay a “percentage of their income they can’t afford.”^[11] Fourth, the updated guidelines increase the maximum parental combined income (PICs) to $20,000 per month.^[12] The PICs is both parents’ monthly gross incomes added together, and is a significant number for determining child support.^[13] Lastly, the new guidelines incorporate non-joint children in more equitable manners than the previous guidelines.^[14] The new guidelines allow deductions for those non-joint children who a parent is currently not ordered to pay child support for,^[15] and increases the amount of non-joint children that can be considered for deductions from two, to an unlimited amount.^[16]

Along with updating the child support guidelines with these new objectives, the 2021 legislation eliminated interest on past due child support beginning on August 1, 2022.^[17] Therefore, parents with interest accrued on past due child support prior to August 1, 2022 are still obliged to pay this interest, but by eliminating interest moving forward, “parents [may] limit or reduce their debt and increase the likelihood of complete, timely payments for their children’s well-being.”^[18] Starting January 2023, parents with past due child support, otherwise known as arrears, may agree to a payment plan before their debt is reported to a credit agency, giving parents a fair opportunity to cut down their debt before other consequences follow.^[19] Eliminating interest on back due child support is significant, as those with arrears have reported their debt to be “insurmountable,” putting them in “perpetual debt, forcing some to “couch surf” or “live with roommates,” and causing some to consider working “jobs that paid them under the table” to diminish their monthly support payments.^[20] Overall, parents being in this amount of debt is not conducive to successful co-parenting and rearing of children. Further, and significantly, as of May 22, 2021, changes occurred for tribal communities.^[21] State courts were permitted to transfer child support cases that involved families with tribal affiliations to tribal court.^[22] This change respects tribal allegiances, allows tribal families to be served “closer to their communities,” and increases comprehension of child support orders for tribal families.^[23]

Ultimately, the hope in updating the child support guidelines, and all other corresponding changes to child support, is to center children and ensure they are adequately being cared for through monthly child support payments.^[24] Additionally, the new guidelines aim to alleviate economic stressors on low-income individuals and provide them realistic monthly child support payments that they can fulfill.^[25] Those currently ordered to pay monthly child support will not automatically have their orders modified under the new guidelines, although everyone owing arrears have automatically ceased being charged interest.^[26] Instead, those who desire to have new child support orders issued under these guidelines must bring a modification motion and the newly calculated amount must be “at least 20 percent and at least $75 per month higher or lower than the current support order” for a court to issue a modification, among other considerations.^[27] Therefore, whether the venerable objectives of the new child support guidelines are met must be determined as new orders and modifications are issued by courts around Minnesota in the new year.

**Sydnie Peterson is a Note & Comment Editor for Volume 41 of the Minnesota Journal of Law & Inequality.

[1] Jacob Shafer, New Child Support Guidelines in Minnesota Starting in 2023, La Crosse Trib. (Dec. 30, 2022), https://lacrossetribune.com/winona/news/local/new-child-support-guidelines-in-minnesota-starting-in- 2023/article_130d6cc6-885d-11ed-a3d3-c3c6b5e828eb.html.

[2] Eder Campuzano, Minnesota’s New Child Support Guidelines Aim to Help More Low-Income Parents Afford Payments, Star Trib. (Dec. 31, 2022), https://www.startribune.com/minnesotas-new-child-support-guidelines-aim-to-help-more-low-income-parents-afford-payments/600239894/.

[3] Id.

[4] New Child Support Guidelines in Effect Jan. 1, MN Dep’t of Human Servs. (Dec. 28, 2022), https://mn.gov/dhs/media/news/?id=1053-555629.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Campuzano, supra note 2.

[10] Id.

[11] MN Dep’t of Human Servs., supra note 4.

[12] Id.

[13] Basics of Calculating Minnesota Child Support, Mundahl Law PLLC (Feb. 2, 2015), https://www.mundahllaw.com/basics-calculating-minnesota-child-support/.

[14] Id.

[15] Id.

[16] Compare Minnesota Child Support Guidelines Calculator, MN Dep’t of Human Servs. (prior to Jan. 1, 2023), https://childsupportcalculator.dhs.state.mn.us/2022/Calculator.aspx, with Minnesota Child Support Guidelines Calculator, MN Dep’t of Human Servs. (after Jan. 1, 2023), https://childsupportcalculator.dhs.state.mn.us/Calculator.aspx.

[17] Interest Charging on Past Due Support, MN Dep’t of Human Servs., https://mn.gov/dhs/people-we-serve/children-and-families/services/child-support/programs-services/interest-charging.jsp.

[18] Child Support Changes Reflect Modern Families’ Needs, MN Dep’t of Human Servs. (Aug. 13, 2021), https://content.govdelivery.com/accounts/MNDHS/bulletins/2ec9b7f.

[19] Id.

[20] Campuzano, supra note 2.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] MN Dep’t of Human Servs., supra note 17.

[27] Minn. Stat. § 518A.39 subd. 2(b)(1).

How Current Law Fails to Protect Defendants with Mental Illnesses from the Death Penalty

By jlieditors

By Bailey Martin

Eighteen men were executed in the United States in 2022^[1], and so far, seven more men and women have been executed in 2023.^[2] Despite numerous arguments that these individuals suffered from severe mental illnesses, last-minute appeals and clemency requests were unsuccessful.^[3] Furthermore, upcoming scheduled executions continue this pattern of executing individuals with severe mental illnesses.^[4] These cases demonstrate the failure of our criminal legal system to protect vulnerable individuals with severe mental illness.

Although the Supreme Court has banned the executions of those with intellectual disabilities and those under the age of 18, it has not extended such protections to individuals with severe mental illness. In Atkins v. Virginia, the Supreme Court reasoned that people with intellectual disabilities “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”^[5] Furthermore, their intellectual disability may “jeopardize the reliability and fairness of capital proceedings;” for example, these individuals may be less able to participate in their own defense.^[6] Consequently, the Supreme Court held that executing people with intellectual disabilities does not serve the purposes of retribution or deterrence of capital crimes, and banned its use against these individuals.^[7] The Court applied similar reasoning when banning the death penalty for individuals whose crimes were committed while they were under the age of 18, stating that juveniles have insufficient culpability to be eligible for the death penalty.^[8]

The Supreme Court has not extended this reasoning to those with severe mental illnesses, though. Current laws and procedures surrounding mental illness in death penalty cases fail to adequately protect individuals charged and sentenced to death. Presently, mental health can be raised in four ways during a capital case: (1) competency to stand trial, (2) a plea of not guilty by reason of insanity, (3) mitigation evidence against a death sentence, and (4) competency for execution. Despite the Supreme Court’s failure to protect individuals with serious mental illnesses, some states have passed legislation to address this issue on their own.

Competency to Stand Trial and for Execution

While competency to stand trial can be traced back to English case law, the current legal standard was established in Dusky v. United States.^[9] In competency proceedings, a court must determine “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and whether he has a rational as well as factual understanding of the proceedings against him.”^[10] Every state in the United States has adopted some variation of this test, despite its vagueness.^[11]

Yet this standard fails to protect those with severe mental illnesses. First, this standard is extremely high. While someone with a severe mental illness may be able to understand the proceedings against them, this standard does not address the culpability issues the Supreme Court was concerned with in Atkins and Roper. Second, even if a defendant is found incompetent, they are often provided treatment to restore them to competency and subsequently tried.^[12] Therefore, competency proceedings do not protect mentally ill defendants from capital proceedings; they may only delay them.

The Supreme Court also held in Ford v. Wainwright that the Eighth Amendment forbids states from executing individuals “who [have] no comprehension of why he has been singled out and stripped of his fundamental right to life.”^[13] To be incompetent for execution, a court must determine whether the individual “has a rational understanding of the government’s reason for executing” them.^[14] Yet once again, the burden of proof is on the defendant to prove their insanity, and this standard is also very high.^[15] Just as with the competency for trial standard, many individuals with severe mental illness may not meet the requirements for incompetency.^[16] Furthermore, competency for execution looks at the mental state of a person years after the crime as they near an execution date – it fails to consider an individual’s mental health at the time of the alleged crime.^[17]

Plea of Not Guilty by Reason of Insanity (NGRI)

The insanity defense has its roots in England, and the first American case to adopt a plea of not guilty by reason of insanity test was Parsons v. State.^[18] While each state’s statutes vary, the American Law Institute’s Model Penal Code “M’Naghten test” states that “a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality… of his conduct or to conform his conduct to the requirements of the law.”^[19]

Yet this process, too, does not protect defendants with mental illnesses from the death penalty. These pleas are rarely successful, even if substantial evidence exists that capitally charged individuals suffer from serious mental illnesses.^[20] In fact, some studies demonstrate that defendants who raise an unsuccessful insanity defense are more likely to receive the death penalty than those who do not.^[21] Furthermore, even if the plea is successful, the individual may still face a life of confinement in psychiatric facilities.^[22]

Mitigation

In death penalty cases, evidence of mental illness can be used as mitigation evidence to convince a jury that a death penalty is not appropriate.^[23] While this evidence can be powerful, evidence of mental illness can also backfire on defendants and actually make juries more likely to choose the death penalty.^[24] Even courts may consider evidence of mental illness to be an aggravating factor.^[25] Evidence of mental illness, in some cases, can be viewed by juries as an indicator of an individual’s future dangerousness.^[26] Individuals who provide evidence of mental illness to show diminished culpability may face a double-edged sword, where juries and the court see this as evidence that they will commit future crimes if not given the death penalty.^[27] Therefore, even though defense counsel may have wide latitude to present evidence of a capitally charged individual’s serious mental illness, the mitigation process may not protect them from the death penalty.^[28] Additionally, individuals with mental illnesses may not be equipped to adequately assist in their own defense.^[29]

Reform Efforts

Because of this gap left by the Supreme Court, and to address the lack of protections for capitally charged individuals with serious mental illness, states are creating their own legislation and procedures. In 2017, seven states had proposed legislation to prohibit the death penalty for those who have serious mental illnesses at the time of their crime.^[30]

Two states – Ohio and Kentucky – have passed such legislation.^[31] These laws also have their flaws, though. For example, Ohio’s law only gives individuals currently sentenced to death one year to appeal based on this new legislation.^[32] Also, if successful under this bill, individuals in Ohio are only eligible for life in prison with no possibility of parole.^[33] These bills also only ban the death penalty for limited diagnoses, including schizophrenia, schizoaffective disorder, bipolar disorder, and delusional disorder.^[34] And unlike Ohio’s law, Kentucky’s bill does not apply to those already sentenced to death.^[35]

While several other states are considering similar legislation, the Supreme Court must step in to ban the death penalty for those with serious mental illness.^[36] Neither retribution nor deterrence support its continued use, and the use of the death penalty against these individuals violates the Eighth Amendment’s ban on cruel and unusual punishment.^[37] By extending its reasoning in Atkins and Roper, the Supreme Court can provide additional protections for individuals suffering with mental illness and facing the death penalty.^[38]

**Bailey Martin is an Online Editor for the Vol. 41 of the Minnesota Journal of Law & Inequality.

[1] Khaleda Rahman, Every Death Row Prisoner Executed in the U.S. in 2022, Newsweek (Dec. 26, 2022), https://www.newsweek.com/every-death-row-prisoner-executed-2022-1769611.

[2] Execution List 2023, Death Penalty Information Center, https://deathpenaltyinfo.org/executions/2023 (last updated Feb. 23, 2023).

[3] See, e.g., Oklahoma Denies Clemency to Death-Row Prisoner Richard Fairchild Who Suffers from Brain Damage, Hallucinations, and Delusions, Death Penalty Information Center (Oct. 17, 2022), https://deathpenaltyinfo.org/news/oklahoma-denies-clemency-to-death-row-prisoner-richard-fairchild-who-suffers-from-brain-damage-hallucinations-and-delusions; Texas Executes Mentally Ill Man After Denying Him Access to Mental Health Testing, Death Penalty Information Center (Nov. 9, 2022), https://deathpenaltyinfo.org/news/texas-prepares-to-execute-mentally-ill-man-while-denying-him-access-to-mental-health-testing; Oklahoma Executes Benjamin Cole for the Murder of His 9-Month-Old Daughter, KAKE.com (Jan. 28, 2023), https://www.kake.com/story/48251301/oklahoma-executes-benjamin-cole-for-the-murder-of-his-9monthold-daughter (describing how Benjamin Cole suffered from schizophrenia and brain damage); Derrick L. McRae, Florida Should Not Execute a Person with Mental Illness, Tampa Bay Times (Feb. 22, 2023), https://www.tampabay.com/opinion/2023/02/22/florida-should-not-execute-person-with-mental-illness-column/ (describing Donald Dillbeck’s lifelong struggle with mental health, substance use, and trauma, which continued into his decades of incarceration).

[4] Upcoming Executions Raise Concerns About Mental Illness and the Death Penalty, Death Penalty Information Center (Feb. 20, 2023), https://deathpenaltyinfo.org/news/upcoming-executions-raise-concerns-about-mental-illness-and-the-death-penalty (describing the cases of Donald Dillbeck in Florida, who was recently executed, and Andre Thomas in Texas, who is scheduled to be executed in April 2023).

[5] 536 U.S. 304, 306 (2002).

[6] Id. at 306-307.

[7] Id. at 319.

[8] Roper v. Simmons, 543 U.S. 551, 572-573 (2005).

[9] Gianni Pirelli, A Meta-Analytic Review of Competency to Stand Trial Research, 17 Psych. Pub. Pol. And L. 1, 2 (2011).

[10] Dusky v. United States, 362 U.S. 402 (1960).

[11] Pirelli, supra note 9, at 2.

[12] Lisa Callahan and Debra A. Pinals, Challenges to Reforming the Competence to Stand Trial and Competence Restoration System, 71 Psychiatric Services 691 (2020) (describing restoration treatments in competency cases).

[13] Ford v. Wainwright, 477 U.S. 399, 409 (1986).

[14] See Severe Mental Illness and the Death Penalty, American Bar Association: Death Penalty Due Process Review Project 24 (Dec. 2016), available at https://www.prisonpolicy.org/scans/aba/SevereMentalIllnessandtheDeathPenalty_WhitePaper.pdf (citing Panetti v. Quarterman, 551 U.S. 930, 933 (2007)).

[15] Id. at 24.

[16] Id.

[17] Id.

[18] Eugene M. Fahey, Laura Groschadl, & Brianna Weaver, “The Angels that Surrounded My Cradle”: The History, Evolution, and Application of the Insanity Defense, 68 Buffalo L. Rev. 805, 816-817 (2020).

[19] Id. at 818.

[20] Mental Illness and the Death Penalty, ACLU (May 5, 2009), https://www.aclu.org/report/report-mental-illness-and-death-penalty.

[21] Eileen P. Ryan and Sarah B. Berson, Mental Capacity and the Death Penalty, 25 St. Louis U. Pub. L. Rev. 351, 377 (2006).

[22] Fahey, supra note 13, at 806.

[23] Episode Fourteen: Legal Process, Podcast Transcript, pg. 2, Death Penalty Information Center, https://files.deathpenaltyinfo.org/legacy/podcast/resources/Episode14LegalProcess.pdf.

[24] Jonathan P. Vallano, What Sways a Death Penalty Decision?, American Psychological Association (Apr. 1, 2020), https://www.apa.org/monitor/2020/04/jn.

[25] See, e.g., Rabindranath Ramana, Living and Dying with a Double-Edged Sword: Mental Health Evidence in the Tenth Circuit’s Capital Cases, 88 Denv. U. L. Rev. 339 (2011).

[26] Id. at 369-370.

[27] Id. at 368, n.213.

[28] See Severe Mental Illness and the Death Penalty, American Bar Association: Death Penalty Due Process Review Project 22-23 (Dec. 2016), available at https://www.prisonpolicy.org/scans/aba/SevereMentalIllnessandtheDeathPenalty_WhitePaper.pdf.

[29] Id. at 34. (“Those with mental illness also risk wrongful conviction and execution because their disorder impairs their ability to assist in their own defense, as mentioned earlier. They might be generally unassertive and unwilling

to provide vigorous objection to the prosecution’s claims. Mental illness can make them poor witnesses

in their own case, as they may forget or confuse exculpatory evidence. Their symptoms could also render

communication with counsel very difficult, complicating their attorneys’ already challenging task of securing an

innocent verdict.”).

[30] Rebecca Beitsch, States Consider Barring Death Penalty for Severely Mentally Ill, Pew (Apr. 17, 2017), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/04/17/states-consider-barring-death-penalty-for-severely-mentally-ill (listing Arkansas, Indiana, Ohio, South Dakota, Tennessee, Texas, and Virginia).

[31] Annika Russell, Ohio Passes Law Barring the Death Penalty for Defendants with Serious Mental Illness, ABA (Feb. 24, 2021), https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/ohio-bars-death-penalty-for-mental-illness/; Kentucky Legislature Passes Bill Prohibiting Death Penalty for People with Serious Mental Illness, Death Penalty Information Center (Mar. 29, 2022), https://deathpenaltyinfo.org/news/kentucky-legislature-passes-bill-prohibiting-execution-of-people-with-serious-mental-illness.

[32] Russell, supra note 30.

[33] Id.

[34] Russell, supra note 30; Kentucky Legislature, supra note 30.

[35] Kentucky Legislature, supra note 30.

[36] Id.

[37] American Bar Association, supra note 14, at 25-26.

[38] Id. at 28.

Noncompete Clauses and the Federal Trade Commission’s Proposal to Ban: Pros, Cons, and Questions on the FTC’s Authority

By jlieditors

**By Mike Fadden

Introduction:

On January 5, 2023, the Federal Trade Commission (“FTC”) announced a new rule proposal that would result in a ban on noncompete clauses in the United States.^[1] This proposed rule specifically impacts noncompete clauses in the employer-employee relationship, which “block people from working for a competing employer, or starting a competing business, after their employment ends”.^[2] The proposed rule would require employers to 1) refrain from entering into any future noncompete agreements with employees; 2) rescind any existing noncompete agreements with employees prior to the compliance date; and 3) provide notice to employees who were subject to noncompete agreements of their invalidity within 45 days of the compliance date.^[3]

FTC Authority for Proposed Rule:

Some criticism of this proposed rule revolves around whether it is within the FTC’s authority. Given this criticism, it’s worth looking closely at the authority under which the FTC is acting .

Originally passed in 1914, the Federal Trade Commission Act states that “[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are hereby declared unlawful.”^[4] The statute instructs the Commissioner of the FTC to “prevent persons, partnerships and corporations” from using unfair practices in their businesses.^[5] To effectuate this, Congress empowered the Commission “to make rules and regulations for the purpose of carrying out the provisions of this subchapter.”^[6] While many agencies rely on the § 553 of the Administrative Procedure Act to undergo informal rulemaking, the FTC is subject to additional procedural requirements. In 1974, the DC Circuit Court heard National Petroleum Refiners Ass’n v. FTC and held that the FTC had the authority to promulgate legislative rules, and was not limited to adjudicatory proceedings only.^[7] Following this case, and with judicially recognized power in tow, the FTC went on to promulgate rules that regulated activities in various industries, and Congress responded by passing the Federal Trade Commission Improvement Act.^[8] This legislation requires that the FTC allow for a more formal “presentation of oral evidence and cross-examination on ‘disputed material facts’ when ‘necessary for fair determination of . . . the rulemaking proceeding.’”^[9] The result of this additional legislation is a process that looks more like formal APA rulemaking as opposed to what has become standard notice-and-comment rulemaking.^[10]

FTC Reasoning for the Proposed Rule:

In the 216-page Notice for Proposed Rulemaking published by the FTC, the Commission lays out several reasons for the ban on noncompete clauses, relying heavily on empirical data. The reasoning can be classified into three main arguments in support of the noncompete ban.

First, the FTC cites numerous studies supporting that noncompete clauses create downward pressure on employee wages. The commission was particularly convinced by one of these studies which spanned 23 years and concluded that the elimination of noncompete clauses could result in an increase in employee wages by 3.3%-13.9%.^[11] The Commission cites to five additional studies which analyze the impact of noncompete agreements in various contexts, including within specific industries, specific geographic regions and in the context of executive-level positions.^[12] Based on these various empirical reports, the Commission concludes the cumulative impact of a ban on noncompete agreements would be an increase to earnings across the United States by $250 – $296 billion on an annual basis.^[13]

Second, the FTC considers the existence of noncompete clauses to have a “stifling” effect on new business and new ideas.^[14] The FTC once again looked at numerous studies, but since innovation is not a metric which can be quantified, the studies looked at the impact of noncompete clauses on various indicators of innovation. These indicators include data such as the value of patents or the number of patents stemming from venture capital.^[15] The studies suggest that when noncompete clauses are unenforceable,^[16] the value of patents increase by 31%.^[17] In another study, researchers found that when noncompete clauses are enforceable, the number of venture-backed patents reduced by 6.6%.^[18] The FTC was also concerned by three different studies suggesting that enforcing noncompete clauses resulted in a decrease in new business formation, reduced entrepreneurship, or a reduction in both.^[19]

Third, the FTC expressed its concern over the bargaining power that employers hold relative to employees, which can therefore induce the signing of noncompete clauses.^[20] While the imbalance in employer-employee bargaining power is not unique to noncompete clauses, the Commission considers two factors that intensify this imbalance in the context of these clauses: 1) employers have greater experience in negotiating employment agreements due to the higher volume of employment agreements they enter relative to employees,^[21] and 2) employees rarely engage legal counsel in reviewing an employment agreement, whereas employers are often assisted by counsel in the drafting of employment agreements.^[22]

Noncompete Justifications:

Unsurprisingly, employers prefer noncompete agreements and argue the enforceability of these agreements are important to their business. Central to their argument is the need for protection from high employee turnover which, in turn, allows for higher investment in employee training.^[23] In a 2019 study, researchers observed that enforceable noncompete clauses result in a 14.7% increase in likelihood to receive training .^[24] In another study of publicly traded companies, one researcher observed that the value of publicly traded companies increased by 9% when utilizing noncompete agreements.^[25] Ultimately, employers argue that without noncompete clauses being enforceable, they will be less incentivized to provide employee training because of the risk of turnover.

Another argument in support of noncompete agreements is the concern of trade secrets being disseminated by former employees. While often cited by proponents of noncompete agreements, there is conflicting evidence on whether the concern is justified.^[26]

FTC Response to Justifications:

The FTC is aware of these justifications and counters by suggesting the use of alternative methods which would be less harmful to employees and consumers.^[27] In the NPRM, the FTC provides three alternative routes to protect an employer’s interests. First, in the mind of the FTC, existing trade secret law provides adequate protection against the potential loss of trade secrets in the absence of noncompete agreements.^[28] Second, employers can utilize non-disclosure agreements or confidentiality agreements with employees following the end of an employer-employee relationship.^[29] Third, employers could insulate themselves from risk of losing an employee following expensive training by utilizing employment agreements with a specific length.^[30]

Somewhat cheekily, the FTC also adds that to retain these employees following training investments (and in lieu of noncompete clauses), employers could insulate themselves from turnover risk by paying higher wages, providing better work-life balance, and general improvements to working conditions – an expensive alternative to low-cost noncompetes that employers are not likely to embrace.^[31]

Equitable Impact of Noncompete Bans:

In its NPRM, the FTC lays out numerous arguments in support of its proposed ban on noncompete clauses given the economic impact that would result. Buried within the lengthy description of various studies, the FTC cited evidence suggesting this proposed rule would narrow the racial and gender wage gaps in the United States. According to cited study, a ban on noncompete agreements nationwide would close the gap by 3.6% – 9.1%.^[32] It also cites research suggesting that when noncompete agreements are enforceable, the negative effect on entrepreneurship is felt more by women compared to men.^[33]

Legal Vulnerabilities:

The FTC will almost certainly face challenges to their authority to promulgate this rule, particularly considering the recent Supreme Court decision in West Virginia v. EPA, where the Court applied the major questions doctrine.^[34] In writing for the majority, Chief Justice Roberts states that when an agency asserts a statutorily conferred power over issues of “economic and political significance”, the Court has “reason to hesitate before concluding that Congress meant to confer such authority”.^[35] Chief Justice Roberts’ use of the major questions doctrine has left many looking to pull out a test to apply to future cases. In a post on the Yale Journal on Regulation, Professor Kirstin Hickman pulled such a standard from Justice Roberts’ opinion.

“…[W]hether the major questions doctrine applies depends upon (1) “the ‘history and the breadth of the authority that [the agency] has asserted,’” (2) “the ‘economic and political significance’ of that assertion,” and (3) the extent to which the agency is relying on “‘modest words,’ ‘vague terms,’ or ‘subtle device[s]’” rather than more direct delegations from Congress.”

While it’s not clear whether the Supreme Court would use the major questions doctrine to strike down the FTC’s proposed rule on noncompete agreements, at least one FTC commissioner is concerned about the statutorily shaky ground upon which the proposed rule stands.^[36]

Conclusion:

The FTC’s proposed rule to impose ban on the use of noncompete clauses in the employer-employee context has the potential for numerous economic benefits for employees in the United States. Among these benefits includes progress toward narrowing the racial and gender wage gap divide. While proponents of noncompete clauses argue for their necessity to protect their investments in training labor and trade secrets, there seem to be potential alternatives with less harmful impacts on employees and consumers. Despite the benefits this rule may result in, there exists a question over whether the FTC is exceeding their statutory authority, particularly given the application of the major questions doctrine in West Virginia v. EPA.

Mike Fadden is a Staff Member for Volume 41 of the Minnesota Journal of Law & Inequality

[1] Fed. Trade Comm’n, Non-Compete Rulemaking, https://www.ftc.gov/legal-library/browse/federal-register-notices/non-compete-clause-rulemaking.

[2] Fed. Trade Comm’n, FACT SHEET: FTC Proposes Rule to Ban Noncompete Clauses, Which Hurt Workers and Harm Competition, https://www.ftc.gov/system/files/ftc_gov/pdf/noncompete_nprm_fact_sheet.pdf.

[3] Id at §910.2.

[4] 15 U.S.C. § 45(a)(1).

[5] 15 U.S.C. § 45(a)(2).

[6] 15 U.S.C. § 46(g).

[7] National Petroleum Refiners Ass’n v. FTC, 482 F.2d 672 (D.C. Cir., 1974).

[8] Kristin E. Hickman & Richard J. Pierce, Jr., Federal Administrative Law, 513-14, (West Academic, 3d ed.) (2019).

[9] Id. See also, 15 U.S.C. 57(a)(e)(3)(B).

[10] Supra note 8.

[11] Supra note 1 at 20. (The Commission’s NPRM cites to Matthew S. Johnson, Kurt Lavetti, & Michael Lipsitz, The Labor Market Effects of Legal Restrictions on Worker Mobility 2 (2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3455381.).

[12] Supra note 1 at 20.

[13] Supra note 2 at 1.

[14] Id.

[15] Supra note 1 at 42.

[16] Many states have passed their own legislation on the enforceability of noncompete clauses providing researchers with the opportunity to compare states with high enforceability to those states with low enforceability of noncompete clauses. The Commission notes that this difference in enforceability from state to state has resulted in an increase of reliable data in recent years.

[17] Supra note 1 at 42.

[18] Id.

[19] Id at 37.

[20] Id at 81.

[21] Employee agreements are usually negotiated when an employee is hired for a new position. It follows that employers tend to go through the process of hiring new employees more frequently than an individual changes jobs and is faced with negotiating a new employment agreement.

[22] Id at 83.

[23] Id at 45.

[24] Evan Starr et al., Consider This: Training, Wages, and the Enforceability of Covenants Not to Compete, 72 I.L.R. Rev. 783, 797 (2019).

[25] Kenneth A. Younge & Matt Marx, The value of employee retention: evidence from a natural experiment, 25 J. Econ. & Mgmt. Strategy 652 (2016).

[26] Supra note 1 at 46.

[27] Id at 91.

[28] Id at 94.

[29] Id at 98.

[30] Id at 99.

[31] Id at 100.

[32] Id at 195.

[33] Id.

[34] West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022).

[35] Id at 2595.

[36] Fed Trade Comm’n, Dissenting Statement of Commissioner Christine S. Wilson Regarding the Notice of Proposed Rulemaking for the Non-Compete Clause Rule, https://www.ftc.gov/legal-library/browse/cases-proceedings/public-statements/dissenting-statement-commissioner-christine-s-wilson-concerning-notice-proposed-rulemaking-non

Not-So Affordable Housing: Regulatory Blocks on Accessory Dwelling Units in the Twin Cities

By jlieditors

By Jacque Randolph*

In recent years, accessory dwelling units, or ADUs, have become a growing solution to the affordable housing crisis in the Twin Cities region. Although Minneapolis and St. Paul have had ADU ordinances for almost a decade,[1]this movement has gained recent momentum: first through the approval of the Metropolitan Council’s Minneapolis 2040 Plan; then through a waterfall of ordinances approved by other metro cities.[2] However, this speed has yet to translate into construction of ADUs by local lot owners.

Despite the lack of immediate development, affordable housing not-for-profits and local leaders are excited by a future involving ADUs.[3] Accessory dwelling units are an admittedly attractive solution to segregationist housing practices: they represent community-centered neighborhoods and allow proponents to reclaim the term “higher-density” living from its exclusionary history.[4] However, there is continued opposition from more suburban neighborhoods seeking to maintain housing and resident aesthetics, primarily through ordinances regulating lot sizes, renter requirements, and even nitpicky decorative styles.

What is an ADU?

Accessory dwelling units are homes located alongside a single- or two-family home on the same lot. ADUs operate as a smaller home or apartment, with its own kitchen, sleeping, and sanitation spaces separate from the main dwelling. Minneapolis, along with most metro cities with ADU ordinances, permit three forms of ADUs: internal, which are usually attic or basement spaces renovated into a separate apartment; attached, which share an adjacent wall of the main dwelling, like an additional wing of the house; and detached, which mirror carriage houses or over-the-garage apartments.[5]

ADUs as a housing solution grew from housing resegregation policies from the 1980s and the subsequent lapse in available affordable housing. Despite neighborhood integration practices from the Metropolitan Council through the 1960–70s, this process collapsed through the recalibration of subsidized housing construction policy. Not-for-profit organizations prioritized construction projects in already lower-income, lower-resource areas instead of equally dispersing housing across a variety of neighborhoods in the region.[6] Efforts also included a higher concentration of Low-Income Housing Tax Credit units in already segregated neighborhoods.[7] These strategies created a “feedback loop of segregation” which kept individuals relying on affordable housing concentrated in already suffering neighborhoods.[8] Mass creation of affordable housing also, due to racialized views of lot opportunity and wealth, triggered larger-scale disinvestment in the neighborhood leading to higher levels of foreclosure or turnover and discounted resale to modern developers.[9]

The Metro Council sought to combat this history through centering their comprehensive Minneapolis 2040 Plan on the elimination of disparities experienced by communities of color.[10] The Council emphasized housing disparities as their primary focus, noting the goal of the comprehensive plan as “undo[ing] the legacy that remains from racially discriminatory housing policies by increasing access to opportunity through a greater diversity of housing types, especially in areas that lack housing options as a result of discriminatory housing policy.”[11] Encouraging mixed income housing and crafting innovative housing types such as accessory dwelling units fall under this focus.

ADUs seemingly solve several issues present in the Twin Cities’ housing structure. Because ADUs operate as second, smaller home or apartment on a lot, they diversify housing options by creating a larger variety in nontraditional floorplans. It satisfies the need for smaller, single-room occupancy spaces as well as options for individuals seeking shared housing or more independent lifestyles outside of costly assisted living communities.[12] They also fill a need for more flexible and affordable housing for intergenerational households that are more likely to be families of color or reflect non-traditional nuclear familial structures.[13]

ADUs also offer rental opportunities for families unable to reside in neighborhoods that primarily consist of home-purchasers. Much of the housing segregation within Minneapolis also reflects massive disparities between owner-occupied and renter-occupied units divided along racial and income lines.[14] Offering rental opportunities within suburban areas provides families the ability to enter those spaces at a more reasonable cost and take advantage of resources traditionally saved for Minneapolis homeowners, such as better public schools.[15] This accessibility also improves potential for family mobility and an intentional step towards creating intergenerational wealth for Black communities and communities of color which have lost that connection through housing division.[16]

Although ADU permits have been available to Minneapolis residents since 2014, the 2040 Plan has set encouragement for the structures at the forefront.[17] Initiatives such as increasing accessibility of construction permits and action plans[18] have slowly increased the number of ADUs built in Minneapolis. However, there is still a lapse in construction. As of 2019, Minneapolis approved 137 ADUs, or only 0.2 percent of single-family lots in the city.[19]For reference, Portland, a leading city in ADU implementation, has units on about 1.5 percent of single-family lots.[20]Minneapolis would need roughly 1,200 ADUs to reach that point.[21]

Regulatory Hurdles

Following the approval of the Minneapolis 2040 Plan, the Metropolitan Council focused on increasing accessibility of accessory dwelling unit development through easier, almost automatic, permit approval and a mass rezoning to allow ADUs on almost all lots. However, this improved ease of access did not increase the number of ADUs constructed, mainly due to construction regulations which spike costs and risks for owners interested in building.

Different forms of ADUs necessitate different construction requirements. For example, internal and attached ADUs built in Minneapolis must be between 300 and 800 square feet.[22] Detached ADUs have a higher maximum size of 1300 square feet, however this must also not exceed a certain percentage of the lot size and must include allotted space for parking.[23] Regardless of style, cities require ADUs to be smaller than the primary dwelling on the property.[24]

Although size restrictions are reasonable, these ordinances can be used to restrict the pool of applicable renters. For example, Roseville places heavy restrictions on the size and number of occupants allowed. Occupancy is limited to two people, with a maximum of one bedroom in the unit.^[25] Similarly, the square footage is restricted to a firm maximum of “75% of the principal dwelling’s four season living area” or allegedly a ‘soft-maximum’ of “650 square feet of living area.”^[26] These arbitrary restrictions block families from renting on properties large enough to fit non-traditional – i.e., three or more bedroom – ADUs, therefore continuing to harm individuals ADUs are expected to assist.^[27]

The most harmful ordinances for ADU construction are owner-occupancy regulations. Owner-occupancy requires the owner of the lot to occupy “at least one dwelling unit” on the lot as their “primary place of residence.”[28]These regulations, a remnant of past discriminatory zoning policies, continue to be one of the primary factors complicating construction.

Owner-occupancy regulations exacerbate financial issues associated with construction. The costs of constructing an ADU range anywhere from $140,000.00 to $320,000.00.[29] Renovating an already-existing structure, such as an attic for an internal ADU or a detached over-the-garage unit is equally as costly. These costs push lot owners to seek loans to complete these projects. However, lenders are less likely to loan to individuals seeking to construct an ADU that is bound by owner-occupancy covenants, because it prevents future use of the property by lenders in the event of forfeit.[30] Requiring an owner to occupy at least one dwelling on the property subverts opportunities of lenders to rent foreclosed property. If lenders are unable to easily rent foreclosed property as a return, they are less interested in taking the initial loan risk. This limits the availability of loans for families looking to build equity on the property and restricts ADU construction to families with enough disposable income to dedicate to a lengthy construction project.

Owner-occupancy regulations also declaw the effectiveness of ADUs in diversifying neighborhoods. Requiring the owner to live on the premises pushes them to adopt the role of a more directly involved and supervisory landlord.[31] These regulations also push lot owners to rent to individual, shorter-term tenants such as professionals or graduate students[32] or keep the space for personal or familial use. As such, owner-occupancy requirements have become a shortcut to upholding the “character” of a neighborhood without utilizing similarly restrictive and racially coded regulations like “blight ordinances” or “noise ordinances.”[33]

Moving Forward

Modifying ordinances on accessory dwelling units is the next step in encouraging construction. These restrictions, along with some of the more intensive decorative ordinances in some metro cities,[34] emphasize subjective view on the adequacy and aesthetics of livability while also recycling historic methods of restrictive housing. Although regulations on housing do ensure that residents have safe places to live, encouraging development on ADUs requires a recalibration of the types of restrictions on home construction as well as the sources and underlying discriminatory goals of these codes.

This process requires not only deconstructing opposition concerning the preservation of neighborhood aesthetics and renter stereotypes and the acknowledgement of segregationist past practices,[35] but also the involvement of community members affected. Although it is necessary to note that ADUs are a long-term solution, involving Black families and families of color within these conversations should not wait until the city constructs a set number of units. Instead, the development process, in terms of both ordinance adaptation and informational updates or feedback, should be extended to the communities needing these shifts in affordable housing.

[1] Mark Theiroff, Accessory Dwelling Units: A Tale of Two Cities, Streets.MN (Mar. 20, 2018), https://streets.mn/2018/03/20/accessory-dwelling-units-a-tale-of-two-cities/.

[2] Katelyn Vue, Golden Valley Legalizes Accessory Dwelling Units, StarTribune (Nov. 2, 2022), https://www.startribune.com/golden-valley-legalizes-accessory-dwelling-units/600221339/.

[3] Despite focusing our conversations on heavier topics, everyone I interviewed involved in this area was still excited about ADUs and the future they could bring. See, e.g., Telephone Interview with Jamie Stolpestad, Neighbors for More Neighbors (Nov. 1, 2022). Similarly, not-for-profits and local architects have released pamphlets, action plans, and design deals to assist lot owners looking to construct ADUs. See, e.g., Home + Home: Twin Cities ADU Guidebook, Family Housing Fund (Feb. 2019); Christopher Strom Architects, Second Suite, secondsuite.org (last visited Feb. 22, 2023).

[4] Telephone Interview with Ericka Brown, Cmty. Dev. Manager, Minn. Hous. P’ship (Oct. 31, 2022).

[5] Jessica Lee & Greta Kaul, Accessory Dwelling Units Were Supposed to Help Ease the Twin Cities’ Housing Crunch. How’s That Working Out?, Minnpost (May 1, 2019), https://www.minnpost.com/metro/2019/05/accessory-dwelling-units-were-supposed-to-help-ease-the-twin-cities-housing-crunch-hows-that-working-out/.

[6] Myron Orfield & Will Stancil, Why Are the Twin Cities So Segregated?, 43 Mitchell Hamline L. Rev. 1, 24–26 (2017).

[7] Inst. On Metro. Opportunity, Comments on the Minneapolis Draft 2040 Plan 2 (2018).

[8] Orfield & Stancil, supra note 5, at 31.

[9] Id. at 32.

[10] Metro. Council, Minneapolis 2040 Comprehensive Plan 8 (2019).

[11] Id. at 12.

[12] Telephone Interview with Karyssa Scheck, Family Hous. Fund (Nov. 2, 2022).

[13] Margaret F. Brinig & Nicole Stelle Garnett, A Room of One’s Own: Accessory Dwelling Unit Reforms and Local Parochialism, 45 Urb. Law.519, 529–30 (2013).

[14] See Inst. On Metro. Opportunity, supra note 6, at 25 tbls. 11 & 12.

[15] Orfield & Stancil, supra note 5, at 32–47 (discussing relationship between housing segregation and segregation in public schooling).

[16] Brinig & Garnett, supra note 12 at 533–34; see Patrick Sharkey, Stuck in Place (2013) (describing how lower-income Black families are more likely to be stuck in neighborhoods for multiple generations, unlike white lower-income families).

[17] Lee & Kaul, supra note 4.

[18] City of Minn. Cmty. Plan. and Econ. Dev., Administrative Review for an Accessory Dwelling Unit (2022).

[19] Lee & Kaul, supra note 4. Documentation for the number of ADU permits approved following the approval of the Minneapolis 2040 plan is unclear, with no consistent collection process between cities and municipalities. Telephone Interview with Karyssa Scheck, supra note 11.

[20] Lee & Kaul, supra note 4.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Roseville § 1011.12(B)(1)(d), (i)(iii).

[26] Roseville § 1011.12(B)(1)(i(ii).

[27] See Gabriel Metcalf, Sand Castles Before the Tide? Affordable Housing in Expensive Cities, 32 J. Econ. Perspectives 59, 67 (2018) (discussing how these regulations also “embody judgments regarding what constitutes ‘decent’ housing”).

[28] Minneapolis, Minn., Code of Ordinances § 537.110 (2022).

[29] Lee & Kaul, supra note 4.

[30] Telephone Interview with Ericka Brown, supra note 3.

[31] Brinig & Garnett, supra note 12 at 521–22.

[32] John Infranca, Housing Changing Household: Regulatory Challenges for Micro-Units and Accessory Dwelling Units, 25 Stan. L. Pol’y Rev. 53, 62 (2014).

[33] Brinig & Garnett, supra note 12 at 522.

[34] For an example on visual requirements of ADUs in Roseville, MN, see Roseville § 1011.12(B)(1)(k) (“appearance or character of the principal building shall not be significantly altered so that its appearance is no longer that of a one-family dwelling”).

[35] See Metcalf, supra note 27. Although this opposition has recently been characterized through the term “NIMBY” (Not In My Back Yard), this harkens back to ‘redlining’ and similar practices which used “exclusionary land regulations as a form of home-value insurance” for white suburban homeowners. Brinig & Garnett, supra note 12 at 520.

*Jacque Randolph is a staff member on the Journal of Law & Inequality Vol. 41.

The Respect for Marriage Act: Limitations, Protections, and Future Implications

By jlieditors

By Elise Skarda*

What does the Respect for Marriage Act do?

The Respect for Marriage Act (RFMA), passed December 13, 2022, is perceived by some as codifying into federal law the right to marry for LGBTQI+ individuals, as well as individuals of different racial and ethnic backgrounds.^[1] However, the law is less expansive than it appears at first glance. Instead of guaranteeing the right to marry, it merely dictates that states must recognize same-sex marriages as valid where performed and that same-sex couples are eligible for the same federal benefits as opposite-sex couples, in line with the full faith and credit clause from Article IV §1 of the U.S. Constitution.^[2] It also prevents SCOTUS from retroactively invalidating existing same-sex marriages if Obergefell v. Hodges were to be overturned.^[3]

The Respect for Marriage Act also formally repealed the Defense of Marriage Act (DOMA).^[4] DOMA limited “federal recognition to opposite-sex spouses.” In United States v. Windsor (2013), the Supreme Court held this discriminatory law unconstitutional.”^[5] Despite the unenforceability of this limitation, and thus DOMA’s toothless existence, it remained “on the books” until the Respect for Marriage Act was passed.^[6]

How did we get the Respect for Marriage Act passed?

Legislative compromise ensured Republican Senate support for the Act. With a tight majority in the Senate, Democrats managed to push the Act through by adding protections for nonprofit religious organizations.^[7] The compromise provides that nonprofit religious organizations are not required to provide accommodations or services for the solemnization or celebration of a same-sex marriage.^[8]

Why is this Act important?

While codifying these rights has been important since Loving v. Virginia^[9] and Obergefell v. Hodges, the importance became significantly more pronounced after the decision in Dobbs v. Jackson Women’s Health.^[10] In Dobbs, the Supreme Court overruled fifty years of precedent, and in a concurring opinion, Justice Thomas indicated that the Court may be open to overturning other precedents, including Obergefell v. Hodges.^[11] This is significant because Roe v. Wade, Obergefell, and Loving, among others, rest on the basis of substantive due process.^[12]Substantive due process, which comes from the Court’s interpretation of the Fifth and Fourteenth Amendments, gives protection from federal government interference for certain fundamental constitutional rights.^[13] In Justice Thomas’s concurring opinion in Dobbs, he indicated that he would be willing to overturn other cases that relied on substantive due process.[14] Examples of cases based on substantive due process grounds include marriage, in Obergefell and Loving, and privacy, such as in Griswold v. Connecticut and Roe v. Wade.^[15] Overturning Roe on substantive due process grounds opens the door for overturning these other cases on the same basis.

What happens if Obergefell is overturned?

If Obergefell is overturned, the Respect for Marriage Act provides almost no additional protections for married same-sex couples other than reaffirming the full faith and credit clause, reminding states that they must recognize validly performed marriages in other states. Given this, public approval is critical in understanding the consequences of a world without Obergefell.

The most recent Gallup Poll (2022) shows that same-sex marriage approval is at a (slight) all-time high, at 71%.^[16] However, twenty-five states have constitutional and statutory bans on same-sex marriage that would go into effect immediately if Obergefell were overturned.^[17] An additional four states have a statutory ban only.^[18] In 2022, 20 of the all-time high of 278 anti-LGBTQI+ bills introduced passed into law.^[19] In the first nineteen days of 2023, the ACLU reports that there are more than 120 anti-LGBTQI+ bills introduced in the United States at the state and federal level.^[20] While this does not mean that every bill will be passed, it alludes to a possible contradiction between the legislature and elected representatives and the same-sex marriage approval rate. Are those in power acting in a way that accurately reflects the majority’s opinion? The data indicates no.

Assuming the Respect for Marriage Act is not invalidated, states can choose whether to allow same-sex marriage, and other states and the federal government must respect those marriages as valid.^[21] According to each state’s marriage laws, there could be issues regarding residency if couples from a state that bans same-sex marriage wishes to be married in another state. This could lead to an increase in permanent or temporary moves from the prohibiting states to the permitting states.

What can we do now?

The Equality Act, which would prohibit discrimination based on sex, sexual orientation, and gender identity, was passed in the House in 2021.^[22] Though it references discrimination against LGBTQ individuals including in relation to same-sex marriages, the Equality Act does not compel states to recognize same-sex marriage.[23] The Equality Act would extend the provision of Title VI of the Civil Rights Act, which bars institutions that engage in racial discrimination from receiving federal funding, to LGBTQI+ individuals.^[24] According to the Human Rights Watch, currently 20 states and Washington, D.C. address discrimination in education against students based on sexual orientation alone, or sexual orientation and gender identity.^[25] The Equality Act would ensure that these and similar issues are addressed at a federal level, thus further protecting LGBTQI+ individuals.

The current Court has yet to rule directly on LGBTQI+ issues, and thus the current Court’s stance is unknown. However, pre-Dobbs, it was standard for the Court to follow its own precedent, unless it believed it was substantially incorrect in its decision. The current Court made the decision in Dobbs to take away rights from tens of millions of individuals.^[26] It appears the precedent of following precedent has been weakened, if not completely disregarded. No one can predict the future, but if the Court continues on this path, there is a very real possibility that Obergefell v. Hodges will be overturned. We should fight for protecting the rights of LGBTQI+ individuals by establishing statutes that go further than the Respect for Marriage Act in order to protect marriage rights at both the state and federal level.

^[1] Emma Kinery, Biden signs bill to protect same-sex and interracial marriages, Consumer News & Bus. Channel: Pol. (Dec. 13 2022, 4:19 PM, last updated Dec. 13 2022, 5:14 PM), https://www.cnbc.com/2022/12/13/biden-signs-respect-for-marriage-act-to-protect-same-sex-interracial-marriages.html (last visited Jan. 29, 2023).

^[2] Respect for Marriage Act, Pub. L. 117–228, §4–5, 136 Stat. 2306 (2022); US Const. art. IV, §1.

^[3] Employee Benefits Institute of America, Respect for Marriage Act Codifies Federal and State Recognition of Same-Sex Marriages, Repeals DOMA, Thomson Reuters: Tax and Acct. (Dec. 13, 2022), https://tax.thomsonreuters.com/blog/respect-for-marriage-act-codifies-federal-and-state-recognition-of-same-sex-marriages-repeals-doma/ (last visited Jan. 29, 2023); Obergefell v. Hodges, 576 U.S. 644 (2015) (legalizing same-sex marriage in all states).

^[4] Respect for Marriage Act, Pub. L. 117–228, §3, 136 Stat. 2306 (2022).

^[5] United States v. Windsor, 570 U.S. 744, 770 (2013).

^[6] Employee Benefits Institute of America, Respect for Marriage Act Codifies Federal and State Recognition of Same-Sex Marriages, Repeals DOMA, Thomson Reuters: Tax and Acct. (Dec. 13, 2022). https://tax.thomsonreuters.com/blog/respect-for-marriage-act-codifies-federal-and-state-recognition-of-same-sex-marriages-repeals-doma/ (last visited Jan. 29, 2023).

^[7] Id.

^[8] Respect for Marriage Act, §6 (2022).

^[9] Loving v. Virginia, 388 U.S. 1, 2 (1967) (ruling Virginia’s antimiscegenation statute unconstitutional and legalizing inter-racial marriage for the entire United States).

^[10] Kaitlyn Radde, What does the Respect for Marriage Act do? The answer will vary by state., Nat’l Pub. Radio (Dec. 8, 2022, 12:27 PM),

https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by-state (last visited Jan. 29, 2023).

^[11] Id.

^[12] Obergefell v. Hodges (2015); Loving v. Virginia (1967); Roe v. Wade, 410 U.S. 113 (1973) (legalizing abortion on substantive due process grounds).

^[13] Constitution Annotated, Amdt5.7.1 Overview of Substantive Due Process Requirements, Libr. of Cong.,https://constitution.congress.gov/browse/essay/amdt5-7-1/ALDE_00013728/.

^[14] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2301 (2022) (Thomas, J., concurring) (“in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”).

^[15] Griswold v. Connecticut, 381 U.S. 479 (1965) (holding that Connecticut’s statute banning the use of contraceptive unconstitutional on substantive due process grounds that it violates the right to marital privacy).

^[16] Justin McCarthy, Same-Sex Marriage Support Inches Up to New High of 71%, Gallup: Pol. (June 1, 2022), https://news.gallup.com/poll/393197/same-sex-marriage-support-inches-new-high.aspx (last visited Jan. 31, 2023).

^[17] Kaitlyn Radde, What does the Respect for Marriage Act do? The answer will vary by state., Nat’l Pub. Radio (Dec. 8, 2022, 12:27 PM),

https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by-state (last visited Jan. 29, 2023); National Conference of State Legislatures, State Same-Sex Marriage Laws Without Obergefell (July 2022), https://s3.documentcloud.org/documents/22089452/state-same-sex-marriage-laws-without-obergefell.pdf.

^[18] Kaitlyn Radde, What does the Respect for Marriage Act do? The answer will vary by state., Nat’l Pub. Radio (Dec. 8, 2022, 12:27 PM), https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by state (last visited Jan. 29, 2023); National Conference of State Legislatures, State Same-Sex Marriage Laws Without Obergefell (July 2022), https://s3.documentcloud.org/documents/22089452/state-same-sex-marriage-laws-without-obergefell.pdf.

^[19] Press release, Am. C.L. Union, Over 120 Bills Restricting LGBTQ Rights Introduced Nationwide in 2023 So Far, (Jan. 19, 2023), https://www.aclu.org/press-releases/over-120-bills-restricting-lgbtq-rights-introduced-nationwide-2023-so-far.

^[20] Id.

^[21] Respect for Marriage Act, Pub. L. 117–228, §4–5, 136 Stat. 2306 (2022).

^[22] Kaitlyn Radde, What does the Respect for Marriage Act do? The answer will vary by state., Nat’l Pub. Radio (Dec. 8, 2022, 12:27 PM), https://www.npr.org/2022/12/08/1140808263/what-does-the-respect-for-marriage-act-do-the-answer-will-vary-by-state (last visited Jan. 29, 2023).

[23] Equality Act, H.R. 5, 117th Cong. §2(a)(2) (2021).

^[24] Tom Gjelten, Some Faith Leaders Call Equality Act Devastating; For Others, It’s God’s Will, Nat’l Pub. Radio (Mar. 10, 2021, 5:01 AM), https://www.npr.org/2021/03/10/974672313/some-faith-leaders-call-equality-act-devastating-for-others-its-gods-will (last visited Jan. 29, 2023).

^[25] Id.

^[26] Youyou Zhou and Li Zhou, Who overturning Roe hurts most, explained in 7 charts, Vox (July 1, 2022, 9:50 AM), https://www.vox.com/2022/7/1/23180626/roe-dobbs-charts-impact-abortion-women-rights (last visited Jan. 29, 2023).

*Elise Skarda is a Staff Member for the Journal of Law & Inequality Vol. 41.

Crypto and the Climate Crisis

By jlieditors

By Mallory Harrington*

The meteoric rise of cryptocurrencies and NFTs significantly contributes to the global climate crisis due to energy-guzzling mining practices. This blog post provides an overview of the relevant technologies and frequently suggested policy interventions.

Blockchain, Bitcoin, and NFTs

A Bitcoin is a digital token that can be exchanged between users.^[1] It is fungible, meaning that it is both replaceable and interchangeable.^[2] It is analogous to paper cash; one Bitcoin can be exchanged for another.^[3] Bitcoin is also the name of the decentralized network on which Bitcoins are exchanged.^[4] Since Bitcoin emerged, many other cryptocurrencies—also referred to as virtual currencies—have been developed and are traded on computing networks (including Ethereum) using similar mining structures.^[5]

Nonfungible tokens (NFTs) may also be traded on these networks. These tokens are unique “digital asset[s] that establish[] authenticity and ownership[.]”^[6] Possession of an NFT essentially proves that you “own” the underlying file. However, this is not legal ownership; NFTs offer no protection for intellectual property, and conversely, copyrighted materials are sometimes sold as NFTs without the author’s consent.^[7] NFTs, also referred to as “cryptoart,” are valuable because they are unique, “[l]ike beanie babies without the beans.”^[8] While some NFTs are “playful or irreverent[,]”such as images of popular memes, scholars note that NFTs have the potential to increase the security of transactions involving real world goods, such as cars and real estate.^[9]

Decentralized networks are designed to cut out the middleman in Bitcoin transactions (traditionally the role of governments or banking institutions) and utilize blockchains, which are communally maintained databases of digital information.^[10] We can think of a blockchain as a ledger, broken up into smaller pieces (blocks) and spread out across different computing devices (nodes) in a network. The structure of this system gives it three important attributes: 1) the transactions on the system are irreversible; 2) much of the network’s data is redundant; and 3) the network’s data is highly accurate and secure.^[11]

Blockchain-based networks are maintained by miners. Bitcoin mining is “the process through which new Bitcoins are created and given to computers helping maintain the network.”^[12] When an individual opens an account with a Bitcoin exchange, they create a digital wallet to store their Bitcoin.^[13] When they spend or exchange that Bitcoin, the transaction must be validated by the Bitcoin network.^[14] Bitcoin miners then compete to validate the transaction and enter it into the public blockchain ledger.^[15] If a Bitcoin miner successfully validates the transaction, they are rewarded for that effort in new Bitcoin, a huge financial incentive to participate in the mining process.^[16]

But how do miners “win?” That is, how is a certain miner chosen to validate the transaction? That depends on the validation system of the blockchain. The most widely used system across blockchain networks (including Bitcoin) is called proof-of-work.^[17] In this system, miner’s computers work to solve complex puzzles, essentially racing to be the first to find the solution.^[18] The more computing power the miner has, the more likely they are to win the verification.^[19] The idea behind this system is that only “trustworthy” computers—devices belonging to those who have invested massive amounts of money, computing power, and electricity into participation—will validate the majority of the network.^[20]

Market Growth and Environmental Impacts

The meteoric rise of cryptocurrencies and NFTs relying on blockchain networks has a significant environmental impact. Since the initial use of Bitcoin in 2009, prices rose dramatically, and cryptocurrencies captured widespread attention. Bitcoin’s value skyrocketed; $100 worth of Bitcoin in 2009 was valued at nearly $500M in 2021.^[21] The pace of NFT transactions is also rapidly increasing; NFT sales jumped from $1 billion to $10 billion between the second and third quarters of 2021.^[22] Despite valuation drops in 2022, the story of crypto is characterized by growth.^[23]

This continual growth allows participants in the crypto market to reach profitability without striving for energy efficiency.^[24] Successful miners require machinery, storage space, and cooling power to keep the hardware running, so mining tends to occur in large data centers that guzzle electricity.^[25] In a market analysis, Alex de Vries estimated that the Bitcoin network in 2019 consumed about the same amount of electrical energy as the country of Belgium as a whole.^[26] The energy-intensive nature of cryptocurrency and NFT transactions make them a key contributor to the global climate crisis.

Potential Interventions

Finding meaningful interventions to abate energy consumption is a priority for many scholars, scientists, and politicians.

First, there are design-based interventions. Not all blockchains are equal polluters; depending on the protocols used to verify transactions, some blockchains have significantly lower levels of energy consumption.^[27] Therefore, incentivizing a design switch from the popular proof-of-work verification system to more efficient verification methods could powerfully impact environmental outcomes.^[28] Instead of putting miners into fierce competition based on computing power, alternative verification methods function more like a lottery system, doling out chances to participate in the verification process. How those lottery tickets are distributed depends on the model:

Proof-of-stake models distribute lottery tickets based upon how much crypto a participant already owns. Participants stake a certain amount of their savings to enter the lottery.^[29]
Proof-of-capacity models distribute lottery tickets based upon hard drive availability.^[30]
Proof-of-assignment models distribute lottery tickets based upon the number of devices a participant has that are capable of participating in the blockchain.^[31]
Proof-of-donation models distribute lottery tickets based upon charitable donations.^[32]

All of these alternative models have the potential to reduce energy consumption. However, proof-of-stake models have gained the most traction. In 2021, the U.S. Congressional Research Service proposed proof-of-stake as a more sustainable alternative to proof-of-work models.^[33] On September 15, 2022, Ethereum executed a highly anticipated switch to a proof-of-stake model, and the company claims a reduction of energy consumption by approximately 99.95%.^[34] Although Ethereum is just one network, if their switch to a proof-of-stake model proves successful, other networks, many of which were reluctant to make a change from the tried-and-tested security features of proof-of-work models, may follow suit.^[35]

However, if crypto networks are reluctant to voluntarily switch away from proof-of-work models, regulatory and fiscal tools could be impactful. In 2021, New York established a two-year moratorium on proof-of-work mining operations, requiring a full environmental impact assessment on the practice.^[36] Fiscal tools, such as varied transaction sales taxes or capital gains / income taxes based upon the energy consumption, are frequently proposed to incentivize greener blockchains.^[37]

It is important to note that these alternative systems of verification still perpetuate many financial inequalities. Particularly in proof-of-stake models, only participants who already own crypto assets may participate in the verification process.^[38] Critics note that there “is not a schema that doesn’t reward those who [] are already wealthy, who are already bought in, who already have excess capital or access to outsized computational power.”^[39]

Next, there are interventions aimed at the crypto miners. Some of these interventions incentivize miners to utilize more efficient computing devices and energy sources, while others disincentivize participation in the mining system.^[40] Fiscal interventions aim to increase energy costs for miners.^[41] In New York, power companies can charge premium prices for electricity consumptions for miners; this tactic pushes some of the environmental costs onto the miners themselves – a.k.a., the polluter pays.^[42] China has taken a different approach, imposing a taxation strategy based upon usage of electricity.^[43] Regulatory interventions may also be used to push miners out of national markets. In May 2021, China took a “blunt but effective” approach, prohibiting financial institutions from providing services relating to cryptocurrencies and significantly restraining mining, pushing about half global miners offline.^[44] These measures proved effective in lowering the national energy consumption, but had a limited global effect as miners relocated to more hospitable regions.^[45] Meaningful restrictions on mining will likely require international coordination. While cryptocurrencies and NFT face an uncertain future, it is clear that change in the crypto market is environmentally crucial.

* Note & Comment Editor, J.D. Candidate – University of Minnesota Law School, Class of 2023

—

[1] New to the Crypto World? Here Are the Terms to Know, N.Y. Times (June. 8, 2022), https://www.nytimes.com/explain/2022/cryptocurrency-guide;

[2] Everest Pipkin, Here is the Article You Can Send to People When They Say “But the Environmental Issues With Cryptoart Will Be Solved Soon, Right?”, Medium (Mar. 3, 2021), https://everestpipkin.medium.com/but-the-environmental-issues-with-cryptoart-1128ef72e6a3.

[3] Id.

[4] N.Y. Times, supra note 1.

[5] N.Y. Times, supra note 1.

[6] Id.

[7] Pipkin, supra note 2.

[8] Id.

[9] Jon Truby, Rafael Dead Brown, Andrew Dahdal & Imad Ibrahim, Blockchain, climate damage, and death: Policy interventions to reduce the carbon emissions, mortality, and net-zero implications of non-fungible tokens and Bitcoin, 88 Energy Research & Social Science 3 (2022), available here.

[10] N.Y. Times, supra note 1.

[11] Adam Hayes, Blockchain Facts: What Is It, How It Works, and How It Can Be Used, Investopedia (Sept. 27, 2022), https://www.investopedia.com/terms/b/blockchain.asp (“If one user tampers with [the] record of transactions, all other nodes would cross-reference each other and easily pinpoint the node with the incorrect information. This system helps to establish an exact and transparent order of events. This way, no single node within the network can alter information held within it.”).

[12] N.Y. Times, supra note 1.

[13] Hayes, supra note 13.

[14] Id.

[15] Jon Huang, Claire O’Neill & Hiroko Tabuchi, Bitcoin Uses More Electricity Than Many Countries. How Is That Possible?, N.Y. Times (Sept. 3, 2021), https://www.nytimes.com/interactive/2021/09/03/climate/bitcoin-carbon-footprint-electricity.html.

[16] Id.

[17] Pipkin, supra note 2.

[18] Id.

[19] Id.

[20] Huang, O’Neill & Tabuchi, supra note 15.

[21] Pipkin, supra note 2.

[22] Truby, Brown, Dahdal & Ibrahim, supra note 9, at 5.

[23] Alex Gailey & Ryan Haar, The Future of Cryptocurrency: 8 Experts Share Predictions for the Second Half of 2022, NextAdvisor (Dec. 21, 2021), https://time.com/nextadvisor/investing/cryptocurrency/future-of-cryptocurrency/.

[24] Alex de Vries, Bitcoin’s energy consumption is underestimated: A market dynamics approach, 70 Energy Research & Social Science (2020).

[25] Huang, O’Neill & Tabuchi, supra note 15.

[26] de Vries, supra note 24.

[27] Truby, Brown, Dahdal & Ibrahim, supra note 9.

[28] Id.

[29] N.Y. Times, supra note 1.

[30] Pipkin, supra note 2.

[31] Id.

[32] Id.

[33] Truby, Brown, Dahdal & Ibrahim, supra note 9, at 6.

[34] The Merge, Ethereum (Jan. 31, 2023), https://ethereum.org/en/upgrades/merge/#:~:text=The%20Merge%20was%20executed%20on%20September%2015%2C%202022.

[35] Truby, Brown, Dahdal & Ibrahim, supra note 9, at 6.

[36] Id.

[37] Id. at 7.

[38] N.Y. Times, supra note 1.

[39] Pipkin, supra note 2.

[40] Truby, Brown, Dahdal & Ibrahim, supra note 9.

[41] Id.

[42] Id. at 8.

[43] Id.

[44] Id.

[45] Id.

Two Years Since Dobbs: How Access to Contraceptives and IVF Has Changed

By jlieditors

By: Claire Albrecht, Volume 43 Staff Member

View/Download PDF Version: Two Years Since Dobbs (Albrecht)

I. Introduction

Prior to June 24, 2022, the government “could not control a woman’s body or the course of a woman’s life: It could not determine what the woman’s future would be.”[1] On that date, the Supreme Court denied women reproductive freedom by holding that abortion is not a constitutional right and that abortion issues would be left to the states.[2] This decision not only limited access to abortion care, but created a volatile and confusing landscape for women’s healthcare throughout the United States.[3] This blog post examines what has happened in two areas of women’s healthcare that have been impacted by the Dobbs decision: contraceptives and in vitro fertilization.

II. Overview of Dobbs

The issue of abortion came before the Supreme Court in 2022 after nearly fifty years of recognizing abortion as a constitutional right.[4] The Court had to decide whether Mississippi’s Gestational Age Act violated the Supreme Court’s precedent set in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey.[5] The Gestational Age Act prohibited abortions after fifteen weeks except in a medical emergency or when there is a severe fetal abnormality.[6] Jackson Women’s Health filed suit to contest the constitutionality of the Act.[7] Thomas Dobbs, a Mississippi State Health officer, filed a petition for certiorari.[8] The Supreme Court granted certiorari to “answer the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.”[9]

In Roe v. Wade, the Supreme Court considered interests in protecting both the health of pregnant women and the potential life of the fetus.[10] To protect the potential life, the Supreme Court decided that there was a point of viability after which the State could regulate and prohibit abortion.[11] Roe v. Wade determined the point of viability to be the end of the first trimester.[12] Then, the Supreme Court readdressed abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey. The idea of “viability” remained, but the Casey decision shifted the determination of viability.[13] The Court determined that the point of viability was twenty-three to twenty-four weeks, instead of the twenty-eight weeks understood in Roe.[14] The “pre-viability” issue arose in Dobbs because Mississippi’s Gestational Age Act prohibited abortions after fifteen weeks, eight to nine weeks earlier than Casey’s point of viability at which states could start regulating abortion.[15]

Dobbs held that pre-viability prohibitions on abortion are constitutional, overruling Roe and Casey.[16] This ruling sent the authority to regulate or prohibit abortions to each State.[17] Thirteen states had “trigger” laws outlawing abortion that were written in anticipation of the ruling and went into effect almost immediately after the Dobbs decision was released.[18] As of October 2024, thirteen states have total abortion bans, twenty-eight states have abortion bans based on gestational duration, and nine states along with the District of Columbia do not restrict abortion based on gestational duration.[19] Most states have exceptions to their regulations in instances of threats to the life of the pregnant person, but physicians are “limited in their ability to care for their patients” and could face legal consequences for providing care that doesn’t comply with their state’s regulations.[20] Evidence shows that women’s healthcare since Dobbs “struggles to meet people’s reproductive needs . . . ,”[21] including access to contraceptive and in vitro fertilization.

III. Contraceptives

Justice Thomas’s Dobbs concurrence stated that other legal precedents which used the overturned Roe legal grounding should be reconsidered, including Griswold v. Connecticut.[22] Griswold’s key holding was that there is a constitutional right privacy, which protects the intimate relations of married couples and their use of contraceptives.[23] Not only did Justice Thomas’s concurrence create concerns about contraceptive access, it opened up “viable avenues states may take to limit access to contraception.”[24] Policymakers themselves are announcing they think Griswold was wrongly decided or constitutionally unsound, demonstrating a desire to make laws that don’t support access to contraceptives.[25] Some states, such as Idaho, Texas, and Missouri, have restricted access by banning funding for emergency contraceptives programs and incorrectly claiming that some contraceptives act as abortifacients.[26] A few states use conscience clauses in their statutes that “may allow pharmacists to refuse to dispense emergency contraceptives.”[27]

Dobbs could also limit providers’ abilities “to prescribe certain contraceptive devices that disrupt implantation, like Plan B or intra-uterine devices (IUDs).”[28] A study conducted in four different states prior to and following the Dobbs decision found that access to broader contraceptive care is, in fact, worsening.[29] In this study, women in Arizona, Iowa, New Jersey, and Wisconsin found that barriers to accessing contraceptives increased a year after the Dobbs decision.[30] These women experienced difficulty “discussing information about, and/or having a checkup or medical test related to, and/or receiving a contraceptive method or prescription . . . .”[31] Dobbs’ impact on contraceptives threatens healthcare by threatening women’s self-determination and ability to decide what happens in their bodies.

IV. IVF

In addition to restrictions on contraceptives, the Dobbs decision has threatened access to fertility treatments, including in vitro fertilization (IVF).[32] IVF is used by hundreds of thousands of people in the United States hoping to create as many healthy embryos for each patient as possible.[33] While the Supreme Court did not address IVF and Dobbs’ impact on it, the Court did explain that abortion is not protected because it destroys potential life.[34] IVF attempts to initiate pregnancy, but the process can place embryos and fetuses at risk of damage or death, with embryo destruction commonly occurring.[35] The concern is that legislators could ban or restrict IVF because it could pose a threat to the potential lives of embryos and fetuses.[36] Already, the Alabama Supreme Court classified frozen embryos as “children,” creating questions about what fertility treatment centers are able to do with the embryos.[37] With no established IVF constitutional protection, IVF practitioners “may be afraid to provide patients with services that were once commonplace, lest they be labeled abortionists and indicted.”[38] One example is the practice of selective reduction, which terminates “one or more embryos in multifetal pregnancies that can result from IVF.”[39] This practice could violate criminal bans states have on abortion, resulting in penalties of fines or jail time.[40]

Legislators can use definitions of abortion and related terms in laws to create confusion about the legality of IVF. Some states have laws that are too vague to determine definitively that they do not threaten IVF.[41] In Wisconsin, it is a felony to intentionally destroy an unborn child; “unborn child” is defined as “a human being from the time of conception until it is born alive.”[42] Prosecutors could argue that healthcare providers who intentionally discard IVF embryos, whether they are abnormal or surplus, could be charged.[43] Legislators could also try to regulate IVF to protect embryos by enacting laws against discarding IVF embryos, prohibiting services like preimplantation genetic diagnosis that can harm or kill embryos, or outlawing multifetal pregnancy reductions.[44] Dobbs created more avenues for states to protect embryos, at the potential cost of IVF practices.[45] With IVF in its present form no longer certain, fertility providers and patients must prepare for legal challenges and adjusted medical practices.[46]

V. Conclusion

By overturning Roe, Dobbs allowed policies and laws to alter abortion care and, consequently, women’s healthcare.[47] Doctors are fleeing anti-abortion states while women lose access to contraceptives, pre-natal care, and safe birth conditions.[48] While the overruling of Roe is evidently impacting all people who need access to women’s healthcare, inaccessibility of contraceptives is especially problematic for minors, low-income individuals, people of color, and other groups such as immigrants and survivors of sexual assault.[49] In order to navigate the post-Dobbs landscape of healthcare, more research needs to be conducted to learn how policies and legislation is impacting access to healthcare. Additionally, women need access to information about their rights, the status of healthcare legislation in their state, and what they can do to protect themselves even though their autonomy is not respected by their government. Policymakers and advocates need to use this information to create a healthcare environment that champions women, respects their autonomy, and upholds accessible, high-quality care.

[1] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 359 (2022) (Kagan, J., dissenting).

[2] Id. at 302 (“The Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”).

[3] See Kelly Baden et al., Clear and Growing Evidence That Dobbs Is Harming Reproductive Health and Freedom, Guttmacher Institute (May 2024), https://www.guttmacher.org/2024/05/clear-and-growing-evidence-dobbs-harming-reproductive-health-and-freedom; I use “women” throughout this piece to reflect terminology used in many areas of scholarship but recognize that the Dobbs decision has implications for the reproductive autonomy of all people with a capacity for pregnancy.

[4] See Anna Grace Cole, Dobbs v. Jackson Women’s Health Organization 90 Tenn. L. Rev. at 361 (2023).

[5] Id. at 368.

[6] See Cornell Law School, Dobbs v. Jackson Women’s Health Organization, Legal Information Institute (June 2022), https://www.law.cornell.edu/wex/dobbs_v._jackson_women%27s_health_organization_%282022%29; see Miss. Code Ann. § 41-41-191 (2018).

[7] Id.

[8] Id.

[9] Cole, supra note 4 at 368 (external quotations omitted).

[10] 410 U.S. 113, 162 (1973).

[11] See Cole, supra note 4 at 364–65; Roe v. Wade 410 U.S. 113, 163 (“With respect to the State’s important and legitimate interest in potential life, the ‘compelling’ point is at viability. This is because the fetus then presumably has the capability of meaningful life outside the mother’s womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.”).

[12] 410 U.S. 113, 164 (“For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.”).

[13] See Cornell Law School, Planned Parenthood of Southeastern Pennsylvania v. Casey, Legal Information Institute (June 2022), https://www.law.cornell.edu/wex/planned_parenthood_of_southeastern_pennsylvania_v_ casey_(1992).

[14] See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 860 (1992).

[15] See Miss. Code Ann. § 41-41-191 (2018).

[16] See Dobbs v. Jackson, 597 U.S. 215, 302.

[17] Id.

[18] See Jesus Jiménez & Nicholas Bogel-Burroughs, What are abortion trigger laws and which states have them?, N.Y. Times, June 24, 2022; see also Maya Manian, The Ripple Effects of Dobbs on Health Care beyond Wanted Abortion, 76 SMU L. Rev. 77, 77 (“[T]he [Dobbs] decision almost immediately wreaked havoc on the delivery of medical care for both patients seeking abortion care and those not actively seeking to terminate a pregnancy.”).

[19] See State Bans on Abortion Throughout Pregnancy, Guttmacher Institute (October 1, 2024) (Seven states ban abortion at or before eighteen weeks’ gestation, twenty-one states ban abortion at some point after eighteen weeks.).

[20] Cole, supra note 4 at 372.

[21] Megan Kavanaugh & Amy Friedrich-Karnik, Has the fall of Roe changed contraceptive access and use? New research for four US states offers critical insights, 2 Health Affs. Scholar, Feb. 2024, at 1, 2.

[22] See Dobbs v. Jackson 597 U.S. 215, 332 (Thomas, J., concurring).

[23] See Madeline Tatro, The Shifting Landscape of Substantive Due Process: Could Dobbs Pose a Threat to Contraceptive Rights?, 17 St. Louis U. J. Health L. & Pol’y 317, 318 (2024); Griswold v. Connecticut, 381 U.S. 479, 485 (1965); Seven years after Griswold v. Connecticut, the Supreme Court extended the right of contraception to unmarried people. Eisenstadt v. Baird, 405 U.S. 438, 465 (1972).

[24] Tatro supra note 23 at 318; see Kavanaugh & Friedrich-Karnik, supra note 21 at 1.

[25] See Don’t Be Fooled: Birth Control is Already at Risk, National Women’s Law Center (June 17, 2022), https://nwlc.org/resource/dont-be-fooled-birth-control-is-already-at-risk/.

[26] See Manian, supra note 18 at 80–81; see also Tatro, supra note 23 at 330 (Abortifacients are “medications that induce an abortion in a pregnant person.”); Don’t Be Fooled: Birth Control is Already at Risk supra note 25.

[27] Juliet Dale et al., Access to Contraception, 25 Geo. J. Gender & L. 271, 292; see Dep’t of Health and Hum. Servs., Conscience and Religious Freedom, https://www.hhs.gov/conscience/conscience-protections/index.html, (last visited Oct. 5, 2024) (Conscience laws allow healthcare providers, patients, and other participants to refuse certain healthcare services based on religious or moral grounds.).

[28] Tatro, supra note 23 at 330.

[29] See Kavanaugh and Friedrich-Karnik, supra note 21 at 1.

[30] Id.; see Baden, supra note 3.

[31] Kavanaugh and Friedrich-Karnik, supra note 21 at 2.

[32] See Manian, supra note 18 at 84.

[33] See Jan Hoffman, Infertility Patients and Doctors Fear Abortion Bans Could Restrict IVF, N.Y. Times, July 5, 2022, at 1.

[34] See Kerry Lynn Macintosh, Dobbs, Abortion Laws, and In Vitro Fertilization, 26 J. Health Care L. & Pol’y 1,1 (2023).

[35] Id. at 2; see Manian, supra note 18 at 84.

[36] See Macintosh, supra note 34 at 3.

[37] See Baden, supra note 3.

[38] Macintosh, supra note 34 at 10; Manian, supra note 18 at 84.

[39] Manian, supra note 18 at 85.

[40] Id.; see also Macintosh, supra note 34 at 11 (“Sanctions for violation include a fine up to $100,000 and/or a prison sentence of up to ten years.”).

[41] See Macintosh, supra note 34 at 13.

[42] Id. (quoting Wis. Stat. § 940.04(6) (2022)).

[43] Id. at 13–14.

[44] Id. at 19–21.

[45] Id.

[46] Id. at 48.

[47] See Baden, supra note 3.

[48] See Manian, supra note 18 at 91; At Liberty Podcast, Two Years Post-Roe: Life in the Aftermath, ACLU, at 28:59 (June 20, 2024), https://www.aclu.org/podcast/two-years-post-roe-life-in-the-aftermath.

[49] See Dale, supra note 27 at 295; see also Manian, supra note 18 at page 81 (“Yet the Supreme Court has undermined efforts to reduce health disparities in access to contraception, which disproportionately impacts low-income populations and people of color.”).

Title IX’s 50th Anniversary: Time for the NCAA to Step in the Arena and Start Playing by the Rules

By jlieditors

View/Download PDF Version

Title IX 50th Anniversary (Emendorfer)

By: Rachel Emendorfer

I Still Can’t Hear You Your Honor: Zoom Court is Here to Stay–and It’s at the Expense of Criminal Defendants

By jlieditors

By: Sophie Herrmann*

It has been over four years since the United States declared a national emergency in response to the initial outbreak of COVID-19. It is impossible to overstate the impact of the COVID-19 pandemic on almost all areas of American life. COVID-19 radically altered the education system, the housing market, the way we work, and the way we socialize. The legal system was especially impacted by realities of the pandemic. The rapid and deadly spread of COVID-19 forced the American legal system to adjust with equal speed.

According to a report published by the United States Department of Justice titled “Access to Justice in the Age of COVID-19,” the pandemic “exacerbated structural inadequacies in the civil justice system [and] it nearly crippled the criminal justice system, which was foundationally unprepared for the pandemic’s impact.”

In Minnesota, a 60-day moratorium was imposed on almost all in-person court proceedings from November 30, 2020 until February 1, 2021. This moratorium was part of a broad transition to remote proceedings in Minnesota and across the country. According to a study conducted by Thomson Reuters, after the onset of the COVID-19 pandemic, 93% of courts in the United States “moved swiftly to pivot to some form of remote proceedings in order to continue operations.”

Over the past year and a half, courts across the country have rolled back many of their COVID-19 precautions. However, one product of the pandemic-era court system is apparently here to stay in Minnesota: Zoom hearings.

On April 19, 2022, the Minnesota State Supreme Court published an order titled “Order Governing the Continuing Operations of the Minnesota Judicial Branch.” Additionally the Minnesota Judicial Council issued oneCourtMN Hearings Initiative Policy 525, which became effective on January 3, 2023. The order and policy statement describe what role virtual technology will have in Minnesota’s legal system in a post-pandemic world.

The order and policy statement lay out the presumptive hearing format for each hearing type and provide factors for district courts to consider when determining whether to depart from the presumptive format. Importantly, however, the order and policy statement provide that for criminal cases, the decision of whether to be remote or in-person will be left up to each individual judicial district. Out of the 56 total civil hearing types, the policy states that 37 hearing types are presumptively remote. While the Minnesota Supreme Court’s judicial order provides that “[t]he presiding judge can depart from the presumptive format, either on the court’s own motion or a party’s motion, if exceptional circumstances for that departure exist,” the order lays out a high bar to obtain such a departure. In order to be granted the ability to appear in-person for a presumptively remote hearing, a judge would consider the following factors:

All parties, and the court, agree that the hearing should be held in person (this factor, by itself, does not constitute exceptional circumstances);
A party lacks access to technology to participate remotely, and the party cannot reasonably be expected to gain access to such technology before the hearing;

iii. The importance and complexity of the proceeding;

There are too many participants in the hearing to easily keep track of them all on a computer screen;
For an evidentiary proceeding, whether appearing remotely would allow for effective examination of the witness and maintain the solemnity and integrity of the proceedings and thereby impress upon the witness the duty to testify truthfully;
Any undue surprise or prejudice that would result; and

vii. Such other factors, based upon the specific facts and circumstances of the case, as the court determines to be relevant.

Minnesota judicial leaders have praised the continued use of Zoom hearings for their efficiency, ease, and ability to help keep participants safe. While the option to conduct hearings remotely can be a great way to accommodate out-of-custody defendants that live far away, have competing responsibilities, or would be otherwise disadvantaged by having to appear in person, the current presumptive hearing rules harm in-custody defendants who are denied the opportunity to leave jail and represent themselves and their interests in-person for their hearings.

In a Star Tribune article published in April 2022 titled “Minnesota Court Administrators Make Some Remote Hearings Permanent,” Nadine Graves, deputy director of community legal services for the Legal Rights Center in Minneapolis explains why remote hearings can be harmful for defendants. “While remote hearings can be beneficial for clients, Graves said, she worries that virtual hearings can be ‘so efficient it could be a conveyer belt of processing people through the system.’ She said that in an in-person hearing you have to look at the defendant. ‘I think you see their humanity more.’”

All individuals who find themselves in the legal system, including defendants are entitled to a fair process. Moreover, defendants are entitled to provide a robust defense, and zealously act according to their own interests. The transition to remote hearings has made it difficult to ensure that all participants’ rights are being upheld. Denying a defendant’s request for an in-person appearance at their own hearing—a hearing where their rights and liberties could be restricted–for the sake of efficiency or ease of the court or attorneys violates due process.

The ability to conduct hearings remotely when it best serves the needs of the hearing’s participants is certainly a silver-lining of the COVID-19 pandemic. However, ease or efficiency concerns should not supersede when a defendant wants to appear in-person for their hearing. There is no going back to the way things were before the COVID-19 pandemic, but, as we forge a new legal system based on the lessoned learned from the pandemic, we must never lose sight of the fundamental goals of our legal system: to act in fairness in the pursuit of justice and to protect the rights and liberties of all.

* Sophie Herrmann is a Note & Comment Editor for Volume 43 of the Minnesota Journal of Law & Inequality.

Consumer Protection from Carbon Neutrality Claims Based in Carbon Offsetting

By jlieditors

By: Lizzy Miller*

In recent years, the discourse surrounding carbon offsets has gained significant traction as companies strive to advertise their commitment to environmental sustainability. The growing popularity of carbon offset initiatives has also brought forth concerns about “greenwashing,” or misrepresentation of a company’s sustainability or environmentally friendly policies.^[1] Because carbon offset programs may be “worthless” in recapturing carbon,^[2] customers of companies using carbon offsets could have valid claims for greenwashing under consumer protection laws.^[3]

As consumers become increasingly discerning about the environmental impact of their choices,^[4] courts play a crucial role in ensuring that companies uphold the standards of transparency and accuracy.^[5] Cases alleging greenwashing are on the rise,^[6] brought either by the Federal Trade Commission (FTC) or through a class action.^[7] Most greenwashing cases survive a motion to dismiss, a motion brought by the defense to throw out the case against them.^[8] This generally means that courts find they are the correct authority to hear the claim, they can potentially provide a remedy to the plaintiff, and the plaintiff has stated a reasonable claim under the relevant law.^[9] However, plaintiffs in class-action suits may face difficulty in certifying their class due to the varying interests of consumers.^[10] Ongoing suits, such as the Mayanna Berrin lawsuit,^[11] provide insight into consumers’ strategies for pursuing relief.

Plaintiff Mayanna Berrin sued Delta Airlines in May of 2023, alleging that the company’s claim of being “carbon-neutral” is mere greenwashing due to the (contestably) negligible effect of carbon offsetting.^[12] She is suing under California’s Consumers Legal Remedies Act, the False Advertising Law, and the Unfair Competition Law to argue Delta’s claims of carbon neutrality are misrepresentations that caused her and other consumers to overpay for flights.^[13] This argument rests on the effectiveness of Delta’s carbon neutrality policy. In the pursuit of environmental responsibility, companies often turn to carbon offsets as a means of compensating for their carbon footprint.^[14] Carbon offsets involve investing in projects that reduce or capture greenhouse gas emissions equivalent to the company’s own emissions. Most notably, carbon offsets are not a substitute for genuine efforts to reduce emissions at the source.^[15]

One study found that Verra, a company that approves three-fourths of all voluntary carbon offsets, should not have approved 94% of the credits.^[16] When focusing on planting trees as a method to offset carbon,^[17] “phantom credits” are approved through various means— overstating the threat to forests, relying on carbon offset by keeping those forests standing, counting planted trees multiple times, and other means of inflation.^[18] Even when numbers are accurately reflected, reforesting itself is a questionable practice; deforestation rates remain high,^[19] forests store less carbon while drying out from global heating,^[20] younger trees store much less carbon than mature trees,^[21] and the carbon stored can be released if the trees are damaged through logging or wildfires.^[22] Following the United Nations Secretary-General’s Global Climate Action Summit goal to achieve climate neutrality, emissions need to be reduced by 45% by 2030.^[23] One climate specialist likens carbon offsetting to “putting a Band-Aid on something when you need a tourniquet.”^[24]

Regarding Mayanna Berrin, a Delta spokesperson stated that the company “has fully transitioned its focus away from carbon offsets toward decarbonization” in the past eighteen months.^[25] Such statements prove the importance of discovery in cases where companies may not be transparent about their practices.^[26] Even if they are moving away from carbon offsets, companies must be diligent in ensuring that their environmental claims are accurate and substantiated to avoid violating consumer protection laws.^[27]

Even as large companies advertise environmentally-friendly policies to drive sales, they likely contribute to the consumption of natural resources and increased emissions.^[28] Consumers should be aware of and utilize anti-greenwashing legislation to protect their interests in corporate transparency and environmentally friendly production.^[29]

*Lizzy Miller is a Managing Editor on JLI Vol. 42.

[1] Shawn Collins & Lisa M. Northrup, The Legal Risks of Greenwashing are Real, Bloomberg Law (July 25, 2022), https://news.bloomberglaw.com/environment-and-energy/the-legal-risks-of-greenwashing-are-real.

[2] Fiona Harvey, Carbon Offsets Are Flawed but We Are now in a Climate Emergency, Guardian (Jan. 18, 2023), https://www.theguardian.com/environment/2023/jan/18/carbon-markets-credits-offsets-deforestation-aoe; Patrick Greenfield, Revealed: More than 90% of Rainforest Carbon Offsets by Bigger Certifier are Worthless, Analysis Shows, Guardian (Jan. 18, 2023), https://www.theguardian.com/environment/2023/jan/18/revealed-forest-carbon-offsets-biggest-provider-worthless-verra-aoe.

[3] Irina Ivanova, Delta Faces Lawsuit Alleging its “Carbon-Neutral” Claim is Greenwashing, CBS News (May 31, 2023), https://www.cbsnews.com/news/delta-lawsuit-cabon-neutral-greenwashing-carbon-offsets/ (stating customers paid more for flights which were advertised to be “carbon-neutral.”).

[4] Id.

[5] See Collins & Northrup, supra note 1 (describing various court decisions on greenwashing).

[6] Dharna Noor, Why 2024 Will be a Crucial Year for Climate Litigation, Guardian (Jan. 22, 2024), https://www.theguardian.com/us-news/2024/jan/22/climate-change-cases-2024-lawsuits.

[7] Jessica Davidson, Nina R. Rose, & Robert A. Silverstein, Reducing the Risk of ‘Greenwashing’ Litigation and Defending Actions that Are Filed, Harv. L. Sch. F. on Corp. Governance (Oct. 10, 2023), https://corpgov.law.harvard.edu/2023/10/10/reducing-the-risk-of-greenwashing-litigation-and-defending-actions-that-are-filed/.

[8] Id.; Jacob H. Hupart, Douglas P. Baumstein, Joshua Briones, & Will G. McKitterick, Greenwashing Class Action Litigation: An Emerging Risk for Companies’ Claims of Sustainability, Nat’l L. Rev. (Aug. 4, 2023), https://www.natlawreview.com/article/greenwashing-class-action-litigation-emerging-risk-companies-claims-sustainability.

[9] Hupart, Baumstain, Briones, & McKitterick, supra note 8.

[10] See Davidson, Rose, & Silverstein, supra note 7; Hupart, Baumstain, Briones, & McKitterick, supra note 8.

[11] Mayanna Berrin v. Delta Airlines, No. 2:23-cv-04150 (C.D. Cal. filed May 30, 2023).

[12] Id.

[13] Byron J. McLain & Cole K. Waldhauser, Carbon Neutrality Suit Against Delta Airlines Signals the Arrival Time of Greenwashing” Litigation, Nat’l L. Rev. (June 15, 2023), https://www.natlawreview.com/article/carbon-neutrality-suit-against-delta-airlines-signals-arrival-time-greenwashing.

[14] Greenfield, supra note 2.

[15] Natacha Larnaud, Does Planting a Tree Really Offset Your Carbon Footprint?, CBS News (Jan. 28, 2020), https://www.cbsnews.com/news/planting-a-tree-offset-your-carbon-footprint/.

[16] Greenfield, supra note 2 (describing how Verra certifies carbon credits for companies, noting their claims of forest loss were originally “overstated by 400%,” resulting in falsely inflated claims of carbon offsetting through reforestation).

[17] Lilli Kaarakka, Julia Rothey, & Laura E. Dee, Managing Forests for Carbon-Status of the Forest Carbon Offset Markets in the United States, PLOS CLIMATE (July 6, 2023),https://journals.plos.org/climate/article?id=10.1371/journal.pclm.0000158 (“In the United States, forest-based offsets represent 92% of offset credits issued in the Cap-and-Trade Program operated by the state of California.”).

[18] Id.

[19] Harvey, supra note 2.

[20] Id.

[21] Larnaud, supra note 15.

[22] Greenfield, supra note 2; Larnaud, supra note 15; Ivanova, supra note 3.

[23] UN Environment Programme, Emissions Gap Report 2019, at 14 (Anne Olhoff & John Christensen eds., 2019); Larnaud, supra note 15.

[24] Larnaud, supra note 15.

[25] Ivanova, supra note 3.

[26] Noor, supra note 6 (noting that discovery is the “second most important part” in climate deception cases against fossil fuel companies for their statements regarding climate change).

[27] See Collins & Northrup, supra note 1 (describing how courts have dismissed companies’ defenses based on puffery); Hupart, Baumstein, Briones, & McKitterick, supra note 8.

[28] Lauren Pollock, How Capitalism is a Driving Force of Climate Change, PIT J. (https://pitjournal.unc.edu/2022/12/24/how-capitalism-is-a-driving-force-of-climate-change/ (last accessed Jan. 30, 2024).

[29] Hupart, Baumstain, Briones, & McKitterick, supra note 8 (noting companies’ behavior is influenced by consumer trends and implying accountability may be possible).

Texas Legislature doubles down on supporting oil and gas at the cost of renewable energy post-freeze

By jlieditors

By: Wills Layton*

Background

In February of 2021, the state of Texas experienced a freeze that the electric system, consisting of electric sources such as wind and gas and more traditional oil and gas power plants, was not prepared to effectively combat.^[1] Nearly half of all Texans faced some type of disruption to water access, while 2.7 million households did not have power.^[2] Roads were coated in imperceptible ice that resulted in accidents on many major highways while animals also suffered, including the loss of over 3.8 million fish along the Gulf Coast.^[3] The freeze was a humanitarian disaster in which nearly 250 people lost their lives. Presumably, there would have been a bipartisan response to make sure no freeze could have the same impact in the future.^[4]

Politicians began to play the blame game almost instantly, with Democrats blaming the Republican-majority government, where both houses are governed by a Republican majority, for failing to prepare for a situation like a freeze. Meanwhile, Republicans blamed the move towards green energy as the culprit.^[5] Notable Texan politicians, including Texas Governor Greg Abbott, placed a majority of the blame on wind-related energy production and solar energy production and avoided blaming oil and gas-based energy.^[6] In reality, failures at natural gas plants were determined to be the largest culprit of the state-wide energy outages that plagued Texans.^[7] Additionally, the state’s independent and isolated electricity grid was unable to source energy from elsewhere, which contributed to the issue.^[8]

Brief Explanation of Texas Grid System

In the continental United States, there are three power grids – the Eastern Interconnection, the Western Interconnection, and the Texas power grid run by the Electric Reliability Council of Texas (ERCOT).^[9] This independence means that most of Texas is unable to draw from the Eastern Interconnection or Western Interconnection for either’s supply of energy, so in the event of a weather phenomenon such as the freeze, Texas could be left in the dark.^[10] Having an independent electric grid was based on a desire to avoid federal regulation, a common theme in Texas’ historically conservative led government.^[11] However, having an independent grid has allowed Texas to build power generation and transmission capacity quicker than other parts of the country and has allowed the state to experiment with deregulated energy markets.^[12]

Legislative Response

In response to the freeze, the Texas legislature aimed to support oil and gas power plants and development, simultaneously increasing obstacles for the development of renewable energy within the state.^[13] The legislature successfully passed two bills of note, Senate Bill 2627 and House Bill 1500, that are laden with incentives.^[14] Senate Bill 2627 creates a fund to incentivize the production of gas-fueled power plants by providing loans for the construction of plants, bonuses for completion of projects and connection to the main grid by 2029, and offering grants for modernizing and managing vegetation growth around electricity infrastructure in Texas outside of the main electricity market.^[15] H.B. 1500 changes the way electricity production companies can earn money in the Texas energy market, including setting a billion dollar cap on a financial tool requiring companies that sell power to pay extra money to companies that generate power and the creation of another financial tool that pays power generators that can produce power quickly.^[16] Meanwhile, other bills intended to weaken support for renewable energy, such as Senate Bill 624, which would have imposed increased permitting requirements for wind and solar power production, either died in the Senate or the House or were amended into H.B. 1500 as less-restrictive amendments impacting renewable energy.^[17]

H.B. 1500 was required to reauthorize the Public Utilities Commission (“PUC”), which regulates the state’s electric, telecommunication, and water and sewer utilities, and often includes compromised versions of other bills that did not have the support to pass on their own.^[18] The PUC is routinely reauthorized by the Texas legislature, with this reauthorization likely to last for the next dozen years.^[19] H.B. 1500 largely favors fossil-fuel powered generators and will likely lead to higher transmission costs for renewable energy sources.^[20] Transmission fees themselves have been increased by H.B. 1500, and starting in 2027 all renewable energy projects will be forced to secure expensive backup capacity through “firming” requirements contained in the bill.^[21] Other pieces of relevant legislation include Senate Bill 3, which contained a provision that would shift the financial burden of ancillary services that help ensure continuous generation to renewable energy providers.^[22]

The Texas legislature set out to cripple renewable energy production and capacity heading into the legislative session. However, environmental groups and other interested parties perceive the legislation that did pass as allowing renewable energy to dodge the proverbial bullet.^[23] Even though the toughest of restrictions on renewables did not make it through the legislative process, renewable energy was largely written out of many state incentive programs.^[24] It is widely believed that growing renewable energy reduces carbon emissions and air pollution, creates jobs, enhances the reliability and resilience of any power grid, increases affordability of energy, and increases energy independence.^[25] To actively go against the benefits that renewable energy provides to support natural gas and fossil fuels is a disservice to all who live within Texas.

Conclusion

In 2023 as Texas experienced record heat-levels and an increased demand and strain of the existing power system, solar and wind power helped stabilize the grid while producing nearly 26% of the total megawattage consumed.^[26] In fact, the strength of solar and wind power production likely helped Texans avoid inflated energy prices and possible outages.^[27] Texas renewable energy development has lowered the cost of electricity to Texans by $11 billion in 2022 and has led to the creation of over 2,500 jobs in the past five years.^[28] This has occurred at a time when automation is resulting in job loss for oil and gas extraction and has driven investment by companies looking to build renewable facilities in Texas.^[29] As of February of 2023, a majority of Texans support various methods of moving toward and supporting increased reliance on renewable energy.^[30] For example, 64% of Texans favor expanding U.S. reliance on solar power plants.^[31]

Despite the fact that renewable energy makes a positive impact on the lives of those it touches while also protecting the environment and wildlife, it is likely that the conservative-led government of Texas will continue the legislative efforts to boost fossil fuel and natural gas power generation at the cost of reducing support for renewable energy.^[32] The benefits of renewable energy are clear, yet the debate on renewables has become largely a political issue.^[33] While the leading position of Texas in the generation of renewable energy and the benefits that clean energy provides to the environment are undeniable, renewable energy has unfortunately become a scapegoat for a freeze where power outages were caused primarily by failures of oil and gas related power plants.^[34] Expect Texas to become a much less friendly environment for renewable energy investment and development should the legislature continue with its current goal of enhancing natural gas and fossil fuel production at the cost of green energy.

*Wills Layton is a Staff Member on the Journal of Law and Inequality.

^[1] Mandi Cai et al., How Texas’ power grid failed in 2021 — and who’s responsible for preventing a repeat, Texas Tribune (Feb. 15, 2022), https://www.texastribune.org/2022/02/15/texas-power-grid-winter-storm-2021/.

^[2] Neelam Bohra, Texas power outages: Nearly half the state experiencing water disruptions as power grid operator says it’s making progress, Texas Tribune (Feb. 18, 2021), https://www.texastribune.org/2021/02/18/texas-winter-storm-power-outage-ercot/.

^[3] National Oceanic and Atmospheric Administration National Centers for Environmental Information, The Great Texas Freeze: February 11-20, 2021 (Feb. 24, 2023), https://www.ncei.noaa.gov/news/great-texas-freeze-february-2021#:~:text=Though%20power%20outages%20occurred%20throughout,were%20issued%20in%20many%20counties.

^[4] Patrick Svitek, Texas puts final estimate of winter storm death toll at 246, Texas Tribune (Jan. 2, 2022), https://www.texastribune.org/2022/01/02/texas-winter-storm-final-death-toll-246/#:~:text=The%20figure%20includes%20people%20who,old%2C%20according%20to%20the%20report.

^[5] Chris Cillizza, Who’s actually to blame for the Texas power disaster?, CNN Politics (Feb. 17, 2021), https://www.cnn.com/2021/02/17/politics/texas-power-grid/index.html.

^[6] Julia Jacobo, Republicans use Texas power outages to spread false claims about green energy, ABC News (Feb. 17, 2021), https://abcnews.go.com/Politics/republicans-texas-power-outages-spread-false-claims-green/story?id=75947664.

^[7] Jon Greenberg, Natural gas, not wind turbines, main driver of Texas power shortage, Politifact (Feb. 16, 2021), https://www.politifact.com/article/2021/feb/16/natural-gas-not-wind-turbines-main-driver-texas-po/.

^[8] Reuters, Fact check: The causes for Texas’ blackout go well beyond wind turbines, Reuters (Feb. 19, 2021), https://www.reuters.com/article/idUSKBN2AJ2DZ/.

^[9] Kate Galbraith, Texplainer: Why does Texas have its own power grid?, Texas Tribune (Feb. 8, 2011), https://www.texastribune.org/2011/02/08/texplainer-why-does-texas-have-its-own-power-grid/ (updated Feb. 15, 2021).

^[10] Clifford Krauss et al., How Texas’ Drive for Energy Independence Set It Up for Disaster, N.Y. Times (Feb. 21, 2021), https://www.nytimes.com/2021/02/21/us/texas-electricity-ercot-blackouts.html?auth=login-google1tap&login=google1tap (updated May 13, 2021).

^[11] Asher Price, Why is Texas the only state with its own power grid?, Austin American-Statesman (Feb. 16, 2021), https://www.statesman.com/story/news/2021/02/16/texas-power-grid-why-state-has-its-own-operated-ercot/6765007002/.

^[12] Suzanne Russo, Texas goes it alone on electric power. That’s actually a good thing, CNN Opinion (Feb. 24, 2021), https://www.cnn.com/2021/02/24/opinions/texas-electric-power-russo/index.html.

^[13] Emily Foxhall, Fossil fuels got a boost from lawmakers aiming to fix Texas’ grid, while renewable energy escaped stricter regulations, Texas Tribune (June 5, 2023), https://www.texastribune.org/2023/06/05/texas-bills-energy-natural-gas-fossil-fuel-renewables/.

^[14] Id.

^[15] S.B. 2627, 88th Leg. (Tex. 2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/SB02627F.pdf#navpanes=0.

^[16] H.B. 1500, 88th Leg. (Tex. 2023), https://capitol.texas.gov/tlodocs/88R/billtext/pdf/HB01500F.pdf#navpanes=0.

^[17] Id.

^[18] Jef Rouner, Texas Senate Moves to Shut Down Renewable Energy Permanently, ReformAustin (May 26, 2023), https://www.reformaustin.org/texas-legislature/texas-senate-moves-to-shut-down-renewable-energy-permanently/.

^[19] Kyra Buckley, Texas lawmakers reauthorize the state’s utility regulator after last-minute hurdle, Houston Chronicle (May 30, 2023), https://www.houstonchronicle.com/business/energy/article/texas-puc-reauthorization-passes-electric-grid-18126128.php.

^[20] Concentric Staff Writer, Texas Passed Energy Reform Bill as Heat Wave Pounded State, Concentric Energy Advisors (July 6, 2023), https://ceadvisors.com/texas-passes-energy-reform-bill-as-heat-wave-pounded-state/.

^[21] Luke Metzger, Texas Legislature subsidizes gas power plants, avoids worst attacks on renewable energy, Environment Texas (May 30, 2023), https://environmentamerica.org/texas/media-center/texas-legislature-subsidizes-gas-power-plants-avoids-worst-attacks-on-renewable-energy/.

^[22] Mitchell Ferman, Despite natural gas failures during winter storm, Texas lawmakers target renewable energy in the aftermath, Texas Tribune (Apr. 19, 2021), https://www.texastribune.org/2021/04/19/texas-renewable-energy-oil-gas/

^[23]Jeff St. John, Clean energy dodges a bullet in the Texas legislature, Canary Media (May 31, 2023), https://www.canarymedia.com/articles/politics/clean-energy-dodges-a-bullet-in-the-texas-legislature.

^[24] Asher Price, The politics of renewable energy in Texas, Axios Austin (July 6, 2023), https://www.axios.com/local/austin/2023/07/06/renewable-energy-politics-texas.

^[25] U.S. Dep’t of Energy, Off. of Energy Efficiency & Renewable Energy, Renewable Energy, https://www.energy.gov/eere/renewable-energy.

^[26] Julia Jacobo, Solar, wind energy keeping Texas power grids running amid weeks long heat wave, ABC News (July 7, 2023), https://abcnews.go.com/US/solar-wind-green-energy-keeping-texas-power-grids-running/story?id=100796136#:~:text=The%20Lone%20Star%20State%20has,reached%20an%20all%2Dtime%20high.

^[27] Id.

^[28] Russell Gold, The Texas GOP’s War on Renewable Energy, Texas Monthly (June 2023), https://www.texasmonthly.com/news-politics/texas-republican-war-on-renewable-energy/.

^[29] Id.

^[30] Patricia Ortiz, Majority of Texans support a shift to renewable energy, according to UH Hobby School study, Houston Public Media (Feb. 27, 2023), https://www.houstonpublicmedia.org/articles/news/energy-environment/2023/02/27/444811/majority-of-texans-support-a-shift-to-renewable-energy-according-to-uh-hobby-school-study-shows/ (“64% of Texans surveyed favor expanding U.S. reliance on solar power plants, 59% favor reliance on geothermal plants, and 57% favor reliance on wind turbine farms.”).

^[31] Id.

^[32] Mose Buchele, Texas state lawmakers unveil plan to curb renewable energy, subsidize natural gas, KUT News (Mar. 10, 2023), https://www.kut.org/energy-environment/2023-03-10/texas-state-lawmakers-unveil-plan-to-curb-renewable-energy-subsidize-natural-gas.

^[33] Justin Worland, Texas Could Be the World’s Clean Energy Capital—If It Wants to Be, Time (May 11, 2023), https://time.com/6278678/texas-clean-energy/.

^[34] Kevin Collier, Fact check: Renewable energy is not to blame for the Texas energy crisis, NBC News (Feb. 17, 2021), https://www.nbcnews.com/news/us-news/fact-check-renewable-energy-not-blame-texas-energy-crisis-n1258185.

Posts by jlieditors

Volume 43, Issue 2 (2025)

Telehealth Providers: A Temporary, Tenuous Solution for Post-Dobbs Access to Medication

Reforming the Troubled Teen Industry

The Forgotten Child Bride in the United States

First Down, First Amendment: A Case Comment on Kennedy v. Bremerton School District

“It’s Absolutely Immoral”: The Denial of Mental Health Treatment in U.S. Prisons

Laufer Gives ADA Testers a Second Green Light

Unhoused and Handcuffed

D.C. Statehood: A Half-Made Promise Losing Momentum

Explainer: The Teamsters Local 320 Agreement

State v. Khalil: How a Minnesota Supreme Court Ruling Led to the Amendment of a Minnesota Criminal Sexual Conduct Statute

Expungement of Marijuana Convictions: Lessons Learned from Minnesota Prohibition

All in the Family: How Polyamorous Families Can Use Businesses Models and Contracts to Secure Legal Benefits

Face It: Police Can’t Be Trusted with Facial Recognition Technology

Police Questioning of Juveniles

Updated Minnesota Child Support Guidelines Starting January 1, 2023: What’s Changing and Who Will Be Impacted?

How Current Law Fails to Protect Defendants with Mental Illnesses from the Death Penalty

Noncompete Clauses and the Federal Trade Commission’s Proposal to Ban: Pros, Cons, and Questions on the FTC’s Authority

Not-So Affordable Housing: Regulatory Blocks on Accessory Dwelling Units in the Twin Cities

The Respect for Marriage Act: Limitations, Protections, and Future Implications

Crypto and the Climate Crisis

Two Years Since Dobbs: How Access to Contraceptives and IVF Has Changed

Title IX’s 50th Anniversary: Time for the NCAA to Step in the Arena and Start Playing by the Rules

I Still Can’t Hear You Your Honor: Zoom Court is Here to Stay–and It’s at the Expense of Criminal Defendants

Consumer Protection from Carbon Neutrality Claims Based in Carbon Offsetting

Texas Legislature doubles down on supporting oil and gas at the cost of renewable energy post-freeze