Posts by jlieditors
Volume 43, Issue 2 (2025)
Minnesota’s Clemency Review Commission: Reforming the Criminal Pardon Proces
By: Meg Keiser, Volume 43 Online Editor
Artificial Intelligence and Facial Recognition: Biases & Privacy Concerns
Volume 43 Staff Member Jems Guirguis interviews Omer Tene, a Partner at Goodwin Procter in a wide-ranging discussion of the challenges posed by AI and facial recognition.
Recommended Readings:
Thaddeus L. Johnson & Natasha N. Johnson, Police Facial Recognition Technology Can’t Tell Black People Apart: AI-powered facial recognition will lead to increased racial profiling, Scientific American (May 18, 2023), https://www.
Sarah Thamer, New AI security measure at Mall of America raises concerns for some, MPR News (July 9, 2024), https://www.mprnews.org/story/
Lisa Marshall, New Facial-recognition Airport Screenings are Raising Concerns, Colorado.Edu (July 11, 2023), https://www.colorado.
Magali Gruet, Just Common Sense’: USC researchers find bias in up to 38.6% of ‘facts’ used by AI, USC Viterbi School of Engineering (May 26, 2022), https://viterbischool.usc.edu/
Sara Merken, AI strikes ‘unique’ deal to end privacy class action, Reuters (June 13, 2024), https://www.reuters.
Kashmir Hill, Your Face Belongs to Us: A Tale of AI, A Secretive Startup, and the End of Privacy (2024)
The Cost of Bad Apples: Recovery for Sexual Assault Victims Against Public Employers Post-Sterry
By: Desmond Bassett, Volume 43 Staff Member
View/Download PDF Version: The Cost of Bad Apples – Recovery for Sexual-Assault Victims against Public Employers Post-Sterry (Bassett)
In tort law, the doctrine of vicarious liability provides that an employer can be held liable for the torts committed by their employees. This doctrine has not always extended to government employers, conflicting with the doctrine of sovereign immunity. The Federal Tort Claims Act, for example, explicitly immunizes federal employers from vicarious liability for many intentional torts committed by their employees.[1]
Minnesota State Tort Claims Act (MSTCA)
The state legislature passed the Minnesota State Tort Claims Act (MSTCA) to protect its citizens from wrongful acts committed by government employees. The MSTCA provides:
The state will pay compensation for injury or loss or property or personal injury or death caused by an act or omission of an employee of the state while acting within the scope of office or employment . . . under circumstances where the state, if a private person, would be liable to the claimant whether arising out of a governmental or proprietary function.[2]
Sterry v. Minnesota Dept. of Corrections
In Sterry, Plaintiff was incarcerated at Moose Lake facility and was subject to a pattern of sexual harassment under corrections employee Youngberg.[3] In April 2018, while working in the kitchen under Youngberg’s supervision, Sterry was ordered into the supply room to “conduct inventory.”[4] Sterry was then sexually assaulted by Youngberg, who threatened to have Sterry punished if he reported the incident.[5] In 2021, Sterry brought suit against the Minnesota Department of Corrections for vicarious liability for Youngberg’s conduct.[6]
The district court dismissed the claim for a failure to state a claim upon which relief could be granted, reasoning that the department was immune from suit because the MSTCA’s definition of scope of employment “effectively sever[ed] the State’s liability from Officer Youngberg’s sexual contact with Sterry.”[7]
The Minnesota Court of Appeals reversed, and the Minnesota Supreme Court affirmed the reversal.[8] The Minnesota Supreme Court held that the “scope of…employment” in the statute was consistent with the common law and vicarious liability in the private employment context.[9] The Court reasoned that the plain text of the statute was clear and found that the inclusion of “if a private person” in the statute showed that the legislature intended for this law to be consistent with the common law for vicarious liability.[10]
The common law for private employers in Minnesota is that an employee’s intentional tort must (1) ”be related to the duties of the employee;” and (2) ”occur within work-related limits of time and place.”[11] Whether or not an intentional tort is “related to the duties of the employee” presents a “question of fact whether the employee’s acts were foreseeable, related to, and connected with acts otherwise within the scope of his employment.”[12]
The question presented in Sterry, then, was whether or not the sexual assault occurred within the scope of employment, according to the standard above. The Court found that the complaint, which detailed how the victim was ordered into the supply room, was sufficient to survive a motion to dismiss.[13]
Implications for School Districts and Prisons
School teachers are government employees, and therefore, this case puts school districts on notice that they may be held liable for intentional torts committed by their teachers. School districts that the Municipal Torts Act governs will be liable as well due to the “scope of employment” being borrowed from the MSTCA. The Sterry decision has already been cited in such an instance.[14] This decision will help victims of sexual assault at the hands of school employees seek civil relief. The Department of Education has estimated that 9.6% of K-12 students in the United States had experienced either verbal, visual, or physical misconduct at some point in their education.[15] In a study consisting of 6,632 participants, 11.7% reported sexual comments, and less than 1% reported other forms of sexual misconduct.[16] Unfortunately, many instances of sexual misconduct in schools go unreported due to fear and confusion. The lack of reporting tends to also be more prevalent among male victims. Females are more likely to be victims than males, and Black/Latino students are more likely to be targeted than white students. Sexual assault in all contexts cost Minnesota almost $8 billion in 2005, with the largest cost attributed to the pain, suffering, and quality of life losses to the victims and their families. Victims of sexual misconduct from teachers often deal with depression, PTSD, flashbacks, and substance abuse as a result.
This decision will also allow prisoners who are victims of sexual assault to seek relief against the Minnesota Department of Corrections. The Prison Rape Elimination Act (PREA) was passed more than 20 years ago, which created a channel for reporting instances of sexual misconduct. In the PREA report of 2021, there were 157 sexual harassment and abuse allegations reported, and 41 of those allegations were deemed to be substantiated. Furthermore, 46 of those allegations were staff-on-incarcerated persons, 25 of which were found to be substantiated. Prison staff often use work assignments to lure and assault prisoners. Black men are overrepresented in our prison system, with 1 in 3 Black men being incarcerated in their lifetime, making them more likely to face sexual violence in prison. Once released, many prisoners return to the community where they committed their crimes, and such communities tend to have higher rates of drug use. Therefore, when prisoners are subjected to sexual assault, they leave prison with elevated needs in a challenging environment. Mental health and drug use have both been found to be leading causes of recidivism.
Conclusion
In conclusion, this interpretation of the MSTCA makes it clear that public employers will be held liable for the torts committed by their agents in the scope of their employment. This plaintiff-friendly interpretation will further incentivize public employers to hire, train, and monitor their employees in a fashion that prevents these types of incidents from occurring. This understanding will enable victims to pursue compensation from the government for its failure to address the previously mentioned issues. Both students and prisoners are subjected to power imbalances by the staff supervising them. The law must seek to provide relief to victims against public employers for assaults that stem from the power granted to them by the nature of their employment. There is still room for growth in this area of law, especially when it comes to “grooming,” in that educators assaulting students off-campus and not during school hours may not be deemed within the scope of their employment.[17]
[1] 28 U.S.C. §§ 1346, 2671-2680.
[2] 28 U.S.C. § 2680(h).
[3] Sterry v. Minnesota Dep’t of Corr., 8 N.W.3d 224, 228 (Minn. 2024).
[4] Id. at 229.
[5] Id.
[6] Id.
[7] Sterry v. Minnesota Dep’t of Corr., 986 N.W.2d 715, 718 (Minn. Ct. App. 2023).
[8] Sterry v. Minnesota Dep’t of Corr., 8 N.W.3d 224, 236 (Minn. 2024); See also Sterry v. Minnesota Dep’t of Corr., 986 N.W.2d 715, 718 (Minn. Ct. App. 2023).
[9] Id. at 234.
[10] Id. at 233.
[11] Fahrendorff ex rel. Fahrendorff v. N. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999).
[12] Id. at 911.
[13] Sterry v. Minnesota Dep’t of Corr., 8 N.W.3d 224, 236 (Minn. 2024).
[14] Doe v. Special Sch. Dist. No. 6, S. St. Paul Pub. Sch., No. A22-1736, 2023 WL 4695939, at *1 (Minn. Ct. App. July 24, 2023).
[15] Jeglic EL ET AL., The Nature and Scope of Educator Misconduct in K-12. Sex Abuse 188-213 (2023).
[16] Id.
[17] Doe v. Special Sch. Dist. No. 6, S. St. Paul Pub. Sch., No. A22-1736, 2023 WL 4695939, at *1 (Minn. Ct. App. July 24, 2023).
Fifth Circuit En-Banc Split Produces Dangerous Theories of Racialized Politics
By: Dawn Dudley, Volume 43 Staff Member
View/Download PDF Version: Fifth Circuit En-Banc Split Produces Dangerous Theories of Racialized Politics (Dudley)
In November, the Fifth Circuit issued an equally divided en-banc ruling regarding whether a white student was discriminated against because of his race in violation of Title VI.[1] Title VI prevents discrimination based on race in publicly funded programs, but it says nothing about political views.[2] This case asked whether a white student (B.W.), who at times was harassed because of his race,[3] but was largely bullied for his political opinions,[4] could plausibly claim a violation of Title VI due to the school’s deliberate indifference to prevent his bullying.[5] The en-banc court affirmed the district court’s dismissal as it was equally divided, but the opinions reveal a tense relationship between racial identity and political support.
Judge Richman’s concurrence argues that because the main source of B.W.’s bullying was his political beliefs, that he could not sustain a Title VI suit for race discrimination.[6] She does not deny that B.W. experienced race-based discrimination, but writes that by separating out the political and racial harassment incidents B.W. fails to meet the standard set out by Davis that the race-based harassment alone was “so severe, pervasive, and objectively offensive” as to undermine B.W.’s educational experience.[7]
On the other hand, Chief Judge Elrod, writing separately, argues that when other students compared B.W. to the KKK or a Nazi, that they engaged in race-based discrimination because these are white supremacist organizations.[8] Chief Judge Elrod compares B.W.’s scenario to that of an Afghan child who is compared to the Taliban or Al-Qaeda. She then argues that when there is a race-based attack, and harassment of any nature continues, that it is reasonable to infer that the following harassment is race-based, even if it originates in political animus.[9]
Chief Judge Elrod’s opinion is concerning for several reasons. To start, her comparison to an Afghan child does not survive scrutiny, as neither the Taliban[10] nor Al-Qaeda[11] are supremacist organizations in the same manner that the KKK or the Nazis are.[12] Since these latter groups have tied their political ideology to race in a way that the Taliban or Al-Qaeda have not, comparing an Afghan child to non-race based groups like the Taliban or al-Qaeda should be considered race-based discrimination, whereas comparing a White child to the KKK or Nazis should not be. Additionally, Chief Judge Elrod equates the Make America Great Again (MAGA) ideology with those of the Nazis and KKK as all being race-based groups.[13] This is relevant as even if her point regarding Nazis and KKK is taken to be race-based, rather than politically-based discrimination, it still may not rise to the Davis threshold for race-based discrimination. Since comparisons to Nazis and the KKK were relatively small parts of B.W.’s harassment, especially compared to the much larger body of bullying for B.W.’s support of MAGA, the harassment B.W. experienced was not based mostly in race.[14] Only if Chief Judge Elrod’s opinion inappropriately broadens the perspective of race into the world of politics, and concedes that the MAGA movement shares a central focus on race that is similar to other supremacist groups, can B.W.’s harassment be considered majority race-based.[15] By refusing to focus on race discrimination, and only race discrimination, Chief Judge Elrod opens the door for future Title VI claims based on political ideology in the name of race.
Judge Ho then pushes even further, divorcing himself from the facts of the case to reach a conclusion which draws no distinction between race and politics. For instance, Judge Ho writes that “it’s racist to characterize whites as racist” just because of their race, which while true, is not what happened in the case, as B.W. was called racist for his support of the MAGA ideology.[16] He proceeds with a list of law professors allegedly teaching anti-white racism, which is unclear in how it connects to a Texas middle school.[17] Judge Ho equates a one-to-one connection between race and political views, which goes even further than Chief Judge Elrod’s view of race discrimination, opening the door for political harassment to be the sole support for a Title VI claim. Judge Ho’s professed basis for this view are three earlier Fifth Circuit rulings, none of which discuss the relationship between race and politics.[18]
Both Chief Judge Elrod and Judge Ho’s opinions seem to acknowledge that there is not enough race-only harassment to support a Davis claim but nonetheless establish one by equating harassment for B.W.’s politics with his race. Their theories risk linking race and politics in a manner which detracts an individual’s qualities by overwriting them with skin color.[19] This can have far-flung consequences, and it can neutralize free speech for fear of incidental race-based discrimination.[20] It has always been permissible in the United States to treat others differently for their political views and it has never been a federally protected classification.[21] But by equating race and politics, Chief Judge Elrod and Judge Ho make such a classification possible, so long as the political views in question are neatly tied to race. This would create a one-way street, where political groups which focus on promoting the status of a single race are protected, but political groups which advocate for diversity, equity, and inclusivity are not protected.[22]
Chief Judge Elrod and Judge Ho’s theories legitimize the idea of highly racialized politics in the United States by equating MAGA with the Nazis and KKK.[23] This is dangerous for the court to do, as it lumps in incredibly complex ideas about race[24] with a multi-faceted political ideology[25] to produce a generalized assumption that must always be true for the court. While the equal split of the en banc Fifth Circuit in this case prevents these ideas from carrying the day, these approaches to race and politics fails to approach these issues with the nuance required and, if adopted as precedential in the future, could inappropriately bind lower courts when the facts tell a different story. The court must remain flexible in addressing these nuanced issues, and while race and politics can certainly align,[26] it should only recognize such alignments in small strokes, and avoid all-encompassing decrees that could destabilize the court’s relationship with both race and politics.
[1] B.W. v. Austin Independent Sch. Dist., 2024 WL 4762729, — F.4th —- (5th Cir. Nov. 13, 2024).
[2] 42 U.S.C. § 2000d.
[3] B.W., 2024 WL 4762729 at *8 (stating that after B.W. was assaulted, the assaulter “tells others that he beat B.W. because he ‘was white.’”).
[4] Id. (stating that B.W. was ostracized for wearing a MAGA hat, and for being a Trump supporter).
[5] B.W., 2024 WL 4762729 at *6 (separate opinion of Chief Judge Elrod, dissenting in the judgment).
[6] Id. at *2 (Richman, J. concurring)
[7] Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 631 (1999); see also, Sewell v. Monroe Sch. Bd., 974 F.3d 577 (5th Cir. 2020) (recognizing Fifth Circuit jurisprudence on Davis).
[8] B.W., 2024 WL 4762729 at *7 (separate opinion of Chief Judge Elrod, dissenting in the judgment). See also, Southern Poverty Law Center, Ku Klux Klan, https://www.splcenter.org/fighting-hate/extremist-files/ideology/ku-klux-klan (identifying the KKK as a white-supremacist hate group).
[9] B.W., 2024 WL4762729 at *5.
[10] See e.g., Gul Hassan Mohammadi, The Plight of Hazaras under Taliban Government, The Diplomat (Jan. 24, 2024), https://thediplomat.com/2024/01/the-plight-of-hazaras-under-the-taliban-government/ (identifying that the Taliban is not a Afghan supremacist organization).
[11] See e.g., Clayton Thomas, Al Qaeda: Background, Current Status, and U.S. Policy, Cong. Rsch. Serv. (May 6, 2024) (identifying al-Qaeda as a transnational group, rather than a nationalist one).
[12] See generally, Caroline Mala Corbin, Terrorists are Always Muslim but Never White: At the Intersection of Critical Race Theory and Propaganda, 86 Fordham L. Rev. 455 (2017) (exploring the connection between race and terrorism).
[13] B.W., 2024 WL 4762729 at *4 (separate opinion of Chief Judge Elrod, dissenting in the judgment) (describing harassment regarding B.W.’s support for Ted Cruz and Donald Trump as race-based).
[14] Id. at *8.
[15] See, William H. Frey, Research: Trump gained some minority voters, but the GOP is hardly a multiracial coalition, Brookings Inst. (Nov. 12, 2024),
https://www.brookings.edu/articles/trump-gained-some-minority-voters-but-the-gop-is-hardly-a-multiracial-coalition/ (Identifying that 84% of Trump supporters are white).
[16] B.W., 2024 WL 4762729 at *9 (Ho, J., dissenting).
[17] Id. at *11 (Ho, J., dissenting).
[18] See, Wantou v. Wal-Mart Stores Texas, L.L.C., 23 F.4th 422 (5th Cir. 2022); Price v. Valvoline, L.L.C., 88 F.4th 1062, (5th Cir. 2023); Hamilton v. Dallas Cnty., 79 F.4th 494 (5th Cir. 2023).
[19] See, Martin Luther King Jr., I Have a Dream Speech, (“I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character”).
[20] Liam H. McMillin, Proving Racism: Gibson Bros, Inc. v. Oberlin College and the Implications on Defamation Law, 90 Cin. L. Rev. 1021 (2022) (arguing that calling someone “racist” must be constitutionally protected free speech).
[21] Anne Carey, Political Ideology as a Limited Protected Class under Federal Title VII Antidiscrimination Law, 26 J. L. & Pol’y 637, 639.
[22] See, e.g., Democrats, Who We Are (“Democrats are the party of inclusion”) https://democrats.org/who-we-are/who-we-serve/ (last visited Jan. 12, 2025).
[23] Andre M. Perry et al., In victory or defeat, reckoning with the racial politics of the 2024 election will help the country move forward, Brookings Inst. (Nov. 7, 2024) https://www.brookings.edu/articles/in-victory-or-defeat-reckoning-with-the-racial-politics-of-the-2024-election-will-help-the-country-move-forward/.
[24] See, Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987) (discussing the meaning of “race” in the context of Title VII).
[25] See, Republican National Convention, 2024 Republican Platform: Make America Great Again (detailing a 20-part political plan for the MAGA movement) https://www.donaldjtrump.com/platform (last visited Jan. 12, 2025).
[26] See, e.g. Andra Gillespie, John Lewis and the Durability of Transcendent Race Politics, 37 J. L. and Religion 55 (2022).
Adopters’ Remorse: The Unregulated Use of Social Media to Rehome Children
By: Zena Hamilton, Volume 43 Staff Member
View/Download PDF Version: Adopters’ Remorse – The Unregulated Use of Social Media to Rehome Children (Hamilton)
Facebook can be used to buy a used laptop or lamp on the marketplace; surprisingly, it can also be used to rehome a child. Facebook groups dedicated to rehoming unwanted adopted children have parents wishing to connect those with the children to those who may be willing to provide them with what is hopefully a loving home. This process can occur with little federal or state oversight. Currently, only 17 states forbid an unregulated custody transfer. Unfortunately, the result can be disastrous for children whom their new guardians abuse while no one even knows they are there. To ensure the safety of children, federal regulations must be enacted first to curb the use of social media and second to ensure there are some safety measures for the transfer of children.
Legal adoption must be handled through a court order, but there is little federal oversight when a “power of attorney” document is signed with a notarized statement. With a Power of Attorney signed a custody transfer can occur without the involvement of the courts or child welfare agencies. Rehoming is, at times, an unfortunate necessity, especially when a child staying with their family means that they will experience neglect that will harm their development. Power of Attorney documents can also be used to enable parents experiencing difficulties to allow their children to stay with someone trusted. Statutes similar to the one in North Carolina allow for this practice to occur with just a signature on a document and notary. As a result, predators can use groups and forums online to exploit vulnerable victims, as seen in United States v. Eason. Many children who are rehomed through social media sites were born overseas and brought to the United States by their original adoptive parents. This flexibility, while at times beneficial, should be weighed against the possibility of abuse, neglect, and other issues occurring.
While regulation exists for custody transfers between states facilitated by social service agencies, it is unclear if the Interstate Compact on the Placement of Children applies to private parties. Custody transfers between private parties with a notarized statement mean that the federal government is unaware of how prevalent or common these custody transfers are. States may choose to enact laws to deter the use of unregulated custody transfers or to improve the availability of services pre and post-adoption. State statutes that do address or regulate informal custody transfers often do so after a high-profile case has brought the issue to the public’s attention. For instance, in Arkansas, a state representative rehomed his adopted daughters, who ended up being sexually abused. After facing criticism, the Arkansas state legislature enacted a law barring unregulated custody transfers; violation of the law is a felony and will result in prison time and fines. While laws exist in several states that forbid the use of advertising for the placement of adoption, legislation is piecemeal and done at the state level. Additionally, a state’s definition of what is considered advertising, like if social media is included, and who is forbidden, like everyone or just agencies can vary. Furthermore, penalties for violations may be only a misdemeanor if prosecuted at all. Despite reports issued by the Government Accountability Office in 2015 concerning the unregulated custody transfers of children, no federal law directly addresses the situation.
Courts are divided on the applicability of the Interstate Compact on the Placement of Children when transfers occur between private parties instead of with an agency. The Supreme Court of Wyoming has held that in their view, “the compact is applicable only to those engaged in the governmental or private service of placing children for care.” Contrastingly, the Missouri Supreme Court reached a different conclusion, stating that “The obvious purpose of the legislature in enacting § 453.110.1 was to prohibit the indiscriminate transfer of children, the concept that a parent could pass them on like chattel to a new owner.” Depending on the jurisdiction, the application of the Interstate Compact on the Placement of Children can vary widely.
While research on why a rehoming occurs is sparse, some data suggests that parents are not adequately equipped to handle the challenges, both emotional and physical, of the children that they adopt. Reactive attachment disorder, RAD, is often cited as a reason the adoptive parents are no longer able to care for their child, resentment often builds and parents will place blame on the children as their familial relationships are altered. Blog posts and articles are littered with statements like “so many marriages and homes are ravaged by the challenge of adopting difficult children.” While there may be challenges as children adjust to their new families adoptive parents need to be provided with more resources to reduce the instances of rehoming. Both the challenges of adoptive parents and the safety of children must be addressed, federal legislation needs to be enacted that requires more education before adoption and rehoming, required reporting of rehoming children with local child welfare agencies, monitoring prospective guardians or parents and banning the use of websites including social media groups to advertise children available for rehoming by private individuals.
The TRAIN Act and Copyright: Generative AI’s Ongoing Impact on Creators
By: Jessica Payne, Volume 43 Staff Member
View/Download PDF Version: The TRAIN Act and Copyright (Payne)
Since generative artificial intelligence’s (AI) soar to popular use over the past several years, a slew of legal issues has risen demanding the attention of Congress. The past two Congressional sessions have featured a significant number of AI-related legislation aimed at controlling the content AI creates.[1] Of considerable note, the recent bipartisan supported NO FAKES (Nurture Originals, Foster Art, and Keep Entertainment Safe) Act provides right of publicity protection for all who may have their likenesses used without authorization.[2] This Act was bolstered by media and entertainment industry leaders for establishing “the first-ever federal right of publicity in the United States . . . provid[ing] a national standard to protect creators’ likenesses from being used without their consent.”[3] Congress has now turned its eye toward the substantive development of AI renderings themselves.[4] Generative AI analyzes data inputs in order to create its own outputs based on the information provided to the system.[5] However, legal issues arise within the AI administrator’s collection, input, and AI creation of derivative works based on copyrighted works.[6] Unlike trademarks, which are recognizable and distinctive branding, lettering, and other symbols, copyrighted works may be more difficult to recognize[7] – particularly as the AI rendition may be an amalgam of other copyrighted works.[8]
In November of 2024, Senators introduced the Transparency and Responsibility for Artificial Intelligence Networks (TRAIN) Act.[9] The TRAIN Act creates “an administrative subpoena process to assist copyright owners in determining which of their copyrighted works have been used in the training of artificial intelligence models.”[10] Under the Copyright Act of 1976, copyright requires that a creation be an original work of authorship fixed in a tangible medium.[11] Unlike a patent, a copyright does not need to be registered in order for the author to obtain a right to control their work.[12] As such, artists, writers, and digital content creators all create enforceable copyrights online[13] and physically that may be inserted into AI programs for learning and its own creation.[14] Imparted to copyright owners are a set of exclusive, alienable rights, including the right to create derivative works, reproduce the work, distribute copies, to display the work, and to perform the work.[15] The TRAIN Act, through the subpoena right, would allow the owner or transferee of a copyright to “obtain copies of the training material, or records sufficient to identify” that their original work was “used to train the generative artificial intelligence model.”[16] Much like the Digital Millenium Copyright Act (DMCA), the TRAIN Act requires that the copyright owner request a subpoena based on a “subjective good faith belief,” followed by a timely disclosure of any AI training materials by the developer.[17] The TRAIN Act would further benefit copyright holders, as the failure on the part of the developer to provide such information “shall provide a rebuttable presumption that the model developer or deployer made copies of the copyrighted work.”[18]
As generative AI continues to develop and increase in its use, the need for regulation becomes vital in order to protect creatives.[19] At this time, the Copyright Act provides no protection for non-human authorship.[20] This means that a major challenge for authors is that they must defend and assert the human, genuine, creativity they poured into a work. While the benefits of generative AI allow for faster processing and the analyzing and summarization of numerous sources of written text, this kind of legislation becomes even more critical to protect the likeness of public figures, visual arts, and music. Textual summary and analysis have historically been monitored and detected by similarly sophisticated plagiarism software.[21] However, seemingly harmless AI renditions of artistic works, music, and writing pose a much larger issue, particularly to lesser-known artists. For example, popular culture is already seeing several very explicit AI infringements or uses on copyright, like “Heart on My Sleeve,”[22] released using Drake and The Weeknd’s likenesses, and Getty Image’s current lawsuit against Stability AI.[23] However, these artists have already reached a caliber of recognition such that their voices, style, and cadence would likely be immediately recognizable when listening to an AI generated song – allowing them to ostensibly be aware when their likeness and copyrights are infringed upon.[24] Like many other copyright infringements, attributing a certain style or voice to a creator may damage one’s reputation or cultivated artistic imagery.[25] One of the primary benefits and aims of copyright law is the copyright holder’s ability to control nearly all uses of their work.[26] In allowing copyright holders to have full knowledge of uses of their material, they are able to fully able to take advantage of the rights vested in them through the Copyright Act.[27]
Ultimately, the NO FAKES Act and the TRAIN Act represent necessary legal advancement in the nexus between AI and copyright law in order to protect creators. The many advantages to generative AI are countered by the great impact that it may have on human creation and existing works.[28] However, it is clear that there is much more to be considered by Congress, creatives, and AI system developers as this technology continues to become intertwined with copyright.
[1] See Artificial Intelligence Legislation Tracker, Brennan Center for Justice (Dec. 30, 2024) https://www.brennancenter.org/our-work/research-reports/artificial-intelligence-legislation-tracker.
[2] See NO FAKES Act, S. 4875, 118th Cong. (2024).
[3] Nina Frazier, NO FAKES Act Introduced in the Senate: Protecting Artists’ Rights in the Age of AI, The Recording Academy (Aug. 9, 2024), https://www.recordingacademy.com/advocacy/news/no-fakes-act-introduced-in-the-senate.
[4] Ursula Perano, Congressional Leaders Negotiating Potential Lame-Duck Deal to Address AI Concerns, Politico (Oct. 18, 2024) https://www.politico.com/news/2024/10/18/congress-ai-schumer-00184430.
[5] See Generative AI Beginner’s Guide, Google Cloud (Jan. 13, 2025), https://cloud.google.com/vertex-ai/generative-ai/docs/learn/overview.
[6] Rachel Reed, ChatNYT, Harvard Law Today (May 22, 2024), https://hls.harvard.edu/today/does-chatgpt-violate-new-york-times-copyrights/ (discussing the New York Times’ lawsuit against OpenAI for providing portions of articles in its outputs).
[7] 15 U.S.C. § 1127.
[8] Id.; Reed, supra note 6 (“[T]he actual training was infringing, in the sense that when OpenAI scraped all this data from the web, it had to make copies . . . the actual large language model that results at the end of the training is either a copy or possibly a derivative work.”); Generative AI Beginner’s Guide, supra note 5; Trademark, Patent, or Copyright, U.S. Pat. & Trademark Off., https://www.uspto.gov/trademarks/basics/trademark-patent-copyright; Brian Moriarty, Timothy Meagher, & Daniel Fleisher, Digital Image Creation Using AI Risks Copyright Infringement, Bloomberg Law (Sept. 16, 2024), https://news.bloomberglaw.com/us-law-week/digital-image-creation-using-ai-risks-copyright-infringement, (“AI programs sometimes don’t create brand new images, but instead produce an image from the training set.”).
[9] Angela Yang, Senator Introduces Bill to Compel More Transparency from AI Developers, NBC News (Nov. 25, 2024), https://www.nbcnews.com/tech/senate-bill-transparency-ai-developers-rcna181724.
[10] TRAIN Act, S. 5379, 118th Cong. (2024).
[11] See 17 U.S.C. § 106.
[12] See Copyright Basics, U.S. Copyright Off. 5 (Sept. 2021), https://www.copyright.gov/circs/circ01.pdf.
[13] Id. at 4.
[14] Winston Cho, Some Good News for Hollywood Creators Suing AI Companies, Hollywood Reporter (Feb. 11, 2025), https://www.hollywoodreporter.com/business/business-news/reuters-ross-first-ai-copyright-case-lawsuit-1236133743/, (discussing a recent district court’s holding that the fair use exception in the Copyright Act does not apply to generative AI’s use of copyrighted material to create new outputs).
[15] See 17 U.S.C. § 106.
[16] TRAIN Act, S. 5379, 118th Cong. (2024).
[17] Id.; 17 U.S.C. § 512(a).
[18] TRAIN Act, S. 5379, 118th Cong. (2024).
[19] As generative AI continues to look to already created material to aid in its generative outputs, copyright holders will likely continue to face AI companies’ fair use arguments. Cho, supra note 14, (“[T]he court’s ruling will be ‘heralded by existing groups of artists and content creators as the key to their case against the other generative AI systems.”). Reed, supra note 6.
[20] Thaler v. Perlmutter, 687 F. Supp. 3d 140, 146 (D.D.C. 2023) (holding that copyright law is meant to protect human authorship as its central purpose and will not extend to non-human creations) (“Human authorship is a bedrock requirement of copyright.”); See Restatement of Copyright Law § 22, Reporter’s Note (d) (Am. L. Inst. Tentative Draft No. 2, 2022). However, it is also important to note that this has recently shifted based on guidance from the U.S. Copyright Office in a report released in January 2025. While the Copyright Office remains aligned with the need for human authorship, it also confirmed “that the use of AI to assist in the process of creation or the inclusion of AI-generated material in a larger human-generated work does not bar copyrightability. U.S. Copyright Off., PR 25-010, Copyright Office Releases Part 2 of Artificial Intelligence Report (Jan. 29, 2025), https://newsroom.loc.gov/news/copyright-office-releases-part-2-of-artificial-intelligence-report/s/f3959c36-d616-498d-b8f9-67641fd18bab.
[21] This is especially evident in recent efforts of higher education professionals seeking to disentangle plagiarism and AI usage in academic writing. Lauren Coffey, Professors Cautious of Tools to Detect AI-Generated Writing, Inside Higher Ed (Feb. 9, 2024), https://www.insidehighered.com/news/tech-innovation/artificial-intelligence/2024/02/09/professors-proceed-caution-using-ai.
[22] See Chloe Veltman, When You Realize Your Favorite New Song Was Written and Performed by…AI, Nat’l Pub. Radio (Apr. 21, 2023), https://www.npr.org/2023/04/21/1171032649/ai-music-heart-on-my-sleeve-drake-the-weeknd; See also Joe Coscarelli, An A.I. Hit of Fake ‘Drake’ and ‘The Weeknd’ Rattles the Music World, N.Y. Times (Apr. 24, 2023), https://www.nytimes.com/2023/04/19/arts/music/ai-drake-the-weeknd-fake.html; BUKO, Ghostwriter – Heart on my sleeve Drake ft. The Weeknd (Remastered AI Song) BUKO, YouTube (Apr. 20, 2023), https://www.youtube.com/watch?v=rQssjhX31Z0.
[23] See Getty Images (US) Inc. v. Stability AI, Inc., No. 1:23-cv-00135 3 (D. Del. Feb. 3, 2023).
[24] Samantha Murphy Kelly, Viral ‘BBL Drizzy’ AI Drake Diss Track Company Gets Sued, CNN (June 29, 2024), https://www.cnn.com/2024/06/24/tech/riaa-lawsuit-ai-copyright-infringement/index.html, (reporting that the Recording Industry Association of America (RIAA) filed a suit against the generative AI company behind “BBL Drizzy” for copyright infringement of the owned sound recordings of record labels that fall within their music trade group) (“In April, more than 200 artists . . . signed an open letter organized by the non-profit Artist Rights Alliance calling on AI developers . . . to ‘cease the use of artificial intelligence to infringe upon and devalue the rights of human artists.’”); Kristin Robinson, Metro Boomin’s ‘BBL Drizzy’ Is More Than a Joke – It Could Signal the Future of Sampling, Billboard (May 15, 2024), https://www.billboard.com/business/tech/metro-boomin-bbl-drizzy-future-ai-sampling-1235682587/; See Metro Boomin, BBL Drizzy BPM 150.mp3, SoundCloud (May 5, 2024), https://soundcloud.com/metroboomin/bbl-drizzy-bpm-150-mp3.
[25] Gil Appel, Juliana Neelbauer, & David A. Schweidel, Generative AI Has an Intellectual Property Problem, Harvard Business Review (Apr. 7, 2023), https://hbr.org/2023/04/generative-ai-has-an-intellectual-property-problem.
[26] This is primarily limited by the Fair Use doctrine which permits various uses of copyrighted material, primarily for news, education, and parody. 17 U.S.C. § 107.
[27] See 17 U.S.C. § 106.
[28] Appel, supra note 25. Geoff Brumfiel, Research Shows AI Can Boost Creativity for Some, But at a Cost, NPR (July 12, 2024), https://www.npr.org/2024/07/12/nx-s1-5033988/research-ai-chatbots-creativity-writing, (describing a new study in the United Kingdom about the impact of AI on creativity in creative writing, finding that the individuals benefitted creatively but that the group, collectively, received a lower creativity score).
FBI Breaks It, FBI Buys It: Will SCOTUS Finally Make Sure the Feds Pick Up the Tab When They Raid the Wrong House?
By: Margarit Margaritov, Volume 43 Managing Editor
Should victims of erroneous Special Weapons and Tactics (“SWAT”) raids by federal law enforcement be able to obtain money damages from the federal government? Will the availability of such remedy make law enforcement more cautious about its conduct? We may soon have a chance to find out.
Policing has been a hot topic for a long time, with good reason. Despite the fact that officers are sworn to serve and protect the community, the allegations of police misconduct run the gamut, and many high-profile cases fill the news cycle. EMT Breonna Taylor died under a volley of bullets blindly fired by police while attempting to execute a “no-knock” warrant. Some estimates suggest that over 20,000 no-knock warrant raids happen annually across the country.
Even under the best of circumstances, and with law enforcement taking the utmost care, the complexities in coordinating large officer teams and other factors make these raids exceedingly dangerous for everyone involved. The reaction of the people in the building matters. In Breonna Taylor’s, like in many others, her boyfriend fired a shot at the door thinking burglars were trying to break in, which triggered the barrage of bullets. The tools used also can cause issues. In one of many examples, an Albuquerque SWAT team engaged a suspect in a standoff and deployed a “noise flash diversionary device,” colloquially known as “flashbang.” It caused a fire, forcing the suspect out of the building, but a teenager who accompanied him died from smoke inhalation. Police are aware of the many dangers posed by these devices, including that the powder inside can cause fires. The reason for the raid also sets the tone. Without a doubt, the intensity of the situation is different when officers enter a building in search of a specific suspect, like in the Breonna Taylor case, versus when SWAT enters a suspected live hostage situation, a commonly reported issue in those very dangerous “swatting” “pranks”.
The unfortunate reality is that a raid will get more media coverage if a life is lost. But what about an erroneous raid that results in no casualties? There are still damages to property and potential physical and mental health effects. This is the story of Martin v. United States—a case that the Supreme Court granted certiorari in on January 27, 2025.
In 2017, Trina Martin and her partner Toi Cliatt were awakened by a flashbang exploding in their living room and FBI agents rushing inside, guns drawn, screaming questions, and, simultaneously, separating her from her then-7-year-old son Gabe. It wasn’t until Cliatt told the FBI agents the address that they realized they had the wrong house, on the wrong street. Apologies and supervisor business cards followed, along with a promise to cover the damage to the property, but alas, that never happened. Martin eventually filed suit against the United States under the Federal Tort Claims Act (“FTCA”).
Congress passed the FTCA in 1946 with the explicit purpose of providing a remedy for victims of the tortious acts of federal officers and employees by waiving the sovereign immunity that insulated the United States from such suits. Codified at 28 U.S.C. § 2680(a), it includes a prominent and oft-litigated “discretionary function” exception that prevents courts from second-guessing actions of social, economic, and political nature. Often it insulates the Government from liability for violations of its own, self-imposed safety requirements. As Professor Gregory Sisk put it, lower courts consistently find that allegedly “operational” decisions made by law enforcement in the heat of the moment fall within the exception. This effectively limits the availability of the remedy to many a tort victim like Martin.
The Northern District of Georgia granted summary judgment in part, finding that the Supremacy Clause prevents states from impeding or burdening the execution of federal law, and the discretionary function exception applies to the raid because the FBI team’s decisions on how to prepare for and execute the warrant were the type of administrative matters Congress meant to insulate. The 11th Circuit upheld the decision per curiam.
The Supreme Court will answer two questions: “1) whether the Constitution’s Supremacy Clause bars claims under the Federal Tort Claims Act when the negligent or wrongful acts of federal employees have some nexus with furthering federal policy and can reasonably be characterized as complying with the full range of federal law, and 2) whether the discretionary-function exception is categorically inapplicable to claims arising under the law enforcement proviso to the intentional torts exception.“ Briefs are due in March and April, with oral argument likely to be scheduled sometime in May.
If the briefing at the cert petition stage is any indication, the Federal Government will argue that the 11th Circuit’s decision was correct, and not at all at odds with those of other circuits—Martin did argue that there is a circuit split ripe for a resolution at the highest court of the land. Even at that early stage, Professor Sisk and Members of Congress filed amicus briefs supporting Martin’s claim. We are likely to see even more amici join now, but Martin’s lawsuit is in good hands anyway. The Institute for Justice (“IJ”), a nonprofit, public interest law firm known for cutting-edge constitutional litigation is on the case. Just last term, IJ won Gonzalez v. Trevino, a case that clarified that subjects of retaliatory arrests may sue the government, and is currently fighting to overturn the infamous Kelo takings case and eliminate oppressive occupational licensing requirements. IJ’s team of dedicated attorneys will fight to ensure that Martin, and other victims of the same abuse, are not left picking up the financial pieces of their lives while the federal government brushes them off.
Hopefully, the Supreme Court will take this opportunity to ensure that when law enforcement victimizes an innocent person, even by mistake, it has to pay its due, just like you and me. Stay tuned.
Expanding Compassionate Release Eligibility in a Post-COVID World
By: Sydney Koehler, Volume 43 Managing Editor
View/Download PDF Version: Expanding Compassionate Release Eligibility in a Post-COVID World (Koehler)
The elderly prison population in the United States is at an all-time high.[1] By 2030, experts estimate that nearly one-third of the national prison population will be 55 years old or older.[2] Despite this trend, both federal and state prisons are failing to adequately address the needs of an aging prison population.[3]
An average of 1,700 individuals aged 55+ die in prison each year.[4] Approximately 97% of these deaths are attributed to natural causes such as illness; but even “natural” deaths in prison are in many ways unnatural when compared to the broader United States population.[5] It is well-documented that incarceration reduces an individual’s life expectancy and accelerates the physiological signs of aging.[6] Older adults are especially at risk of illness in prison due to inadequate medical resources, staffing, and training.[7]
The COVID-19 pandemic drew national attention to failures by federal and state prisons to protect inmate health and safety—especially with regard to older inmates.[8] Prisons quickly became “disease incubators” during the pandemic on account of overpopulation and high inmate turnover rates.[9] The health and safety risks posed by the COVID-19 pandemic increased pressure on both federal and state lawmakers to expand inmates’ access to compassionate release processes.[10]
Despite these changes, compassionate release is still limited to an extremely small subset of the general prison population.[11] The Federal Bureau of Prisons will only grant an incarcerated individual compassionate release for “extraordinary and compelling reasons” such as a terminal illness; a serious medical or physical impairment that diminishes their capacity for self-care or requires long-term, specialized care; or the death or incapacitation of a dependent’s caregiver.[12] Because of these stringent criteria, many elderly and infirm incarcerated individuals do not qualify for compassionate release despite their high-risk indicators.[13]
As the elderly prison population in the United States continues to grow and as pandemics and epidemics become more frequent over the coming years,[14] states should expand their compassionate release eligibility criteria to better protect elderly and infirm incarcerated individuals.[15]
Compassionate release is a process that allows incarcerated individuals to seek early release from prison due to extraordinary circumstances[16]—most often on account of a serious physical or medical condition.[17] Compassionate release, as the name suggests, aims to show compassion to incarcerated individuals by preserving their end of life dignity.[18] Yet compassionate release also has more practical purposes: it serves to reduce prison populations by releasing low-risk inmates and, in turn, reduces carceral costs.[19]
During the COVID-19 pandemic, the federal government granted significantly more compassionate release requests than in previous years.[20] Still, over 80% of federal requests were denied.[21] On the state level, however, compassionate release numbers stayed relatively the same or even decreased.[22] Even in states like Minnesota that adopted special COVID-19 compassionate release protocols, over 90% of requests were denied.[23]
If anything can be gleaned from the federal government’s increased reliance on compassionate release during the COVID-19 pandemic, it is that compassionate release is a safe and fiscally responsible alternative to the continued incarceration of the elderly and infirm. Compassionate release does not create a significant public safety risk: the recidivism rate of individuals granted compassionate release is over 10 times lower than that of the general public.[24] Expanding prisoners’ access to compassionate release can also improve public health and safety outcomes by reducing the spread of communicable disease.[25]
In addition to the potential public health benefits, expansive compassionate release processes also promise significant monetary savings. State governments save an average of $66,294 per year for each aging prisoner they compassionately release.[26]
Considering the many benefits and limited downsides of compassionate release, states should proactively expand their compassionate release eligibility criteria to prevent state prisons from becoming “disease incubators” for future pandemics.[27]
[1] Over the past thirty years, the number of incarcerated individuals in the United States aged 55+ has increased threefold. Emily Widra, The aging prison population: Causes, costs, and consequences, Prison Pol’y Initiative (Aug. 2, 2023), https://www.prisonpolicy.org/blog/2023/08/02/aging/.
[2] Derek Cantu, Though nearly all Midwest states allow for compassionate release of elderly, terminally ill incarcerated residents, obstacles often stand in the way, CSG Midwest (Dec. 15, 2022), https://csgmidwest.org/2022/12/15/though-nearly-all-midwest-states-allow-for-compassionate-release-of-elderly-terminally-ill-incarcerated-residents-obstacles-often-stand-in-way/. This growth in the elderly prison population can largely be attributed to increasingly severe sentencing policies. See Widra, supra note 1 (explaining that sentence lengths have increased as a result of mandatory minimums, three strikes laws, and truth-in-sentencing laws); Megan Horner, Broken and Underutilized: Understanding Compassionate Release Programs for Older Adult Prisoners, 44 A.B.A. Bifocal 48, 48 (Jan. 2023) (noting that nearly half of the incarcerated individuals serving life without parole sentences in the United States are over 50 years old).
[3] Widra, supra note 1 (arguing that prisons are “gearing up to become nursing homes, but without the proper trained staff and adequate financial support”).
[4] See id. (explaining that between 2001 and 2018, over 30,500 individuals aged 55+ died in prison).
[5] Studies estimate that each year an incarcerated individual spends in prison takes two years off their life expectancy. National Institute for Health Care Management, Incarceration: A Public Health Crisis (Aug. 29, 2023), https://nihcm.org/publications/incarceration-a-public-health-crisis.
[6] Leah Wang & Wendy Sawyer, New data: State prisons are increasingly deadly places, Prison Pol’y Initiative (June 8, 2021), https://www.prisonpolicy.org/blog/2021/06/08/prison_mortality/ (“[B]eing sick or old in prison is not quite what it is on the outside. Incarceration can add 10 or 15 years to someone’s physiology, and take two years off of their life expectancy per year served.”); Widra, supra note 1 (“A robust body of research shows that incarceration itself accelerates aging: people face more chronic and life-threatening illnesses earlier than we would expect outside of prison, and physiological signs of aging occur in people younger than expected.”).
[7] See Horner, supra note 2, at 48 (noting that prison healthcare is inadequate at responding to the medical needs of older adults, especially those with neurocognitive conditions such as dementia).
[8] Kathryn Nowotny et al., Age and COVID-19 Mortality in the United States: A Comparison of the Prison and General Population, 19 Int’l J. Prison Health 35, 41 (2022) (noting that 39.9% of COVID-19 deaths in prison occurred among incarcerated individuals aged 50 to 64).
[9] Kristin Samuelson, High incarceration rates fuel COVID-19 spread and undermine U.S. public safety, Northwestern Now (Sept. 2, 2021), https://news.northwestern.edu/stories/2021/september/incarceration-covid-19-spread-public-safety/ (stating that between March 2020 and September 2021 over 661,000 cases of COVID-19 were documented in United States prisons); Wang, supra note 6 (reporting that over 2,600 incarcerated individuals died in prison during the first eighteen months of the COVID-19 pandemic); Jennifer E. James et al., COVID-19 and the reimagining of compassionate release, 19 Int’l J. Prison Health 20, 24 (2022) (noting that the COVID-19 case rate was 5.5 times higher in U.S. prisons than among the general population during the first months of the pandemic).
[10] See American Bar Association, Compassionate Release: Changes finally approved (Apr. 27, 2023), https://www.americanbar.org/advocacy/governmental_legislative_work/publications/washingtonletter/april-23-wl/sentencing-comm-0423wl/ (discussing the federal sentencing guideline changes approved by the United States Sentencing Commission in April of 2023 that expanded inmates’ access to, and ability to qualify for, compassionate release). See generally Julia Laskorunsky et al., Risk Averse and Disinclined, Robina Institute of Criminal Law and Criminal Justice (April 2023), https://robinainstitute.umn.edu/sites/robinainstitute.umn.edu/files/2023-05/risk_averse_and_disinclined_-_what_covid_prison_releases_demonstrate_about_the_ability_of_the_u.s._to_reduce_mass_incarceration.pdf (highlighting how various states modified compassionate release standards during the COVID-19 pandemic). Significantly, the updated federal compassionate release process allows an inmate to file a motion seeking compassionate release, whereas previously inmates relied on the Federal Bureau of Prisons to file motions on their behalf. See United States Sentencing Commission, Compassionate Release: The Impact of the First Step Act and COVID-19 Pandemic (Mar. 2022), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2022/20220310_compassionate-release.pdf; 18 U.S.C. § 3582(c)(1)(A).
[11] See United States Sentencing Commission, Guidelines Manual, § 1B1.13 (2024) for a full explanation of the criteria the Federal Bureau of Prisons may consider when deciding to reduce a term of incarceration via compassionate release.
[12] United States Sentencing Commission, Guidelines Manual, §§ 1B1.13(b)(1); 1B1.13(b)(3) (2024). A pandemic or prison disease outbreaks may also qualify as an “extraordinary and compelling reason” for early release. Id. at § 1B1.13(b)(1)(D). Old age may also provide a justification for early release. An incarcerated individual who is 70+ years old and has served 30+ years of their sentence may be eligible for a sentence reduction, even absent another “extraordinary and compelling reason” to grant their release. Id. at § 1B1.13(a)(1)(B). Further, a defendant who is 65+ years old, has served 10 years or 75% of their sentence, and is experiencing deterioration of their physical or mental health due to incarceration has an “extraordinary and compelling reason” to be released. Id. at § 1B1.13(b)(2),
[13] See, e.g., U.S. Centers for Disease Control and Prevention, Underlying Conditions and the Higher Risk for Severe COVID-19 (Feb. 6, 2025), https://www.cdc.gov/covid/hcp/clinical-care/underlying-conditions.html (noting that COVID-19 poses greater risks for older individuals and individuals with pre-existing conditions).
[14] Abraham Haileamlak, Pandemics Will be More Frequent, 32 Ethiop. J. Health Sci. 228 (2022) (predicting that pandemics and epidemics will become more frequent throughout the twenty-first century).
[15] See generally Laskorunsky, supra note 10 (suggesting that compassionate release practices may have the potential to reduce prison populations that have become bloated by mass-incarceration policies); Samuelson, supra note 9 (quoting Dr. Eric Reinhart of Northwestern University Feinberg School of Medicine, who believes that implementing national decarceration programs will “benefit long-term U.S. public health and pandemic preparedness”).
[16] See generally Bureau of Prisons, Program Statement 5050.49, CN-1 (Mar. 25, 2015), https://www.bop.gov/policy/progstat/5050_049_CN-1.pdf (listing the Bureau’s eligibility criteria for compassionate release). States vary in their compassionate release eligibility requirements. By and large, however, compassionate release is not available to elderly, low-risk offenders who do not meet stringent medical requirements. See Horner, supra note 2, at 48–49.
[17] United States Sentencing Commission, Compassionate Release Data Report: Fiscal Year 2023, Table 10 (Mar. 2024), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/compassionate-release/FY23-Compassionate-Release.pdf.
[18] Brooke Cooley Webb et al., Dying in Prison: End-of-Life Care Services in a State Correctional Facility, 12 J. Qual. Crim. 260, 262 (2023) (noting that the goal of palliative care—to provide patients with a “dignified death”—is largely at odds with the putative goals of incarceration). See also Horner, supra note 2 at 49 (arguing for the ethical importance of protecting the last stages of life).
[19] Horner, supra note 2, at 48; State Prison Health Care Spending, The Pew Charitable Trusts & John D. and Catherine T. MacArthur Foundation 8, 13–14 (July 2014), https://www.pewtrusts.org/~/media/assets/2014/07/stateprisonhealthcarespendingreport.pdf (noting that correctional healthcare makes up approximately 20% of total prison expenditures, and suggesting that medical or geriatric parole policies will reduce carceral costs).
[20] James et al., supra note 9, at 25 (reporting that 2,601 federal cases were approved for release in 2020, compared to 165 cases in 2019 and 24 cases in 2018). COVID-19 was cited as a reason for granting relief in over 70% of cases. United States Sentencing Commission, supra note 10, at 3.
[21] United States Sentencing Commission, Compassionate Release Data Report: Fiscal Years 2020 to 2022, Table 1 (Dec. 2022), https://www.ussc.gov/sites/default/files/pdf/research-and-publications/federal-sentencing-statistics/compassionate-release/20221219-Compassionate-Release.pdf (indicating that 4,502 federal inmates were granted compassionate release between fiscal years 2020 and 2022, although nearly 28,000 inmates applied); Fred Clasen-Kelly, Frail people are left to die in prison as judges fail to act on a law to free them, NPR (Feb. 21, 2023), https://www.npr.org/sections/health-shots/2023/02/21/1157058152/sick-elderly-people-left-to-die-federal-prison-law-judges (stating that over 80% of federal compassionate release requests were denied between October of 2020 and September of 2022).
[22] James et al., supra note 9, at 25–26.
[23] Laskorunsky, supra 10, at 37 (noting that 2,292 Minnesota state prisoners filed motions for compassionate release, and only 165 of these were approved). Even further, the Minnesota Department of Corrections attempted to order 158 of these inmates to return to prison in August of 2022 once the severity of the COVID-19 pandemic had waned, but these efforts were dropped as the result of an ACLU lawsuit. See Louis Krauss, State of Minnesota drops effort to get inmates released during the pandemic back into prison, Star Tribune (Jan. 5, 2024), https://www.startribune.com/state-of-minnesota-drops-effort-to-get-inmates-released-during-pandemic-back-into-prison/600332764; Michelle Griffith, Department of Corrections won’t order inmates on COVID-19 release to return to prison, Minnesota Reformer (Jan. 3, 2024), https://minnesotareformer.com/briefs/department-of-corrections-wont-order-inmates-on-covid-19-release-to-return-to-prison/; Lynette Kalsenes, ACLU-MN and Legal Clinics Sue to Stop MDOC From Reincarcerating People at High COVID-19 Risk, ACLU Minnesota (Aug. 9, 2022), https://www.aclu-mn.org/en/press-releases/mndoc-lawsuit-covid; Wagner v. Minnesota Dep’t of Corr., No. A23-0031, 2023 WL 5844274 (Minn. Ct. App. Sept. 11, 2023).
[24] James et al., supra note 9, at 24 (“Compared to the general federal recidivism rate of 41%, . . . [t]he recidivism rate of those granted compassionate release was 3.5%.”).
[25] See Samuelson, supra note 9.
[26] Horner, supra note 2, at 48.
[27] Samuelson, supra note 9.
The Surprising Cause of Increasingly Horrific Executions: Death Penalty Abolitionists
By: Kristin M. Boynton, Volume 43 Senior Managing Editor
View/Download PDF Version: The Surprising Cause of Increasingly Horrific Executions – Death Penalty Abolitionists (Boynton)
The January 2024 execution of Kenneth Smith garnered worldwide attention,[1] including an official statement by the United Nations High Commissioner that criticized the new method used by the State.[2] The UN High Commissioner cited “serious concerns this novel and untested method of suffocation by nitrogen gas may amount to torture, or cruel, inhuman or degrading treatment.”[3] This “novel and untested method,” the use of nitrogen gas to execute a man on death row, was one of several new methods that came out of state officials’ determination to proceed with executions in the face of a shortage of traditionally used drugs.[4] The authorities made this determination despite international warnings that this method would “likely violate the prohibition on torture and other cruel, inhuman or degrading punishment,” breaching the Convention Against Torture treaty that the U.S. ratified in 1994 as well as legally-binding international norms.[5] So why was it used? Improbably, a pattern of increasingly inhumane methods of execution is partially due to the success of advocacy by a growing number of death penalty abolitionists.[6]
Jay Chapman[7], a medical examiner, first proposed a three-drug-cocktail to facilitate lethal injection in 1977 by that became the primary method of execution by lethal injection through the early 2000s.[8] However, over the past few decades lethal injection executions have “become increasingly problematic,”[9] with some experts crowning it “the most botched” method of execution.[10] One study of autopsy records found that 84% of those killed by lethal injection had experienced severe pulmonary edema– meaning that instead of the quick, humane end-of-life that proponents describe and the public imagines, their lungs filled with blood, plasma, and other fluids.[11] This caused them to feel as if they were suffocating or drowning, inducing panic or terror.[12] The study’s findings led to the country’s first federal ruling that the pulmonary edema caused by lethal injection was cruel and unusual punishment in violation of the Eighth Amendment.[13] However, due to the Supreme Court’s insistence that there must be a way to accomplish capital punishment,[14] the magistrate nevertheless denied the Motion for Preliminary Injunction to stay the execution, and the execution was ordered to proceed.[15] Fortunately, Governor Mike DeWine granted a postponement, saying “Ohio’s not going to execute someone under my watch when a federal judge has found it to be cruel and unusual punishment.”[16] Governor DeWine is not alone; a number of other states, and the federal government, have similarly announced moratoriums or pauses in capital punishment as issues surrounding its constitutionality and humanity are debated.[17]
Evidence surrounding the inhumanity of lethal injections is only one reason experts cite for decreasing public support.[18] The exoneration of almost 200 people sentenced to death over the last 50 years has shed light on the court’s fallibility.[19] Capital sentences have also been ruled discriminatory[20] and virtually unchallengeable.[21] Despite this shift in public sentiment and passionate media coverage, the obvious route—challenging methods and fixing errors through the courts—has proved futile, “raising questions about the adequacy of state procedures and the ability of the legal system to protect innocent people.”[22]
This hopelessness may have been the catalyst for a different approach– following the Supreme Court’s refusal to grant relief in 2008’s Baze v. Rees, death penalty abolitionists began instead to target the suppliers of the drugs used in lethal injections.[23] At the time, there was only one U.S. company manufacturing sodium thiopental, a drug that was being used in all lethal injections.[24] In response to pressure from abolitionists,[25] the company, Hospira, sent letters to officials in all 50 states explicitly announcing that they “provide[] these products because they improve or save lives” and “do not support the use of any of [their] products in capital punishment procedures,” in early 2010.[26] After pausing stateside production, Hospira announced in early 2011 that they were halting plans to move production to Italy due to Italian authorities’ concerns about “the use of Pentothal in capital punishment procedures in the United States,” and that they would instead be exiting the sodium thiopental market completely.[27] The New York Times reported that the Italian government’s stance was also attributable to pressure by the abolitionists.[28] Hospira’s attempt to distance itself wasn’t unique; since then, every pharmaceutical manufacturer of the 14 FDA-approved medicines that have been used or proposed for lethal injection have announced similar actions.[29] Abbott Laboratories, Cardinal Health, GlaxoSmithKline plc, Johnson & Johnson, Pfizer, and Baxter International are some of the most well-known on the list.[30]
Pressure from abolitionists also affected the international market. For instance, after receiving an open letter chastising them for not doing more to stop their pentobarbital from being used in lethal injections, Danish Lundbeck Pharmaceuticals—the only company licensed to manufacture this product in the U.S.—defended themselves by recounting efforts that they had already taken: expressing their opposition to state authorities, protesting publicly, and exploring taking their product out of the U.S. market altogether.[31] Soon after this statement, Lundbeck announced that they would no longer be selling pentobarbital to U.S. prisons.[32]
In June of 2011, the drugs used in lethal injections were so hard to obtain that the U.S. Secretary of Commerce sought assistance from the German Economics Minister.[33] Instead of providing the drugs, the Minister announced a national plan to prohibit sales of sodium thiopental to the United States.[34] That same year, the European Union imposed an embargo on all drugs that were used in lethal injections, including sodium thiopental and pentobarbital.[35] In order to keep their Propofol off of that list, German manufacturer Fresenius Kabi requires U.S. distributors to sign a contract that prohibits them from selling its Propofol to prisons.[36] And they take that agreement seriously: the company has “told reporters they would seize all products from any corrections departments discovered to be using their products in lethal injections,” and they even sued the State of Nebraska for acquiring their product for use in executions.[37] Manufacturers around the world have joined in refusing to sell to departments of correction, citing things like pressure from activists, potential litigation, and moral obligations for their stances.[38] The shortage has caused several states, including Ohio and Oklahoma, to pause execution by injection, describing lethal injection as a practical impossibility.[39]
Instead of ceasing all executions, though, states are getting creative. Some have created shield laws, keeping the name of companies who supply the drugs from the public eye; some have chosen to try new methods of execution;[40] and others have chosen to “scramble” or “experiment” with new drugs.[41] All of these measures have prompted renewed litigation as those on death row challenge the unknown consequences of these choices.[42] As Deborah Denno, a Fordham University law professor and an expert on lethal injections, worries, “[w]e don’t know how these drugs are going to react because they’ve never been used to kill someone.”[43]
Thus, through their success in making lethal injections all but impossible, death penalty abolitionists caused the unforeseen consequence of the introduction of other methods, like the nitrogen gas used against Kenneth Smith. However, opponents of the death penalty, backed by the international community, continue to fight against all methods of execution.
[1] Smith v. Hamm, 601 U.S. ___ (2024) (Sotomayor, J., dissenting) (“The world is watching.”) (citing US: Alarm Over Imminent Execution in Alabama, United Nations (Jan. 16, 2024), https://www.ohchr.org/en/ press-briefing-notes/2024/01/us-alarm-over-imminent-execution-alabama, United States: UN Experts Alarmed at Prospect of First-Ever Untested Execution by Nitrogen Hypoxia in Alabama, United Nations (Jan. 3, 2024), https://www.ohchr.org/en/press-releases/2024/01/united-states-un-experts-alarmed- prospect-first-ever-untested-execution).
[2] Alabama Execution, UN High Commissioner for Human Rights Volker Türk (Jan. 26, 2024).
https://www.ohchr.org/en/statements/2024/01/alabama-execution.
[3] Id.
[4] See The Death Penalty in 2023: Year End Report, Death Penalty Information Center (Dec. 1, 2023), https://deathpenaltyinfo.org/facts-and-research/dpic-reports/dpic-year-end-reports/the-death-penalty-in-2023-year-end-report (“Continued difficulties obtaining lethal injection drugs led some states to explore new, untested methods of execution or revive previously abandoned methods. Other states enacted or continued pauses on executions while the state’s method of execution was studied.”).
[5] United States: UN Experts Alarmed at Prospect of First-Ever Untested Execution By Nitrogen Hypoxia In Alabama, Special Rapporteurs (Jan. 3, 2024), https://www.ohchr.org/en/press-releases/2024/01/united- states-un-experts-alarmed-prospect-first-ever-untested-execution (signed by Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions; Alice Jill Edwards, Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Ms. Tlaeng Mofokeng, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health; and Ms. Margaret Satterthwaite, Special Rapporteur on the Independence of Judges and Lawyers); UN Convention Against Torture, Convention Against Torture Initiative (visited Jan. 9, 2025) https://cti2024.org/un-convention-against-torture.
[6] Robert Blecker, The Death of Punishment, (2013); See generally Mary D. Fan, The Supply-Side Attack on Lethal Injection and the Rise of Execution Secrecy, 95 Boston U. L. Rev. 427 (2015) (asserting that the subsequent shortage is increasing the risk of harm through experimental drugs and secrecy statutes).
[7] Kate Pickert, A Brief History of Lethal Injection, Time (Nov. 10, 2009) https://content.time.com/time/ nation/article/0,8599,1815535,00.html (noting that Chapman’s experience was in the forensic pathology of those already deceased, not the pharmacology of living beings, and explaining his system as “a barbiturate (to anesthetize inmates), pancuronium bromide (to paralyze inmates and stop their breathing) and lastly potassium chloride (which stops the heart.”)).
[8] Alan Greenblatt, States Struggle To Find An Execution Method That Works, NPR (Apr. 30, 2014), https://www.npr.org/2014/04/30/308379972/states-struggle-to-find-an-execution-method-that-works
[9] Id.
[10] As Lethal Injection Turns Forty, States Botch a Record Number of Executions, Death Penalty Information Center (Dec. 7, 2022), https://deathpenaltyinfo.org/news/as-lethal-injection-turns-forty-states- botch-a-record-number-of-executions.
[11] Noah Caldwell, Ailsa Chang, & Jolie Myers, Gasping For Air: Autopsies Reveal Troubling Effects Of Lethal Injection, NPR (Sept. 21, 2020), https://www.npr.org/2020/09/21/793177589/gasping-for-air- autopsies-reveal-troubling-effects-of-lethal-injection.
[12] Id.
[13] Id. (referring to the 2019 decision of Magistrate Michael R. Merz in In Re: Ohio Execution Protocol Litigation, which stated, “We now know on the best expert testimony available that [midazolam] does not have any analgesic effect. Moreover, we have good evidence that midazolam will cause the ‘waterboarding’ effects of pulmonary edema. If Ohio executes Warren Henness under its present protocol, it will almost certainly subject him to severe pain and needless suffering. Reading the plain language of the Eighth Amendment, that should be enough to constitute cruel and unusual punishment . . . . Despite what we now know of the inadequacies of midazolam as an execution drug, the Glossip majority commands that a death row inmate must also plead and prove an appropriate alternative method of execution. That Henness has not done. The Motion for Preliminary Injunction . . . is DENIED.” No. 2:11-cv-1016, 2019 U.S. Dist. LEXIS 8200, at *252 (S.D. Ohio Jan. 14, 2019))
[14] Glossip v. Gross, 576 U.S. 863, 869 (2015) (“[B]ecause it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.”) (quoting Baze v. Rees, 553 U.S. 35, 47 (2008)).
[15] Caldwell, Chang, & Myers, supra note 12.
[16] Andrew Welsh-Huggins, Governor Says ‘No Executions’ Without Court-Backed Drugs, AP (Feb. 26, 2019), https://apnews.com/general-news-fa8c204d22cf42c283b19523cbb87f34.
[17] Annette Choi & Dakin Andone, Executions in the US Are in Decline – But Some Jurisdictions Lead the Rest, CNN (Oct. 6, 2023), https://www.cnn.com/2023/10/06/us/us-executions-death-penalty-dg/index.html (remarking that 14 of the 27 states that still allow the death penalty have not executed anyone in 10 years or more; the federal government, California, Oregon, and Pennsylvania have announced moratoriums; and Arizona has temporarily paused executions).
[18] Gallup, New 47% Low Say Death Penalty is Fairly Applied in U.S. (Nov. 6, 2023), https://news.gallup.com/poll/513806/new-low-say-death-penalty-fairly-applied.aspx (summarizing results of a 2023 survey that found that less than half of Americans believe capital punishment is applied fairly and that support for the death penalty is the least popular it has been since 1972).
[19] Death Penalty Information Center, supra note 3 (stating that 195 people who had been on death row had been exonerated between 1973 and 2023).
[20] Diplomatic Service of the European Union, Abolition of death penalty and fight against torture, European Union External Action (Oct. 4, 2023), https://www.eeas.europa.eu/eeas/abolition-death- penalty-and-fight-against-torture_en#75093 (stating that “[d]ata suggests discrimination in the application of the death penalty, including on the basis of poverty, economic vulnerability, political opinion, sexual orientation or gender identity, sex, psychosocial disability, and other grounds.”).
[21]See Baze v. Rees, 553 U.S. 35, 52, 62 (2008) (noting “[t]hroughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge.”); see also Glossip v. Gross, 576 U.S. 863 (2015) (denying a request for preliminary injunction against Oklahoma’s lethal injection protocol).
[22] Death Penalty Information Center, supra note 4.
[23] Glossip v. Gross, 576 U.S. 863, 869–70 (2015).
[24] Drug Company: Stop Using Our Product For Executions, Amnesty International https://www.amnestyusa.org/updates/drug-company-stop-using-our-product-for-executions/ (last accessed Apr. 4, 2024).
[25] Glossip v. Gross, 576 U.S., at 870.
[26] KeêS Gioenhout, Letter to Ohio Department of Rehabilitation and Corrections (Mar. 31, 2010), available at https://dpic-cdn.org/production/legacy/Statement-from-Hospira_2.pdf.
[27] Press Release, Hospira, Hospira Statement Regarding PentothalTM (sodium thiopental) Market Exit (Jan. 21, 2011).
[28] Raymond Bonner, Letter From Europe: Drug Company in Cross Hairs of Death Penalty Opponents, N. Y. Times, Mar. 30, 2011, https://www.nytimes.com/2011/03/31/world/europe/31iht-letter31.html.
[29] Industry Opposition to the Misuse of Medicines in Executions, Lethal Injection Information Center (June 2020) https://lethalinjectioninfo.org/wp-content/uploads/2020/06/2020_06_10_PUB-Industry-Statements- Booklet.pdf (providing excerpts from companies’ public statements).
[30] Id.
[31] David J. Nicholl, Khurram A. Siddiqui, Mogens Dam, George Thomas, and Andre N. Sofair, on behalf of 58 others, Open Letter to Ulf Wiinberg, Chief Executive of Lundbeck Pharmaceuticals, LANCET 377, no. 9783 (2011) at 2079. https://www.thelancet.com/pdfs/journals/lancet/PIIS0140-6736(11)60823-4.pdf
[32] Matt Ford, Can Europe End the Death Penalty in America?, Atlantic (Feb. 18, 2014), https://www.theatlantic.com/international/archive/2014/02/can-europe-end-the-death-penalty-in-america/283790/
[33] Id.
[34] Id.
[35] Some Medical Supply Manufacturers Ban Use of IV Equipment in Lethal Injection Executions, Death Penalty Information Center (Sept. 15, 2023), https://deathpenaltyinfo.org/some-medical-supply- manufacturers-ban-use-of-iv-equipment-in-lethal-injection-executions; Greenblatt, supra note 7.
[36] Gov. Nixon Halts Execution Using Controversial Drug – Why The Change Of Plans?, ST. Louis Public Radio (Oct. 11, 2013) https://www.stlpr.org/government-politics-issues/2013-10-11/gov-nixon-halts-execution-using-controversial-drug-why-the-change-of-plans.
[37] Death Penalty Information Center, supra note 4.
[38] Id.
[39] Julie Carr Smyth, Farnoush Amiri, & Andrew Welsh-Huggins, Ohio Governor: Lethal Injection No Longer Execution Option (Dec. 8, 2020) (reporting Governor DeWine stated “Lethal injection appears to us to be impossible from a practical point of view today.”), Glossip v. Gross, 576 U.S. 863, 871 (2015) (“The District Court below found that both sodium thiopental and pentobarbital are now unavailable to Oklahoma.”).
[40] Death Penalty Information Center, supra note 4.
[41] Greenblatt, supra note 7.
[42] Death Penalty Information Center, supra note 4.
[43] Molly Redden, New Lethal Injections Could Cause Extreme Pain, Make Deaths “Drag On” for Hours, Mother Jones(Nov. 7, 2013), https://www.motherjones.com/politics/2013/11/ohio-lethal-injection-cocktail-execution-drugs/.
Punishment or “Protection”? The Case Challenging Racialized Homelessness Nationwide
By: Noelle Sperrazza, Volume 43 Note & Comment Editor
View/Download PDF Version: Punishment or “Protection”? The Case Challenging Racialized Homelessness Nationwide (Sperrazza)
Homelessness is one of the most prominent, urgent, and ever-growing crises in America today. As of 2023, roughly 653,100 people in the United States were experiencing homelessness on any given night.[1] Rising housing costs, shifts in the labor market, and deinstitutionalization all contribute to this complex issue.[2] Yet rather than implementing humane solutions, many cities have instead turned to punitive measures: criminalizing homelessness, conducting encampment sweeps without notice, and confiscating personal belongings are just a few of many unjust actions taken.[3]
One legal battle at the forefront of this debate is Fund for Empowerment v. City of Phoenix, a federal case in Arizona that challenges how municipalities wrongfully treat their unhoused populations.[4] Although this case was in part abrogated by City of Grants Pass v. Johnson, other claims in this lawsuit could pose far-reaching consequences for homelessness policies nationwide, shaping how cities can challenge enforcement with human rights.[5]
Legal Background: The Fight Over Homelessness Rights
In November 2022, the American Civil Liberties Union (“ACLU”) filed suit against the city of Phoenix on behalf of non-profit organization Fund For Empowerment (“FFE”) and chronically unsheltered individuals.[6] The lawsuit targeted limited notice to vacate encampments, confiscation and destruction of plaintiffs’ property, and criminalization of sleeping or camping outside.[7]
The ACLU posed three constitutional challenges to the city’s actions: (1) the Fourth Amendment, which protects against unlawful searches and seizures; (2) the Eighth Amendment, prohibiting cruel and unusual punishment; and (3) the Fourteenth Amendment, guaranteeing due process rights.[8]
The plaintiffs’ Fourth and Fourteenth Amendment claims arise from the city’s enhanced cleaning plan and abandoned property procedures, which in effect allows the city to (1) conduct warrant checks and (2) destroy unsheltered persons’ materials once seized, if they cannot be contacted.[9] Unsurprisingly, contacting these individuals would prove to be difficult, as methods to notify (namely, digital technology) are less utilized among individuals of lower socio-economic status.[10]
Plaintiffs’ Eighth Amendment claim targets two city ordinances that effectively criminalized camping and sleeping outside.[11] However, these measures do little to help Phoenix’s issue of homelessness—of over 3,000 homeless individuals in the city, there are approximately 1,788 shelter beds available for those struggling to find housing.[12] Thus as a result of these ordinances, there are over one thousand individuals unaccounted for that would suffer legal repercussions through no fault of their own. These Eighth Amendment claims, however, were unfortunately overturned on the Supreme Court level in City of Grants Pass v. Johnson. The court reasoned that the public-camping ordinances do not intend to criminalize one’s “status,” as the laws “make no difference” as to whether the charged individual is experiencing homelessness.[13]
Unfortunately, other cities and states across America have already followed suit with similar ordinances. In California, the governor passed an executive order requiring state agencies to remove homeless encampments on public property,[14] and Portland likewise enforced a camping ban that was designed to connect people to shelter services and “not criminalize homelessness.”[15] Similarly in Des Moines, a $50 fine is enforced for those caught sleeping in public—a fine that the unsheltered population indisputably cannot afford.[16] In the latter two cities, although Black individuals account for under ten percent of the entire city population, they comprise over twenty percent of those sleeping on the street.[17] Tragically, this disproportionality of homeless, marginalized groups is far too common in major cities nationwide.
Nationwide, Racial Implications of Fund for Empowerment
Studies show that encampment sweeps and cleanups are, obviously, ineffective solutions: these ordinances only lead to increases in overdose deaths and hospitalizations.[18] In fact, in cities across the board, these laws are shown to play a role in 15-25% of homelessness deaths over the last decade.[19] Furthermore, confiscation of personal property will inevitably impact thousands of individuals suffering in brutal weather conditions, which may further put unsheltered persons at risk to deaths by hypothermia.[20]
Additionally, the problem of homelessness further perpetuates racial inequalities that are deeply engrained in our society: people of color or mixed race account for over half of all homeless individuals, despite comprising less than a quarter of the total American population.[21] Even in states where Black persons make up a minority of the entire population, they are nearly ten times more likely to experience homelessness than White people.[22] What is the reason for these contemporary disparities? Due to the complexity of factors that are at play, this is question is difficult to answer. However, studies point toward structural flaws in how cities were developed and operate—tragically there are significant racial imbalances in homelessness and its related systems, such as housing, child welfare, education, and health.[23] It is also reasonable to assume that the overrepresentation of people of color is a byproduct of the decades of discriminatory policies that have excluded Black and indigenous communities from equal housing and economic opportunities.[24]
Furthermore, most homelessness response systems that currently operate to aid unsheltered persons predominantly assume that mental health and substance abuse problems are the primary contributors to homelessness.[25] However, this is rarely cause to a person’s homelessness, and even less common among unsheltered persons of color—suggesting that the systems currently in place disproportionately service White individuals.[26] Thus, even if cities enforcing encampments and criminalization in line with Fund for Empowerment attempt to justify their ordinances by implementing these response systems, massive changes are essential to equally aid homeless persons of all racial demographics. As a starting point, cities must invest in culturally competent response systems that recognize, and attempt to combat, the unique barriers of Black, indigenous, and other marginalized communities.
Moreover, as encampment populations across many major U.S. cities are currently comprised of Black, Hispanic, and indigenous residents, the abolishment of these encampments will only serve to disproportionately target people of color.[27] If these encampments are eradicated, the homeless will have nowhere to go—with many cities lacking the temporary housing necessary for all unsheltered individuals,[28] this is essentially an invitation for homeless persons to be criminalized for sleeping outside. Thus, the correlation between crime, race, and homelessness becomes cyclical: people of color are incarcerated at higher rates than their White counterparts, and formerly incarcerated individuals are ten times more likely to become homeless.[29]
If cities such as Phoenix want to truly address homelessness, they must first acknowledge its racialized nature. Encampments, destruction of property, and criminalization do not address the root causes of homelessness; rather, they exacerbate racial disparities by punishing those already affected by systemic discrimination. The fight in Fund for Empowerment is not simply about the rights of the unhoused—rather, it will pave the way in determining whether our legal system will continue to reinforce racial inequality or take meaningful steps toward justice.
[1] Homeless Persons’ Memorial Day: December 21, 2023, U.S. Census Bureau (Dec. 21, 2023), https://www.census.gov/newsroom/stories/homeless-persons-memorial-day.html.
[2] Institute of Medicine (US) Committee on Health Care for Homeless People, Homelessness, Health, and Human Needs, Natl. Library of Medicine (1988), https://www.ncbi.nlm.nih.gov/books/NBK218240/.
[3] Lynette Kalsnes and Justin Perl, Minneapolis, Parks Sued to Stop Homeless Encampment Sweeps, ACLU (Oct. 19, 2020), https://www.aclu-mn.org/en/press-releases/minneapolis-parks-sued-stop-homeless-encampment-sweeps.
[4] Fund for Empowerment v. City of Phoenix, 646 F. Supp. 3d 1117 (D. Ariz. 2022).
[5] City of Grants Pass v. Johnson, 603 U.S. 520 (2024) (holding that ordinances do not constitute cruel and unusual punishment under the Eighth Amendment when applied to individuals experiencing homelessness, even if homelessness was involuntary).
[6] Fund for Empowerment, 646 F. Supp. at 1121.
[7] Id. at 1122-23.
[8] U.S. Const. amend. IV, VIII, XIV.
[9] Fund for Empowerment, 646 F. Supp. at 1122-23.
[10] A. McAuley, Digital health interventions: widening access or widening inequalities?, 128 Pub. Health 12, 1118-20 (2014).
[11] Fund for Empowerment, 646 F. Supp. at 1124.
[12] Id.
[13] City of Grants Pass, 603 U.S. at 522.
[14] Elleiana Green, ‘It’s mayhem and craziness’: Californians react to Gavin Newsom’s order to remove homeless encampments, NBC News (Aug. 10, 2024), https://www.nbcnews.com/politics/politics-news/s-mayhem-craziness-californians-react-gavin-newsoms-order-remove-homel-rcna165401.
[15] Adrian Thomas, Enforcement of new Portland camping ban to start July 1, Fox 12 (Jun. 25, 2024), https://www.kptv.com/2024/06/25/enforcement-new-portland-camping-ban-start-july-1/.
[16] Kay Henderson, New Des Moines homelessness ordinance includes $50 fine, Radio Iowa (Jul. 23, 2024), https://www.radioiowa.com/2024/07/23/new-des-moines-homelessness-ordinance-includes-50-fine/.
[17] Adam Mahoney, In Brooklyn, a New Homeless Shelter Reignites Decades of Racism, Capital B News (Aug. 15, 2024), https://capitalbnews.org/nyc-housing-homelessness-bensonhurst/.
[18] Study Shows Involuntary Displacement of People Experiencing Homelessness May Cause Significant Spikes in Mortality, Overdoses and Hospitalizations, Nat’l Health Care for the Homeless Council (Apr. 10, 2023), https://nhchc.org/study-shows-involuntary-displacement-of-people-experiencing-homelessness-may-cause-significant-spikes-in-mortality-overdoses-and-hospitalizations/.
[19] Id.
[20] Denver PD Defends Officers Who Confiscated Blankets from Homeless, ABC News (Dec. 16, 2016), https://abcnews.go.com/US/denver-pd-defends-officers-confiscated-blankets-homeless/story?id=44236705.
[21] M. Fowle, Racialized Homelessness: A Review of Historical and Contemporary Causes of Racial Disparities in Homelessness, 32 Housing Pol’y Debate 6, 940-967 (2022).
[22] Earl James Edwards, Who are the Homeless? Centering Anti-Black Racism and the Consequences of Colorblind Homeless Policies, 10 Soc. Scis. 9, 340 (2021) (“For example, while Black people make up just 2% and 18% of the Maine and New York total population, respectively, and Black people are ten times more likely to experience homelessness than White people in each respective state.”).
[23] Bill Pitkin, Homelessness Is a Housing and Racism Problem, Housing Matters (May 11, 2022), https://housingmatters.urban.org/articles/homelessness-housing-and-racism-problem.
[24] J. Rosie Tighe, et al., Source of Income Discrimination and Fair Housing Policy, 32 J. of Planning Literature 1, 3-15 (2017).
[25] See Mahoney, supra note 17 at 955.
[26] Id.
[27] Lauren Dunton, et al., City Approaches to Encampments and What They Cost, U.S. Dep’t of Housing and Urb. Dev. (2020).
[28] Many Western and Southern States Lack Sufficient Shelter Capacity for Individual Homeless Adults, Nat’l Alliance to End Homelessness (Apr. 24, 2019), https://endhomelessness.org/resource/many-western-and-southern-states-lack-sufficient-shelter-capacity-for-individual-homeless-adults/.
[29] Jeffrey Olivet, et al., Racial Inequality and Homelessness: Findings from the SPARC Study, 693 ANNALS Am. Acad. Pol. & Soc. Sci. 1, 82-100; Michelle Alexander, The New Jim Crow (rev. ed. 2012); Lucius Couloute, Nowhere to Go: Homelessness among formerly incarcerated people, Prison Pol’y Initiative (2018), https://www.prisonpolicy.org/reports/housing.html.
How Recent Executive Actions Deliver Reproductive Healthcare Discrimination
By: Kavya Mahesh, Volume 43 Staff Member
View/Download PDF Version: How Recent Executive Actions Deliver Reproductive Healthcare Discrimination (Mahesh)
Systemic healthcare discrimination targeting vulnerable populations has been a persistent obstacle in ensuring quality medical services can be enjoyed equally by everyone. The impacts of the current healthcare inequities on maternal and reproductive care result in increased mortality rates, misdiagnoses, suboptimal care, and even denial of treatment.[1] Patients experiencing healthcare discrimination face problems accessing services (including untimely and delayed treatment), verbal or physical abuse, differential treatment due to minority status and implicit biases against them, and a lack of agency or autonomy in decision-making regarding treatment options.[2] Young Black women have felt “pushed to the side” by doctors, thus preventing them from seeking out treatment.[3] As a result of discrimination, healthcare creates an uninviting environment, making people who may need essential maternal or reproductive care feel unentitled to the medical services available.[4] Recent executive action by the government under the Trump administration will not only allow these inequities to continue, but exacerbate them on an even larger, global scale. These include, but are not limited to, the reinstatement of the Hyde Amendment and the Mexico City Policy, the assertion of sex as “binary,” the rollback of Diversity, Equity, and Inclusion (“DEI”) programs, and anti-immigration efforts.
On January 24, 2025, President Trump signed an Executive Order to reinstate the Hyde Amendment.[5] The Hyde Amendment prevents the use of federal taxpayer dollars to fund elective abortion.[6] In reinstating this amendment, the order revokes executive action from the previous Biden administration aimed at protecting access to abortion services and contraceptives.[7] This action has dire consequences, including denying abortion coverages to those enrolled in Medicaid and other federal programs such as military servicemembers or veterans and federal employees.[8] This is especially problematic as Medicaid is a vital resource for vulnerable populations, particularly children, pregnant women, and low-income individuals.[9] A nineteen year-old Black woman states, “[w]hen you’re constantly told by doctors, ‘[o]h you’ll be fine. Just take ibuprofen. Just take this.’ Literally my entire life I’ve been pushed to the side… I don’t do anything about [my chronic pain]. I don’t go to the hospital.”[10] Given this mindset, a complete denial of abortion care to vulnerable groups will make them feel reticent to seek medical treatment, even in life-threatening situations. Further, healthcare providers must navigate the administrative and legal setbacks that come with these restrictions as they attempt to maintain their reproductive health services.[11] In a system that is already designed to exclude or even harm the vulnerable, these added limitations will only make discrimination and inequities worse.
On the same day, the President reinstated the Presidential Memorandum of January 23, 2017 known as the Mexico City Policy.[12] Also called the Global Gag Rule, this policy prohibits U.S. funding for foreign organizations that provide abortion counseling and services even if these services are funded in part by non-U.S. sources.[13] Many global organizations prioritizing maternal and reproductive care rely on U.S. funding, and this will have a worldwide impact to limit access to medical services such as prenatal care, postpartum services, and access to contraception.[14]
Another Executive Order that has a detrimental impact on accessing health care is the delineation of sex as “binary” and “an immutable biological classification that is either male or female.”[15] This action limits the available opportunities to access medical services for people who may identify as “pregnant people” instead of “pregnant women”.[16] By changing terminology to such a narrow category, health care systems must now revise policies for their contraceptive guidelines, room assignments, medical records, and treatment protocols regarding nonbinary and trans individuals, adversely affecting the type and nature of care they receive.[17]
President Trump’s Executive Order to dismantle DEI initiatives further hinders healthcare equity.[18] As a result of eliminating DEI programs, the NIH must cease any research to improve accessibility to health care.[19] Further, any program aimed at increasing representation in the medical profession and thus making medical services more inviting to minority groups, could be defunded.[20] The persistence of implicit biases with no action being taken to counteract it would increase the risk of receiving differential treatment or a complete denial of services.
Finally, the Executive Order of “Protecting the United States from Foreign Terrorists and Other National Security and Public Safety Threats” creates additional obstacles for pregnant immigrants and refugees from accessing healthcare. The fear of deportation as a result from the targeted and antagonistic language of these orders would ultimately lead to an avoidance of seeking out maternal or reproductive care when needed, for example because of a pregnancy related complication.[21] From an administrative point of view, the potential requirement of verifying immigration status before being able to provide care would contribute significantly to delayed treatment and bolster bias against the immigrant population and place immigrants under additional scrutiny.[22]
In conclusion, the recent Executive Orders signed by President Trump exacerbate the already prevalent healthcare disparities experienced by vulnerable populations in restricting their access to essential maternal and reproductive care. This could have a devastating impact on the quality of care available to minority groups and increase mortality rates. Not only will patients become more reluctant to seek out medical services, but healthcare providers will hesitate to provide treatment out of fear of legal consequences. In an age where technological advancements aim to improve the quality of care available, society should strive to find ways to make higher-caliber treatment broadly accessible, rather than restrict it to certain groups over others.
[1] Jasmine T. Arcilla et al., Racialized Migrant Women’s Discrimination in Maternal Care: A Scoping Review, 24 Int’l J Equity Health (2025) at 2.
[2] Id.
[3] Ashley V. Hill et al., How Racism and Discrimination Impacts Black Young Women’s Sexual Health: The Influence of Racial and Sexual Stereotypes on Educational Access, 76 J. Adolescent Health 316, 318 (2025) (“Being pushed to the side when it comes to pain and stuff like that because they [medical practitioners] think Black women have a higher pain tolerance or it’s not that serious. They don’t think we can get ailments, and White women are literally always being catered to.”) quoted by a fifteen-year-old.
[4] See Arcilla et al., supra note 1.
[5] Exec. Order No. 14182 90 Fed. Reg. 8751 (Jan. 24, 2025).
[6] Id.
[7] Id.; The Trump Administration’s First Actions in 2025 Targeting Patients, Providers, and Reproductive Health Care Access, National Women’s Law Center (Feb. 25, 2025), https://nwlc.org/resource/the-trump-administrations-first-actions-in-2025-targeting-patients-providers-and-reproductive-health-care-access/.
[8] Id.
[9] Fact Sheet: Medicaid, American Hospital Ass’n (Feb. 2025), https://www.aha.org/fact-sheets/2025-02-07-fact-sheet-medicaid#:~:text=Medicaid%20covers%20millions%20of%20people,that%20employ%20low%2Dwage%20workers.
[10] Ashley V. Hill et. al., supra note 3 at 319.
[11] Sarah Moors, Trump’s Executive Orders That Impact Healthcare, DHI Insights (Feb. 4, 2025), https://dhinsights.org/news/trumps-executive-orders-that-impact-healthcare.
[12] Memorandum on the Mexico City Policy, 2025 Daily Comp. Pres. Doc. 202500181 (Jan. 24, 2025).
[13] Supra note 8.
[14] Id.
[15] Exec. Order No. 14168 90 Fed. Reg. 8615 (Jan. 20, 2025).
[16] Moors, supra note 10.
[17] Id.
[18] Exec. Order No. 14151 90 Fed. Reg. 8339 (Jan. 20, 2025).
[19] Moors, supra note 11.
[20] Id.
[21] Exec. Order No. 14161 90 Fed. Reg. 8451 (Jan. 20, 2025) (incorporating more stringent screening “to the maximum degree possible” and stating its purpose as protecting Americans from “aliens” who threaten national security).
[22] Moors, supra note 11 (predicting that reduced preventative care and delayed treatment seeking among immigrants would be a consequence of this action.).
The Deportation Marketplace: The Unethical and Potentially Illegal Deal with El Salvador’s Mega-Prison
By: Jane Genske, Volume 43 Staff Member
View/Download PDF Version: The Deportation Marketplace (Genske)
The outsourcing of asylum responsibilities by wealthier nations through financial incentives—often termed “the commodification of refugees”—is not a new phenomenon. Countries have long paid others to accept and detain migrants, effectively shifting their obligations elsewhere. A recent agreement between the United States and El Salvador exemplifies this troubling practice, as the United States will reportedly pay El Salvador to detain immigrants in its notorious mega-prison, “Centro de Confinamiento de Terroristas” (CECOT). While framed as a solution for handling deportees with criminal records, the arrangement raises serious legal and ethical concerns, particularly regarding human rights violations, due process, and compliance with international refugee protections. This blog post examines the broader implications of this transactional approach to immigration policy, questioning the legality and morality of treating migrants as livestock shipped from one country to another.
In early February, El Salvador’s President Nayib Bukele confirmed the agreement to accept immigrants into the country’s mega-prison, CECOT, in exchange for a fee to sustain its prison system. While Bukele has been credited with reducing gang violence through mass incarcerations, human rights organizations have condemned the country’s harsh prison conditions, citing overcrowding and lack of due process. What’s particularly concerning, is that the United States will be paying El Salvador to detain immigrants. Critics of this agreement say it is both illegal and unethical, stating “it is a bizarre and unprecedented proposal being made potentially between two authoritarian, populist, right wing leaders seeking a transactional relationship.” This transactional arrangement has no legal basis and likely breaches multiple international laws protecting migrants’ rights.
Immigration detention is the United States government’s practice of holding individuals in custody while determining their immigration status, with facilities often run by private prison companies. Not all of the people detained by ICE came to the United States with criminal backgrounds, however. Some came as asylum-seekers and ended up in ICE detention as a result of a DUI, drug possession and traffic offenses. As a result, some of the deportees headed to CECOT could have non-violent criminal backgrounds and be sharing a prison with members of MS-13. This agreement only specifically mentions convicted criminals, but we know the Trump administration has already relocated nonviolent, “low-risk” migrant detainees with little or no criminal history to Guantanamo Bay. Therefore, those potentially impacted include long-term residents, recent arrivals and vulnerable individuals such as pregnant women, survivors of domestic violence, and unaccompanied minors when they turn 18.
Although many of the immigrants getting deported to El Salvador have criminal convictions, many also came to the United States as asylum-seekers. Asylum is granted to individuals in the United States seeking protection because they have suffered past persecution or fear that they will suffer future persecution due to their race, religion, nationality, political opinion or membership in a particular social group. In other words, some of the detained individuals who may fall victim to this new arrangement and American politics broadly, may have attempted asylum, but were denied because they did not meet the legal threshold or fall into one of these protected classes. For instance, an individual fleeing gang violence, domestic violence, or general instances of persecution could wind up detained in an El Salvadorian prison.
Typically, if an immigration judge orders an individual removed, they must be removed to their country of origin. This agreement, however, between the United States and El Salvador ignores this protocol, essentially shuttling immigrants from one place to another regardless of their due process rights.
Domestic law may not be useful in putting a stop to this arrangement, but international law, specifically, the principle of non-refoulment under the 1951 Refugee Convention and the Covenant on Civil and Political Rights (ICCPR) may be violated if the deportation plan proceeds. Under non-refoulment, a party to the 1951 Convention shall not deport a person to a country where there are strong reasons to believe they may face torture. Factors to be considered include evidence of widespread human rights violations and instances of ill-treatment. The ICCPR, when ratified by the United States became “the supreme law of the land” under the Supremacy Clause, giving the treaty federal law status. Under the ICCPR, parties are obligated to protect fundamental human rights, including protection from torture, ill-treatment, and arbitrary detention.
In CECOT, the prisoners do not receive visits, there are no programs, no workshops, no educational programs, and they are not allowed outside. There is no meat served in CECOT and drinking water is sparingly provided. There is no medical treatment for detainees with chronic illness or injuries, and the conditions are exceedingly unsanitary. Last summer, at least 261 people died in CECOT. As a signatory to the 1951 Convention, the United States would be breaching its international commitments by transferring immigrants, especially those with minimal criminal backgrounds, to CECOT, where overcrowding, sanitation issues, and inhumane practices are well-documented.
Immigrants are therefore becoming the economic and political pawn of the United States—offering money, threatening to take back the Panama Canal or impose tariffs if countries refuse to accept the countless numbers of deportees. While the fee may go towards sustaining the prison system and actually be legal, this arrangement essentially treats immigrants like commodities, who can be transported from one country to another in exchange for money.
Fragmenting Justice: How a Circuit Split is Breaking FLSA Collectives and Undermining Employee Protections Post-Bristol-Myers Squibb
By: Anthony Alas, Volume 43 Managing & Research Editor
View/Download PDF Version: Fragmenting Justice – How a Circuit Split is Breaking FLSA Collectives and Undermining Employee Protections Post-Bristol-Myers Squibb (Alas)
I. INTRODUCTION
Decision after decision, federal circuits are eroding employees’ right to unite against their employer in the courtroom. For decades, courts interpreted the Fair Labor Standards Act (“FLSA”) to allow employees to file suit against employers through nationwide collectives, allowing employees across the country to vindicate their rights by pooling their resources together. Today, federal circuits are splintering employee collectives.
In Bristol-Myers Squibb, the Supreme Court held that, in view of the Fourteenth Amendment’s Due Process Clause, state courts could not exercise specific jurisdiction over the claims of nonresident litigants.[1] A steadily growing four-to-one circuit split has extended this holding to apply to federal courts.[2] As a result, federal courts are limited in their ability to claim personal jurisdiction over out-of-state plaintiffs. The Ninth Circuit is next to decide the issue in Harrington v. Cracker Barrel.[3]
In the fight to recoup stolen wages, employees must now proceed divided. The FLSA’s collective action mechanism must be preserved or federal courts risk inconsistent judgments in different courts around the same issues, clogging courts with duplicative litigation, and trampling on the FLSA’s expressed intent of supporting employees in the fight to vindicate their rights.
The FLSA
In the 1930’s, the FLSA revolutionized the workplace by ushering in employee protections such as minimum wage and overtime laws.[4] Shortly after enactment, the Supreme Court recognized that Congress enacted the statute “to aid the unprotected, unorganized, and lowest paid of the nation’s population.”[5] The statute was a recognition that employees needed greater protections in the employer-employee relationship.[6]
Since then, the FLSA has stood as a bulwark protecting employees against employers committing “wage theft”—the failure to pay employees wages to which they are legally entitled.[7] Nearly one hundred years after the FLSA’s enactment, wage theft is still widespread as 2.4 million workers continue to lose $8 billion annually to minimum wage violations.[8]
Congress devised a mechanism to empower employees against these unequal power dynamics. The FLSA allows employees to file suit against employers on behalf of himself and other employees “similarly situated.”[9] For years, courts recognized this language to permit “collective actions.”[10] Through a collective action, similarly situated employees may “opt-in” as parties to the original action.[11] Chin v. Tile Shop helps illustrate the collective action process.
In Chin, a court found that sales associates across the country were subject to similar FLSA wage violations.[12] Therefore, the court allowed the case to proceed to the next stage.[13] In this next stage, as in most FLSA collective cases, the court set a time period during which sales associates across the country could be notified of the case and had the opportunity to opt-in to the collective.[14] Once opted-in, the sales associates could proceed as individual—but united—parties to the collective litigation against the employer.
As this case demonstrates, the FLSA gives employees two rights: “the right to bring the collective litigation and the right to join it.”[15] Given the FLSA’s purpose is to protect employees, the Supreme Court recognized that, at the heart of it, proceeding collectively gives employees the advantage of “lower[ing] individual costs to vindicate rights by the pooling of resources.”[16] The FLSA brought forth the collective action mechanism to empower employees against employers.
Since the FLSA’s enactment, federal courts have allowed nationwide service of process illustrated by Chin. Similarly situated employees across the country could proceed collectively in one federal court to confront an employer’s unlawful, nationwide practices.[17] But in 2017, the Supreme Court’s Bristol-Myers Squibb (“BMS”) decision signaled a potential end to nationwide FLSA collectives.
II. BMS AND THE FEDERAL CIRCUIT SPLIT THAT FOLLOWED
In BMS, the Supreme Court held that, in view of the Fourteenth Amendment’s Due Process Clause, a state court could not exercise specific jurisdiction over the claims of nonresident litigants.[18]
BMS involved a civil action in California state court filed by a group of plaintiffs consisting of 86 California residents and 592 residents from 33 other states.[19] Plaintiffs alleged that they suffered injuries after ingesting a pharmaceutical drug produced by the drug manufacturer.[20] The manufacturing, labelling, packaging, and marketing for this drug all occurred outside of California.[21] The drug, however, was sold in California and the drug manufacturer employed approximately 250 sales representatives throughout California.[22] The drug manufacturer tried to dismiss service of summons on the nonresidents’ claims on the grounds that the California state court lacked personal jurisdiction.[23]
The district court found that California courts had general jurisdiction over the Defendant “[b]ecause [it] engage[d] in extensive activities in California.”[24] Similarly, the California Supreme Court eventually held that the California court had specific jurisdiction due to the similarity between the nonresident and resident claims.[25] The issue eventually reached the Supreme Court which reversed and remanded the state court’s judgment.[26] There are two points to emphasize about the BMS decision.
(1) This was an issue about jurisdiction in state courts. Specifically, the Court analyzed the issue based on the Fourteenth Amendment’s limit on personal jurisdiction as to state courts.[27] Accordingly, the Fourteenth Amendment limited a state’s ability to render judgment against a nonresident defendant.[28] On this, the court emphasized that “[i]n order for a state court to exercise specific jurisdiction, ‘the suit’ must ‘arise[e] out of or relate[e] to the defendant’s contacts with the forum.’”[29] Put differently, there must be a connection between the state forum and the conduct that places the claims in the forum’s jurisdiction.[30] In BMS, the Supreme Court did not find such a connection on the fact that the relevant plaintiffs were not California residents and did not claim to have suffered harm in California.[31]
Just as important, (2) the Court expressly reserved the issue of whether this same analysis applies under the Fifth Amendment as to an exercise of personal jurisdiction in federal court under similar facts.[32] In the years since, employers have attempted to extend BMS to the FLSA arguing that out-of-state plaintiffs cannot join the resident plaintiff’s claim against the employer when the harm occurred elsewhere. The majority of federal circuits, so far, agree.
The Third, Sixth, Seventh, and Eight Circuits have extended BMS to apply to FLSA collectives.[33] Although each circuit decision maintains its own wrinkles and legal analysis, the decisions are united on at least one major front. Specifically, jurisdiction for each plaintiff’s claim must be analyzed claim-by-claim because an FLSA collective requires each plaintiff to hold individual party status and permits individualized claims and defenses.[34] As the Seventh Circuit summarized, “[e]ach failure to pay wages…is a separate violation that gives rise to a distinct claim. Personal jurisdiction must be determined on a claim-by-claim basis.”[35]
The First Circuit is the only circuit on the other side of the split. The First Circuit rejected BMS’ application, partly on the simple fact that BMS mainly concerned the 14th Amendment’s limits on state courts, but the constitutional limits of Due Process in federal courts are limited by the 5th Amendment.[36] BMS, a case concerning state law and a state court’s reach, had no binding precedent on the federal issue: “If there is any anomaly, it is the approach suggested by the Sixth Circuit—applying the Fourteenth Amendment to federal-law claims that are governed only by the Fifth Amendment.”[37]
Currently, the issue is up for decision in the Ninth Circuit.[38] In that case, the district court declined to extend BMS to the FLSA on the ground that doing so would be contrary to congressional intent.[39]
III. THE CONSEQUENCES OF SPLINTERING NATIONWIDE FLSA COLLECTIVES
An early and influential district court decision on the matter warned that applying BMS to FLSA collective actions will inevitably “splinter most nationwide collective actions, trespass on the expressed intent of Congress, and greatly diminish the efficacy of FLSA collective actions as a means to vindicate employees’ rights.”[40]
Such warnings were realized after the Sixth Circuit applied BMS to FLSA collectives. After the circuit decision, plaintiff-employees across the country had to file suit in separate courts. Rather than proceeding in one collective, employees proceeded in six separate cases concerning the same general wage theft allegations.[41]
The Ninth Circuit recognized this danger. At oral argument, Ninth Circuit Judge Michael Daly Hawkins asked whether employees would have to file “separate suits in 45 states.”[42] The employer’s response: “That would be one option[.]”[43]
The Supreme Court once stated that the “broad remedial goal of the [FLSA] should be enforced to the full extent of its terms.”[44] Congress enacted the FLSA to vindicate employees asserting their rights by allowing them to pool resources together on a united front. Applying BMS to the FLSA presents the risk of employees in one state finding justice and recouping wages, while employees in another state—subject to the same wage theft policies—losing those wages. Federal courts seeking to maintain an efficient docket will be bogged down with duplicative litigation in which the same evidence could have been used in one case rather than multiple cases. Employees must be able to proceed efficiently in a united collective. Anything less “is not what the FLSA contemplated.”[45]
[1] Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco County, 582 U.S. 255, 264-66 (2017).
[2] Fischer v. Fed. Express. Corp., 42 F.4th 355, 370 (3d. Cir. 2022); Canaday v. Anthem Co., Inc., 9 F.4th 392, 397 (6th Cir. 2021); Vanegas v. Signet Builders, Inc., 113 F.4th 718, 731 (7th Cir. 2024); Vallone v. CJS Solutions Grp., LLC, 9 F.4th 861, 865-66 (8th Cir. 2021); Waters v. Day & Zimmermann NPS, Inc., 23 F.4th 84, 92 (1d. Cir. 2022).
[3] Gillespie v. Cracker Barrel Old Country Store Inc., No. CV-21-00940-PHX-DJH, 2023 WL 2734459 (D. Ariz. 2023), appeal docketed, No. 23-15650 (9th Cir. May 2, 2023).
[4] See Act of June 25, 1938, Pub. L. No. 718, 52 Stat. 1063
[5] Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 at n.18 (1945).
[6] Id. at 706.
[7] Nicole Hallett, The Problem of Wage Theft, 37 Yale L. & Pol’y Rev. 93, 98 (2018).
[8] David Cooper & Teresa Kroeger, Employers Steal Billions From Workers’ Paychecks 9, Econ. Pol’y Inst. (2018).
[9] 29 U.S.C. § 216(b).
[10] See Hoffman-La Roche Inc. v. Sperling, 493 U.S. 165 (1989); Campbell v. City of Los Angeles, 903 F.3d 1090, 1101 (9th Cir. 2018) (stating that collective actions are a “creature[ ] of distinct text” originating from 29 U.S.C. § 216(b)).
[11] Campbell, 903 F.3d at 1101.
[12] 57 F.Supp.3d 1075, 1092 (D. Minn. 2014).
[13] Id. at 1095.
[14] Id. at 1095.
[15] Id. at 1100.
[16] Hoffman La-Roche, 493 U.S. at 170.
[17] See Swamy v. Title Source, Inc., No. C 17-01175 WHA, 2017 WL 5196780, at *2 (N.D. Cal. Nov. 10, 2017).
[18] Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco County, 582 U.S. 255, 264-66 (2017).
[19] Id. at 259.
[20] Id.
[21] Id.
[22] Id.
[23] Bristol-Myers Squibb, 582 U.S. at 259.
[24] Id.
[25] Id.
[26] Id. at 269.
[27] Id. at 261-62.
[28] Bristol-Myers Squibb, 582 U.S. at 261-62.
[29] Id. at 262.
[30] Id. at 265.
[31] Id. (“The mere fact that other plaintiffs were prescribed, obtained, and ingested [the drug] in California—and allegedly sustained the same injuries as did the nonresidents—does not allow the State to assert specific jurisdiction over the nonresidents’ claims. . . . What is needed—and what is missing here—is a connection between the forum and the specific claims at issue.”).
[32] Id. at 268-69 (“In addition, since our decision concerns the due process limits on the exercise of specific jurisdiction by a State, we leave open the question whether the Fifth Amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court.”).
[33] Fischer v. Fed. Express. Corp., 42 F.4th 355, 370 (3d. Cir. 2022); Canaday v. Anthem Co., Inc., 9 F.4th 392, 397 (6th Cir. 2021); Vanegas v. Signet Builders, Inc., 113 F.4th 718, 731 (7th Cir. 2024); Vallone v. CJS Solutions Grp., LLC, 9 F.4th 861, 865-66 (8th Cir. 2021).
[34] Vanegas, 113 F.4th at 725–26 (“In short: FLSA collective actions are unlike class actions. Just like the mass action in BMS, a collective action is no more than a ‘consolidation of individual cases, brought by individual plaintiffs.’” ) (citation omitted); Vallone, 9 F.4th at 865 (“Each failure to pay wages, however, is a separate violation that gives rise to a distinct claim. Personal jurisdiction must be determined on a claim-by-claim basis.”) (citation omitted); Canaday, 9 F.4th at 402 (reasoning that Congress intended to end representational litigation in order to serve the “purpose of limiting private FLSA plaintiffs to employees who asserted claims in their own right and freeing employers of the burden of representative action.”) (citation omitted); Fischer, 42 F.4th at 377 (“‘…each FLSA claimant has the right to be present in court to advance his or her own claim.’ And defendants in an FLSA collective action retain the ability to assert ‘highly individualized’ defenses with respect to each of the opt-in plaintiffs.”).
[35] Vallone, 9 F.4th at 865.
[36] Waters v. Day & Zimmermann NPS, Inc., 23 F.4th 84, 92 (1d. Cir. 2022). The court also rejected the argument bolstered by the 6th Circuit Canaday decision, namely, that Rule 4(k) of the Federal Rules of Civil Procedure, which incorporates the Fourteenth Amendment, limited the jurisdiction of federal district courts. Id. at 93–100.
[37] Id. at 99.
[38] Harrington v. Cracker Barrel Old Country Store, Inc., No. 23-15650 (filed May 2, 2023).
[39] Gillespie v. Cracker Barrel Old Country Store, Inc., No. CV-21-00940-PHX-DJH, 2023 WL 2734459, at *12–13 (D. Ariz. Mar. 31, 2023).
[40] Swamy, 2017 WL 5196780, at *2.
[41] Kneppar v. Elevance Health Co. Inc., No. MJM-23-863, 2024 WL 1156406 (D. Md. Mar. 18, 2024); Baker v. Anthem Co., Inc., No. 1:21-CV-04866-WMR (N.D. Ga. Feb. 6, 2023); Lazaar v. Anthem Co., Inc., 678 F.Supp.3d 434 (S.D.N.Y. June 22, 2023); Landis v. The Elevance Health Co., Inc., 4:23-CV-00005 (E.D.N.C.); Learning v. Anthem Co., Inc., No. 21-2283 (JWB/DJF), 2024 WL 1232284 (D. Minn. Mar. 22, 2024); Midkiff v. Anthem Co., Inc., 640 F.Supp.3d 486 (E.D. Va. Nov. 10, 2022).
[42] Jennifer Bennett, Wage Suit Jurisdiction Split Rears Head in Cracker Barrel Appeal, Bloomberg L. (Feb. 7, 2025), https://www.bloomberglaw.com/bloomberglawnews/daily-labor-report/X2U41OT4000000?bna_news_filter=daily-labor-report#jcite.
[43] Id. (also suggesting, as an alternative, that Plaintiffs could sue in Tennessee court).
[44] Hoffman-La Roche, 493 U.S. at 173.
[45] Zimmerman, 23 F.4th at 97 (“Holding that a district court lacks jurisdiction over the non-resident opt-in claims would ‘force[ ] those plaintiffs to file separate lawsuits in separate jurisdictions against the same employer based on the same or similar alleged violations of the FLSA. . . . That is not what the FLSA contemplated.”) (citation omitted).
Minneapolis Organization Spotlight: New Justice Project MN
By: Fariza Hassan, Volume 43 Editor-in-Chief
View/Download PDF Version: Minneapolis Organization Spotlight – New Justice Project MN (Hassan)
During a long-time friend’s going away picnic at Boom Island Park earlier this summer, we noticed that under the nearby chateau was a lively group hosting some sort of celebratory, yet informative, event. While we reminisced our stories together, the group next to us put on presentations for one another and made us jealous with how delicious their food smelled. As our picnic began to wrap up, three individuals from the neighboring group approached us, flyers in hand. Nelle, one of these individuals, introduced them as members of the New Justice Project (NJP), a local non-profit organization here in Minneapolis. They asked if they could share a little bit about NJP and the upcoming initiatives that we could take part in. My friends and I, as lifelong Minnesotans and followers of local Minneapolis organizations and politics (though, perhaps not as active as we should be), welcomed Nelle and the others to share their flyers and efforts. They were also kind enough to share some of their food, which my friend Allan eagerly filled a plate with. I realized very quickly that NJP’s inherent values resonated profoundly with not only my own, but also with those of the Journal of Law & Inequality here at UMN Law.
Since this random day in August, I have learned so much about NJP and the essential work they do with and for Black communities here in Minneapolis. As a law student, a Minnesotan, a member of JLI, and a general advocate for racial justice on both local and broad scales, I find it imperative to amplify NJP’s work in any manner I can. To do this, I sat with NJP organizers Nelle Rivers-Koonce (they/them) and Mel Koe (she/her or they/them) to learn more about the organization, including their goals, their accomplishments, and what they hope to achieve moving forward.
NEW JUSTICE PROJECT: A BLACK-LED POLITICAL HOME
The New Justice Project is “a Black-led organization dedicated to creating equitable job opportunities, advocating for housing justice, reimagining community safety, and building power amongst Black Minnesotans.” Rod Adams, the creator and Executive Director of NJP, was living in Detroit during May of 2020, but returned to Minneapolis during the uprisings following the murder of George Floyd by Minneapolis Police. The mass protests and global attention that followed George Floyd’s murder, according to Adams, had shed an important light on the lack of real political unity and engagement within Black communities, thus providing the groundwork upon which NJP was born. Through one-on-one conversations with justice-impacted community members, Adams and other NJP members pinpointed the needs of Black communities here in Minnesota. Through these conversations, as Nelle described to me, NJP bloomed into a “Black-led political home for low and no-income, justice-impacted folks to gain political education, leadership development, and access to good jobs and housing.”
For Nelle and Mel, New Justice Project has been an important means of mobilizing local community on a more hands-on, practical level.
Mel immigrated from Malaysia in 2016 for school and worked with a number of larger non-profits, learning more about how institutionalized systems impact certain communities. Around the time of the uprisings following the murder of George Floyd, Mel focused her activism on supporting the encampments within her neighborhood. She gathered information on what supplies and support she and fellow volunteers could provide for her unhoused neighbors in order to mobilize against evictions by the City, turning into what she felt was a case manager-esque type of role. Unfortunately, the City of Minneapolis proceeded to bulldoze through this encampment community. The impact of such destruction on encampment members’ housing journeys, their health, and encounters with law enforcement resulted in immense devastation and loss, such as the eventual the death of an elderly unhoused neighbor with whom Mel had developed a close and personal relationship. Mel quickly realized that it was this type of activism—working directly with and for justice-impacted community members on a local level—where her efforts and passions would be best directed. Through her organizing efforts, Mel met Rod Adams and worked with NJP as an Organizing Director until January 2025. Mel’s duty in this role included overseeing field campaigns and envisioning additional goals and initiatives for the organization.
Nelle grew up in the South and moved to Minnesota in 2019. They recall having very early and formative encounters with injustice faced during their upbringing in a poor, Black, single-parent household exacerbated by Southern racism. Nelle and their family endured medical racism, financial instability, and bad housing conditions, none of which were addressed or supported using government initiatives. Much of the support they did receive, if any, came directly from their community through mutual aid efforts. It was through such experiences that Nelle learned that it was not a matter of individual failures to attain basic standards of living, but the institutions that uphold such systemic injustices against Black and brown people. Upon moving to Minnesota, Nelle discovered NJP and began working as a Housing Justice Organizer. Within this role, Nelle focuses on base-building, bringing in new members (like myself!), capturing and incorporating community feedback on campaigns, general outreach, and bringing joy where they can.
LOCAL PROGRAMS & INITIATIVES
Since its formation, NJP has developed several avenues of programming that directly assist local Black communities here in Minneapolis, including, but not limited to access to labor and labor education, raising the state-wide minimum wage, housing injustices, and general coalition and community building. Many of these initiatives involve the uplifting of community members who have been directly impacted by respective injustices, allowing them to amplify their voices not only as those impacted by unjust laws, but as active constituents and members of the political and social Minneapolis community.
Raise the Wage (SF 4019)
The Raise the Wage initiative aims to raise the Minnesota state-wide wage to at least $20/hour. Working with Minnesota Senate member Zaynab Mohamed, NJP helped in writing the SF 4019 Bill, which advocates for a steady increase in the state-wide minimum wage until reaching $20 in 2029. The current state-wide minimum wage of $10.85/hour is insufficient to support an average living wage of a Minnesotan family, which equates to roughly $21.45/hour. In 2021, more than 20% of Black or African American households reported incomes below the poverty level, compared to just 7.5% of the white population. Until this Bill is reintroduced in the 2024-2025 legislative session, NJP plans to continue engaging community members to share their stories and make their voices heard with regard to the impact of what a higher minimum wage could mean for them and their families.
Ban the Box (SF 4015 – Fair Chance Housing Act)
Partnering with Until We Are All Free and the Vera Institute, NJP’s Ban the Box initiative aims to remove barriers in place for those with prior felony convictions seeking housing. Currently, most housing applications in Minnesota require applicants to disclose past convictions, typically resulting in a denial of consideration if answered affirmatively. This disclosure results in an immense disadvantage for those seeking to rebuild themselves post-incarceration, resulting in higher rates of homelessness and recidivism. NJP helped in writing The goal of this bill is to “limit the use of criminal background checks in rental application processes, allowing Minnesotans with conviction histories a chance to secure housing.” Throughout 2024 and into 2025, NJP has also hosted numerous listening sessions for community members to share their experiences with post-conviction housing barriers and otherwise.
Pathways Labor Program
The Pathways Labor Program is dedicated to connecting more people of color to union jobs here in Minneapolis. Commitment to labor is a core value of NJP, as many low- and no-income individuals rely on labor jobs for basic living. In the current landscape, union members and leaders are typically white, male, and middle-class dominated, leaving many Black and brown workers uniquely impacted by unjust employment laws outside of the negotiating table. The Pathways Labor Program works with local unions in the Minneapolis area to hire Black and brown workers an educate them on how to incorporate discussions of race in their negotiations with employers. Through this program, NJP serves as a liaison figure between community members seeking work and local unions, creating a more inclusive and intersectional avenue for labor rights for Black and brown workers to come to light. This program is currently on hold as NJP continues to develop its structure and ensure the best ways to support program members.
Base-Building
As with any organization, membership growth and stability are essential in maintaining growth and participation. A critical method in which NJP builds their base is through the manner in which the organization started: one-on-one conversations with the community, particularly with justice-impacted, low- and no-income members. Common areas of outreach include halfway houses, support groups, and general practices like door-knocking, flyer distribution, and referrals. NJP organizers, like Nelle and Mel, help to facilitate these personal, one-on-one connections with the community, where members are “assigned” to an organizer who helps oversee their connection and engagement with NJP moving forward. Engaging members in political opportunities is another focus of NJP, given that many justice-impacted individuals are often distanced from political processes despite being directly impacted by them. For example, earlier this year, NJP organizers and members traveled to D.C. to support the repeal of the 94 Crime Bill. Many members shared that it was the first time they had interacted with government officials, shared their stories, and felt that their voices were having a tangible impact. NJP strives to provide these members with the necessary tools and avenues to create change and justice as needed, ensuring that they are supported and guided throughout every step.
After my chance encounter with NJP back in August, Nelle has been a constant point of contact and support for my continued growth as a member of NJP. I attended a new member orientation back in October, where I was able to connect with more people in the community and learn about NJP organizers and their activism here in Minneapolis. And of course, there was delicious food. I found the structure of this orientation to be especially insightful, as it was less rigid or lecture-based, and more focused on storytelling and dreaming. When I say dreaming, I mean the part of orientation where we took time to actually sit and dream about a future we want to live in. Some said they want to live in walkable cities with accessible means of transportation, some said free housing and food for all, and nearly everyone said their dreams included a world where capitalism did not exist. It was a beautiful, sincere moment of reflection that I had never experienced. It reminded me that we do not make enough time to dream nearly as much as we should, and that our dreams are not so different than our neighbors and broader community.
ACCOMPLISHMENTS
Since its inception in 2020, the New Justice Project has seen a number of accomplishments for Black communities here in Minneapolis. The following is a list that brushes on a few:
- Co-led campaigns on Restore the Vote, which helped restore the right to vote for over 55,000 Minnesotans who were barred from voting due to probation or parole status. Many of these Minnesotans were voting for the first time ever in their lives.
- Assisted in the largest Black voter turnout in Northeast Minneapolis in both Keith Ellison and Mary Moriarty’s respective elections.
- Grew their member base to over 1,000 members (and counting!).
- Secured funding of $9M to build the Rise Up Center, a worker and opportunity center for multiracial families and provide access to jobs, projected to finish construction towards the end of 2026.
- Worked with neighboring organizations and County officials to host expungement clinics throughout Minneapolis.
- Connected workers with numerous labor jobs since 2020.
- Created space for community members to receive political education, understand their role in shaping their own experiences, building power with community, and having fun!
WHAT’S NEXT FOR NJP AND HOW CAN LAW STUDENTS & LAWYERS HELP?
Of course, there is much left to be done in rectifying the injustices faced by Black communities in Minneapolis. When first connecting with Nelle back in August, I had asked them how I, as a law student, can help NJP and its initiatives, which I asked once more to both Nelle and Mel during our recent interview in October. The answer to this question, as expected, is broad, but also not unattainable. Some meaningful actions that we as law students can partake in is assisting in the breakdown of legal systems and jargon for expungement clinics or Know Your Rights training sessions and helping with policy research for campaigns. At the heart of all actions, however, is the simple step of showing up. Showing up to events, for one another, and to break the “professional bubble” that tends to disconnect those in the legal field with the plights of those in their community.
If you are interested in becoming more involved with the New Justice Project and its initiatives, here are some ways to do so:
- Sign up to join NJP’s newsletter and stay connected on upcoming events through the interest form
- Follow NJP’s social media (@newjusticeprojectmn)
- Attend monthly virtual info sessions
- Attend new member orientations to learn more about new and ongoing campaigns
- Meet with organizers! Schedule one-on-one meetings with NJP organizers to establish a working relationship with the organization.
I’d like to end this blogpost with a sincere thank you to Mel, Nelle, and all of the members of the New Justice Project for their time and work they do for Minneapolis. It is through organizations like these, and people like them, that help us move towards a society where we can dream together and build a more just world, step by step.
That Pays How Much? A Brief Look at Minnesota’s New Wage Transparency Law
By: Reeves Singleton, Volume 43 Staff Member
View/Download PDF Version: That Pays How Much? A Brief Look at Minnesota’s New Wage Transparency Law (Singleton)
Almost anyone who has applied to a job in the last ten years can regale you with stories of frustration, exhaustion, and an ever-deepening distaste for the very concept of job seeking. The issues at play for the hopeful job seeker are numerous, and they provide a wide range of anecdotal horror stories: dubious or fake listings, horrendous job boards, application processes requiring individual account creation, the common experience of never even hearing a “no” from an employer if one’s application is not tweaked to fit the contours of algorithmic decision-making. These experiences and others go toward the common knowledge that finding a job on the contemporary market is more often than not an intensive and futile misadventure. This is the bleak environment into which job seekers enter, even though they are already likely overburdened by whatever situation has necessitated their finding a new job in the first place.
Alongside the number of other laws that went into effect in Minnesota on January 1, 2025, many of which seek to strengthen protections for employees, the state of Minnesota has now implemented a new law that aims to address one issue that has long plagued the hopeful job applicant. Joining similar statues in a range of other states, Minn. Stat. § 181.173 compels employers to disclose in job postings “the starting salary range, and a general description of all of the benefits and other compensation” or otherwise “list a fixed pay rate” for those situations wherein the employer does not provide a salary range. The law designates employers covered by this law as “a person or entity that employs 30 or more employees at one or more sites in Minnesota,” while defining “postings” to include “any solicitation intended to recruit job applicants for a specific available position . . . that includes qualifications for desired applicants” and “salary range” as being “the minimum and maximum annual salary or hourly range of compensation . . . for a job opportunity of the employer at the time of the posting of an advertisement for such opportunity.” Taken as a whole, this and other similar provisions suggest the possibility of an at least somewhat more equitable playing field for hiring within the state, with wage transparency providing opportunity for workers both established and prospective to evaluate how an employer judges the worth of their labor.
There are obvious ways that a law demanding wage transparency might go towards ensuring a more equitable, navigable job market for employees. On the most immediate level, the inclusion of salaries/wages on job listings allows a prospective employee to more confidently gauge the value of a position relative to the listed requirements and expectations of a given role. For job hunters crushed on the one hand by a likely severe and growing need for financial security and on the other by the temporally, emotionally, and psychologically draining realities of the modern job hunting process, this mote of certainty and predictability offers at least some light on which to seize in the dark of the job market, albeit one predicated on the good faith of the employer. More importantly, however, is the renewed possibility of situational awareness and accountability that the ideal functioning of the wage transparency law forwards.
The major benefit of wage transparency laws is the ability for workers both new and established to gauge the equitability of their earnings when compared to recruitment happening for the same or similar roles, which is especially important in the context of wage gaps. This might, for instance, be a useful tool when trying to gauge whether a particular role or company is likely to provide for inequitable pay based on sex, gender identity, race, or other identity. Additionally, the demand that covered companies publicize the potential salary/wage of posted roles conceivably makes it at least somewhat more difficult for employers to continue upholding this brand of wage discrepancy. Without wage transparency, it is far easier for employers to obscure inequities in the wages they pay. Deprived of the ability to not say what a given role will pay, employers must make some commitment to paying whatever applicant is offered a role a wage within the same range as they would have offered any other applicant. As a move towards a more equitable, understandable wage and job market, this is undoubtedly a positive if uncertain step, even if there are potential issues that arise alongside such laws. Such issues may even include constitutional questions around issues of compelled speech and the applicability of the Dormant Commerce Clause.
At the same time, Minn. Stat. § 181.173 is frustratingly vague on enforcement provisions or the consequences of an employer’s failure to comply with the statute, or even to what extent the statute might apply to general solicitations of employment. While the Minnesota Department of Labor and Industry (MDLI) is presumably the body tasked with enforcing the provision, the statute itself provides no indication of what, if any, sanction will accompany its violation. Perhaps more worrying, there does not seem to be any language in the statute that might prevent an employer from essentially pulling the rug out from under an applicant offered a job, beyond requiring that the posted salary be based on a “good faith estimate.” If an employer is unrestrained from not honoring the wage range listed in its job posting, then there is little to prevent the employer from undercutting the stated range at the time it actually makes an offer. Certainly, the applicant could simply walk away were that to happen, but to do that is a lot to ask of someone who is presumably in need of a job, perhaps desperately.
So on the one hand, job seekers in Minnesota can expect some additional certainty and transparency while applying for jobs, which is certainly welcome given the often painful process of job hunting. On the other hand, there seems to be little more in place to ensure that companies even adhere to the requirement to list accurate estimates of wages in job postings, much less any actual compulsion to commit to those listings when they make an actual job offer. In general, it is likely that pay transparency laws broadly contribute to a narrowing of wage gaps, but the long term efficacy of these laws is still uncertain. While it is hopeful that MDLI will enforce Minn. Stat. § 181.173 to ensure immediate benefits for employees, more definite statutory provisions supporting wage transparency are necessary to ensure equity, accessibility, and certainty in the Minnesota job market now and into the future.
Under Siege: The Legal Profession at a Crossroads
Incoming Volume 44 Editor-in-Chief Jaxon Alston and Professor June Carbone, Robina Chair for Law, Science, and Technology trace how the current attacks on lawyers, law firms, and the justice system began, examine why major law firms are capitulating to external pressures, and explore the ripple effects on pro bono representation and education. The very foundations of advocacy and access to justice are being challenged. Watch and listen as the two unpack how we got here, what’s at stake, and where the profession must go from here to preserve its core mission.
Recommended Readings:
- The Price of Justice: The Myths of Lawyer Ethics, by Ronald Goldfarb
- Emily Berman, Weaponizing the Office of Legal Council, 62 B.C. L. REV. 515 (Feb. 2021)
- Mattew Lipmann, Law, Lawyers and Legality in the Third Reich: The Perversion of Principle and Professionalism, 11 TEMP. INT’l & COMP. L.J. 199 (1997)
- Plaintiff in Chief, A Portrait of Donald Trump in 3500 Lawsuits, by James D. Zirin
- The Anti-Civil Rights Movement: Affirmative Action as Wedge and Weapon, By Mike Steve Collins
- Ronald A. Norwood, The Misguided Use of the Harvard/UNC Ruling to Thwart Law Firm and Other Employer DEI Efforts, SLU L. J. Online (2024)
Developing a Remedy: Indian Courts Should Remedy the “Slow Violence” of the Bhopal Industrial Disaster Consistent with International Law
By: Alexander Lindenfelser, Volume 43 Lead Symposium Editor
View/Download PDF Version: Developing a Remedy – Indian Courts Should Remedy the “Slow Violence” of the Bhopal Industrial Disaster Consistent with International Law (Lindenfelser)
The Bhopal industrial disaster is more than the “world’s worst industrial disaster.”[1] It is a forty-year legacy of environmental racism,[2] structural inequalities of power and access between U.S. multinational corporations and affected communities in India,[3] and intergenerational catastrophe.[4] Scholar Nikhil Deb has called the continuing harm of the Bhopal disaster “slow violence,” conceptualizing the disaster and its aftermath as “incremental violence that happens gradually and out of sight, continuing over time and space[]” that is “integrated with the specific political and economic dynamics of countries in the Global South.”[5] Law has failed to remedy much of the slow violence of the Bhopal disaster.[6] Building on the decades of work by the Bhopal Survivors’ Movement mobilizing solidarity against the slow violences of development in Bhopal and around the world, I call for Indian courts to apply a robust right to sustainable development as articulated by the African Commission on Human and Peoples’ Rights in Endorois Welfare Council v. Kenya and accordingly provide a remedy to survivors of the Bhopal disaster.
The Legacy of the Bhopal Industrial Disaster
On Sunday, December 2, 1984 at around midnight, a tank in the Union Carbide India Limited pesticide plant exploded after its chemical contents were inexplicably exposed to water.[7] All fail safe systems malfunctioned.[8] The tank contained methyl isocyanate, a liquid used to make pesticides, which becomes a deadly gas when exposed to air.[9] Toxic clouds of the vaporized gas spread across an area of forty square kilometers.[10] At least 574,392 persons were exposed to the gas.[11] Upon contact, people’s eyes blinded, throats burned, and lungs filled with fluid.[12] Thousands died from exposure that night.[13]
The shadow of the Bhopal disaster stretches beyond the night of December 2 and 3, 1984. Though there was no systemic attempt by the government of India to keep a record of gas-related deaths in the aftermath, Bhopal Medical Appeal estimates greater than 25,000 people have died because of the disaster.[14] People exposed to the gas are more likely to die of cancers, lung disease, kidney disease, and other illnesses.[15] The effects of exposure to the gas have been linked to birth defects in survivors’ children.[16] More than 2,000 tons of toxic waste remain at the site.[17] This waste continues to cause widespread health effects and contaminate groundwater.[18] Only this year, the Indian government moved 337 metric tons of surface waste to another community.[19] Litigation is pending for the harms of this waste.[20]All underground waste and other surface waste remains at the site.
The Bhopal industrial disaster has been called a “state/corporate crime.”[21] The disaster was caused by the “willful negligence” of Union Carbide officials.[22] With the cover of good relationships with key Indian political actors, Union Carbide was able to silence workers’ attempt to publicize safety concerns prior to the disaster.[23] The social context that produced the disaster was produced by the Indian politicians’ adherence to a political policy of development by facilitating foreign investment to grow industrial and agricultural sectors.[24] The government of India has continued to exacerbate the harm of the Bhopal disaster and suppress an understanding of its ongoing effects as part of the neoliberal and right-wing Hindutva development policy since the 1990s.[25]
Accountability for the Bhopal disaster has been driven by a local and international feminist environmental justice movement.[26] These activists have built broad solidarities with survivors of long-term corporate environmental harms, including in communities in the United States.[27] These organizations include the International Campaign for Justice in Bhopal, Bhopal Medical Appeal, and Amnesty International. These organizations have succeeded in securing healthcare for survivors of the Bhopal disaster[28] and ensuring that the world does not forget the harm that Union Carbide Corporation, subsequently acquired by Dow Chemical, [29] caused.
Though the survivors received a $470 million judgment, this was reached without consultation of the survivors and more than 90% of claimants received no more than $500.[30] In a curative petition filed to reopen the judgment, the Government in India alleged damages of over $1 billion and survivor groups demonstrated damages of $8.1 billion.[31] The Indian Supreme Court dismissed the petition.[32]
A criminal case against Dow Chemical is pending, as it has been for nearly forty years.[33] While “justice delayed is justice denied,”[34] there is an opportunity for the Indian court to do justice to the survivors of the Bhopal disaster. Indian courts can and should construe their obligations consistent with international law. Here, the Indian court should be consistent with the human rights obligations to sustainable and accountable development in holding Dow Chemical criminally accountable and determining the remedy owed to survivors and their descendants.
Remedying Wrongs of Development Through a Right to Development
International human rights law is increasingly adopting a human rights-based framework of sustainable and accountable development.[35] But global economic development is not being pursued sustainably or accountability: it is situated within a context of profound wealth inequality where the wealthy are totally unaccountable to the poor for crises that the wealthy create and the poor suffer.[36] But under international law, states have extraterritorial obligations to respect, protect, and fulfill human rights in other countries, and when they breach these obligations, states have obligations to create mechanisms for accountability and access to remedy.[37] The clearest articulation of what accountability and remedy look like for human rights violations due to development is demonstrated in the exemplary case Endorois Welfare Council v. Kenya.
In Endorois Welfare Council v. Kenya, the African Commission on Human and Peoples’ Rights decided a case brought by the indigenous Endorois people of Kenya against the Kenyan government for evicting them from their ancestral lands and selling their land to private parties.[38] The Endorois people lost access to clean drinking water, traditional means of subsistence, half of their cattle, and were relocated to semi-arid land where they could not continue their traditional practices.[39] The Kenyan government promised just compensation, but only 170 families were ever compensated and only to facilitate relocation.[40]
Kenya was alleged to be in violation of, inter alia, Article 22 of the African Charter, which provides that “[a]ll peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind.”[41] The Commission found that this provision meant “[t]he Respondent State . . . is obligated to ensure that the Endorois are not left out of the development process or benefits.”[42] The Commission further found that the Endorois had a right to “just compensation” for the deprivation of the Endorois people, which included “a right of the members of the Endorois community to reasonably share in the benefits made as a result of a restriction or deprivation of their right to the use and enjoyment of their traditional lands and of those natural resources necessary for their survival.”[43] The Commission recommended, in relevant part, restoring the Endorois peoples’ land rights, paying adequate compensation for loss suffered, and paying royalties from economic activities on their land.[44]
The pending criminal case in India is an opportunity for Indian courts to hold Dow Chemical accountable and provide the survivors of the Bhopal industrial disaster and their descendants with remedies consistent with international law. Under Article 51 of the Indian Constitution, courts in India can incorporate rights under international law and construct legal requirements consistent with international law.[45] The criminal case against Dow Chemical is an opportunity for international law to provide important guidance. International law recognizes a human rights obligation for sustainable and accountable development. The Indian court should follow Endorois Welfare Council v. Kenya to find that the people of Bhopal are entitled to the remedies of having their land rights restored through an injunction ordering cleanup of the site, a money judgment providing just compensation for ongoing harms, and a money judgment providing for a share of the profits in the exploitation of their land.
To remedy the harms of development in Bhopal and in other corporate environmental catastrophes, survivors must have an interest in the wealth extracted through development and, when harmed, an actionable legal right to remedy. The criminal case is an opportunity to advance human rights and do justice for the survivors of the Bhopal industrial disaster. The impact of the Indian court’s decision will have a major impact not only for survivors of the “slow violence” of the Bhopal industrial disaster but also for survivors of other environmental harms across the globe.
However, law is only one form of power that survivors have to achieve justice. As the international mobilization of Bhopal survivors shows, organizing global solidarities and building power among survivors of all corporate environmental catastrophes will make the foundation for transformative change. In the meantime, we must join these movements by recognizing the “slow violence” of development in our communities and our friends’ communities and by persistently demanding accountability from the corporate actors responsible.
[1] Rhitu Chatterjee, The World’s Worst Industrial Disaster Harmed People Even Before They Were Born, NPR (Nov. 22, 2023), https://www.npr.org/sections/goatsandsoda/2023/06/17/1181244389/the-worlds-worst-industrial-disaster-harmed-people-even-before-they-were-born.
[2] Amnesty International, Bhopal: 40 Years of Injustice 75 (2024), https://www.amnesty.org/en/documents/asa20/7817/2024/en/ (“Such descriptions aptly apply to the Bhopal disaster, which has been driven, above all, by the enormous power imbalance of US multinational corporations on the one hand, and low income and marginalized communities in India on the other. The areas adjacent to the plant which have been hardest hit by the tragedy consist mainly of Muslim and lower caste (known as Scheduled Castes) communities living in poverty. This poverty has been hugely exacerbated by the disaster and its aftermath. The indifference and disdain with which the survivors and their descendants have been treated ever since the gas leak, the lack of proper and effective accountability of both state and corporate actors for both the gas leak and ongoing contamination, and the failure to ensure a reparations programme that adequately addresses all past and ongoing harms have been enabled by entrenched environmental racism.”).
[3] Id. See also Subhan Ullah, Kweku Adams, Dawda Adams, Rexford Attah-Boakye, Multinational corporations and human rights violations in emerging economies: Does commitment to social and environmental responsibility matter?, 280 J. Environ. Mgmt. 1, 5 (2021) (“[M]ost MNCs are listed in developed economies, yet the greatest number of human rights violations occurred in developing or emerging economies.”).
[4] Nikhil Deb, Slow Violence and the Gas Peedit in Neoliberal India, 70 Social Problems 1085, 1092 (2021).
[5] Id. at 1089 (quoting Rob Nixon, Slow Violence and the Environmentalism of the Poor (2011)); id. at 1090.
[6] Press Release, Special Procedures Experts, Bhopal: A Lingering Legacy of Contamination and Injustice (Dec. 2, 2025), https://www.ohchr.org/en/press-releases/2024/12/bhopal-lingering-legacy-contamination-and-injustice (“Compensation for victims has been inadequate, in blatant contravention of the UN Guiding Principles on Business and Human Rights. Mechanisms to channel compensation have also been ineffective.”).
[7] Eli Wizevich, The World’s Deadliest Industrial Disaster Exposed 500,000 People to Toxic Gas and Claimed Thousands of Lives, Smithsonian Magazine (Dec. 3, 2024), https://www.smithsonianmag.com/smart-news/the-worlds-deadliest-industrial-disaster-exposed-500000-people-to-toxic-gas-and-claimed-thousands-of-lives-180985434/; Priyanka Runwal, 40 Years Later, Bhopal is Still in Crisis, Chemical & Engineering News (Feb. 14, 2025), https://cen.acs.org/environment/40-years-later-bhopal-still-in-crisis/103/i4.
[8] Runwal, supra note 8.
[9] Id.
[10] Id.
[11] A total of 574,393 compensation claims due to exposure have been awarded. Bhopal Gas Tragedy Relief and Rehabilitation, Facts and Figures (last visited Apr. 28, 2025). Official estimates report only that an estimated 521,262 persons were exposed to the gas. Vinay Lal, Bhopal and the Crime of Union Carbide, UCLA Social Sciences (last visited Apr. 20, 2025), https://southasia.ucla.edu/history-politics/current-affairs/bhopal/.
[12] Runwal, supra note 8.
[13] Id.
[14] The Bhopal Medical Appeal, Basic Facts & Figures, Numbers of Dead and Injured, Bhopal Disaster (last visited Apr. 20, 2025), https://www.bhopal.org/continuing-disaster/the-bhopal-gas-disaster/union-carbides-disaster/basic-facts-figures-numbers-of-dead-and-injured-bhopal-disaster/.
[15] https://www.theguardian.com/cities/2019/dec/08/bhopals-tragedy-has-not-stopped-the-urban-disaster-still-claiming-lives-35-years-on
[16] Id.
[17] Deb, supra note 5 at 1086; Hannah Ellis-Petersen, Removal of Waste From Site of 1984 Bhopal Disaster Dismissed as “Farce,” The Guardian (Jan. 2, 2025), https://www.theguardian.com/world/2025/jan/02/india-toxic-waste-removal-bhopal-disaster-site-dismissed-as-farce (quoting Rachna Dhingra, coordinator of the International Campaign for Justice in Bhopal, who stated “There’s still 1.1m tonnes of poisonous waste leaching into the ground every day that they refuse to deal with. We can see for ourselves the birth defects and chronic health conditions. All this does is take the heat off the government and lets the US corporations off the hook. It does nothing to help the people in Bhopal who for decades have been seen as expendable.”).
[18] Ramandeep Bajwa, Bhopal Gas Tragedy Victims Call for Immediate Steps to Check Groundwater Contamination, International Business Times (Jun. 14, 2018), https://www.business-humanrights.org/en/latest-news/india-communities-affected-by-bhopal-gas-disaster-urge-authorities-to-act-on-continuing-groundwater-contamination/.
[19] Ellis-Petersen, supra note 18.
[20] The Hindu Bureau, Supreme Court notice on plea against disposal of waste from Bhopal gas tragedy site in Pithampur (Feb. 17, 2025), https://www.thehindu.com/news/national/supreme-court-notice-on-plea-against-disposal-of-waste-from-bhopal-gas-tragedy-site-in-pithampur/article69230897.ece.
[21] Hasnain M. Khawja & Mah-Nashit Uzma-Advocate, Bhopal Gas Tragedy: A State/Corporate Crime and the Role of Civil Society, 3 Indian J.L. & Legal Rsch. 1, 1 (2021).
[22] Id. at 2.
[23] S. Ravi Rajan, Disaster, Development and Governance: Reflections on the ‘Lessons’ of Bhopal, 11 Environ. Values 369, 373 (2002).
[24] Id. at 374.
[25] Deb, supra note 5 at 1087.
[26] Eurig Scandrett and Suroopa Mukherjee, Globalisation and Abstraction in the Bhopal Survivors’ Movement, 3 Interface: A Journal For and About Social Movements 195, 195–209 (2011).
[27] Madhumita Dutta, The Bhopal Chemical Gas Disaster, ORIGINS: Current Events in Historical Perspective (Dec. 2024), https://origins.osu.edu/read/bhopal-chemical-gas-disaster (“As the women from Bhopal traveled across the U.S. sharing their stories, they met people from East Palestine to Cancer Alley, from Mossville to Southwest Detroit, from Wilmington to Charlottesville, and East Houston to West Virginia. They found that many U.S. communities are experiencing their own slow and silent Bhopals.”).
[28] The Bhopal Medical Appeal, Chingari Rehabilitation Centre (last visited Apr. 20, 2025), https://www.bhopal.org/chingari-rehabilitation-centre/.
[29] CNN Money, Dow Buying Union Carbide (Aug. 4, 1999), https://money.cnn.com/1999/08/04/deals/dowchemical/.
[30] Judah Passow and Tim Edwards, Bhopal: Still Waiting for Justice, Four Decades On, The Guardian (Jun. 14, 2023), https://www.theguardian.com/global-development/2023/jun/14/bhopal-toxic-gas-leak-chemical-environmental-disaster-waiting-for-justice-union-carbide-dow.
[31] Sharon Hartles, Bhopal 2023: Unfinished Business – Justice Denied?, Harm & Evidence Research Collaborative (Sep. 2023), https://www5.open.ac.uk/research-centres/herc/blog/bhopal-2023-unfinished-business-%E2%80%93-justice-denied.
[32] Id.
[33] The Bhopal Medical Appeal, A Brief History of the Criminal Case Outstanding Against Union Carbide in Relation to the 1984 Bhopal Disaster (last visited Apr. 20, 2025), https://www.bhopal.org/continuing-disaster/the-dow-chemical-companys-bhopal-related-legal-liabilities/the-criminal-case-against-ucc-and-dow-chemical/a-brief-history-of-the-criminal-case-outstanding-against-union-carbide-in-relation-to-the-1984-bhopal-disaster/.
[34] Fred Shapiro, You Can Quote Them, Yale Alumni Magazine (Sep/Oct 2010), https://yalealumnimagazine.org/articles/2967-you-can-quote-them
[35] See, e.g. Comm. on Econ., Soc. and Cultural Rts., General Comment No. 2, International Technical Assistance Measures (Art.22), 4th session, U.N. Doc E/1990/23 para. 8(a) (1990) (“United Nations organs and agencies should specifically recognize the intimate relationship which should be established between development activities and efforts to promote respect for human rights in general, and economic, social and cultural rights in particular.”).
[36] Margot Salomon, Poverty, privilege and international law: the millennium development goals and the guise of humanitarianism, in German Yearbook of International Law 72 (2008) (“yet there has been little accountability to the poor and impoverished, to the hungry, and to those without access to the basic necessities of life struggling on the other side of this small planet. Accountability remains all but absent in the wake of the financial crisis as poor people and poor countries pay the heaviest price for a disaster they had no hand in creating, and we can anticipate that climate change will apportion its retribution similarly.”); Margot Salomon, Why Should it Matter That Others Have More? Poverty, Inequality, and the Potential of International Human Rights Law, 37 Rev. Int’l Stud. 2140–41 (stating the Gini coefficient between the richest and poorest states is roughly 67).
[37] ETO Consortium, The Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights para. 36–41 (2013).
[38] Centre for Minority Rights Development (Kenya) and Minority Rights Group International on behalf of Endorois Welfare Council v Kenya, 276/03, Recommendations of the African Commission, p.1–7 (African Commission On Human and Peoples’ Rights 2009) [hereinafter Endorois Welfare Council v. Kenya]. Much of the case had to do with the insufficiency of the consultation process with the Endorois people during negotiations over the acquisition of their land. See id. at p.286–92. This is similar to many long-term extractive environmental harms, such as open wells, where there was consultation but insufficient information provided to individuals about future harms. So too in Bhopal. See Shelia Jasanoff, The Bhopal Disaster and the right to know, 27 Soc. Sci. Med. 1113 (1988) (describing how the public was not informed of the risks).
[39] Id. at p.286–88.
[40] Id. at p.8.
[41] African Charter on Human and Peoples’ Rights, CAB/LEG/67/3 rev. 5, 21 I.L.M. 58, art. 22(1) (1982).
[42] Endorois Welfare Council v. Kenya, at 298.
[43] Id. at 296.
[44] Id. at 299.
[45] Aryan Tulsyan, Harmonious Construction and the International Law Allegory in India, Cambridge Core Blog (Nov. 23, 2022), https://www.cambridge.org/core/blog/2022/11/23/harmonious-construction-and-the-international-law-allegory-in-india/; Vayuna Gupta, Using International Law in Domestic Indian Courts, 54 Int’l L. & Pol. 1077, 1079–80 (Stating that though “Article 51 merely encourages the Indian state to endeavor towards a set of ideals and ‘foster respect for international law and treaty obligations[,]’” “[t]he Indian judiciary has played an important role in implementing India’s international law obligations. There are certain international law principles that the Indian judiciary follows while interpreting municipal law.”).
The Myth of the Firm Exception: Why Trial Lawyers Continues to Harm Contract Workers
By: Zinaida Carroll, Volume 43 Executive Editor
View/Download PDF Version: The Myth of the Firm Exception – Why Trial Lawyers Continues to Harm Contract Workers (Carroll)
Introduction
In FTC v. Superior Court Trial Lawyers Association, the Supreme Court decided that a coordinated strike and demand for better wages was per se illegal price-fixing under the Sherman Act.[1] While this case was decided in 1990, its holding continues to prevent workers who fall outside the traditional employer-employee relationship from organizing for better working conditions. The Trial Lawyers reasoning is flawed because it places workers striking for increased wages into the same field as a profit-maximizing business. The “firm exemption”[2] to price-fixing is insufficient, because it leaves workers who are not formally organized or outside of the traditional employee-employer relationship unable to collectively strike in demand of better wages. Rather than the Court’s inauthentic attempt to place court-appointed lawyers into the same category as businesses attempting to fix prices on the free market, courts should look to the purpose beyond coordinated efforts to raise wages––here, improving wages and work conditions––in determining whether a coordinated action can be considered price-fixing in violation of the Sherman Act. The purpose behind the coordination in Trial Lawyers cannot be said to fit into the evils antitrust laws were designed to protect, and thus, the labor exemption should cover these types of actions. This should be the case whether or not the group of individuals engaging in this action can be deemed a “firm.”
I. Background
In Trial Lawyers, the Federal Trade Commission (FTC) alleged that the plaintiffs “entered into an agreement among themselves and with other lawyers to restrain trade” in violation of Section 5 of the Federal Trade Commission Act (FTCA).[3] The defendants were a group of about 100 lawyers who agreed amongst themselves to not accept Criminal Justice Act (CJA) appointments until their wages were increased. The Court found that the defendants’ agreement “constituted a classic restraint of trade within the meaning of Section 1 of the Sherman Act.”[4] The Court deemed the defendants’ collective action of refusing to accept appointments until their wages were increased to be unlawful, inter-firm “price-fixing” under Section 1 of the FTCA.[5]
II. Analysis
The Court construed the lawyers’ organizing to refuse appointments until their wages increased as either “agreeing upon a price, which [would] decrease the quantity demanded,” or “agreeing upon an output, which [would] increase the price offered.”[6] The Court declined to consider how the lawyers’ organizing might not fit into this market-based model, stating, “it is not our task to pass upon the social utility or political wisdom of price-fixing agreements.”[7]
Under the Sherman Act, it is, generally, the Court’s duty to “pass upon the social utility” of a violation.[8] Section 5(a) of the FTCA bans “unfair or deceptive acts or practices in or affecting commerce . . . .”[9] A practice is “unfair” if it “causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.”[10] In other words, the Act tells courts to weigh the potential harms against the potential benefits to consumers. However, by declaring the lawyer’s scheme as per se illegal price-fixing, the Court avoided having to consider arguments about any countervailing benefits of the scheme. If the Court had not labeled this as per se illegal price-fixing, they could not have found a violation of Section 5. Here, the potential harms are nonexistent. There is no competition in this “market.” CJA lawyers’ salaries are set by the government, and each lawyer receives the same fees. The “consumers” of this market, individuals who are being charged with a crime and unable to afford counsel, face no negative consequences from increased salaries. Contrastingly, on the other side of the scale, the “consumers” face a potential benefit from increased wages: with increased wages, lawyers would provide more effective counsel.
The Court also declined to find the First Amendment protected the lawyers’ actions. While the activities of publicizing the boycott, explaining the merits of the case, and lobbying district officials were protected, the coordinated price fixing was not. The Court distinguished the lawyers’ case from Claiborne, finding the “undenied objective of their boycott was an economic advantage for those who agreed to participate,” while in Claiborne, the individuals boycotting “sought no special advantage themselves.”[11] The Court further characterizes the lawyers as “business competitors” who “stand to profit financially from a lessening of competition in the boycotted market.”[12] The Court dispensed of the Court of Appeals’ finding that prohibitions against price-fixing and boycotts “do not serve any substantial governmental interest unless the price-fixing competitors actually possess market power.”[13] The Court said it was unwilling to make an exception for cases such as these, even if their boycott were “uniquely expressive,” because the government has a strong “interest in adhering to a uniform rule” even in a case where allowing an exception “might cause no serious damage.”[14]
The Court sets forth the rule from O’Brien for protecting activity under the First Amendment:
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment Freedoms is no greater than is essential to the furtherance of that interest.[15]
The Court said that the Court of Appeals’ analysis “exaggerate[d] the significance of the expressive component” in the lawyers’ coordinated action and “denigrate[d] the importance of the rule of law that respondents violated.”[16]
The Court, instead, should have weighed the government interest in enforcing the violation in the case at hand against the interest in protecting the First Amendment rights of these workers rather than focusing on the general interest in preventing price-fixing in the free market. While, as the Court insists, the government has a strong interest in protecting against price-fixing schemes in the capitalist market, this is not what is happening in this case. The lawyers are not “business competitors” that the government has an interest in protecting under antitrust law, but contractors for a public service. Weighing the government’s minimal interest in enforcing antitrust laws against workers’ demanding better wages with the lawyers’ First Amendment right to refuse to work in demand of better pay, the Court should have found that the government did not satisfy the O’Brien test.
The Court’s insistence in fitting the lawyers’ coordinated efforts into the same category of cases as price-fixing schemes is disingenuous. Contrary to the Court’s insistence that the lawyers were acting as anti-competitive business entities attempting to push out competition, the stated purpose of raising prices was not to create an economic advantage for those who chose to participate. There is no competition in this field: lawyers are not offering up their services at the lowest price to be picked by a judge to appoint an indigent client. None of these lawyers are seeking a separate advantage for themselves compared to other lawyers. They were pressuring the government to raise the wage for all CJA appointed lawyers. This kind of activity is not of the kind the Sherman Act was designed to protect, as evidenced by the several amendments following its enactment after it was repeatedly enforced against workers.[17] The Court insists that an exception to this rule would not outweigh the benefits of a uniform rule. However, this case should not be considered an exception, but rather, an action that entirely falls outside of the bounds the Sherman Act.
The question of whether the labor exemption granted by the Clayton and Norris-LaGuardia Acts extend to situations where the labor relationship falls outside the bounds of a traditional employer-employee relationship, such as contractors or subtractors, is contested. In the final days of the Biden administration, the FTC released a policy statement stating that, in their view,
[T]he labor exemption’s application does not turn on whether a worker is formally classified by a firm as an independent contractor . . . . Rather, workers’ organizing and collective bargaining activity may be protected from antitrust liability when what is at issue is the compensation for their labor or their working conditions.[18]
Courts have found that the labor exemption extends beyond this traditional relationship in several cases.[19] Consistent with Trial Lawyers, “[c]ourts have . . . rejected application of the exemption where the party seeking the exemption was best characterized as an independent business pursuing its business interests, rather than as a worker who provides labor services seeking to improve his or her compensation or labor conditions.”[20] Here, the workers cannot be considered independent businesses pursuing their own interests. They are workers who are acting together to improve their wages.
Antitrust law allows economic coordination in situations such as collective bargaining and price setting “within business firms” but bars them “when they take place beyond firm boundaries.”[21] In other words, contract-based employees, such as the defendants in Trial Lawyers, are unable to organize and collectively bargain for wages. However, if they are incorporated as a firm, then they would not subject to antitrust liability for the same actions as in Trial Lawyers. Deciding whether workers are violating antitrust laws based upon whether they are incorporated as a firm or not is arbitrary, protecting some workers’ rights to demand better working conditions while leaving other workers demanding the same rights without protection. Rather than trying to squeeze workers like those in Trial Lawyers into a false narrative of individuals acting as firms and price-fixing between themselves, courts should look to the facts in front of them and see whether they are seeking to improve their compensation or labor conditions. If workers are striking to demand better wages for that purpose, then they should be exempted from antitrust liability.
One present group of workers facing the perils of this arbitrary distinction are ride-share drivers. Ride-share companies have been permitted to set consumer prices across drivers who use their application.[22] However, ride-share drivers are barred, under antitrust law, from coordinating amongst themselves to demand better wages from their company.[23] Rather than fabricate a reality where ride-share drivers are on the same field as the ride-share companies that contract them and seeking to price-fix for some sort of profit maximizing gain, courts should look to the true purpose behind the coordination efforts amongst ride-share drivers to determine whether they should be exempted from antitrust liability. A company’s capitalistic purpose cannot be equated to an individual’s demand for better wages.
Conclusion
The per se liability for price-fixing set out by the Court in Trial Lawyers refuses to acknowledge the realities of how workers who fall outside the traditional employer-employee relationship exist in the world. The Court places contract workers in the same category as profit-maximizing businesses. However, the purpose behind what the Court deems “price-fixing” in the context of workers striking for better wages, in reality, is not the same as coordinated price fixing between companies across some sort of sector participating in the capitalist market. Rather than applying a per se rule, courts should look to the purpose of coordinated wage setting by workers to determine whether there is an antitrust violation.
[1] FTC v. Superior Court Trial Lawyers Ass’n, 110 S.Ct. 768, 772–73 (1990).
[2] Sanjukta Paul, Fissuring and the Firm Exemption, 72 L. & Contemporary Problems 65, 66 (2019).
[3] Trial Lawyers, 110 S.Ct. at 772–73.
[4] Id. at 774.
[5] Id.
[6] Id. at 775.
[7] Id. at 774.
[8] Id. at 774.
[9] 15 U.S.C. § 45(a)(1).
[10] Id. § 45(n) (emphasis added).
[11] Trial Lawyers, 110 S.Ct. at 777 (citing NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982)).
[12] Id.
[13] Id. at 778.
[14] Id.
[15] Id.
[16] Id.
[17] Fed. Trade Comm’n, Federal Trade Commission Enforcement Policy Statement on Exemption of Protected Labor Activity by Workers from Antitrust Liability 2–3 (Jan. 14, 2025), https://www.ftc.gov/legal-library/browse/enforcement-policy-statement-exemption-protected-labor-activity-workers-antitrust-liability (explaining that Section 20 of the Clayton Act passed in 1914 created a labor exemption to antitrust laws and the Norris-LaGuardia Act of 1932 further clarified the labor exemptions, including preventing courts from issuing injunctions in cases growing out of a labor dispute).
[18] Id. at 1.
[19] Id. at 8 (citing several First Circuit cases).
[20] Id. at 9 (citing several cases, including from the First and Fourth Circuit, and the Supreme Court).
[21] Sanjukta Paul & Nathan Tankus, The Firm Exemption and the Hierarchy of Finance in the Gig Economy, 16 U. St. Thomas L.J. 44, 45 (2019).
[22] Id. at 46–47.
[23] Id. at 47.