Jay Ramesh

Background

On Saturday, August 31, fans across North Carolina rejoiced as the University of North Carolina (UNC) took down the University of Minnesota in the inaugural week of college football. The Tar Heel faithfully looks to this season with optimism as the gates to the Atlantic Coast Conference (ACC) championship have been thrown wide open following slow starts from Clemson and Florida State (FSU).

Since 2010, only one season has featured an ACC champion not named Clemson or FSU.[1] But times are changing. Texas and Oklahoma shocked the college football world when they announced that they were leaving their conference, the Big 12, to join the Southeastern Conference (SEC): one of the most prestigious conferences in college football.[2] Seeking money, television deals,[3] and a better shot at making the college football playoffs, Clemson and FSU also announced their intentions to leave the ACC.[4]

However, unlike Texas and Oklahoma, Clemson and FSU’s paths to leaving the conference have been paved with headaches, legal battles, and massive exit fees. To disincentivize its members from leaving, the ACC’s contracts include exit fees and forfeitures of media rights: revenues from television deals that the conference distributes to its members.[5] For FSU in particular, its attempt to leave the ACC (FLexit) would include forfeiture of $429 million in media rights, the ACC withholding of $13 million in broadcast fee reimbursement, and a $130 million exit fee; combined, the fees and lost opportunity costs totals a mind-boggling $572 million.[6] The ACC filed complaints against FSU in Mecklenburg County, North Carolina, to preempt FSU suing the ACC, and FSU sought to invalidate the exit fees as unconscionable.[7]

Are FSU’s Exit Fees Unconscionable?

Although there are few instances of Division I conference realignment in the 21st century, there have been similar legal battles in the Division II world. In Mountain East Conference v. Franklin University, the Mountain East Conference (MEC) sued Franklin University (Franklin), the successor to Franklin-Urbana University (Urbana): a school that played in Division II of the National Collegiate Athletic Association (NCAA).[8] Urbana shut down in 2020 and unilaterally withdrew from MEC.[9] The MEC subsequently demanded that Franklin pay Urbana’s $150,000 exit fee, which Franklin refused.

The court found that the exit fee, amounting to six years of Urbana’s conference dues ($25,000 annually), was a “reasonable approximation of loss to MEC”.[10] In its analysis of “reasonableness,” the Court considered that the MEC’s profit margin was narrow (about $60,000-$70,000 annually).[11] It also weighed intangible and incalculable damages, such as “injury to [the MEC’s] reputation.”[12] Crucially, the court also found that the exit fee was a liquidated damages provision,[13] not a penalty, which would be unenforceable.[14]

If college conference exit fees are shown to be liquidated damage provisions and not penalties, then their reasonableness, and thus enforceability, will likely turn on the amount and specific structure of the exit fee.[15] Because it is difficult to approximate loss, the Franklin court compared the exit fee to Urbana’s annual conference dues and the MEC’s profit margin, finding that the fee was about twice the conference’s profit margin.[16] According to its constitution, the ACC’s exit fee for all schools is structured to equal three times its operating budget,[17] which comes out to roughly $130 million.[18]

In assessing the reasonability of this fee, the court will likely compare the ACC to the Big 10 and the Big 12. The Big 12’s constitution includes an exit fee equivalent to two years of gross revenue the Big 12 would have distributed to the departing school, including revenues from media rights.[19] The Big 10 does not have an exit fee,[20] and the SEC recently added a $30 million to $45 million exit fee to its constitution.[21] Even after adding the Big 12’s media rights forfeiture, these exit fees fall far short of FLexit’s massive $572 million cost.

In Vanderbilt University v. DiNardo, the 6th Circuit considered the question of how much money Vanderbilt University (Vanderbilt) owed former football coach Gerry DiNardo (DiNardo) after he breached his contract with the university by resigning and becoming the head football coach for Louisiana State University.[22] The Court held that DiNardo was required to pay Vanderbilt “. . . as liquidated damages, an amount equal to his Base Salary . . . remaining on the [original] Contract.”[23]  Adam Kahn summarized the Court’s holdings:

“  First, because college sports contracts are “unique and specialized,” the damages from a breach are not easily ascertained. Second, and relatedly, damages in college sports contracts are broadly defined and can include abstract categories like loss of stability. Third, the “salary remaining under a contract” approach is a “reasonable” LDC valuation method as long as there is difficulty ascertaining the actual damages.”[24]

The court in FSU’s case may turn to sports contract cases such as DiNardo in determining if the ACC’s exit fee is reasonable. FSU is a major brand in college football, and its departure could severely hurt the ACC’s prestige. This rings especially true considering that a motivating factor for FSU’s departure was the school being left out of the 2023 CFB playoffs despite going undefeated—many believed that their strength of schedule, mainly consisting of other ACC opponents, was not as difficult as other schools such as Alabama and Ohio State.[25] The court could find that the “reputation damage” to the ACC accompanying FSU’s departure is difficult to ascertain, strengthening the legitimacy of the exit fee.

Television agreements are a significant source of funding for NCAA athletics programs. To secure long-term television agreements, the ACC entered into a long-term “Grant of Rights” deal with ESPN.[26] The Grant of Rights agreement mandates that the ACC’s members hand over the right to produce and distribute football games to the ACC for the entire term of the agreement, even if the members leave the conference during the term.[27]

The Grant of Rights acts as a stabilizing force, ensuring that the ACC and its members have access to a steady stream of revenue from its television deals, and it also disincentivizes members from leaving the conference due to forfeiting their media rights. The ACC’s Grant of Rights runs through 2036, so if FSU leaves the conference and the Court finds the ACC’s provisions to be enforceable, the school will forfeit all the revenue from its media rights, amounting to $429 over the next thirteen years.

Applying the reasoning of DiNardo to FLexit, the ACC could make the argument that the Grant of Rights functions like DiNardo’s liquidated damages. In the same way that DiNardo was required to pay Vanderbilt an amount equal to his remaining Base Salary under the contract, the ACC could argue that its Grant of Rights payouts are like a salary, thus requiring FSU to forfeit the remaining media revenue it was entitled to under the contract. The court may find that this exit fee structure is reasonable in principle, but unconscionable compared to other conferences’ exit costs.

What Will the Outcome Mean for the ACC Going Forward?

The ACC hosts four North Carolina schools, all of which could be significantly financially impacted if FSU and Clemson successfully leave the ACC. If FSU fails to convince the court that its exit fees are unconscionable, its forfeited revenue may be distributed among the remaining ACC schools, giving a significant financial boost to ACC athletics departments in North Carolina. If FSU succeeds and nullifies the exit fees, its departure could significantly damage the ACC’s prestige and encourage other schools like N.C. State and Miami to flee the conference. Simply put, a ruling in favor of FSU and Clemson could lead to the ACC suffering the same fate as the Pac-12.[28]

Broadcasting companies like Fox and ESPN want to sign media rights deals with programs that have large fanbases, a prestigious history, and can bring in lots of viewers. As such, large money-making conferences like the SEC and the Big 10 are incentivized only to admit prestigious, well-performing schools into their conferences. A collapse of the ACC will likely lead to the stratification of college football into “premier” conferences filled with the best programs and lower-tier conferences with all other schools. The ACC provides financial incentives for schools to make the CFB playoffs to avoid stratification.[29] If powerhouse programs join weaker conferences, they are likelier to go undefeated and have a shot at the CFB playoffs. To avoid a 2023 FSU situation, “weaker” conferences could schedule more non-conference games to allow their teams to play strong, competitive programs, and increase their playoff resumes.

As the legal battle between FSU and Clemson continues, the future of the ACC hangs in the balance. In determining whether the provisions are unconscionable, the court will need to weigh the disparity between the ACC and other conferences’ exit fees along with the fact that the lawyers and parties that signed these contracts were highly sophisticated, were aware of the fees, and even praised them in the past.[30] All eyes in North Carolina are on the courts as FSU and Clemson play their dangerous gambit.

[1] Atlantic Coast Conference Index, Sports Reference (Sep. 8, 2024, 7:40 AM), https://www.sports-reference.com/cfb/conferences/acc/.

[2] Heather Dinich & Mark Schlabach, Texas Longhorns, Oklahoma Sooners Unanimously Accept Invitation to SEC, ESPN (Jul. 30, 2021, 11:08 AM), https://www.espn.com/college-football/story/_/id/31920686/texas-longhorns-oklahoma-sooners-unanimously-accept-invitation-sec.

[3] The Big 10, another college conference, recently signed a $7 billion media rights agreement that would distribute far more money to its member schools than the ACC. Adam Rittenberg, Big Ten Completes 7-Year, $7 Billion Media Rights Agreement with Fox, CBS, NBC, ESPN (Aug. 18, 2022, 09:30 AM), https://www.espn.com/college-football/story/_/id/34417911/big-ten-completes-7-year-7-billion-media-rights-agreement-fox-cbs-nbc.

[4] Mark Giannotto, FSU vs. ACC Lawsuit Explained: What it Means for College Football, Conference Realignment, USA Today (Aug. 31, 2024, 6:00 PM), https://www.usatoday.com/story/sports/college/2024/08/31/fsu-acc-lawsuit-conference-realignment-2024-college-football-season-florida-state/74909159007/.

[5] Atlantic Coast Conference, ACC Manual § 1.4.5 (2020-2021 ed. 2020).

[6] William Huff, FSU Sues ACC, First Steps in Leaving Conference, Thomasville Times-Enterprise (Sep. 8, 2024), https://www.timesenterprise.com/sports/fsu-sues-acc-first-steps-in-leaving-.conference/article_a5ee0b92-a4e8-11ee-b1e3-dbf5e0a43b2d.html#:~:text=According%20to%20a%20breakdown%20of,three%20times%20their%20operating%20budget.

[7]See Atlantic Coast Conference v. Board of Trustees of Fla. State University, 2024 WL 1462914 at *3 (N.C.Super., 2024), Reply Supp. Def.’s Mot. Dismiss 9 (citing lack of consideration or lack of authority to enter into contract as examples).

[8] Mountain East Conference v. Franklin University, 2023 WL 2415277, at *3 (N.D.W.Va. Mar. 8, 2023)

[9] Id. at *2.

[10] Id. at *9.

[11] Id.

[12] Id. at *9.

[13] Id. at *9.

[14] Id. at *8 (citing Huntington Eye Assocs., Inc. v. LoCasio, 533 S.E.2d 773, 782 (W. Va. 2001)).

[15] Adam Kahn, Breaking Up is Hard to Do: Examining Whether College Conference Exit Fees are an Enforceable Form of Liquidated Damages Clause, 22 Sports Law. J. 115, 124 (2015).

[16] Franklin, 2023 WL 2415277 at *9.

[17] Atlantic Coast Conference, ACC Manual § 1.4.5 (2020-2021 ed. 2020).

[18] Andrea Adelson, Florida State to Sue ACC Over Grant of Rights, Withdrawal Fee, ABC News (Dec. 22, 2023, 11:09 AM), https://abcnews.go.com/Sports/florida-state-sue-acc-grant-rights-withdrawal-fee/story?id=105872897.

[19] Big Twelve Conference, 2021-2022 Conference Handbook § 3.1 (2021-2022 ed. 2021).

[20] Ben Portnoy, Clemson Suing ACC Over Exit Fees, Media Rights, Sports Business Journal (Mar. 19, 2024), https://www.sportsbusinessjournal.com/Articles/2024/03/19/clemson-acc-lawsuit#:~:text=The%20Big%20Ten%2C%20for%20example,45M%20depending%20on%20if%2Fwhen

[21] Southeastern Conference, Constitution and Bylaws § 3.2 (2020-2021 ed. 2020).

[22] 174 F.3d 751, 753 (6th Cir., 1999).

[23] Id. at 754. DiNardo signed an addendum extending his contract with Vanderbilt, but the court held that the addendum was unenforceable as a matter of law and thus the liquidated damages provision only applied to DiNardo’s original contract. Id. at 760.

[24] Kahn, supra note 14, at 122-123.

[25] William Huff, FSU Sues ACC, First Steps in Leaving Conference, THOMASVILLE TIMES-ENTERPRISE (Sep. 8, 2024), https://www.timesenterprise.com/sports/fsu-sues-acc-first-steps-in-leaving-.conference/article_a5ee0b92-a4e8-11ee-b1e3-dbf5e0a43b2d.html#:~:text=According%20to%20a%20breakdown%20of,three%20times%20their%20operating%20budget.

[26] Ashwini Jayaratnam, Florida State’s Way Out of ACC? Exit Penalties Could Be Ruled Unenforceable, JDSUPRA (Dec. 29, 2023), https://www.jdsupra.com/legalnews/florida-state-s-way-out-of-acc-exit-9854036/#_ednref3.

[27] Id.

[28] Ten schools left the Pac-12 at the conclusion of the 2023-2024 season, leaving only two remaining. The departing schools avoided forfeited media rights because their Grant of Rights contracts expired that season. Brad Adgate, With No New TV Deal Expected; Five More Schools Have Left the Pac-12, Forbes (Aug. 8, 2023, 11:23 AM), https://www.forbes.com/sites/bradadgate/2023/08/08/with-no-new-tv-deal-expected-five-more-schools-have-left-the-pac-12/. However, the departing schools settled with the Pac-12 to avoid future litigation. Associated Press, Washington State, Oregon State Settle with Schools Exiting Pac-12, ESPN (Mar. 25, 2024, 04:49 PM), https://www.espn.com/college-sports/story/_/id/39808513/washington-state-oregon-state-settle-schools-exiting-pac-12.

[29] Associated Press, ACC Schools Have a New Path to More Revenue: Just Win… in the Post-Season, Spectrum News 1 (Sep. 05, 2024, 7:15 AM), https://spectrumlocalnews.com/nc/charlotte/news/2024/09/05/acc-schools-have-a-new-path-to-more-revenue–just-win—-in-the-postseason#:~:text=The%20ACC’s%20model%20centers%20around,a%20total%20of%20%2420%20million.

[30] Several years ago, FSU trustee Mark Hillis commented on the exit fees, “I was in concert with President Barron that this was the best thing that could happen. It ensures that we don’t lose any members. Nobody can afford to leave now.” Karen Weaver, Florida State Once Again is Facing an Important Question. Should it Stay in the ACC?, Forbes (Mar. 1, 2023, 09:25 AM), https://www.forbes.com/sites/karenweaver/2023/02/28/florida-state-once-again-is-facing-an-important-question-should-it-stay-in-the-acc/.

Hannah Doherty

In 2014, the prominent meal-kit company, Home Chef, merged with supermarket chain, Kroger, Co., and adopted a new trademark, the “HC Home Mark.”[1] The mark, which is protected by five federal trademark registrations, features the silhouette of a fork and knife, contained within the outline of a house.[2] By 2021, Home Chef had invested significant resources and spent more than $450 million in advertising under this mark.[3]

But these efforts were hindered when Grubhub, a leading food delivery service, introduced an extremely similar mark, which also featured the outline of a fork and knife within a house.[4] This mark was designed after Grubhub’s parent organization, Just Eat Takeaway (“JET”), filed a trademark application for an almost identical mark, and was rejected by the US Patent and Trademark Office (“USPTO”).The USPTO deemed  JET’s mark “confusingly similar” to Home Chef’s HC Home Mark.[5] JET then combined this rejected mark with Grubhub’s house logo, and the mark was approved,[6] despite its resemblance to Home Chef’s mark.

Home Chef sent a cease-and-desist letter to Grubhub, demanding the company discontinue their use of the similar mark.[7] Instead, Grubhub and JET responded by collectively filing a complaint against Home Chef and Kroger, seeking a declaratory judgment for non-infringement, which would allow them to continue using the mark.[8]

In an action for trademark infringement, the plaintiff must establish that their mark had priority over the infringing mark and demonstrate that the similarity of the marks is likely to cause confusion for consumers.[9] In evaluating whether there is a likelihood of confusion between the two marks, the court considers “whether consumers who might use either product [or service] would likely attribute them to a single source.”[10] In the Seventh Circuit, the court applies a multifactor test consisting of the following seven factors, none of which is dispositive: “(1) similarity of the marks in appearance and suggestion; (2) similarity of the products [or services]; (3) the area and manner of concurrent use; (4) the degree of care likely to be exercised by consumers; (5) the strength of the senior user’s mark; (6) the existence of actual confusion; and (7) the intent of the defendant to ‘palm off’ its product as that of another.”[11]

Based on this analysis, the Magistrate Judge recommended granting a preliminary injunction in favor of Home Chef, but the U.S. District Court for the Northern District of Illinois refused to enjoin Grubhub’s use of the mark, finding Home Chef did not sufficiently demonstrate a likelihood of consumer confusion.[12]

Home Chef appealed to the Seventh Circuit U.S. Court of Appeals, which reviewed the District Court’s ruling under a clearly erroneous standard.[13] The panel found no clear error in the District Court’s likelihood-of-confusion analysis, and upheld the denial of the injunction.[14]

But the standard of appellate review applied in trademark infringement claims differs significantly across circuits, because jurisdictions are not consistent in whether they regard the likelihood-of-confusion analysis as a legal conclusion or a factual finding.[15]

In circuits where the likelihood-of-confusion analysis is deemed a question of law, the appellate court will review the district court’s finding de novo, which is the least deferential standard, as no deference is given to the trial court’s assessment.[16] This is the approach taken in the Second Circuit and the Federal Circuit.[17]

Oppositely, in circuits where the likelihood-of-confusion analysis is considered a question of fact, a clearly erroneous standard is applied on appeal.[18] This standard is less deferential, therefore the likelihood of success on appeal is significantly lower.[19] Under this standard, even if the reviewing court believes the outcome should have been different, they will not overturn the lower court’s ruling unless the circumstances are egregious and the court is “left with the definite and firm conviction that a mistake has been committed.”[20] This is the standard applied in the Fourth, Seventh, and Ninth Circuits, and was used in the case between Grubhub and Home Chef.[21]

Further complicating the circuit split, the First, Third, Fifth, Eight, Tenth, and Eleventh Circuits treat trademark infringement claims as mixed questions of law and fact and apply a clearly erroneous standard to the factual issues, while also analyzing the legal principles de novo.[22] And the sixth circuit reviews each of the seven factors under the clearly erroneous standard, but reviews the ultimate balancing of the factors and likelihood-of-confusion decision de novo.[23]

Furthermore, the circuits differ in how each of the likelihood-of-confusion factors are weighed in the balancing test; some courts emphasize certain factors more than others, some analyze slightly different factors, and some courts skip factors altogether.[24]

For example, the Seventh Circuit places more weight on the similarity of the marks, the defendant’s intent, and actual confusion factors.[25]  In this case the District Court found all three of these factors weighed against a likelihood of confusion, and thus, in favor of Grubhub.[26] It was undisputed that the remaining four factors all weighed in favor of Home Chef, and on appeal, Home Chef argues that “all seven factors are ‘interconnected,’” and thus “the district court clearly erred by focusing only on the factors in dispute without addressing the undisputed factors,” three of which weighed in favor of Home Chef.[27] In courts where the factors are weighed differently, the outcome could have been different. These distinctions between circuits result in inconsistent outcomes and cause unpredictability.

Home Chef highlights the fact that “three sequential decisions analyzed differing combinations of factors and evidence, applying different legal standards,”[28] and claims that the court’s failure to consider all the relevant likelihood-of-confusion factors results in “arbitrary and capricious findings,” as courts can ignore relevant factors, “enabling subjective decision-making.”[29]

On January 9, 2024, Home Chef petitioned the U.S. Supreme Court for a writ of certiorari, requesting that the court resolve the Circuit Split regarding the proper likelihood-of-confusion analysis in trademark infringement actions.[30] Specifically, Home Chef asked the court whether the likelihood-of-confusion analysis is a factual finding, and thus reviewable under a clearly erroneous standard, or a legal conclusion, reviewable de novo.[31] Further, Home Chef asked the court to decide whether the court must explain its analysis for all of the likelihood-of-confusion factors in the balancing test. An Amicus Curiae brief has been filed, urging the Supreme Court to adopt a uniform national standard for trademark infringement analyses.[32]

Home Chef contends that the circuit split “weakens the trademarks and the benefits afforded by the registration system.”[33] Not only does a flawed trademark system harm consumers, who might experience difficulties discerning the origin of products and services, but it also harms businesses that devote significant resources to building brand recognition and consumer goodwill under their protected trademark.


[1] Amici Tell High Court Jury Should Decide Likelihood of Confusion, 25 Mealey’s Litig. Rep. Trademarks 7 (Mar. 2024) [hereinafter “Amici”], https://plus.lexis.com/api/permalink/0e75dbd6-ad72-49c0-b95a-6a9378ad9c4a/?context=1530671.

[2] Tessa Kroll, Grubhub Relishes Victory Against Trademark Preliminary Injunction, The Nat’l L. Rev. (Sept., 28, 2023), https://www.natlawreview.com/article/grubhub-relishes-victory-against-trademark-preliminary-injunction.

[3] Id.

[4] Amici, supra note 1.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Grubhub Inc. v. Relish Labs LLC, 80 F. 4th 835, 844 (7th Cir. Sept. 12, 2023).

[10] Id.

[11] Id. at 847.

[12] Id. at 841.

[13] Id. at 844.

[14] Grubhub Inc. v. Relish Labs LLC, 80 F. 4th 835, 858 (7th Cir. Sept. 12, 2023).

[15] Eileen McDermott, Kroger Asks SCOTUS to Fix Circuit Inconsistencies in Likelihood of Confusion Analysis IP Watchdog (Jan. 11, 2024, 5:45 PM), https://ipwatchdog.com/2024/01/11/kroger-asks-scotus-fix-circuit-inconsistencies-likelihood-confusion-analysis/id=171890/.

[16] Identifying and Understanding Standards of Review, Geo. U. L. Ctr. (2019), https://www.law.georgetown.edu/wp-content/uploads/2019/09/Identifying-and-Understanding-Standards-of-Review.pdf.

[17] McDermott, supra note 15.

[18] Identifying and Understanding Standards of Review, supra note 16.

[19] Id.

[20] McDermott, supra note 15.

[21] Id.

[22] Id.

[23] Id.

[24] Home Chef Asks High Court to Standardize Trademark Likelihood-Of-Confusion Test, 20 Mealey’s Litig. Rep. Trademarks 13 (Feb. 5, 2024) [hereinafter “Home Chef”], https://plus.lexis.com/api/permalink/bdc91b30-86bd-4340-b02a-b89390ad64df/?context=1530671.

[25] Grubhub Inc. v. Relish Labs LLC, 80 F. 4th 835, 847 (7th Cir. Sept. 12, 2023).

[26] Id. at 848–857.

[27] Id. at 858.

[28] McDermott, supra note 15.

[29] Home Chef, supra note 24.

[30] Amici, supra note 1.

[31] Id.

[32] Id.

[33] Home Chef, supra note 24.

13 Wake Forest L. Rev. Online 59

Clare Magee

Introduction

Russia’s 2022 invasion of Ukraine catalyzed a waterfall of political and economic upheaval across a world already reeling from the continuing COVID-19 pandemic. According to the World Bank, global trade in oil and natural gas from Russia and agricultural products from Ukraine suffered immense setbacks.[1] The Russian invasion and subsequent response from Western nations, in particular, disrupted numerous commercial agreements, many of which were directly impacted by the imposition of economic sanctions by the United States government.[2] A 2022 congressional report suggests that these economic sanctions resulted in hundreds of billions of dollars lost for the Russian economy, as well as a mass exodus of foreign companies from the Russian market, resulting in political and economic instability.[3]

Russia’s military offensive will likely result in a host of contractual legal issues coming to the fore over the next several decades. Russia-Ukraine sanctions-related commercial litigation governed by United States law is already slowly trickling into United States courts.[4] However, given that many commercial contracts customarily include mandatory arbitration provisions, courts will not have occasion to fully evaluate these claims for several years.[5] Instead, arbitrators will be met with the foreseeability problem that accompanies invocation of force majeure clauses and other common law defenses to breach of contract.

Part I of this Comment briefly discusses the legal foundation for economic sanctions both under United States and international law. Next, Part II explains how force majeure clauses operate in the background of contract disputes. Part III introduces the “foreseeability problem” generally, and details different analyses courts employ to evaluate force majeure depending on whether the jurisdiction has adopted a requirement that the force majeure event be foreseeable. Then, Part IV explores common law defenses to nonperformance of a contract complicated by economic sanctions that could be workable altneratives to force majeure clauses. Finally, Part V analyzes the contours of the “foreseeability problem” in the specific context of cases involving economic sanctions.

Ultimately, this Comment argues that while courts tasked with evaluating breach of contract cases arising out of economic sanctions may choose to adopt a straightforward approach to force majeure interpretation, the complications of a foreseeability approach could have costly implications for global commercial contracts. This Comment thus argues that until courts have occasion to reach the issues discussed below, litigants should focus their breach of contract defenses on the common law defenses of illegality and public policy.

I. Overview of Economic Sanctions

At the outset, it is important to explore how international economic sanctions operate at both a domestic and international level. Sanctions in the international context are a proverbial stick used to penalize states, individuals, or other actors that “endanger [the issuing entity’s] interests or violate international norms of behavior.”[6] International sanctions most often take the form of economic sanctions, which “are defined as the withdrawal of customary trade and financial relations for foreign- and security-policy purposes.”[7] Economic sanctions vary in type and scope, but may include travel bans, asset freezes, arms embargoes, capital restraints, foreign aid reductions, and other restrictions on trade and economic activity.[8]

The scope of this Comment is limited to economic sanctions issued by the United States government. While a brief overview of the broad international and domestic legal authorities for economic sanctions follows, it should be noted that the legitimacy, enforceability, and mass use of economic sanctions are expansive topics of legal and political scholarship that are well beyond the scope of this Comment.

A. Sanctions Under International Law

To begin, there is no general prohibition against economic sanctions in international law.[9] In fact, examples of economic sanctions have existed in international relations since 432 B.C. “when Athens imposed a trade embargo on its neighbor Megara.”[10] The modern international legal order is often considered to have begun after World War I with the formation of the League of Nations, which continued to promulgate sanctions as a tool of international relations.[11] For example, the League imposed a sweeping economic sanctions package against Benito Mussolini’s Italy after his invasion of Ethiopia in 1935.[12] The sanctions included an arms embargo, freeze on financial transactions, and significant export and import restrictions.[13] Various sanctions regimes have continuously been promulgated since 1935, and the recent trend has been towards issuing sanctions known as “smart sanctions” designed to “minimize the suffering of innocent civilians.”[14]

Today, the international legal authority for sanctions is largely grounded in the United Nations Charter, which contemplates the imposition of sanctions as collective security mechanisms available both to member states and to the UN as an international body.[15] Article 2 of the Charter lays out the expectations and rights of UN member states.[16] A majority of scholars do not believe that economic coercion through sanctions fall under Article 2(4)’s prohibition against “the threat or use of force” that is “inconsistent with the purposes of the United Nations.”[17] This is a logical interpretation given that any other reading would render later articles of the Charter inconsistent.[18] Article 41 of the Charter explicitly illustrates permissible uses of unarmed force, including “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication.”[19]

However, the evolution of customary international law does impose some guardrails on sanctions. Generally, lawful sanctions imposed against an actor should include five components: (1) the actor must have violated or continues to violate a primary rule of international law, (2) good faith efforts have been attempted to deter or induce the actor to cease its violation, (3) the sanctions are proportional to the violation, (4) the sanctions are appropriately tailored or limited, and (5) the sanctions are terminable upon the actor’s cessation of its violation.[20]

The general acceptance of proportional and appropriately applied sanctions does not mean that actors view all sanctions as legal, however. For example, Iran–which has recently been the target of expansive economic sanctions regimes–has attempted to challenge the legality of sanctions under treaty law and other international legal principles.[21] Iran has a lawsuit before the International Court of Justice (“ICJ”) which suggests that in addition to the general customary rules of sanctions, there may also be treaties, UN General Assembly resolutions, and general principles of international law that inform the legality of sanctions.[22] For the purposes of this Comment, however, international economic sanctions as a general economic concept are assumed to be valid under international law and capable of interrupting contractual relationships.

B. Economic Sanctions Under United States Law

Within the United States, international economic sanctions are governed by a patchwork of legal authorities including acts of Congress, executive orders, decisions of agencies, and the Constitution itself. As a nation-state under international law, the United States’ jurisdiction to prescribe law includes “certain conduct outside its territory by persons not its nationals that is directed against the security of the state or against a limited class of other state interests.”[23] This constraint of international law on the United States, paired with the Constitution’s provisions on prescriptive jurisdiction, form the legal basis of the United States’ authority to promulgate economic sanctions.[24] Article 1 of the Constitution vests legislative powers in the Congress of the United States and authorizes Congress to make laws related to economic sanctions, while Article 2 outlines the authority of the Executive to do the same.[25]

One foundational authority governing sanctions promulgated by the United States is the International Emergency Economic Powers Act (“IEEPA”). IEEPA was enacted in 1977 “to govern the President’s authority to regulate international economic transactions during wars or national emergencies.”[26] IEEPA forms the basis of most–if not all–Executive action related to sanctions.[27] On average, 1.5 IEEPA emergencies are declared every year, which may result in sanctions targeting thousands of persons or entities.[28] IEEPA also includes the power to impose “secondary sanctions” on individuals and entities who are outside U.S. jurisdiction and cannot be legally required to adhere to sanctions.[29] These secondary sanctions are broadly applicable to those “suspected of transacting with sanctioned or sanctionable entities.”[30] Further, IEEPA sanctions often last for decades, which means that once sanctions regimes are imposed, they are not quickly undone.[31] Congress can also crystallize executive orders imposing sanctions by codifying them to ensure they are not revoked later on.[32]

In addition to legal authorities governing imposition of sanctions, there are also authorities governing execution and monitoring of sanctions. Once sanctions are imposed, the Office of Foreign Assets Control (“OFAC”) in the Department of the Treasury “administers and enforces economic and trade sanctions based on U.S. foreign policy and national security goals.”[33] OFAC maintains and publishes lists of “individuals and companies owned or controlled by, or acting for or on behalf of, targeted countries,” as well as groups that are “designated under programs that are not country-specific.”[34] Sanctions that are country-based may be (1) comprehensive, which means they cover “all transactions with the country and its nationals,” or (2) limited, which means they prohibit “only certain types of transitions with the target country or with certain persons in the government of that country.”[35] Activity-based sanctions “address particular actions, and the targets can be anywhere in the world.”[36]

While United States companies and individuals are expected to immediately abide by sanctions, foreign entities may also be prohibited from engaging in transactions with sanctioned countries, individuals, or groups if they have sufficient “contacts” with the United States or “conduct their transactions in U.S. dollars.”[37] OFAC exercises its discretion to claim jurisdiction over foreign companies and individuals broadly, increasing the power of United States sanctions regimes.[38] Thus, the impact of economic sanctions is far-reaching and can create challenges in a number of legal relationships, including in contractual obligations.

II. Force Majeure in Operation

With the aforementioned principles of sanctions in place, the remainder of this Comment turns to the interplay between contracts and economic sanctions – specifically, the role of force majeure clauses. Force majeure clauses are standard provisions that can be found in almost any contractual agreement.[39] These clauses typically cover “an event or effect that can be neither anticipated nor controlled,” including “both acts of nature (e.g., floods and hurricanes) and acts of people (e.g., riots, strikes, and wars).”[40]

Typically, what constitutes a force majeure “event” is determined by the language in the clause itself, which will delineate events the parties have included or excluded.[41] Parties might choose to negotiate specific events for inclusion or exclusion in order to dictate the application, effect, and scope of the force majeure clause.[42] For example, in Sage Realty Corp. v. Jugobanka, D.D.,[43] which involved a contractual dispute arising from the imposition of United States sanctions on Yugoslavian entities after the end of the Bosnian War, the relevant agreement’s force majeure clause contained the following exclusion:

[t]he obligation of Tenant to pay rent hereunder…shall in no way be affected, impaired or excused because Landlord is unable to fulfill any of its obligations under this Lease…by reason of any rule, order or regulation of any department of subdivision thereof of any government agency.[44]

More commonly, parties may opt for boilerplate or “catch-all” language that typically consists of: “acts of God, war, government regulation, terrorism, disaster, strikes (except those involving [a party’s] employees or agents), civil disorder…,” etcetera.[45]

As creatures of common law, force majeure provisions are governed by state law in the United States.[46] A court’s analysis of a force majeure clause thus can vary significantly by jurisdiction. Still, there are some foundational principles that courts tend to follow. For example, in breach of contract cases, the party invoking force majeure as an affirmative defense bears the burden to prove that the event causing the breach: (1) qualifies as a force majeure event, and (2) was not caused by the party’s own fault or negligence.[47]

Courts typically construe force majeure clauses narrowly and will “only excuse a party’s nonperformance if the event that caused the party’s nonperformance is specifically identified.”[48] Importantly, force majeure clauses do not excuse a party’s nonperformance “dictated by economic hardship” or because of a “mere increase in expense.”[49] Rather, the party asserting the force majeure clause as a defense must prove that an event within the clause “was beyond its control and without its fault or negligence.”[50] However, one aspect of force majeure interpretation that remains unclear is whether and to what extent courts include a “foreseeability” component.

III. The Foreseeability Problem

Because force majeure interpretation has evolved through common law, courts’ analyses reveal different approaches to whether a force majeure event must have been foreseeable or unforeseeable for the clause to adhere.[51] For example, Alabama and Maine have limited case law on force majeure clauses, with the primary analysis in reported decisions centering on the definition of force majeure with no evaluation of foreseeability.[52]

Conversely, consider the variance in states that have directly addressed foreseeability. Alaskan courts tend to require unforeseeability for force majeure events in certain types of contracts like oil and gas leases.[53] California and Florida have robust force majeure case law reflecting the most common practice where foreseeability is typically only an issue for catch-all or boilerplate language, and the rule is that “unless a contract explicitly identifies an event as force majeure, the event must be unforeseeable at the time of contracting to excuse performance.”[54] In Idaho, even if a force majeure clause does not expressly use the word “foreseeability,” courts are expected to engage in a foreseeability analysis.[55] By contrast, in New York and Ohio, courts do not read foreseeability issues into contracts that are otherwise silent on foreseeability.[56]

As illustrated by case law, courts may not have robust or consistent jurisprudence on the issue of foreseeability if it has not been frequently litigated.[57] But as one author notes, “Courts who have addressed this question can be placed into two categories.”[58] On one side are courts who import a force majeure clause’s “common-law significance” and “tend to impose an unforeseeability requirement upon the force majeure event.”[59] This means that in order for the court to allow the force majeure clause to excuse a party’s nonperformance, the event contemplated by the clause must have been truly unforeseeable. On the other side are courts who “regard the words of a self-defined force majeure clause as controlling and permit common-law notions to fill in the gaps.”[60] These courts are more likely to “not impose an unforeseeability requirement on enumerated force majeure events.”[61]

This variance in approach is mirrored not only from state to state, but system to system. Federal courts “have expressly advocated for an interpretive presumption that parties intend common-law components of force majeure, such as unforeseeability, to be read into a contract.”[62] But various state courts “allow the terms of an enumerated force majeure clause to control the scope and application of a force majeure analysis.”[63]

Yet another differentiating factor dividing courts’ analyses is whether the force majeure event that a nonperforming party bases its defense upon is explicitly listed in the clause or not. Given the potential implications of this difference for litigation arising out of economic sanctions, and because there is an apparent circuit split on enumerated force majeure clauses, this Part focuses on different courts’ analyses on force majeure events depending on whether they are explicit or not explicitly identified.

A. When Force Majeure Event is Explicit

At least two circuits have come to different conclusions about whether, and under what circumstances, a force majeure event that is explicitly included in the clause must be unforeseeable for the clause to adhere.[64] The Third Circuit and the Fifth Circuit have each had occasion to address whether “specifically listed” events require a showing of unforeseeability, coming to opposite conclusions.[65]

In Eastern Air Lines v. McDonnell Douglas Corp.,[66] the Fifth Circuit addressed an appeal for damages for breach of contract in favor of an airline against a jet plane manufacturer.[67] The lower court was unconvinced by the manufacturer’s argument that the delays leading to its breach of contract were the result of “escalation of the war in Vietnam,” finding in part that “any excusing event must have been unforeseeable.”[68] The Fifth Circuit disagreed and explained that underlying general contract principles is an understanding that “a promisor can protect himself against foreseeable events by means of an express provision in the agreement.”[69] Thus, argued the court, “when the promisor has anticipated a particular event by specifically providing for it in a contract, he should be relieved of liability for the occurrence of such event regardless of whether it was foreseeable.”[70] The Fifth Circuit concluded that the lower court erred in finding that “specifically listed” events “must have been unforeseeable at the time the contracts were entered into.”[71] This holding set up a foreseeability clash with the Third Circuit several years later.

In Gulf Oil Corp. v. FERC,[72] the Third Circuit adopted a “showing of unforeseeability” requirement.[73] Gulf Oil breached its obligations to deliver daily oil supplies to a Texas gas corporation under a contract which included among its enumerated list of twenty-seven force majeure events mechanical breakdowns, equipment downtimes, and maintenance repairs.[74] The Third Circuit held that Gulf Oil could not invoke the use of force majeure absent a showing that “the events which delayed its performance were unforeseeable and infrequent.”[75] Explaining its reasoning, the Third Circuit noted that “it is possible to accurately describe an event at its initial occurrence as unforeseeable and later because of the regularity with which it occurs, to find that such a description is no longer applicable.”[76] The court determined that the mechanical repairs which interrupted Gulf Oil’s delivery of gas had become so frequent and predictable that they could no longer be considered an excuse to nonperformance, even if they were specifically enumerated within the force majeure clause.[77] Importantly, the court articulated the insufficiency of arguing that “because the mechanical repairs were listed in the contract, they were force majeure events.”[78]

B. When Force Majeure Event is Not Explicitly Identified

The majority of states appear to read a foreseeability requirement into force majeure clauses only when the force majeure event is not explicitly enumerated or a catch-all provision is used.[79] One recent appellate case from Texas provides an illustrative discussion.[80] TEC Olmos, LLC v. ConocoPhillips[81] involved breach of an oil and gas drilling contract as the result of changes in global supply and demand for oil.[82] The contract included a force majeure clause that explicitly listed several events as well as a “catch-all” provision.[83] Drawing on common law principles, the court imported an “unforeseeability” requirement to ‘fill the gaps’ in the [catch-all] force majeure clause.”[84] The court explained:

To dispense with the unforeseeability requirement in the context of a general “catch-all” provision would, in our opinion, render the clause meaningless because any event outside the control of the nonperforming party could excuse performance, even if it were an event that the parties were aware of and took into consideration in drafting the contract.[85]

Key to the court’s reasoning was its concern for avoiding an “overly broad definition of force majeure” in accordance with traditional common law principles.[86]

Courts in California follow the same rules of construction and also read a foreseeability requirement into boilerplate or catch-all force majeure clauses.[87] In granting a motion to dismiss a breach of contract claim based on a force majeure defense, a United States District Court applied California law and held that “unless a contract explicitly identifies an event as a force majeure, the event must be unforeseeable at the time of contracting to qualify as such.”[88]

However, there are some state courts who have reached different conclusions as to the relevance of foreseeability when force majeure events are not explicitly listed.[89] For example, in a case involving a breach of contract arising out of an alleged “trade war” between the United States and China, a Michigan appellate court suggested that the court could find no Michigan cases to “support a conclusion that the foreseeability of a force-majeure event is relevant to the interpretation of a force-majeure clause.”[90] There, the litigant invoking force majeure argued that the case should have been allowed to proceed to discovery so “the issue of the foreseeability of China’s alleged illegal actions in the solar market and the parties’ intent with regard to allocation of risk [could] be explored.”[91] The court disagreed and construed the force majeure clause narrowly, rejecting any foreseeability arguments where the force majeure event was not explicitly listed.[92]

These cases illustrate the uncertainty awaiting litigants who have already included or might consider including sanctions-related force majeure clauses in their contracts. Basic contract principles favor giving meaning to the parties’ intentions as explicitly expressed in their written agreement, so conventional wisdom suggests that litigants who fear their contracts may be disrupted by sanctions in the future should negotiate force majeure clauses with explicit coverage for sanctions. However, if litigants do so and are met with a breach of contract action in a court that shares the Third Circuit’s attitude towards foreseeability in explicit force majeure clauses, they may be subject to an unwelcome holding.

On the other hand, litigants may not contemplate the possibility of sanctions and thus may rely on catch-all force majeure language to defend against breach of contract arising out of sanctions. The trouble with this approach, however, is that courts are more likely to include a foreseeability requirement in their analyses.[93] This opens litigants up to judges acting as political and foreign policy analysts who opine as to whether the parties should have foreseen a deterioration in relations between states leading to the imposition of sanctions. And while Supreme Court Justices have historically been asked to wade into the depths of foreign policy as a consequence of their rulings on multi-dimensional economic and political questions, there should be a measure of wariness towards granting such consequential authority to district and state court judges who may lack the expertise and time to carefully engage in such an analysis.[94]

Faced with these options, or perhaps by sheer mistake, litigants may end up without a sanctions-related force majeure provision entirely. Without such a provision, there are still some common law defenses available to litigants, such as impracticability/impossibility, illegality, or public policy. However, these defenses do not entirely dispense with—and in some cases actually enhance—the problem of the foreseeability requirement.

IV. Other Defenses
A. Impracticability and Impossibility

The shared common law origins of force majeure and impracticability (sometimes called impossibility) plays a key role in understanding how foreseeability can complicate a court’s analysis of alternative common law defenses. Impracticability and force majeure are similar but separate defenses to nonperformance. Impracticability excuses either “contracting party from performance in the fact of an act of God” such as “natural planetary elements or unforeseen, dramatic events.”[95] Even though it often covers “acts of God,” a force majeure clause is intended to relieve liability where “nonperformance is due to causes beyond the control of a person who is performing under a contract.”[96]

The clearest distinction between the two defenses is most easily understood temporally—when and how they are raised. As a contractual provision, a force majeure clause can only be invoked if the contract actually includes the clause.[97] Conversely, impracticability is a common law defense available to litigants even when a contract contains no force majeure clause.[98]

Foreseeability is the key aspect of the impracticability defense to breach of contract, which has three general requirements:

(1) the occurrence, or nonoccurrence, of the event causing the impracticability was unexpected; (2) performance of the duty by the promisor would be extremely difficult and burdensome, if not impossible; and (3) the promisor did not assume the risk of the event’s occurrence or nonoccurrence.[99]

Thus, in cases where litigants raise an impracticability defense, the court will almost always investigate the foreseeability of the event alleged to have caused the breach. One interesting example comes from the Fifth Circuit opinion in National Iranian Oil Co. v. Ashland Oil.[100] While National Iranian Oil Co. occurred in the context of an arbitration dispute, it revealed the court’s foreseeability analysis when determining whether a party can assert impossibility or impracticability.[101]

Beginning in 1973, Ashland Oil contracted with the state-owned National Iranian Oil Company (“NIOC”) to supply Ashland with crude oil.[102] Following the takeover of the United States Embassy in Tehran in 1979, then-President Carter issued several executive orders imposing sanctions against Iran, including banning imports of Iranian crude oil.[103] When Ashland refused to pay NIOC under the agreement, NIOC attempted to compel arbitration proceedings, which resulted in the Fifth Circuit’s opinion quoted in part at the outset of this comment.[104] Among the court’s evaluation of the arbitration claims is a helpful discussion of foreseeability as it relates to the defense of impossibility or impracticability.

As to the first element of the defense as articulated at the time—that the asserting party must not have been able to foresee the event—the Fifth Circuit held that it was “unimaginable” that the “NIOC–an instrumentality of the Republic of Iran–could not reasonably have foreseen” at the time of renewing their contract with Ashland that the agreement might be made impracticable by the deterioration of relations between Iran and the United States.[105] On the second element of the defense—that the event cannot have been the fault of the party asserting impracticability—the Fifth Circuit held that “as part of the revolutionary Government, NIOC certainly bears responsibility for creating the chain of events” that led to Ashland’s breach.[106]

Ashland Oil offers two principles that litigants should be aware of in choosing to invoke the impracticability defense, and potentially force majeure in jurisdictions where foreseeability is imported. First, depending on the political history and recency of conflict-ridden relations between the United States and foreign nations, a court may be willing to find that the imposition of sanctions was foreseeable, even if the parties did not contemplate them at the time of contracting. Second, litigants should be on notice that contracts with state- or quasi-state-owned entities may receive higher scrutiny on the foreseeability component since sanctions typically first target governments and government-owned enterprises.

B. Illegality and Public Policy

Illegality and public policy, which do not typically implicate foreseeability, provide a meaningful defense for nonperformance of a contract complicated by economic sanctions. As a general rule, illegality may be available to litigants as a defense against a breach of contract claim “whenever the performance of an act would be either a crime or a tort.”[107] Because parties cannot preemptively contract for something that would be illegal, the defense of illegality is available if, at the time the parties entered into the contract, the promise or obligation was not illegal but later became illegal.[108]

Public policy is an inherently ambiguous term, but courts are routinely asked to articulate what constitutes “public policy.”[109] They may define public policy as “that rule of law which declares that no one can lawfully do that which tends to injure the public, or is detrimental to the public good,”[110] “laws enacted for the common good,”[111] or policy and statutes that are established in the interests of the public or society.”[112] The Restatement (Second) of Contracts explains why courts may determine that a contractual promise is void as against public policy:

First, a refusal to enforce the promise may be an appropriate sanction to discourage undesirable conduct, either by the parties themselves or by others. Second, enforcement of the promise may be an inappropriate use of the judicial process in carrying out an unsavory transaction.[113]

In evaluating both illegality and public policy defenses, courts must often rely on the facts before them and the common law evolution of a court’s specific notions of what constitutes public policy, fairness, and illegality, meaning the success of either of these defenses is not automatic.

Unlike the impracticability or impossibility defense, courts do not typically import a foreseeability requirement into the illegality or public policy defenses. For example, Kashani v. Tsann Kuen China Enter. Co.[114] involved an American computer manufacturer entering an agreement with a Taiwanese corporation to establish a parts manufacturing plant in Iran.[115] Soon after the manufacturer began arranging financing, the Taiwanese corporation withdrew from the computer industry and refused to proceed with the agreement, arguing it had become illegal and against public policy because it violated executive orders issued by then-President Clinton to sanction Iran by restricting various business and financial transactions.[116] The California Court of Appeals held that the agreement was plainly illegal and violated public policy because the content of the agreement expressly violated the executive orders and other regulations imposing sanctions on Iran, so the corporation’s “actual and anticipated performance under the agreement were…prohibited.”[117]

Interestingly, the court distinguished between contracts that would be violative of domestic public policy versus international public policy in situations involving arbitration enforcement, indicating that the public policy defense might be evaluated differently in arbitration proceedings as opposed to court proceedings.[118] Ultimately, while the Kashani court acknowledged the public policy arguments, its decision was predicated on the more straightforward recognition that the agreement at issue violated an executive order and thus was illegal.[119]

Another example is a case from the United States Court of Federal Claims involving a motion to dismiss a breach of a government contract between the United States Agency for International Development (“USAID”) and Transfair International, Inc. to deliver humanitarian relief supplies to Eritrea.[120] In fulfilling its obligations under the agreement, Transfair subcontracted with a British company which ultimately hired Iranian aircraft to deliver the supplies.[121] USAID refused to pay the contract amount based on a defense that Transfair was in violation of OFAC sanctions. In response, Transfair filed a claim with the contract officer who found that “public policy considerations counseled against payment, which would be the equivalent of a transfer of government funds directly to an Iranian organization.”[122] The Court of Federal Claims reversed this decision at the motion to dismiss stage for two primary reasons: first, the court held that it must be determined whether a primary subcontractor should be held responsible for the illegal conduct of its subcontractor, and second, the court held that the illegality defense was not absolute, but rather subject to a fact intensive balancing test.[123] The court suggested that such a balancing test might weigh: (1) the promisee’s culpability, including what it knew about the alleged illegality, (2) the promisor’s corresponding culpability and knowledge of the illegality, (3) whether forfeiture would serve the public purposes at issue or serve as a deterrent against future violations, and (4) whether forfeiture resulting from nonenforcement of the agreement would be proportional to the illegality.[124]

These cases teach that when choosing among the available common law defenses to breach of contract, litigants can avoid the foreseeability problem by relying on illegality or public policy defenses. Impossibility or impracticability almost always require a court to inquire into the foreseeability of the event giving rise to the defense. Thus, if litigants are concerned about whether a court will read foreseeability into their force majeure clause, they should not expect to find a safe haven in the impossibility or impracticability defense. Thus, litigants should carefully consider whether the balancing approaches to illegality and public policy discussed above may instead be more advantageous to their position. Still, because of the canons of construction for contracts, if the litigants do have a force majeure provision that includes either explicit sanctions-related events or more general catch-all language, courts may begin and end their analyses with the force majeure clause, bringing litigants back to the foreseeability problem.

V. The Foreseeability Problem Redux: Sanctions Cases

The remainder of this Comment turns to cases which directly implicate force majeure or common law defenses in breach of contract cases arising directly out of sanctions. These cases do not appear to be often litigated to their full extent because of contractual arbitration provisions and the numerous other grounds on which a case may be decided or dismissed. Still, the cases that have been reported, combined with the general principles discussed above, provide a framework by which pending sanctions-related cases may be understood. As qualified previously, the discussion in this Part does not address the causation or culpability requirements of force majeure, or other elements of common law defenses. Instead, the focus is on the most unclear hurdle of them all: foreseeability.

A. A Straightforward Approach

Most likely, courts will adopt a straightforward approach to foreseeability in adjudicating sanctions-related litigation. In 1985, the Eighth Circuit reviewed an appeal from Iran after it lost a summary judgment motion to McDonnell, an American aircraft parts manufacturer over a breach of contract dispute.[125] Ten years earlier, the parties had entered into an agreement which included a force majeure clause explicitly excusing the manufacturer from nonperformance caused by “acts of the United States Government and embargoes.”[126] After the Iranian Revolution in 1979, when the U.S. Treasury Department and State Department imposed limitations on commercial dealings with Iran, McDonnell stopped shipping parts to the Iranian government.[127] The Iranian government sued for breach of contract, and the Eighth Circuit held that the economic restrictions imposed by the United States fell within the force majeure clause and excused McDonnell’s nonperformance.[128] Similarly, the Southern District of New York concluded in a 1998 case that the language of a force majeure clause which said the parties’ obligations would not be excused by “any rule, order or regulation…of any government” included executive orders and OFAC sanctions imposed against Yugoslavian entities in the wake of armed conflict in the Baltics.[129]

The ease with which these courts came to a decision regarding force majeure clauses should not be lightly disregarded. These cases illustrate the straightforward approach available to courts evaluating contractual provisions under traditional canons of construction. If, as is the case when analyzing any disputed contractual provision, the court’s aim is to give meaning and effect to the parties’ intentions when interpreting a force majeure clause, the court can rely on the terms of the agreement and end its analysis.[130] This is just what the Eighth Circuit did in McDonnell and the Southern District of New York did in Sage Realty.

If courts uniformly adopted this approach, litigants who contract with states or entities that eventually become targets of economic sanctions could negotiate specific force majeure provisions with this in mind at the beginning of the contractual relationship.Litigants would then have at least some measure of confidence that if all other force majeure elements were proven, they would be successful in their affirmative defense. Yet, the foreseeability problem lurks as a still-unknown potential disruptor to this straightforward approach.

B. The Unknowns of a Foreseeability Approach

Alternatively, courts might import foreseeability into their analyses of sanctions-related litigation, resulting in unknown but potentially far-reaching ramifications. This author could not find a single reported case in the last three decades where a court had occasion to directly address whether they would read a foreseeability requirement into a force majeure clause related to breach of contract arising out of sanctions. However, recent COVID-19 litigation seemingly indicates that such a question on sanctions cases may be forthcoming.[131] Over the past two years, courts have become increasingly skeptical of parties attempting to invoke force majeure clauses to cover pandemic-related breach of contract, finding that the pandemic and its impact on contracts are now foreseeable.[132] Notably, this skepticism seems most common in cases involving catch-all provisions where litigants attempt to stretch the meaning of the force majeure clause to cover the non-explicitly listed pandemic event.[133]

Economic sanctions as a tool of international relations are becoming more prevalent and widespread, with the Russia-Ukraine sanctions among the latest to garner public attention.[134] If “what’s past is prologue,”[135] there is a sound argument to be made that, when faced with questions about force majeure applicability to breach of contract arising out of sanctions, courts will look to cases like McDonnell and Sage Realty to interpret how litigants’ force majeure clauses apply to their claims. But in a world where courts have imported foreseeability requirements into force majeure cases like TEC Olmos and Gulf Oil, and where the recent COVID-19 litigation indicates that courts may consider the relative foreseeability of the force majeure event giving rise to contractual breach, it is possible that courts will turn to state common law and the foreseeability requirements of other common law defenses to read a foreseeability requirement into future force majeure litigation.

This approach could have costly implications for a range of contracts in a variety of industries given the nature of fully globalized trade. Imagine, for example, what would happen if a party today entered into a contract with a Chinese-owned entity that later became the target of United States sanctions. Could a court rationalize its opinion in state common law importation of foreseeability requirements that a force majeure clause and the common law defense of impracticability were unavailable because the sanctions were foreseeable given the slow devolution of relations between the United States and China since the end of the Cold War? While such a hypothetical might seem far-fetched and does not consider the potential relevance of common law defenses, there is certainly case law discussed in previous Parts that could support this reasoning if the facts and arguments were analogous enough.

Conclusion

The question of whether and to what extent foreseeability will impact sanctions-related litigation involving breach of contract claims is uncertain. Though courts will most likely rely on traditional canons of interpretation in evaluating force majeure events that litigants invoke as a shield against sanctions-involved breaches, the divide across state common law over importing a foreseeability requirement into force majeure interpretations lurks as a threat that raises more questions than it answers. Until courts are given an opportunity to develop a coherent body of case law on this question, litigants in cases involving breach of contract arising out of sanctions may be best served by adopting one of the following approaches. First, litigants could deliberately include sanctions in the force majeure clause and negotiate a favorable choice of law provision to ensure the force majeure clause is interpreted under the straightfoward approach adopted by the Eighth Circuit and Southern District of New York. Second, if their dispute reached a court, litigants could emphasize their public policy and illegality common law defenses in an attempt to avoid the question of foreseeability altogether.

  1. . See Russian Invasion of Ukraine Impedes Post-Pandemic Economic Recovery in Emerging Europe and Central Asia, The World Bank (Oct. 4, 2022), https://www.worldbank.org/en/news/press-release/2022/10/04/russian-invasion-of-ukraine-impedes-post-pandemic-economic-recovery-in-emerging-europe-and-central-asia.

  2. . Peter Neger & Bryan Woll, Applying U.S. Contract Law Amid Ukraine-Related Sanctions, Law360 (Mar. 24, 2022, 5:44 PM), https://www.law360.com/articles/1476924/applying-us-contract-law-amid-ukraine-related-sanctions.

  3. . Cong. Rsch. Serv., IFI2092, The Economic Impact of Russian Sanctions, https://crsreports.congress.gov/product/pdf/IF/IF12092 (last updated Dec. 13, 2022).

  4. . See, e.g., Joe Schneider, Carlyle Aviation Sues Insurers Over Seized Planes Leased to Russian Airlines, Ins. J. (Nov. 1, 2022), https://www.insurancejournal.com/news/international/2022/11/01/692558.htm.

  5. . Marco P. Falco, Business Contract Arbitration Clauses: Why the Words Matter, Law360 Canada (May 18, 2023 2:07 PM), https://www.law360.ca/articles/46864/business-contract-arbitration-clauses-why-the-words-matter?category=analysis.

  6. . Jonathan Masters, What Are Economic Sanctions, Council on Foreign Rel., https://www.cfr.org/backgrounder/what-are-economic-sanctions (last updated Aug. 12, 2019, 8:00 AM).

  7. . Id.

  8. . Id.

  9. . Syed Ali Akhtar, Do Sanctions Violate International Law?, Econ. & Pol. Wkly. (Apr. 27, 2019), https://www.epw.in/engage/article/do-sanctions-violate-international-law.

  10. . Uri Friedman, Smart Sanctions: A Short History, Foreign Pol’y (Apr. 23, 2012, 2:33 AM), https://foreignpolicy.com/2012/04/23/smart-sanctions-a-short-history/.

  11. . IMF, The Sanctions Weapon, Finance & Development (June 2022), https://www.imf.org/en/Publications/fandd/issues/2022/06/the-sanctions-weapon-mulder.

  12. . Id.

  13. . Id.

  14. . Masters, supra note 6.

  15. . See U.N. Charter art. 2, ¶ 5–6; see also U.N. Charter arts. 39–51.

  16. . U.N. Charter, art. 2.

  17. . J. Curtis Henderson, Legality of Economic Sanctions Under International Law: The Case of Nicaragua, 43 Wash. & Lee L. Rev. 167, 180 (1986).

  18. . Id. at 181.

  19. . U.N. Charter, art. 41.

  20. . Anthony D’Amato, Groundwork for International Law, 108 Am. J. Int’l. L. 650, 670 (2014).

  21. . See Certain Iranian Assets (Iran v. U.S.), Application Instituting Proceedings, 2016 I.C.J. (June 14) (arguing that U.S. sanctions violate the Treaty of Amity and international law).

  22. . See id. See generally Henderson, supra note 17, at 187–93.

  23. . Restatement (Third) of Foreign Rel. L. of the U.S. § 402 (1987).

  24. . Id., cmt. j.

  25. . U.S. Const. art. I §§ 1, 8; id. art. II.

  26. . Barbara J. Van Arsdale, Annotation, Validity, Construction, and Operation of International Emergency Economic Powers Act, 50 U.S.C.A. §§ 1701 to 1707, 183 A.L.R. Fed. 57 (2003).

  27. . Andrew Boyle, Checking the President’s Sanctions Powers, Brennan Center for Justice 3 (June 10, 2021), https://www.brennancenter.org/sites/default/files/2021-06/BCJ-128%20IEEPA%20report.pdf.

  28. . Id.

  29. . Id. at 8.

  30. . Id.

  31. . Id. at 3.

  32. . Abigail A. Graber, Cong. Rsch. Serv., R46738, Executive Orders: An Introduction, at 19 (Mar. 29, 2021).

  33. . Office of Foreign Assets Control, U.S. Department of the Treasury, https://home.treasury.gov/policy-issues/office-of-foreign-assets-control-sanctions-programs-and-information (last visited Nov. 20, 2023).

  34. . Id.; Office of Foreign Assets Control, Specially Designated Nationals List – Data Formats & Data Schemas, U.S. Department of the Treasury, https://ofac.treasury.gov/specially-designated-nationals-list-data-formats-data-schemas (last updated Nov. 17, 2023).

  35. . Boyle, supra note 27, at 7.

  36. . Id.

  37. . Id. at 8.

  38. . Id. at 8 (discussing OFAC’s claim of jurisdiction “over a Taiwanese company that transferred oil to an Iranian company, simply because that Taiwanese company had previously filed for bankruptcy in U.S. court”).

  39. . See J. Hunter Robinson et. al., Use the Force? Understanding Force Majeure Clauses, 44 Am. J. Trial Advoc. 1, 8 (2020) (explaining that “[f]orce majeure clauses may be found in any contract,” particularly construction and real estate contracts.

  40. . Force Majeure, Black’s Law Dictionary (11th ed. 2019).

  41. . 30 Williston on Contracts § 77:31 (4th ed.).

  42. . Id.

  43. . No. 95 CIV. 0323, 1998 WL 702272 (S.D.N.Y. Oct. 8, 1998).

  44. . Id. at *4.

  45. . Williston, supra note 41.

  46. . Robinson et. al., supra note 39, at 4 (“the application of force majeure principles can vary from jurisdiction to jurisdiction and case to case.”).

  47. . Williston, supra note 41.

  48. . Id.

  49. . Id.

  50. . Id.

  51. . TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176, 181 (Tex. App. 2018) (explaining that “foreseeability of force majeure events is rooted in the common law of the force majeure doctrine”). See generally Robyn S. Lessans, Comment, Force Majeure and the Coronavirus: Exposing the “Foreseeable” Clash Between Force Majeure’s Common Law and Contractual Significance, 80 Md. L. Rev. 799, 809–10 (2021).

  52. . See Practical Law Commercial Transactions, Key Issues When Invoking a Force Majeure Clause: State Law Chart, https://1.next.westlaw.com/Document/I1e7ec4ae774e11ea80afece799150095/View/FullText.html?transitionType=SearchItem&contextData=(sc.Search) (last visited Nov. 20, 2023).

  53. . Alaskan Crude Corp. v. State Dep’t of Nat. Res., Div. of Oil & Gas, 261 P.3d 412, 420 (Alaska 2011) (stating the rule that “Force majeure clauses extend [mineral] leases only when the nonperformance is ‘caused by circumstances beyond the reasonable control of the lessee or by an event which is unforeseeable at the time the parties entered into the contract’”).

  54. . Free Range Content, Inc. v. Google Inc., No. 14-CV-02329, 2016 WL 2902332, at *6 (N.D. Cal. May 13, 2016); see also In re. Flying Cow Ranch HC, LLC, No. 18-12681, 2018 WL 7500475, at *3 (Bankr. S.D. Fla. June 22, 2018)(finding that a force majeure event that was not explicitly listed in the clause was subject to a foreseeability analysis).

  55. . Roost Project, LLC v. Andersen Constr. Co., 437 F. Supp. 3d 808, 821 (D. Idaho 2020).

  56. . See Drummond Coal Sales Inc. v. Kinder Morgan Operating LP “C”, 836 F. App’x 857, 867 (11th Cir. 2021) (applying New York law); see also Sabine Corp. v. ONG W., Inc., 725 F. Supp. 1157, 1170 (W.D. Okla. 1989).

  57. . See, e.g., Kyocera Corp. v. Hemlock Semiconductor, LLC, 886 N.W.2d 445, 451 (Mich. Ct. App. 2015) (explaining “[t]his Court has previously observed that there is a paucity of Michigan cases interpreting force-majeure clauses…and that remains the case today”).

  58. . Lessans, supra note 51, at 810.

  59. . Id.

  60. . Id.

  61. . Id.

  62. . Id.

  63. . Id. at 812.

  64. . TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176, 182 (Tex. Ct. App. 2018).

  65. . Id.

  66. . 532 F.2d 957 (5th Cir. 1976).

  67. . Id. at 961.

  68. . Id. at 980.

  69. . Id. at 992.

  70. . Id.

  71. . Id.

  72. . 706 F.2d 444 (3d Cir. 1983).

  73. . Id.

  74. . Id. at 448–49 n.8, 453.

  75. . Id. at 454.

  76. . Id. at 453.

  77. . Id. at 453–54 (explaining that “[t]he element of uncertainty that defines unforeseeability is negated by the regularity with which the events occurred.”).

  78. . Id. at 454.

  79. . Compare Roost Project, LLC v. Anderson Constr. Co., 437 F. Supp. 3d 808, 821 (D. Idaho 2020) (explaining that courts should engage in a foreseeability analysis for events that are not expressly listed in the force majeure provision), with Kyocera Corp. v. Hemlock Semiconductor, LLC, 886 N.W.2d 445 (Mich. App. 2015) (finding that courts need not engage in a foreseeablity analysis to interpret a force majeure provision).

  80. . See TEC Olmos, 555 S.W. 3d at 182–85.

  81. . Id.

  82. . Id. at 179–180.

  83. . Id. at 179.

  84. . Id. at 184 (quoting Sun Operating LTD. P’ship v. Holt, 984 S.W.2d 277, 283 (Tex. App. 1998)).

  85. . Id.

  86. . TEC Olmos, LLC v. ConocoPhillips Co., 555 S.W.3d 176, 185 (Tex. App. 2018).

  87. . Free Range Content, Inc. v. Google, Inc., No. 14-CV-02329, 2016 WL 2902332, at *6 (N.D. Cal. May 13, 2016).

  88. . Id.

  89. . See, e.g., Morgan St. Partners, LLC v. Chicago Climbing Gym Co., No. 20-CV-4468, 2022 WL 602893, at *5 (N.D. Ill. Mar. 1, 2022) (rejecting a plaintiff’s argument that “foreseeability is paramount” for evaluating a force majeure clause that did not explicitly mention the COVID-19 pandemic).

  90. . Kyocera Corp. v. Hemlock Semiconductor, LLC, 886 N.W.2d 445, 454–55 (Mich. App. 2015).

  91. . Id. at 455.

  92. . Id. at 456.

  93. . Lessans, supra note 51, at 810.

  94. . See Noah Feldman, When Judges Make Foreign Policy, The New York Times Magazine (Sept. 25, 2008), https://www.nytimes.com/2008/09/28/magazine/28law-t.html.

  95. . 30 Williston on Contracts § 77:31 (4th ed.), Westlaw (database updated May 2023).

  96. . Id.

  97. . Id.

  98. . See 30 Williston on Contracts § 77:1 (4th ed.), Westlaw (database updated May 2023).

  99. . Id.

  100. . 817 F.2d 326 (5th Cir. 1987).

  101. . Nat’l Iranian Oil Co., 817 F.2d 326.

  102. . Id. at 328.

  103. . Id.

  104. . Id.

  105. . Id. at 333.

  106. . Id.

  107. . 5 Williston on Contracts § 12:1 (4th ed.), Westlaw (database updated May 2023).

  108. . See id.

  109. . Id.

  110. . Calvert v. Mayberry, 440 P.3d 424, 430 (Colo. 2019).

  111. . In re Santiago G., 121 A.3d 708, 722 n.17 (Conn. 2015).

  112. . See In re Estate of Feinberg, 919 N.E.2d 888, 894 (Ill. 2009).

  113. . Restatement (Second) of Contracts ch. 8, intro. note (Am. L. Inst. 1981).

  114. . 118 Cal. App. 4th 531 (2004).

  115. . Id. at 536.

  116. . Id. at 536–37.

  117. . Id. at 548.

  118. . See id. at 555 (explaining that “[t]here is an ‘important distinction between domestic and international public policy…According to this distinction what is considered to pertain to public policy in domestic relations does not necessarily pertain to public policy in international relations…’”) (internal citations omitted).

  119. . Id. at 548.

  120. . Transfair Int’l, Inc. v. United States, 54 Fed. Cl. 78, 78 (2002).

  121. . Id.

  122. . Id. at 80.

  123. . Id. at 87.

  124. . Id. at 85.

  125. . McDonnell Douglas Corp. v. Islamic Republic of Iran, 758 F.2d 341, 343 (8th Cir. 1985).

  126. . Id.

  127. . Id. at 344.

  128. . Id. at 347–48.

  129. . See Sage Realty Corp. v. Jugobanka, D.D., No. 95 CIV 0323, 1998 WL 702272, at*1, *4–*5 (S.D.N.Y. Oct. 8, 1998) (discussing the reasonable foreseeability of sanctions for a related frustration of purpose defense).

  130. . Rocky Mountain Helium, LLC v. United States, 145 Fed. Cl. 92, 97 (2019).

  131. . Erin Webb, Analysis: No Longer Unforeseeable? Force Majeure and COVID-19?, BL (Nov. 1, 2021, 3:03 AM), https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-no-longer-unforeseeable-force-majeure-and-covid-19 (stating that “[s]ome courts have found that the parties’ ability to name a risk—like a pandemic or a government shutdown risk—in a force majeure clause means that the risk was not only foreseeable at the time of contracting, but actually foreseen, defeating other defenses to nonperformance, such as impossibility of performance or frustration of purpose.”).

  132. . Id.

  133. . Ryan Franklin & Nicholas Wind, Force Majeure Clauses in the Aftermath of the COVID-19 Pandemic and the Implications for Government Entities, A.B.A. Blog (March 14, 2022), https://www.americanbar.org/groups/government_public/publications/pass-it-on/spring-2022/spring22-franklin-wind-forcemajeure/.

  134. . Nicholas Mulder, The Sanctions Weapon, Fin. & Dev., June 2022, at 20, 20–21. Conflict between Israel and Hamas began in October 2023, just as this Comment was published. While OFAC’s sanctions carefully target Hamas affiliates in an effort to avoid direct state-to-state sanctions against Iran, sanctions penalizing money transfers between “Iran-aligned” entities and Gaza provide yet another contemporary example of the increasing prevalance of economic sanctions as an international stick that businesses should not ignore in contract drafting. See Press Release, U.S. Dept. of the Treasury, Following Terrorist Attack on Israel, Treasury Sanctions Hamas Operatives and Financial Facilitators (Oct. 18, 2023) https://home.treasury.gov/news/press-releases/jy1816.

  135. . William Shakespeare, The Tempest 131 (Barbara A. Mowat & Paul Werstine, eds., Simon & Schuster Paperbacks 2015) (1623).

 

13 Wake Forest L. Rev. Online 42

Brandon J. Johnson[1]

Introduction

The North Carolina Supreme Court’s recent decision to reverse course on partisan gerrymandering has garnered national attention.[2] In the court’s third opinion issued in Harper v. Hall,[3] (“Harper III”) a newly elected 5-2 conservative majority of the state supreme court overruled the first opinion[4] authored by the previous 4-3 liberal majority and declared partisan gerrymandering to be a nonjusticiable political question.[5] Election law and constitutional law scholars have produced reams of content questioning how the ruling would impact the U.S. Supreme Court’s pending consideration of the state court’s prior decision in the case.[6] Many questioned whether the state court’s decision would cause the Court to dismiss the initial appeal.[7]

As it turned out, the U.S. Supreme Court’s ruling in what would be known as Moore v. Harper[8] was a significant election law case that expanded the federal judiciary’s role in regulating federal and even state elections. The Supreme Court’s opinion in the case received significant national attention and was largely greeted with a sigh of relief by many scholars and commentators who worried that the Court would adopt an extreme version of a fringe theory known as the Independent State Legislature Theory.[9] Indeed, the importance of the U.S. Supreme Court’s decision regarding the Independent State Legislature Theory has been the primary focus of the commentary surrounding Harper v. Hall and Moore v. Harper, and rightly so.[10] If the Court had adopted the most extreme version of the theory, state legislatures—including (and perhaps especially) significantly gerrymandered legislatures—would have free rein to craft election regulations that entrenched partisan advantages with no constitutional guardrails. Though the Court rejected this approach, the Moore majority left the door open for the U.S. Supreme Court to act as the final arbiter of state election practices, which by itself has caused significant consternation among election law scholars.[11]

Given the national consequences of Moore v. Harper, however, the state court decision Harper III has been largely ignored. While this oversight is understandable, an examination of the North Carolina Supreme Court’s opinion in the case yields vital insight into the ways in which state courts can hide behind a veneer of judicial independence while actually using state politics and polarization to reshape state law. This insight may yield immediate practical consequences given that partisan gerrymandering litigation is currently ongoing in approximately one-third of the states.[12]

The dissent in Harper III provides a searing indictment of the majority’s reasoning and sets forth a cogent argument explaining why the opinion is an incorrect interpretation of the North Carolina constitution. The analysis that follows in this Essay will not rehearse the persuasive criticisms leveled by the dissent. Rather, it will focus on two ways in which the majority opinion may provide insight into how state courts can use the traditional tools of judicial review to reshape a state’s political culture. After providing a brief sketch of the procedural history of Harper I, II, and III in Part I, Part II of this Essay then explores the ways in which the opinion attempts to enshrine an exceptionally narrow vision of originalism as the only acceptable method of interpreting North Carolina’s constitution. Part III criticizes the way in which the Harper III majority further entrenches an incorrect understanding of political accountability.

While the examination below is limited to the rhetoric and reasoning employed by the North Carolina Supreme Court, it should serve as a case study for how easy it can be for state courts to affect a state’s political and policy landscape without attracting much notice.

I. The Procedural Path

A quick (and by no means exhaustive) recap of the procedural history of the Harper opinions will illuminate the unusual issues created by the state court’s recent ruling and facilitate the discussion that follows. The litigation began after the North Carolina General Assembly issued a new districting map after the 2020 census.[13] Multiple parties filed suit alleging inter alia that the map employed unconstitutional partisan gerrymanders in violation of the North Carolina Constitution’s guarantee of free elections and the state’s equal protection clause.[14] In January 2022, a three-judge panel of the Wake County Superior Court ruled that partisan gerrymandering claims “presen[t] nonjusticiable, political questions” under the state constitution.[15]

Less than a month later, the state supreme court heard the case directly and reversed the lower court’s ruling.[16] The 4-3 majority in what would become known as Harper I held that partisan gerrymandering claims are justiciable and the “extreme” gerrymanders in the challenged districting map violated the state constitution’s free elections clause, equal protection clause, free speech clause, and freedom of assembly clause.[17]

While the state legislature proceeded to draft new districting maps to comply with Harper I, the litigation continued, and the U.S. Supreme Court agreed to hear a challenge to this ruling under the name Moore v. Harper.[18] The Supreme Court case garnered national attention, in part, because the petitioners advanced arguments under the Independent State Legislature Theory. The Independent State Legislature Theory posits that only the state legislature has any say in federal elections[19] because the Elections Clause of the U.S. Constitution instructs that “The Times, Places and Manner of holding Elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof.”[20] Put another way, the state constitution itself places no limits on the legislature’s ability to regulate federal elections leaving state courts with no authority to interpret state constitutional provisions in order to second guess election related legislation.

But while the U.S. Supreme Court litigation proceeded, various parties challenged the second districting map that the legislature drafted in response to Harper I and the case made its way back to the state supreme court.[21] In a December 2022 opinion, now known as Harper II[22], the same 4-3 majority that issued the Harper I opinion ruled that the map for the state house was constitutionally adequate but the maps for the state senate and the federal congressional districts still contained unconstitutional partisan gerrymanders.[23]

In between oral arguments in Harper II and the issuance of the opinion, the North Carlina midterm elections occurred.[24] North Carolina’s supreme court justices are elected in partisan contests, and two of the Democratic justices who had signed on to the Harper II majority were replaced by conservative challengers.[25] As a result of this change in personnel, the new 5-2 conservative majority expressed concern that the Harper II majority had “overlooked or misapprehended” a point “of fact or law,”[26] and granted a petition for rehearing.[27]

On April 28, 2023 this newly minted majority “withdrew” Harper II and “overruled” Harper I, finding that partisan gerrymandering claims presented a nonjusticiable political question.[28] The U.S. Supreme Court then issued its opinion in Moore v. Harper on June 27, 2023.[29] The majority opinion determined that the Court still had standing to decide the initial case but affirmed the Harper I decision.[30] In doing so, the Court rejected the state defendants’ primary legal argument regarding the Elections Clause and reaffirmed that “[t]he Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review.”[31] The Court did, however, reserve for itself the right to pass judgment on whether state courts correctly interpreted questions of state election law under state constitutions,[32] a significant increase in the Court’s review of state election laws.[33]

With this procedural sketch in place, this Essay now returns to its primary focus: an examination of the warning signs advocates, policymakers, and public law scholars should glean from the North Carolina Supreme Court’s opinion in Harper III. As discussed in the introduction, the focus of this examination will not be on the merits of the majority opinion as the dissent has already done an admirable job dissecting that on its own terms.[34] Instead, the remainder of this Essay delves into the more far-reaching consequences of the opinion. Though the ramifications of the majority’s opinion are limited to North Carolina, they provide a cautionary tale for the ways in which state courts—particularly those with elected judges—can involve the judiciary in the political fortunes of the state.

II. Regressive Originalism

Perhaps the most sweeping consequence of the opinion may be the majority’s efforts to enshrine originalism (and a crabbed version of originalism, at that) as the only acceptable methodology of constitutional interpretation.[35] From the first few pages, Harper III makes this view of constitutional interpretation clear. For example, on the second page of the opinion, the majority writes: “As the courts apply the constitutional text, judicial interpretations of that text should consistently reflect what the people agreed the text meant when they adopted it.”[36] This appeal to the original public meaning[37] of the state’s constitution returns time and again throughout the opinion, including the following concluding admonition: “Recently, this Court has strayed from this historic method of interpretation to one where the majority of justices insert their own opinions and effectively rewrite the constitution.”[38] This language makes clear that the current majority of the North Carolina Supreme Court views originalism as the only legitimate method of constitutional interpretation.

The current state court majority is not alone in its application of originalist methodology, nor unique in its attempts to privilege this school of constitutional interpretation above all others.[39] Nor is an originalist approach to interpreting the North Carolina constitution without precedent.[40] The version of originalist methodology operationalized in the Harper III opinion, however, is surprisingly (almost shockingly) pernicious.

As an initial matter, the majority seems to advocate for both original public meaning originalism and original intent originalism, despite the latter theory having been all but (though not entirely)[41] abandoned by originalism’s defenders.[42] In its introduction, for example, the majority insists that “judicial interpretations of [constitutional] text should consistently reflect what the people agreed the text meant when they adopted it”—a classic formulation of original public meaning originalism.[43] But when returning to a discussion of constitutional interpretation, the majority seems to urge an “original intent” approach, asserting that “courts determine the meaning of a constitutional provision by discerning the intent of its drafters when they adopted it.”[44]

The reliance on this largely abandoned[45] version of originalism is only one example of how the Harper III majority is attempting to mandate not just originalism, but a regressive vision of originalism. By focusing on the actual intent of the drafters of the document, a court limits the potential interpretations of a constitution to the world view of individuals at a fixed point in time—a world view that is in many ways incompatible with the present day. Additionally, by employing both original intent originalism and original public meaning originalism, the Harper III majority can switch back and forth between whichever methodology best supports its desired result, eliminating originalism’s supposed virtue of constraining judicial discretion.[46]

Nor does the majority escape the “law office historian” pitfalls that plague many originalist opinions.[47] For example, the court devotes several pages to recounting the history of the Glorious Revolution in a befuddling attempt to show that the state constitutional clauses cited by the plaintiffs in the underlying cases were directed at protecting North Carolinians from voting regulations designed to benefit the king.[48] As an initial matter, this history says nothing about the clauses’ relationship to gerrymandering—again, a phenomenon that was not even in the lexicon for more than a century.[49] But even taking the majority’s argument on its own terms, the historical narrative provided arguably supports applying the free elections clause to partisan gerrymandering rather than undermining such an interpretation.[50] The majority declares, for example, that one reason for the prohibition on dividing counties to make new districts comes in part from King James II’s practices of “adjusting a county’s or borough’s charter to embed the king’s agents and ensure a favorable outcome for the king in the 1685 election.”[51] The majority reiterates that “[i]n some instances these adjustments altered who could vote in order to limit the franchise to those most likely to support the king’s preferred candidates.”[52] But this type of result-oriented intervention is exactly the reason parties challenge partisan gerrymanders.

But beyond succumbing to these more common problems with originalist methodology, the majority also employs a particularly rigid approach to originalism that would severely inhibit applications of the state constitution to modern developments. The most plausible reading of the majority’s analysis of whether the constitution applies to partisan gerrymandering, for example, is that the state constitution is essentially irrelevant to any subject not explicitly discussed.[53] Because the constitution does not mention gerrymandering, the majority says, that document is irrelevant to evaluating any gerrymandering challenges.[54] But even staunch originalists like Ilan Wurman accept that applying the original meaning of the text does not mean that a constitution must anticipate and discuss every eventuality in order to apply to the subject at hand.[55] The fact that the U.S. Constitution makes no mention of the internet, for example, does not prevent originalists from agreeing that the protections of the First Amendment apply to this 21st century medium.[56]

In support of this tightly cabined interpretation of the state constitution, the majority highlights a case from the 1780s striking down a statute that directly conflicted with the then governing constitution by eliminating the right to a jury trial in cases where the state confiscated loyalist property.[57] The constitution at the time promised a jury trial “in all Controversies at Law respecting property.”[58] But simply because the first statute, which was deemed unconstitutional in the state, directly conflicted with express language in the constitution does not impose a lasting and immovable requirement that judicial review of a legislative act is permissible only if the constitution speaks directly to the subject at hand.[59]

The majority even attempts to graft on some version of this explicit language requirement to its discussion of the U.S. Constitution, asserting that the lack of any specific mention of partisan gerrymandering in that document demonstrates the framers’ intent to exclude the federal courts from any such oversight. The majority further claims that “[t]he framers could have limited partisan gerrymandering in the [U.S.] Constitution or assigned federal courts a role in policing it, but they did not.”[60] To take this statement at face value shows the absurdity that this explicit acknowledgement requirement would impose.[61] The term “gerrymander” did not even exist until more than two decades after the U.S. Constitution was ratified.[62] Nor did the U.S. Constitution make any mention of “partisanship” (or “factionalism” as this concept was more commonly called at the time) because one of the goals of the famers was to avoid factional divisions.[63]

The end result of this interpretative approach is that the majority seems far too comfortable with an interpretation of the North Carolina constitution that reflects a polity of exclusion. The opinion at one point even asserts that because the original understanding of the state constitution’s “free elections” clause still limited the franchise to land-holding “freemen,” the clause cannot be construed to prohibit limitations on voting rights beyond coercion and intimidation.[64] An application of such a regressive version of originalism is especially misplaced in deciding questions relating to elections based on a constitutional text ratified when the franchise was extremely limited. The majority, for example, argues that because the original North Carolina Constitution adopted in 1776 contained free elections and freedom of assembly clauses while still allowing the legislature to draw malapportioned districting maps, these same clauses should not be used to restrict legislative map drawing today.[65] But this rationale would also allow election regulations that discriminated on the basis of race, gender, sexual orientation, and even status as a property owner, as long as subsequent amendments did not address the specific types of discriminatory regulations employed. Indeed, the Harper III majority simply ignores fundamental developments in both federal and state constitutional law that took place after the ratification of the state’s first constitution—ignoring the fact that North Carolina adopted a new constitution in 1868 and again in 1971 and has significantly amended the document in the last two centuries.[66]

Even when the majority makes general assertions of law, it relies on authority that further illustrates the regressive results of the justices’ chosen interpretive methodology. The majority, for example, cites to a 1944 case, State v. Emery,[67] to support its assertion that “[constitutions] should receive a consistent and uniform construction . . . even though circumstances may have so changed as to render a different construction desirable.”[68] But the “consistent and uniform construction” urged by the court in Emery enshrined the barring of women from serving as jurors in the state based on language in the then governing constitution stating that “[n]o person shall be convicted of any crime but by the unanimous verdict of a jury of good and lawful men in open court.”[69] To be clear, the majority does not endorse (or even mention) the holding of Emery, but it is telling that the vision of originalism espoused by the Harper III opinion is the exact same reading of the state constitution that prohibited women from serving on juries as late as 1944.[70] The fact that this case would be used to support the majority’s preferred methodology when other options are readily available seems questionable.

In a similarly telling choice, the majority issues another generic statement regarding the nature of the state constitution, asserting that the document “‘is in no matter a grant of power.’”[71] This benign quote comes from McIntyre v. Clarkson,[72] but the opinion then traces the origins of this quote to Lassiter v. Northampton County Board of Elections,[73] a 1958 case that upheld North Carolina’s reading requirement at the polls, despite clear evidence that the requirement was used to impede the ability of black North Carolinians to vote.[74] Again, the choice to trace this general point of law to a case upholding racially discriminatory voting laws indicates that the majority is either unaware of, or indifferent to, the regressive results of its methodological approach.[75]

In fact, the majority opinion makes clear that the North Carolina constitution would not ban racial gerrymanders, or any other type of racially motivated voting restrictions, leaving such practices banned only by the U.S. Constitution.[76] The court’s emphasis on requiring an explicit, specific textual restriction in the Constitution leads to a listing of what the majority appears to consider the only permissible avenues for judicial review of legislative districting acts.[77] Notably absent from this list is any prohibition on district maps that discriminate based on race.[78] The opinion also quotes heavily from a prior state supreme court decision, Dickson v. Rucho,[79] to emphasize the difficulty in identifying a judicially manageable standard for evaluating partisan gerrymanders.[80] What goes unmentioned in this discussion, however, is that the U.S. Supreme Court vacated Dickson I because the districting map employed racial gerrymanders as well.[81]

Taken together, the majority’s vision for constitutional interpretation inescapably leads to a regressive application of the state’s constitution. Because the rhetoric here sounds in a traditional application of judicial review, however, the Harper III majority has laid out a blueprint for similarly inclined state court majorities to manipulate theories of constitutional interpretation to essentially control state electoral politics while shielding themselves from political accountability. With this concern in mind, the Essay now turns to an examination of the majority’s misleading invocation of political accountability as justification for its holding.

III. Manipulation of Political Accountability

The other rhetorical move made by the Harper III majority that is likely to have long reaching impact is the weaponization of political accountability. The majority relies on the time honored trope that the state legislature is the true “people’s branch” in state government, asserting from the beginning of the opinion that “[t]he people exercise [the political] power [granted to them by the state constitution] through the legislative branch, which is closest to the people and most accountable through the most frequent elections.”[82] The majority then implicitly ties this version of “accountability” to the state legislature’s ability to implement “the will of the people.”[83]

This lionization of state legislatures as the branch “closest to the people” has been effectively rebutted by legal scholars like Miriam Seifter.[84] As Seifter demonstrates, officials elected in statewide elections are often more representative of the whole people of a state than are state legislators.[85] In North Carolina, the very same justices who disclaim sufficient accountability are all elected statewide.[86] Indeed, it is because of the elected (and partisan) nature of these judicial offices that Harper II was granted a rehearing.[87] So, even from a threshold perspective, the democratic legitimacy foundation for the Harper III opinion is on shaky ground.

But this unsupported trope of American democracy has even less to recommend it in the context of a gerrymandering challenge. The essence of a claim of gerrymandering is that the body elected by the gerrymandered map is unrepresentative of the people.[88] Even a majority of voters cannot effectively hold a gerrymandered legislature “accountable” if the gerrymander is extreme enough to consistently transform minority preference into majority representation.[89] But the Harper III majority ignores this reality, blithely asserting that “those whose power or influence is stripped away by shifting political winds cannot seek a remedy from courts of law, but they must find relief from courts of public opinion in future elections.”[90] Indeed, the majority’s assurances then that “opponents of a redistricting plan are free to vote their opposition,”[91] ring hollow when addressing claims that the redistricting process has effectively undermined the ability of even a majority of voters to hold their legislature “accountable” in the traditional sense.

The Harper III majority also recounts language from Rucho v. Common Cause[92] that reiterates a “long-standing … myth[] about the rational, policy-oriented voter.”[93] The majority faults the Harper I opinion for focusing too much on the role of partisan affiliation in elections.[94] The opinion confidently asserts, for example, that “voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations.”[95] But, as I have written previously, much of modern political science literature documenting voter behavior indicates that voters are not nearly this nuanced, and instead partisan affiliation is a far better predictor of voter behavior than any of the factors identified in Rucho and parroted in Harper III.[96]

The majority quotes freely from Rucho and incorporates much of that decision’s language cautioning against involving the “unaccountable” federal judiciary against involving itself in the inherently political redistricting process.[97] Regardless of one’s views on the correctness of Rucho, it is clear that the accountability concerns discussed in the case stem from the federal judiciary’s position as an unelected branch of government.[98] Indeed, the connection between political accountability and the unelected nature of the federal judiciary is quoted in full by the Harper III majority: “Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the Federal Government assuming such an extraordinary and unprecedented role.”[99]

But recall that almost the entire North Carolina judiciary, including the justices of the state supreme court, are elected.[100] The Justices in particular, are elected statewide and are not subject to the gerrymandered districting maps.[101] As noted above, this makes them, arguably, more accountable to the people of North Carolina because the statewide election better reflects the full electorate than does a manipulated state legislature district.[102] Nor are these elected judges above the political fray because they are chosen in partisan elections appearing on the ballot with their party affiliation clearly identified.[103] The Harper III majority cautions against involving the judiciary in “[c]hoosing political winners and losers” because doing so “creates a perception that the courts are another political branch.”[104] But in North Carolina, the judiciary is, arguably, a political branch. The state’s justices owe their offices to a political election that is influenced, in part at least, by the partisan, political preferences of the voters.[105] This is not to say that there is no difference between a justice and a legislator. Rather, this criticism demonstrates why the Harper III majority’s reliance on the accountability justifications in Rucho are so misplaced.

The majority leans into this accountability narrative, despite eventually acknowledging the elected nature of the state’s judiciary.[106] Indeed, though still pushing its assertion that the state legislature is the “most accountable” branch of the state government, the majority does recognize that with the implementation of an elected judiciary “judges in North Carolina become directly accountable to the people through elections.”[107] And the Harper III majority itself seems to acknowledge that the judicial elections play (or should play) a role in shaping North Carolina law.[108] One of the criticisms levelled against the Harper II opinion is that the “four-justice majority issued its Harper II opinion on 16 December 2022 [after the most recent judicial election] when it knew that two members of its majority would complete their terms on this Court just fifteen days later.”[109] It is hard to read this statement as anything other than a concession that a change in the partisan makeup on the court would (and should) change the outcome of cases.

Yet the majority consistently focuses on the supposed dangers posed to the separation of powers by involving the judiciary in “policymaking.”[110] The majority insists, for example, that the lack of an explicit reference to gerrymandering means that any court exercising judicial review of a gerrymandered map is engaged in policymaking.[111] Such judicial policymaking, we are told, “usurps the role of the legislature by deferring to [the court’s] own preferences instead of the discretion of the people’s chosen representative.”[112]

But, in addition to the unsound political accountability foundation for this view of the role of an elected judiciary, the majority’s vision of “policymaking” ignores the reality that the decision to close the courthouse doors to partisan gerrymandering claims is also a policy choice.

In refusing to apply the state constitution’s equal protection clause to partisan gerrymandering claims, for example, the majority asserts that “the fundamental right to vote on equal terms simply means that each voter must have the same weight.”[113] The court dismisses any independent application of the clause to elections by claiming that any equal protection concerns raised by election procedures are fully addressed by the requirements in Article II that each state legislator “represent, as nearly as may be, an equal number of inhabitants.”[114] But, by insisting that the state constitution’s equal protection clause only addresses the “weight” of each individual vote, and by taking a step further and confining “weight” to only the number of voters represented by each representative, the majority is engaging in exactly the same type of policymaking it claims made the Harper I and Harper II decisions illegitimate.

The inconsistent, almost incoherent ways in which the Harper III majority has employed discredited myths about political accountability and the role of an elected judiciary will impact election law and constitutional interpretation in North Carolina far beyond the holding of the case. With more than three quarters of states employing at least some form of elections as part of their judicial selection process,[115] a failure to confront the realities of an elected judiciary will continue to leave open opportunities for state courts to employ fantasies of political accountability to reshape their state’s political processes. While acknowledging the political nature of an elected judiciary may not stop state courts from reaching their desired results, it will at least require state judiciaries to honestly assess their own political role in deciding separation of powers disputes.

Conclusion

While the U.S. Supreme Court’s opinion in Moore v. Harper captured national attention, the Harper III majority also rejected the broadest version of the Independent State Legislature Theory advanced in the Moore briefing. In doing so, the majority recognizes that the courts—and by implication the state constitution—do have some role to play in the districting process: “Under the North Carolina Constitution, redistricting is explicitly and exclusively committed to the General Assembly by the text of the constitution. The Executive branch has no role in the redistricting process, and the role of the judicial branch is limited by the principles of judicial review.”[116] But, as with the opinion in Moore, the majority opinion in Harper III will have a longer reach beyond a specific holding on partisan gerrymandering.

This Essay has specifically focused on the adoption of a regressive form of originalism, which ultimately results in a polity of exclusion and inhibits the court’s potential to employ the state constitution in addressing contemporary challenges. The Harper III majority’s reliance on a rigid and outdated version of originalism is deeply troubling. By adhering to a carefully crafted quasihistorical context that fails to account for societal evolution and progress, the state court disregards the dynamic nature of constitutional principles. And the majority’s willingness to interpret the state constitution in an intentionally exclusionary way will continue to echo through the court’s jurisprudence.

The Essay has also demonstrated the danger of relying on “mythical” notions of political accountability. The majority’s use of these largely unrealistic tropes to decry judicial policymaking, while conveniently overlooking the fact that the North Carolina judiciary is elected and therefore accountable to the public, highlights the ways in which state courts can weaponize accountability not just in North Carolina, but nationwide. As of July of this year, litigation around partisan gerrymandering is ongoing in at least seventeen states.[117] Because the Supreme Court has closed the door on such claims under federal law, state courts remain the only viable venue to address partisan gerrymanders.[118] Left unchecked, the Harper III opinion provides a dangerous blueprint—regressive originalism and unsubstantiated notions of political accountability—that state courts may apply to these claims in ways that will significantly influence state election processes (and likely results) for the foreseeable future.

Election law, constitutional law, and federalism scholars should take note of the jurisprudential tactics employed in the Harper III majority as they continue to work to protect American democracy.

  1. *. Assistant Professor of Law at University of Nebraska College of Law. Many thanks to Anna Arons, Eric Berger, Kristen Blankley, Tyler Rose Clemons, Haiyun Damon-Feng, Dorien Ediger-Soto, Danielle C. Jefferis, Kyle Langvardt, Elise Maizel, Matthew Schaefer, and the members of the University of Nebraska College of Law Faculty Workshop for their thoughts and comments.

  2. . See, e.g., Derek Muller, What happens to Moore v. Harper after the latest North Carolina Supreme Court decision in the partisan gerrymandering case?, Election Law Blog (Apr. 28, 2023, 10:04 AM), https://electionlawblog.org/?p=135865.

  3. . Harper v. Hall, 886 S.E.2d 393 (N.C. 2023) (hereinafter “Harper III”).

  4. . Harper v. Hall, 868 S.E.2d 499 (N.C. 2022) (hereinafter “Harper I”) (overruled by Harper III, 886 S.E.2d 393).

  5. . Harper III, 886 S.E.2d 393.

  6. . See, e.g., Muller, supra note 1.

  7. . See, e.g., Hansi Lo Wang, A North Carolina court overrules itself in a case tied to a disputed election theory, NPR (Apr. 28, 2023, 12:25 PM), https://www.npr.org/2023/04/28/1164942998/moore-v-harper-north-carolina-supreme-court.

  8. . 143 S. Ct. 2065 (2023).

  9. . See, e.g., Rick Hasen, Separating Spin from Reality in the Supreme Court’s Moore v. Harper Case: What Does It Really Mean for American Democracy and What Does It Say About the Supreme Court?, Election Law Blog (June 27, 2023, 3:29 PM), https://electionlawblog.org/?p=137129.

  10. . See e.g., id.

  11. . See e.g., id.

  12. . Redistricting Litigation Roundup, Brennan Center for Justice (updated July 7, 2023), https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0.

  13. . Harper III, 886 S.E.2d at 401.

  14. . Id.

  15. . Id. at 402.

  16. . Id. at 403.

  17. . Harper I, 868 S.E.2d at 559.

  18. . 142 S. Ct. 2901 (2022) (mem.).

  19. . See Brandon J. Johnson, The Accountability-Accessibility Disconnect, 58 Wake Forest L. Rev. 65, 90 (2023).

  20. . U.S. Const. art. I, § 4, cl. 1.

  21. . Harper III, 886 S.E.2d at 408.

  22. . 881 S.E.2d 156 (2022) (hereinafter “Harper II”).

  23. . Id. at 181.

  24. . See Ethan E. Horton & Eliza Benbow, Two Republicans Win Seats On The NC Supreme Court, Flipping Majority, The Daily Tar Heel (Nov. 9, 2022), https://www.dailytarheel.com/article/2022/11/city-nc-supreme-court-2022-election-results.

  25. . Id.

  26. . Harper III, 886 S.E.2d at 399–400 (quoting N.C. R. App. P. 31(a)).

  27. . Id. at 409.

  28. . Id. at 401.

  29. . 143 S.Ct. 2065 (2023).

  30. . Id. at 2079, 2081.

  31. . Id. at 2081.

  32. . Id. at 2088.

  33. . See Hasen, supra, note 8.

  34. . Harper III, 886 S.E.2d at 449–78 (Earls, J., dissenting).

  35. . Keith E. Whittington, Originalism: A Critical Introduction, 82 Fordham L. Rev. 375, 377 (2013) (“At its most basic, originalism argues that the discoverable public meaning of the Constitution at the time of its initial adoption should be regarded as authoritative for purposes of later constitutional interpretation.”).

  36. . Harper III, 886 S.E.2d at 399.

  37. . Whittington, supra note 34, at 380 (“Originalist theory has now largely coalesced around original public meaning as the proper object of interpretive inquiry.”).

  38. . Harper III, 886 S.E.2d at 448.

  39. . See, e.g., New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022) (“[R]eliance on history to inform the meaning of constitutional text—especially text meant to codify a pre-existing right—is, in our view, more legitimate, and more administrable, than asking judges to ‘make difficult empirical judgments’ about ‘the costs and benefits of firearms restrictions,’ especially given their ‘lack [of] expertise’ in the field.” (quoting McDonald v. Chicago, 561 U.S. 742, 790–91 (2010))).

  40. . See Harper III, 886 S.E.2d at 412–14 (collecting cases).

  41. . See, e.g., Scott A. Boykin, Original-Intent Originalism: A Reformulation and Defense, 60 Washburn L.J. 245 (2021).

  42. . Id. at 246.

  43. . Harper III, 886 S.E.2d at 399.

  44. . Id. at 431.

  45. . See Whittington, supra note 34, at 382.

  46. . See, e.g., Lawrence B. Solum, The Constraint Principle: Original Meaning and Constitutional Practice (2019) (asserting that “constraint” is a virtue agreed upon by most strands of originalist scholarship); but see William Baude, Originalism as a Constraint on Judges, 84 U. Chi. L. Rev. 2213, 2214 (2018) (claiming that “originalist scholars today are much more equivocal about the importance and nature of constraining judges”).

  47. . See, e.g., Saul Cornell, Heller, New Originalism, and Law Office History: Meet the New Boss, Same as the Old Boss, 56 UCLA L. Rev. 1095 (2009).

  48. . Harper III, 886 S.E.2d.at 434–38.

  49. . See Erick Trickey, Where Did the Term “Gerrymander” Come From?, Smithsonian Mag. (July 20, 2017), https://www.smithsonianmag.com/history/where-did-term-gerrymander-come-180964118/.

  50. . Harper III, 886 S.E. 2d at 434–38.

  51. . Id. at 435 (emphasis added).

  52. . Id. (emphasis added).

  53. . See Harper III, 886 S.E.2d at 415 (“When we cannot locate an express, textual limitation on the legislature, the issue at hand may involve a political question that is better suited for resolution by the policymaking branch.”).

  54. . See, e.g., Harper III, 886 S.E.2d at 400 (emphasis added) (“Our constitution expressly assigns the redistricting authority to the General Assembly subject to explicit limitations in the text. Those limitations do not address partisan gerrymandering. It is not within the authority of this Court to amend the constitution to create such limitations on a responsibility that is textually assigned to another branch.”).

  55. . Ilan Wurman, What is originalism? Debunking the myths, The Conversation (Oct. 24, 2020, 12:03 PM), https://theconversation.com/what-is-originalism-debunking-the-myths-148488.

  56. . Neil M. Gorsuch, Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution, Time (Sept. 6, 2019, 8:00 AM), https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/.

  57. . Harper III, 886 S.E.2d. at 415 (citing Bayard v. Singleton, 1 N.C. (Mart.) 5 (1787)).

  58. . Id. (quoting N.C. Const. of 1776, Declaration of Rights § XIV).

  59. . As the majority acknowledges, Bayard was the first exercise of judicial review of a statute in North Carolina, and may have been the first instance of a state court striking down a legislative act as contrary to the jurisdiction’s constitution. Id.

  60. . Id. at 410.

  61. . Id. at 415 (emphasis added) (“[T]he standard of review asks whether the redistricting plans drawn by the General Assembly, which are presumed constitutional, violate an express provision of the constitution beyond a reasonable doubt.”).

  62. . Trickey, supra note 48.

  63. . See, e.g., The Federalist No. 10 (James Madison).

  64. . See Harper III, 886 S.E.2d at 432–33.

  65. . Id. at 416–17.

  66. . Dr. Troy L. Kickler, North Carolina Constitution Is an Important Governing Document, N.C. Hist. Project, https://northcarolinahistory.org/encyclopedia/1573/ (last visited Sept. 17, 2023).

  67. . 31 S.E.2d 858 (N.C. 1944).

  68. . Harper III, 886 S.E.2d at 413 (alterations and omissions in Harper III) (quoting State v. Emery, 31 S.E.2d 858, 861 (N.C. 1944)). Notably, the omitted language from the quote would seem to caution against the majority’s decision to reverse a previous pronouncement of constitutional law. The full quote reads: “[Constitutions] should receive a consistent and uniform construction so as not to be given one meaning at one time and another meaning at another time even though circumstances may have so changed as to render a different construction desirable.” Emery, 31 S.E.2d at 861 (emphasized language was omitted from the quote in Harper III).

  69. . N.C. Const. art. I, § 13 (1868) (emphasis added).

  70. . Harper III, 886 S.E.2d at 413; Emery, 31 S.E.2d at 866.

  71. . Harper III, 886 S.E.2d at 414 (quoting McIntyre v. Clarkson, 119 S.E.2d 888, 891 (1961)).

  72. . 119 S.E.2d at 891.

  73. . 102 S.E.2d 853, 861 (N.C. 1958).

  74. . Paul Woolverton, Democrats in 1900 made the NC Constitution racist: Will voters today undo that?, Fayetteville Observer (Mar. 24, 2023, 5:06 AM), https://www.fayobserver.com/story/news/2023/03/24/ncs-constitution-has-a-racist-rule-will-voters-repeal-literacy-tests/70035467007/.

  75. . For further discussion of the morality of case citations—specifically in the context of citing to slave cases—see Alexander Walker III, On Taboos, Morality, and Bluebook Citations, Harv. L. Rev. Blog (June 10, 2023).

  76. . Compare Harper III, 886 S.E.2d at 449 (holding that “claims of partisan gerrymandering present nonjusticiable, political questions”), with Miller v. Johnson, 515 U.S. 900, 927–28 (holding that redistricting plans aiming to racially segregate voters are federally unconstitutional).

  77. . Harper III, 886 S.E.2d at 418 (quoting N.C. Const. art. II, § 3). The only restrictions on apportionment acknowledged by the majority are: (1) state senators must represent a (roughly) equal number of residents; (2) districts must be contiguous; (3); a prohibition on dividing counties to form a new district; and (4) a requirement that districts “remain unaltered” between censuses. Id.

  78. . See id.

  79. . 766 S.E.2d 238 (N.C. 2014).

  80. . See, e.g., Harper III, 886 S.E.2d at 402 (quoting Dickson, 766 S.E.2d at 260).

  81. . See Dickson v. Rucho, 137 S. Ct. 2186 (2017) (mem.). The Harper III opinion notes that the state court decision was vacated, but only using the euphemistic language “vacated on federal grounds.” See Harper III, 886 S.E.2d at 402.

  82. . Harper III, 886 S.E.2d at 398.

  83. . Id. at 398–99. The opinion returns to this theme of identifying the General Assembly as “the people’s branch” of state government. See, e.g., id. at 413 (“The legislative power is vested in the General Assembly, so called because all the people are present there in the persons of their representatives.” (quoting John V. Orth & Paul Martin Newby, The North Carolina State Constitution 95 (2d ed. 2013))); id. at 414 (citations omitted) (“Most accountable to the people, through the most frequent elections, “[t]he legislative branch of government is without question ‘the policy-making agency of our government[.]’” (quoting N.C. Const. art II)).

  84. . Miriam Seifter, Countermajoritarian Legislatures, 121 Colum. L. Rev. 1733, 1755–77 (2021); see also Johnson, supra note 18, at 101–02.

  85. . Seifter, supra note 83, at 1762–77.

  86. . N.C. Const. art IV, § 16.

  87. . See supra Part I.

  88. . See Kevin Wender, The “Whip Hand”: Congress’s Elections Clause Power as the Last Hope for Redistricting Reform After Rucho, 88 Fordham L. Rev. 2085, 2090 (2020).

  89. . For a discussion of the difficulty voters face in using the political process to change election laws, see Johnson, supra note 18, at 109.

  90. . Harper III, 886 S.E.2d 393, 423 (N.C. 2023) (quoting Dickson v. Rucho, Nos. 11-CVS-16896, 11-CVS-16940, 2013 WL 3376658, at *1–2 (N.C. Super. Ct. Wake Cnty. July 8, 2013)).

  91. . Id. at 443.

  92. . 139 S. Ct. 2484 (2019).

  93. . Johnson, supra note 18, at 103.

  94. . See Harper III, 886 S.E.2d at 428.

  95. . Harper III, 886 S.E.2d at 412 (quoting Rucho v. Common Cause, 139 S. Ct. 2484, 2503–04 (2019)). The majority repeats these assertions, again without providing any empirical support for this view of voter behavior. Id. at 428–29.

  96. . Johnson, supra note 18, at 104–05.

  97. . See, e.g., Harper III, 886 S.E.2d at 413 (quoting Rucho, 139 S. Ct. at 2507).

  98. . See Rucho, 139 S. Ct. at 2507.

  99. . Harper III, 886 S.E.2d 393, 413 (N.C. 2023) (quoting Rucho, 139 S. Ct. at 2507); see also id. at 427 (alteration in original) (“A judicially discoverable and manageable standard is necessary for resolving a redistricting issue because such a standard ‘meaningfully constrain[s] the discretion of the courts[] and [] win[s] public acceptance for the court’s intrusion into a process that is the very foundation of democratic decision making.’” (quoting Rucho, 139 S. Ct. at 2500)).

  100. . N.C. Const. art IV, §16.

  101. . Id.

  102. . See Seifter, supra note 83, at 1734–41.

  103. . See, e.g., Judicial voter guide: 2022 primary election, North Carolina State Board of Elections, (last visited Sept. 17, 2023), https://www.ncsbe.gov/judicial-voter-guide-2022-primary-election.

  104. . Harper III, 886 S.E.2d at 399.

  105. . See Nat Stern, Don’t Answer That: Revisiting the Political Question Doctrine in State Court, 21 U. Pa. J. Const. L. 153, 177–78 (2018) (observing that elected state court judges do not enjoy the same presumption of judicial independence that attaches to the federal judiciary).

  106. . Harper III, 886 S.E.2d at 418.

  107. . Id. (citing N.C. Const. of 1868, art IV, § 26).

  108. . Id. at 413–14.

  109. . Id. at 407 n.5.

  110. . See, e.g., Harper III, 886 S.E.2d at 399, 415, 431. The majority also ignores the differences between the ways in which power is separated at the state level instead of the federal level. For further discussion of these differences, see Robert F. Williams, The Law of American State Constitutions 238 (2009) and Helen Hershkoff, State Courts and the “Passive Virtues”: Rethinking the Judicial Function, 114 Harv. L. Rev. 1833 (2001).

  111. . See Harper III, 886 S.E.2d at 428 (“[S]ince the state constitution does not mention partisan gerrymandering, the four justices in Harper I first had to make a policy decision that the state constitution prohibits a certain level of partisan gerrymandering.”).

  112. . Id. at 431.

  113. . Id. at 440.

  114. . Id. at 442 (quoting N.C. Const. art. II, §§ 3(1), 5(1)).

  115. . Significant Figures in Judicial Selection, Brennan Ctr. for Just. (Apr. 14, 2023), https://www.brennancenter.org/our-work/research-reports/significant-figures-judicial-selection.

  116. . Harper III, 886 S.E.2d at 416.

  117. . Redistricting Litigation Roundup, Brennan Ctr. for Just., https://www.brennancenter.org/our-work/research-reports/redistricting-litigation-roundup-0 (July 7, 2023).

  118. . See generally Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (holding that challenges to partisan gerrymandering are to be made under state statutes and state constitutions—not the U.S. Constitution); see also Alicia Bannon, North Carolina Supreme Court Unleashes Partisan Gerrymandering, Brennan Ctr. For Just. (May 10, 2023), https://www.brennancenter.org/our-work/analysis-opinion/north-carolina-supreme-court-unleashes-partisan-gerrymandering.

Free People at Concert Stock Photo

Haley Hurst

All Dressed Up With No One to Sue: Naked Nirvana Baby’s Case Dismissed With Prejudice

On September 24, 1991, grunge rock band Nirvana “gave voice” to Generation X with its debut album, Nevermind.[1]  Nevermind was the “first full expression of punk concerns to achieve mass-market success in the United States.”[2]  However, the album’s genre was not the only aspect of Nevermind that shocked American consumers. 

            Nevermind’s cover famously features a photo of Spencer Elden, then four months old, swimming nude and reaching for a dollar bill.[3]  To some, the image represented the idea that you “spend your entire life chasing money from the moment you come out of the womb, all the way up until the day that you end up in the casket.”[4]  For others, namely Spencer Elden, the image of Elden “with his naked genitals displayed while grabbing at money resembles the actions of a sex worker.”[5]  Elden claims the controversial cover was a gimmick to “garner attention by using a sexually explicit image that intentionally focused on Spencer’s . . . genitals.”[6] 

            On November 22, 2021, more than thirty years after Nevermind hit shelves, Elden filed a complaint against Nirvana, L.L.C.; the individual band members, including Kurt Cobain’s estate; Universal Music Group, Inc.; UMG Recordings, Inc.; The David Geffen Company; MCA Records; and Kirk Weddle, the photographer (collectively Defendants).[7]  Elden’s Complaint alleged that Defendants violated the following child pornography statutes: 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(a)(1), 2252A(a)(2)(a), 2252A(a)(2)(b), 2252A(a)(3)(a), 2252A(a)(3)(b), and 2252A(a)(6) (together “Child Pornography Statutes”).[8]  Elden prayed for a jury trial, $150,000 in damages from each defendant, and all reasonable legal fees.[9] After failing to meet a filing deadline in December of 2021, Elden’s case was dismissed with leave to amend.[10] Elden refiled on January 12, 2022.[11]

The crux of Elden’s claims is 18 U.S.C. § 2255, also known as Masha’s Law.[12]  Under Masha’s Law, victims may sue violators of the child pornography statutes for actual or liquidated damages.[13]  Such violations include knowingly reproducing, advertising, promoting, presenting, distributing, and soliciting any obscene visual depiction of a minor engaging in sexually explicit conduct.[14]  However, the suit must be brought “(1) not later than 10 years after the date on which the plaintiff reasonably discovers the later of– (A) the violation that forms the basis for the claim; or (B) the injury that forms the basis for the claim; or (2) not later than 10 years after the date on which the victim reaches 18 years of age.”[15]

Defendants were quick to point out several deficiencies in Elden’s Complaint, particularly that Elden brought this suit approximately thirty years after the initial photo was taken and circulated on the cover of Nevermind.[16]  Defendants filed a motion to dismiss (“Motion”) pursuant to Fed. R. Civ. P. 12(b)(6), contending that Elden’s claims are time-barred by the Masha’s Law statute of limitations.[17]  On September 2, 2022, Judge Fernando M. Olguin, sitting in the United States District Court for the Central District of California, granted Defendants’ Motion.[18]

In granting Defendants’ Motion, Judge Olguin reasoned that Elden “fail[ed] to allege that he knew of a violation that occurred while he was a minor or an injury that forms the basis of the claim within ten years of filing this action.”[19]  Judge Olguin’s opinion also accepted Defendants’ definition of “injury.”[20]  In their brief, Defendants claimed that an “injury” is “the moment a plaintiff first discovers his victimization by the defendant.”[21]  By Defendants’ logic, Elden’s statute of limitations would have extended, at the latest, to Elden’s twenty-eighth birthday, even if Defendants continued to circulate the allegedly illegal image after that point.[22]  Applying Defendants’ definition of “injury,” Judge Olguin opined that “[Elden] does not dispute that he knew of the alleged violations committed by defendants while he was a minor more than ten years before he filed this action.” [23]  However, this reasoning is inconsistent with the way Child Pornography Statutes apply in criminal proceedings.

The Court claims that Elden’s statute of limitations has expired because Defendants’ initial use of Elden’s image, or the “predicate violation,” was more than ten years ago.[24]  However, by this standard, Judge Olguin implies that victims are only injured, and therefore only eligible for relief, the first time the explicit image is used or distributed.  If Judge Olguin’s standard were applied to the criminal context, criminal defendants would only be subject to discipline for the earliest violation of the Child Pornography Statutes, and each subsequent violation could not sustain a criminal charge.  This understanding is in error.  Instead, the Child Pornography Statutes are violated separately by each prohibited use of child pornography.[25]  For example, in United States v. Gallardo, the court did not subject the defendant to double jeopardy by charging him with four separate counts of distributing child pornography under the Child Pornography Statutes, even though three envelopes were dispatched simultaneously.[26]  The Gallardo Court reasoned that the defendant “mailed four separate envelopes containing child pornography, thus committing four separate acts of transporting or shipping.”[27]  Because “the act of either transporting or shipping” child pornography is prohibited by the Child Pornography Statutes, “each separate use of the mail to transport or ship child pornography should constitute a separate crime.”[28]

Applying that logic to Elden’s case, each prohibited distribution of the allegedly pornographic image violates the Child Pornography Statutes.[29]  While it is undisputed that Elden has known about the first use of his photo for more than ten years, the photo continues to be distributed each time Nirvana sells a copy of Nevermind, and over 30 million copies of Nevermind have been sold.[30]  Further, Nirvana released Nevermind (Remastered) in 2021 with the photo of Elden on the cover.[31]  If the photo violates the Child Pornography Statutes as Elden alleges, each new distribution of the image independently violates the Child Pornography Statutes.[32]  This is not a case where an isolated offense took place over ten years ago and the plaintiff is just now bringing suit; this is a case where Defendants’ have repeatedly engaged in conduct that independently violates the applicable statutes.  In the criminal context, each new distribution of the image, standing alone, would be sufficient to sustain a criminal charge.[33]  The same should be true of the civil context. Elden’s Complaint even specifies that he is only bringing suit for the new violations that have taken place between 2011 and 2021.[34]  Consequently, Elden’s claim should not be time-barred under Masha’s Law. 

The Court’s assertion that Elden’s suit is time-barred also appears to apply equitable estoppel rationale disguised as expiration of the applicable statute of limitations.[35]  The Court emphasizes Defendants’ contention that “[a] statute that runs from the date of one’s reasonable discovery cannot be suspended indefinitely while a plaintiff is fully on notice that a known person does the same thing to him, in the same manner, for more than 10 years.”[36]  This rationale appears to emphasize the idea that it is unfair for Elden to contest the use of his image now when he has encouraged its use in the past.[37]  However, the fact that it would be unfair for Elden to recover does not change the fact that Defendants have engaged in new conduct within the last ten years that could plausibly entitle Elden to relief. 

In sum, Elden’s case should not have been dismissed on statute of limitations grounds. By conflating statute of limitations with equitable estoppel, Judge Olguin’s opinion creates a potentially dangerous precedent that frustrates the purpose of Masha’s Law.[38]   As for the viability of Elden’s Complaint beyond its timeliness -– “well, whatever, nevermind.”[39]


[1] Jon Savage, Nirvana, Britannica (Oct. 25, 1999), https://www.britannica.com/topic/Nirvana-band.

[2] Id.

[3] Jenny Desboroug, The Story Behind the Baby on Nirvana’s ‘Nevermind’ Album Cover, Newsweek (Aug. 25, 2021, 4:22 AM), https://www.newsweek.com/story-behind-baby-nirvana-nevermind-album-cover-spencer-elden-baby-1622775#:~:text=Elden%20was%20four%20months%20old,Weddle%20behind%20the%20iconic%20image.

[4] Joe Taysom, The Cover Uncovered: The story behind Nirvana’s ‘Nevermind’ artwork, Far Out Magazine (Dec. 10, 2020, 12:00 GMT), https://faroutmagazine.co.uk/nirvana-nevermind-cover-story/.

[5] Plaintiff Spencer Elden’s Opposition to Defendants’ Motion to Dismiss at 5, Elden v. Nirvana L.L.C., No. CV 21-6836 FMO, 2022 U.S. Dist. LEXIS 159390 (C.D. Cal. Sep. 2, 2022).

[6] Id.

[7] Plaintiff’s Verified Amended Complaint Pursuant to 18 U.S.C. 2255 and 1595 at 1, 32, Elden v. Nirvana, No. CV 21-6836 FMO, 2022 U.S. Dist. LEXIS 11023 (C.D. Cal. Jan. 3, 2022).

[8] Id. at 23-29.

[9] Id. at 1, 29.

[10] Elden v. Nirvana, L.L.C., et al., No. CV21-6836 FMO (AGRx), 2022 WL 167453, at *1 (C.D. Cal. Jan. 3, 2022).

[11] Elden v. Nirvana, L.L.C., et al., No. CV216836 FMO (AGRx), 2022 WL 4079271, at *1 (C.D. Cal. Sept. 2, 2022).

[12] Id. Masha’s Law is named after a five-year-old orphan whose adoptive father produced and  distributed  hundreds of sexually explicit images of her. Legal Remedies for Victims, Child Pornography Victims Deserve Justice, https://childvictims.us/section-2255/ (last visited Sept. 17, 2022). Masha’s Law “allows civil suits by minors against sex abuse perpetrators who violate a variety of crimes against children, including . . . child pornography crimes.” 163 Cong. Rec. S1635 (daily ed. March 7, 2017) (statement of Sen. Dianne Feinstein).   

[13] 18 U.S.C. § 225(a) (2018).

[14] 18 U.S.C. § 2252A(a)(3)(B) (2018).

[15] 18 U.S.C. § 2255(b)(1)-(2) (2018).

[16] Elden, 2022 WL 4079271, at *2.

[17] Id.

[18] Id. at *4.

[19] Id.

[20] Id. at *3.

[21] Id.

[22] See id. at *2.

[23] Id. at *3.

[24] Elden, 2022 WL 4079271, at *2.

[25] See United States v. Gallardo, 915 F.2d 149, 151 (5th Cir. 1990).

[26] Id.

[27] Id.

[28] Id.

[29] See id.

[30] Elden, 2022 WL 4079271, at *4; Tom Blackburn, How many copies has Nevermind sold? Nirvana album gets 30th anniversary reissue, Wales Online (Sept. 24, 2021, 4:40 PM), https://www.walesonline.co.uk/whats-on/music-nightlife-news/how-many-copies-nevermind-sold-21670330.

[31] Lauryn Schaffner, Nirvana ‘Nevermind’ 30th Anniversary Still Features Original Album Cover, Loud Wire (Nov. 15, 2021), https://loudwire.com/nirvana-nevermind-30th-anniversary-original-album-cover/.

[32] Gallardo, 915 F.2d at 151.

[33] See id.

[34] Elden, 2022 WL 4079271, at *3.

[35]  The opinion tends to imply that Elden should be equitably estopped from bringing a claim now when his past actions would have indicated to the Defendants’ that he was perfectly okay with, or even encouraging, the Defendants to use his photo. See id. at *4; see also Est. of Hall v. HAPO Fed. Credit Union, 73 Wash. App. 359, 362 (1994) (“Equitable estoppel arises when a person’s statements or conduct are inconsistent with a claim afterward asserted and another has reasonably relied on the statements or conduct and would be injured by a contradiction or repudiation of them”).

[36] Elden, 2022 WL 4079271, at *4.

[37] Thom Patterson, Naked ‘Nirvana baby’ still chasing dollars, Cnn, https://edition.cnn.com/2008/SHOWBIZ/Music/12/11/nirvana.baby/index.html  (last visited Sept. 12, 2022) (Elden made $1,000 recreating the photo and has given several interviews relating to the experience).

[38] See 163 Cong. Rec. S1635 (daily ed. March 7, 2017) (statement of Sen. Dianne Feinstein).

[39] Nirvana, Smells Like Teen Spirit (DGC Records 1991).


Photo by Vishnu R Nair via Pexels

By Cameron Bray

On April 20, 2022, attorneys and Justices of the United States Supreme Court sparred over whether Miranda warnings[1] are a constitutional right or a “judicially crafted prophylactic rule,”[2] as lawyer Roman Martinez argued in open court.  In the case of Vega v. Tekoh, the Court granted certiorari[3] of “whether a plaintiff may state a claim for relief against a law enforcement officer under Section 1983 based simply on an officer’s failure to provide the warnings prescribed in Miranda.”[4]The case centers around the Fifth Amendment right against self-incrimination[5] and the Civil Rights Act of 1871, 42 U.S.C. § 1983, which grants a damages remedy for violations of constitutional and statutory civil rights.[6]  At issue is the precedent case Dickerson v. United States,[7] which upheld Miranda in spite of Congress[8] in 2000 but described the doctrine as “constitutionally based”[9] and having “constitutional underpinnings”[10] rather than as a true-born, fundamental constitutional right, like the right to remain silent at trial.[11]

The facts of Vega v. Tekoh are in controversy, but the New York Times reports that respondent, Terence B. Tekoh, is “a hospital attendant who was accused of sexually abusing an immobilized patient receiving an emergency MRI.”[12]  On the flip side, petitioner, Carlos Vega, is a sheriff’s deputy in Los Angeles County who interrogated Mr. Tekoh in connection with a “credible report of sexual assault.”[13]  Accounts differ as to the nature of the interrogation—whether it was coercive or not[14]—but by all accounts, Deputy Vega did not Mirandize Mr. Tekoh prior to questioning, Mr. Tekoh signed a confession, a California trial court admitted the statement in evidence, and a jury acquitted Mr. Tekoh on the merits.[15]

The federal district court, in ruling on Mr. Tekoh’s § 1983 suit against Los Angeles County, held that the use of an un-Mirandized statement was insufficient to show a violation of his right against self-incrimination.[16]  However, the Court of Appeals for the Ninth Circuit, in a published opinion, reversed and held that a plaintiff may state a claim against the State under § 1983 where “the un-Mirandized statement has been used against the defendant in the prosecution’s case in chief in a prior criminal proceeding.”[17]  In so ruling, Judge Wardlaw on behalf of the panel vacated the court’s judgment and remanded for a new trial with orders to include Mr. Tekoh’s instruction on un-Mirandized confessions.[18]  The court of appeals then denied en banc review, with seven judges dissenting.[19]

Based on oral argument in Vega v. Tekoh, it remains to be seen whether the Supreme Court will rule Miranda a constitutional “right” or mere prophylactic rule under the Fifth Amendment.[20]  Either way, with police interrogations and misconduct increasingly under scrutiny, the decision will have a major impact on § 1983 lawsuits moving forward beyond the current Term.[21]  A rule in favor of Mr. Tekoh could create a world in which an un-Mirandized statement in evidence gives rise to liability not just in a few federal circuits, but in all courts across the United States.[22]


[1] In the landmark case of Miranda v. Arizona, 384 U.S. 436, 444 (1966) (Warren, C.J.), the Court held that “[p]rior to any questioning, the [arrestee] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”  This American policing practice, as seen on shows like Cops and Law & Order, has come to be known as a “Miranda warning” or “Mirandizing” the suspect.

[2] Jordan S. Rubin, Miranda Warnings Probed by Supreme Court in Police-Suit Case, Bloomberg L. (Apr. 20, 2022), https://news.bloomberglaw.com/bloomberg-law-news/miranda-warnings-probed-by-supreme-court-in-police-suit-appeal.

[3] Vega v. Tekoh, 142 S. Ct. 858 (2022) (reviewing judgment of the Court of Appeals for the Ninth Circuit).

[4] Petition for Writ of Certiorari, Vega, 142 S. Ct. 858 (No. 21-499), 2021 WL 4553767.

[5] No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V (emphasis added).  The relevant provision for Miranda warnings is called the Self-Incrimination Clause of the Fifth Amendment.

[6] “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . .” 42 U.S.C. § 1983.  Section 1983 is the go-to cause of action for civil rights plaintiffs against state actors such as police officers and sheriff’s departments.

[7] 530 U.S. 428 (2000).

[8] In the wake of Miranda, two years later, Congress enacted 18 U.S.C. § 3501 (1968), which made the admissibility of a custodial statement, or “confession,” turn solely on whether it was voluntarily given by the suspect.  This went against Miranda’s holding that an arrestee must be warned prior to questioning of his Fifth Amendment rights.

[9] Id. at 441 (Rehnquist, C.J.).

[10] Id. at 440 n.5.

[11] During oral argument, Justice Barrett observed that Dickerson “didn’t ever use the word ‘constitutional’ right.”  See Rubin, supra note 2.  The defendant’s right to silence as a constitutional matter was established by Griffin v. California, 380 U.S. 609 (1965), which held that neither the trial court nor the prosecutor may comment on the defendant’s failure to testify before a jury.  Id. at 615.  Chief Justice Rehnquist’s view of Miranda as a constitutional “rule” (not a “right”) was later endorsed by a plurality in Chavez v. Martinez. 538 U.S. 760, 763 (2003), which ruled against respondent because of qualified immunity.  Chavez, to be clear, is non-binding, and the federal circuits are split in whether they regard Miranda warnings as a constitutional right for purposes of § 1983 liability.  See Petition for Writ of Certiorari, supra note 4, at *2.

[12] Adam Liptak, Supreme Court Debates Whether Miranda Warnings Are a Constitutional Right, N.Y. Times (Apr. 20, 2022), https://www.nytimes.com/2022/04/20/us/supreme-court-miranda-rights.html?searchResultPosition=1.

[13] Petition for Writ of Certiorari, supra note 4, at *4.

[14] According to Deputy Vega, “Tekoh quickly confessed to the assault, and later stood trial, where his confession was admitted into evidence.  A jury nevertheless acquitted Tekoh.” Id. at *4–5.  By contrast, Mr. Tekoh claims that: “Petitioner Vega investigated this allegation at the hospital.  He interrogated Respondent in a small windowless, soundproof room . . . [A]fter about an hour in the room with the door shut, Respondent wrote a vague, apologetic confession . . . While Petitioner insists that the statements Respondent gave were voluntary and immediate, Respondent testified to an interrogation replete with profanities and threats to have Respondent and his family deported, and refusing to allow Respondent to speak to a lawyer or one of his supervisors.”  Brief in Opposition, Vega v. Tekoh, 142 S. Ct. 858 (2022) (No. 21-499), 2021 WL 5864537, at *3.

[15] David G. Savage, Los Angeles Police Dispute at Center of Supreme Court Case on Miranda Warnings, L.A. Times (Apr. 20, 2022), https://www.latimes.com/politics/story/2022-04-20/supreme-court-ready-to-shield-police-from-being-sued-for-ignoring-miranda-warnings-hold.

[16] See Tekoh v. Cty. of Los Angeles, 985 F.3d 713, 717 (9th Cir. 2021) (noting that the District of Central California failed to instruct the jury “that it should find in [plaintiff’s] favor on the Fifth Amendment claim if it determined that Deputy Vega obtained statements from him in violation of Miranda that were used in the criminal case against him.”).

[17] Id. at 715.

[18] Id. at 726.

[19] 997 F.3d 1260 (9th Cir. 2021).

[20] Chief Justice Roberts, who once clerked for the Dickerson Court, noted that, “[former Chief Justice Rehnquist] was somebody careful with his words, he didn’t say Miranda is in the Constitution.  He talked about constitutional underpinnings, constitutional basis.”  Rubin, supra note 2.  However, he also asked petitioner’s attorney, Mr. Martinez, “So why isn’t that right one secured by the Constitution?”  Id.  By contrast, Justice Kagan said that Dickerson “understood that Miranda had come to mean something extremely important in the way people understood the law and the way people understood the Constitution” and that undermining Miranda could hurt the Court’s legitimacy.  Id.

[21] LastWeekTonight, Police Interrogations: Last Week Tonight with John Oliver (HBO), YouTube (Apr. 18. 2022), https://www.youtube.com/watch?v=obCNQ0xksZ4.

[22] In dissent, the late Justice Scalia dared the Dickerson Court to take the opinion “out of the realm of power-judging and into the mainstream of legal reasoning” by simply declaring that Miranda was in fact a federal constitutional right recognized by the Supreme Court.  Dickerson, 530 U.S. at 445–46 (Scalia, J., dissenting).

 

By Laura Merriman

On November 23, 2021, after four years of waiting, a jury in Sines v. Kessler found that fourteen individuals and ten white supremacist organizations conspired to commit racially motivated violence in Charlottesville, Virginia during the “Unite the Right” rally on August 12, 2017.[1]  The rally, organized to protest the removal of a Robert E. Lee statute, devolved into violent clashes with counter-protestors, culminating with James Alex Fields Jr. driving his car into a crowd of counter-protestors killing Heather Heyer and injuring dozens more.[2]  The jury awarded the plaintiffs—nine Virginia residents including counter-protesters and those injured by Fields—$25 million in punitive damages and an additional one million in compensatory damages.[3]  The civil suit not only compensated the plaintiffs, but was also part of a larger strategy to disrupt and dismantle extremist groups.[4]

Civil litigation is not a new tool in the fight against extremism.[5]  Beulah Mae Donald (“Mrs. Donald”), with the help of the Southern Poverty Law Center (“SPLC”), sued the United Klans of America (“United Klan”)—the largest Klan organization in the country at the time—for the murder of her nineteen-year-old son, Michael Donald in 1981.[6]  The all white jury awarded her $7 million , allowing Mrs. Donald to go after the United Klan’s assets.[7]  As a result, United Klan had to turn over its headquarters to Mrs. Donald, effectively ending its operation.[8]  SPLC continued to win multi-million-dollar judgments against the Ku Klux Klan (“KKK”), Aryan Nation, and other white supremacist organizations in the 1980s and 1990s forcing them to turn over their assets to satisfy judgments.[9]

The Charlottesville civil suit followed similar tactics: plaintiffs brought claims under Virginia state law and two federal claims under 42 U.S.C. § 1985, popularly known as the Ku Klux Klan Act of 1871 (“KKK Act”).[10]  The KKK Act was the third and final enforcement act passed by Congress during Reconstruction in response to widespread intimidation and violence in the Southern states, mostly at the hands of the KKK.[11]  The KKK Act made it a federal crime for “two or more persons . . . [to] conspire to prevent, by force, intimidation, or threat” from voting, holding office, testifying, or serving on a jury.[12]  It gave the president the authority to use the military to protect civil rights where state officials failed to act.[13]  It is also one of the few laws that allows individuals to sue private citizens, not the government, for depriving them of the their civil rights.[14]  The law effectively shut down the KKK until 1915, though terrorism against African Americans continued.[15]  In addition the Charlottesville suit, the KKK Act is the basis of a lawsuit against the main participants in the January 6 riot.[16]

To prevail, the Charlottesville suit plaintiffs needed to show the defendants planned the violence in advance.[17]  The plaintiffs provided evidence from online message boards and text messages leading up to the rally as evidence of conspiracy to commit violence, including communications endorsing vehicular attacks.[18]  The defendants based their defense on the First Amendment arguing they were merely expressing their beliefs.[19]  University of Virginia Law professor George Rutherglen doubted, however, that the free speech defense would succeed in defending “racially discriminatory confrontations and violence.”[20]  Furthermore, Judge Norman K. Moon rejected the defendants’ early attempts to dismiss the case on First Amendment grounds citing the KKK Act.[21]

The jury ultimately deadlocked on the federal claims under the KKK Act but found the defendants liable of conspiracy under Virginia law.[22]  Even prior to judgment, the lawsuit impacted the defendant’s finances.  A few of the defendants faced sanctions and fines for destroying evidence or ignoring proceedings, while others felt the toll of the costly drawn-out litigation.[23]  Defendant Richard Spencer described the suit as “financially crippling” and caused him to reduce his public appearances out of fear of another lawsuit.[24]

Having secured a judgment, plaintiffs can now search for any of the defendants’ assets, including bank accounts, cars, and even furniture and have it seized to satisfy the judgment.[25]  Though assets are harder to find today than in the 1980s when these organizations had land, buildings, and bank accounts.[26]  Now assets can be in cryptocurrency, which is much harder to find and seize—such is the case for Tanya Gersh, who is trying to collect a $14 million judgment for an antisemitic harassment campaign against Andrew Anglin, whose assets are in Bitcoin.[27]

Since the damages are for an intentional civil wrongdoing, defendants cannot discharge them through bankruptcy.[28]  Plaintiffs will have the power to garnish up to twenty-five percent of defendants’ paychecks, seize assets as soon as they are accumulated, and “keep the judgment alive until the defendants’ estates are settled.” [29]  The likely effect is that defendants will be forced out of the public life because any time they draw attention to themselves through events or public statements, they risk a new subpoena about assets or new wage garnishment orders.[30]

It is unlikely the plaintiffs in the Charlottesville suit will collect the full $26 million or stop the defendants from starting new organizations with similar missions.[31]  Yet, plaintiffs and their attorneys see the verdict as an overall success.[32]  Following the ruling, plaintiffs’ attorney Roberta Kaplan stated the verdict sent a clear message that racist and antisemitic violence will not be tolerated.[33]  They plan to refile and retry the federal conspiracy claims, confident a new jury will find for the plaintiffs.[34]


[1] Tyler Hammel, Jury Hits Rally Organizers with Millions of Dollars in Damages, Daily Progress (Nov. 23, 2021), https://dailyprogress.com/news/august12/jury-hits-rally-organizers-with-millions-of-dollars-in-damages/article_81ffded6-4cb1-11ec-ae69-8f1e78cb683b.html; Neil MacFarquhar, The Charlottesville Rally Civil Trial, Explained, N.Y. Times, https://www.nytimes.com/live/2021/charlottesville-rally-trial-explained#why-is-this-a-civil-case (Oct. 28, 2021).

[2] MacFarquhar, supra note 1.

[3] Tyler Hammel, Rally Trial Defendants Unlikely to Pay Most of Their Punitive Damages, Daily Progress (Dec. 3, 2021), https://dailyprogress.com/news/august12/rally-trial-defendants-unlikely-to-pay-most-of-their-punitive-damages/article_5ab5e11c-5469-11ec-ad53-437e76c20b25.html; MacFarquhar, supra note 1.

[4] Odette Yousef, Hate on Trial in Virginia, Four Years after Deadly Extremist Rally, NPR (Oct. 25, 2021, 5:10 AM), https://www.npr.org/2021/10/25/1048371482/hate-on-trial-in-virginia-four-years-after-deadly-extremist-rally.

[5] Id.

[6] Id.; Robin Toner, A Mother’s Struggle with the Klan, N.Y. Times (Mar. 8, 1987), https://www.nytimes.com/1987/03/08/us/a-mother-s-struggle-with-the-klan.html.

[7] Toner, supra note 6.

[8] Donald v. United Klans of America, Southern Poverty Law Center,  https://www.splcenter.org/seeking-justice/case-docket/donald-v-united-klans-america (last visited Jan. 27, 2022); Yousef, supra note 4.

[9] Yousef, supra note 4.

[10] Gillian Brockell, The Deadly History Behind the 1871 Law Underpinning the Charlottesville Trial, Wash. Post, (Nov. 24, 2021, 7:00 AM), https://www.washingtonpost.com/history/2021/11/24/kkk-act-charlottesville-trial/; 42 U.S.C. § 1985.

[11] Brockell, supra note 10.

[12] 42 U.S.C. § 1985; Brockell, supra note 10.

[13] Brockell, supra note 10.

[14] MacFarquhar, supra note 1.

[15] Id.

[16] Id.

[17] Id.

[18] Id.; Hammel, supra note 1.

[19] MacFarquhar, supra note 1.

[20] Id.

[21] Id.

[22] Hammel, supra note 1.

[23] MacFarquhar, supra note 1; Yousef, supra note 4.

[24] Yousef, supra note 4.

[25] Hammel, supra note 3.

[26] Yousef, supra note 4.

[27] Id.

[28] Hammel, supra note 3.

[29] Id.

[30] Id.

[31] Hammel, supra note 1.

[32] Id.

[33] Id.

[34] Id.


Post image by Blake Emrys on Flickr

13 Ways Coronavirus Will Change How Families Travel | Out & About with Kids

10 Wake Forest L. Rev. Online 124

Betsy J. Grey*

I. Introduction

Business owners and politicians have raised the specter of a flood of civil lawsuits arising out of the pandemic.[1]  Most of these suits will likely be commercial in nature, and very few personal injury lawsuits have been filed against businesses since the pandemic began in the United States.[2]  Even so, calls have come for immunity shields for industries that could potentially face personal injury lawsuits.[3]  But are those requests for immunity well-founded?  Strong hurdles to bringing personal injury suits already exist to discourage plaintiffs’ lawyers from suing.[4]  The most significant roadblock is causal proof, which demands that plaintiffs prove both that the source of their infection was viral exposure at a defendant’s business and that the exposure was due to the defendant’s negligence.

In Covid-19 exposure cases, meeting the burden of proof on the element of causation will be insurmountable in most cases given the highly contagious nature of the virus, the multiple sources of exposure plaintiffs may experience, and the developing state of the art on effective mitigation measures to prevent viral spread.  This Article explores these issues, examining the difficulty of causal proof in different business environments and comparing causal proof submitted in other tort cases involving clusters of injury, such as toxic exposure and food poisoning cases.  It concludes by examining whether federal legislation enacting an alternative compensation scheme for claims brought by essential workers against businesses, with lower causal proof requirements, is a better way to address the problem of causal proof, at least for those workers.

Part II reviews the state of knowledge on how the virus is transmitted.  Science continues to increase our knowledge on viral spread, but it is clear that significant spread comes from airborne particles, both smaller (aerosols) and larger (droplets).[5]  It can also spread through a variety of surfaces, known as fomites, which may retain the virus for several days.[6]  The virus spreads more easily indoors than outdoors.[7]  Confined spaces seem to pose the highest risk.[8]  Length of exposure is also a significant factor for contracting the virus.[9]  Some spreaders are asymptomatic and expose others unknowingly.

In Covid-19 personal injury suits against businesses, plaintiffs would need to prove that they contracted the illness in a given setting and the contraction was due to the defendant’s negligent failure to implement appropriate mitigation measures.[10]  Part III briefly overviews the primary mitigation measures that businesses currently use to reduce exposure to the virus.  Many of these measures are based on federal and state governments’ guidelines to businesses.[11]  These mitigation measures include ensuring social distancing, mandating mask usage, conducting symptom screening, upgrading ventilation systems, limiting numbers of patrons and employees on premises, undertaking deep cleaning measures, and providing hand-sanitizing dispensers.[12]

Part IV explores different types of business premises in which negligent exposure lawsuits can arise, and the challenges for proving causation in those settings.  The strength of causal proof is a sliding scale, depending on factors such as the nature of the environment and the length of exposure.  Causal proof will be stronger in contained environments with sustained close contact, like cruise ships and nursing homes, and weaker in highly public settings with short-term usage, like grocery stores.  Contained environments also differ because some environments are completely contained, like prisons, while others are contained for periods of time, like meatpacking plants.

Part V examines other challenging exposure cases, like toxic torts and foodborne illnesses, to see how plaintiffs meet their burden on causal proof in those settings. These settings often involve identifying outbreaks and clusters of illness and applying probabilistic proof to show causation for specific individuals.  Although important differences exist between those cases and the Covid-19 cases, they offer a starting point for approaching some of the complicated causal proof for Covid-19 cases.

Finally, Part VI explores the possibility of creating a federal alternative compensation fund for essential, frontline workers.  Like other compensation funds, it would lower the burden on causal proof and create presumptions of exposure.  The strong public policy reasons to support essential workers argue in favor of creating the causal presumptions and making it easier to receive compensation.  One approach could include creating the equivalent of a federal workers’ compensation program for essential workers, applying presumptions that the virus was contracted in the course of employment.  A workers’ compensation-like framework will help ensure that these essential workers are not left without recourse or compensation for their injuries.

II. Covid-19 Transmission

Covid-19 is highly contagious.  It is a type of coronavirus similar to SARS-CoV (“SARS”) and MERS-CoV (“MERS”)[13] and can spread when an infected person coughs, sneezes, talks, or breathes, producing respiratory droplets and aerosols.[14]  Bigger viral particles, called droplets, fall to the ground or nearby surfaces.[15]  Smaller viral particles evaporate in the form of aerosols, and can linger in the air.[16]  Experts estimate droplets and aerosols from a sneeze can travel up to six meters.[17]  Droplets from an exhale or cough can travel between one and three meters respectively.[18]  Aerosols, however, can potentially travel farther depending on the airflow pattern.[19]  Covid-19 only remains viable in aerosols for three hours, but in the form of droplets, it can infect others for up to eighty-four hours.[20]  Thus, while there is controversy among experts regarding the role of aerosols in spreading Covid-19, experts believe that the larger droplets predominantly spread the virus.[21]

Although Covid-19 can potentially spread through a variety of surfaces, experts believe fomites such as door and drawer handles, elevator buttons, and faucets are predominant carriers.[22]  This potential is likely because Covid-19 can remain viable on plastic and stainless steel for up to seventy-two hours.[23]  Other surfaces, such as cardboard, food, and water, however, have significantly lower viability spans, and thus are less likely to carry the virus.[24]

Coronaviruses are more likely to spread indoors.  While there are still limited data on the effects of different environments on Covid-19 viability, studies show that SARS retains its viability best in temperatures ranging from 71 to 77 degrees Fahrenheit, and relative humidity of 40 to 50 percent, which is typical of air-conditioned environments.[25]  However, the virus tends to lose viability at temperatures above 100 degrees Fahrenheit and relative humidity above 95 percent.[26]  Given Covid-19’s similarities to SARS, this is likely the case for Covid-19 as well.[27]  Notably, in a preprint Chinese study of 318 coronavirus outbreaks, all but one occurred indoors.[28]

Experts warn that even outdoor environments will not prevent infection among groups of people in close contact—the largest risk factor for spreading Covid-19.[29]  The worst clusters of coronavirus in the U.S. have been tied to spaces with many people in close proximity  at the same time.[30]  The length of exposure is also a critical factor—sustained interactions carry a larger risk of infection than limited interactions.[31]  Thus, the more people one interacts with, and the longer that interaction, the greater the risk of contracting Covid-19.[32]

Although there is a risk of contracting Covid-19 at nearly any location, confined spaces pose an elevated risk.[33]  Some examples of high-risk confined spaces include flights, car rides, public transportation, homeless shelters, and healthcare centers.[34]  One U.S. study analyzed Covid-19 infection potential in airplanes, cars, and healthcare centers.[35]  In airplanes, the study reported that an infected person without a mask can infect between five to ten people through one cough.[36]  This number decreases to approximately three people if the infected person wears a mask.[37]  In a car, an infected person can potentially infect every person within the car through a cough, whether or not masks are worn.[38]  While opening car windows and travelling at higher speeds slightly reduces the risk of transmission, Covid-19 droplets and aerosols can still infect every person in the car.[39]  In healthcare centers (or any other indoor environment where people gather in clusters), an infected person’s cough can spread Covid-19 droplets up to one meter.[40]  Thus, the infection risk from droplets is limited to those in close contact with the infected person, or who touch an infected fomite.[41]  However, Covid-19 aerosols from the cough may follow the airflow stream of the air conditioning and potentially infect others several meters away.[42]  While improved airflow and masks can decrease the risk of long-range transmission, some risk of infection remains.[43]

Once infected, the average person will show symptoms in five to six days.[44]  However, it is possible to show symptoms up to fourteen days after exposure.[45]  In a study of infected persons in the Hubei province of China, one of the original hotspots of the virus, 97.5 percent of people exhibited symptoms by 11.5 days.[46]  Given that the time it takes a person to develop symptoms varies, it may be difficult to determine which point of exposure caused the infection.  Equally challenging to tracing the source of infection is that some spreaders never develop symptoms at all.[47]

Our developing knowledge on viral spread and infection demonstrates how difficult it will be to prove that an individual contracted the virus at a specific exposure point.

III. Mitigation Measures for Businesses

For causal proof, plaintiffs must prove not only that the exposure to the virus occurred in the defendant’s premises; they must also prove that defendant’s failure to take appropriate mitigation measures—or a breach of its duty of due care—caused the contraction of the virus.  In other words, plaintiff must show that defendant’s negligence caused the plaintiff to contract the virus.  Most of the mitigation measures implemented by businesses originate from guidelines issued by the federal and state governments, but businesses are free to go beyond these measures in the interest of safety and the changing state of the art.  Accordingly, an important dynamic in addressing the standard of care is what mitigation efforts others in the industry have implemented.[48]  Custom in the industry will be a significant factor—if many others in the same industry have taken preventative steps that the defendant has not taken, this may suggest negligence.[49]  The effectiveness of mitigation measures undoubtedly will be disputed by experts,[50] especially given the changing state of science and the lack of peer reviewed studies and literature in the area.

In general, businesses have a duty to promote the health of employees and patrons. The Centers for Disease Control and Prevention (“CDC”) has issued general guidelines for businesses to mitigate the spread of Covid-19 in the workplace.[51]  Under these guidelines, businesses, first and foremost, should encourage those employees who are sick, have tested positive for Covid-19, or have recently come in close contact with a person who tested positive to stay home.[52]  These guidelines direct businesses to conduct symptom checks for all employees, sending home those who do not pass.[53]  If an employee tests positive for Covid-19, business owners should instruct them, as well as any potentially exposed employees, to stay home for fourteen days, telework if possible, and self-monitor for symptoms.[54]  All areas used by the sick person should be closed off and disinfected after twenty-four hours.[55] The guidelines also encourage employers to promote workplace behaviors that reduce the spread of Covid-19.[56]

Businesses should implement practices to minimize close contact.[57]  As noted, the more people with whom one interacts, and the longer that interaction, the higher the risk of Covid-19 spread.[58]  Accordingly, the CDC recommends teleworking and non-contact services when possible.[59]  In addition, businesses should modify the layout and procedures of their stores to ensure social distancing,[60] such as moving tables or barstools in restaurants,[61] spreading out gym equipment,[62] and establishing a clear path of travel for customers.[63]  In spaces where it is hard to physically distance, businesses should install physical barriers and require employees to wear cloth face coverings to prevent the spread of infection.[64]  The CDC recommends closing communal spaces, staggering employee shifts, and limiting the number of people allowed in the establishment.[65]  Businesses should also post signs and messages in highly visible locations to remind employees and customers to socially distance.[66]

The guidelines recommend other strategies to maintain a healthy business environment, including regular cleaning of all surfaces,[67] increasing ventilation rates and controlling the temperature and humidity of their building,[68] and opening windows and doors to improve air circulation.[69]  Because Covid-19 likely thrives best in low humidity, maintaining humidity levels of 40 to 60 percent may help prevent its spread.[70]  Additional guidelines for restaurants include avoiding self-serve food and drink stations, and prioritizing outdoor seating. [71]

Under these guidelines, businesses should implement flexible leave policies that do not punish employees for taking time off when they are sick.[72]  They should also offer high-risk employees, such as older adults and those with underlying medical conditions, alternative opportunities that limit their exposure risk.[73]

Importantly, the guidelines encourage businesses to follow all state and local Covid-19 regulations.[74]  Some examples of common regulations include mask mandates, travel restrictions, mass gathering restrictions, and mandatory business closures.[75]  Requirements may differ by state and industry; however, most regulations model the CDC guidance described above.[76] Currently, forty-one states require masks in public.[77]  Most states have restricted mass gatherings in some capacity and restricted travel from certain hotspots.[78]

IV. A Sliding Scale of Causal Proof Factors

As the number of Covid-19 cases in the United States continues to rise, so does the potential for Covid-19 related personal injury lawsuits against businesses and employers.  Employees, patrons, and patients could bring lawsuits against employers, businesses, and healthcare centers seeking compensation for personal injury damages resulting from their Covid-19 infection.  Some of these lawsuits will be shielded by workers’ compensation and other strong immunities.[79]  Even if they get beyond these shields, plaintiffs must prove that they more likely than not contracted the virus on the defendant’s premises due to the defendant’s negligence.  Because the virus is highly contagious and can be contracted anywhere, proving causation in these cases will be extremely difficult.  The strength of causal proof will reflect a sliding scale of factors like settings, mitigation efforts, and length of exposure.

Some settings will lend themselves to stronger causal proof than others.  Given our knowledge about exposure, asymptomatic spreaders, and incubation periods, showing a temporal relationship between visiting the premises and the onset of the virus alone will not suffice.  The best-case scenario for proving causation would likely involve an outbreak in a contained environment, like a cruise ship or nursing home.[80]  Studies have shown that the likelihood of contracting Covid-19 in a confined space is higher than the likelihood of contracting it in other environments.[81]  Moreover, a cluster of cases on the same cruise or nursing home will help prove that the outbreak is the most likely cause of the plaintiff contracting the disease.  While an outbreak is not a requirement, it will bolster causal proof.[82]

In a recent district court case, plaintiffs sought damages for personal injury, including one death, from Covid-19, which they allegedly contracted while on a cruise due to the ship’s negligence in handling an outbreak of the virus.[83]  The court dismissed the complaint, holding that although plaintiffs’ allegations of an outbreak on the ship and the defendant’s failure to quarantine or notify any of the passengers of the outbreak were sufficient to allege exposure, they had not sufficiently pled that they had contracted the virus from the exposure.[84]  Significantly, though, the court granted plaintiffs leave to amend the complaint, to give them the opportunity to allege the amount of time between the exposure and the date the plaintiffs started experiencing Covid-19 symptoms or received a positive test.[85]  The court explained that this timing regarding the incubation period is “a key fact necessary to render the causation allegations plausible, not merely possible.”[86]  This suggests that allegations of an outbreak, negligent handling of the outbreak, extended exposure, and a temporal relationship between exposure and contract may be enough to get to a jury on causation.

Alternative causes will always be an area of dispute. While the plaintiff has to rule in the cause by a preponderance of the evidence and does not need to rule out alternative causes in her case in chief, the issue will inevitably arise.[87]  Through investigation and discovery, defendants will attempt to develop potential sources of alternative exposures.  Plaintiffs who have been taking public transportation, failing to wear a facemask, joining large gatherings, or not maintaining social distancing will have a harder time proving that they contracted the virus on the business premises.  Alternative causes are harder to suggest in a nursing home where the plaintiff will likely have no other exposures other than the home itself, since most residents do not leave the building and outside visitors were curtailed very quickly after the pandemic started in March.  A plaintiff who allegedly contracts Covid-19 on a cruise ship will also have fewer alternative scenarios to explain. Although proving the plaintiff contracted the virus on the cruise ship, and not one of the stops along the way, will still be at issue, a cluster of cases onboard, and a contained environment strengthens the causal proof.

Other potentially stronger causal cases include buildings where people gather in clusters for prolonged periods of time, such as homeless shelters, factories, or certain workplaces.  These settings will not provide as strong a causal link as those that involve a nursing home or a cruise ship, since people who frequent those settings will be more mobile.  Plaintiffs will likely need to present additional evidence, such as a Covid-19 outbreak in the facility, to strengthen their causal proof.  Workplaces, like meatpacking plants, which cannot accommodate certain mitigation efforts such as social distancing may also prove to be stronger causal cases.

It will be especially difficult for plaintiffs to prove they contracted Covid-19 in uncontained environments, such as grocery stores, restaurants, gyms, and retail stores.  Given that asymptomatic individuals spread many infections, it may be very difficult to identify precisely when the infection was contracted.  Even if plaintiffs can prove they were socially isolated when they contracted the virus or that an outbreak occurred at that particular location, that proof may be insufficient.  Defendants will challenge the plaintiff on other likely places of exposure, such as their home, car, or from any other person outside of the establishment.[88]  Alternatively, the plaintiff could attempt to prove that the business was the epicenter of an outbreak.  Contact tracing may reveal that a group of people visited a particular location within the same time period and later contracted Covid-19.  But as Covid-19 cases in the United States continue to strain the healthcare system, state health departments struggle (or do not even try) to conduct effective contact tracing.[89]  Thus, this option may not be viable.

Potentially, plaintiffs may also try to trace their Covid-19 case to a particular contact through DNA sequencing.[90]  Scientists have used DNA sequencing to track the geographic spread of Covid-19.[91]  This may allow identification of a particular strain of the virus on the business premises.  This science is still developing, and it is unclear whether it can work with sufficient specificity to track a case to a single contact.

V. Causal Proof in Other Settings

Two other types of tort claims that often involve clusters of illnesses may provide useful precedent in proving causation in the Covid-19 context: food poisoning cases and toxic exposure cases.  Both settings rely on circumstantial evidence and statistical proof to strengthen causal claims.

A.     Food Poisoning

Food poisoning may have numerous potential sources of infection, which makes causal proof challenging.  Because food poisoning spreads through contaminated foods,[92] a plaintiff may be exposed to multiple potential sources in every meal.  Some kinds of food poisoning can take several days or even weeks to present.[93]  In addition to creating uncertainty as to where an infection was contracted, this delay also minimizes a plaintiff’s ability to gather physical evidence because contaminated food may have been thrown away or unsanitary surfaces may have been sanitized.  These challenges may explain the low rates of success food poisoning plaintiffs have had in suits.[94]

The success of a food poisoning claim is highly fact dependent.  The cases where food poisoning plaintiffs have had the greatest success involve a large number of people developing the same symptoms and a quick investigation linking the contaminant in the plaintiff’s food to the contaminant found on the defendant’s premises.[95]  Some bacteria that cause food poisoning have a unique “DNA fingerprint,” which have been used to track outbreaks and identify the source.[96]  Even without scientific evidence directly linking the bacteria to the defendant, plaintiffs have successfully used circumstantial evidence to establish causation.[97]  Food poisoning plaintiffs have relied on outbreaks and clusters to bolster their causal proof.  For example, courts have considered whether others who consumed the food became ill and the time frame of the illness in relation to the consumption.[98]  Although generally plaintiffs have not been required to rule out every conceivable source of causation,[99] courts have required them to do more than demonstrate they developed food poisoning shortly after eating the defendant’s food.[100]

The food poisoning cases indicate some of the challenges Covid-19 plaintiffs will face.  As discussed earlier, Covid-19 plaintiffs likely face even more sources of infection because the virus can be spread through contact with an infected (and potentially asymptomatic) person or from infected surfaces.[101]  Delays in the emergence of symptoms further increase the potential sources of infection.[102]

Although food poisoning and Covid-19 infections have substantial overlap, proving causation in a Covid-19 case may present additional challenges.  While a food poisoning outbreak likely originates from a single (often static) source, the Covid-19 outbreak is so widespread that the potential sources are arguably any of the millions of infected individuals.[103]  Importantly, food poisoning is not contagious, unlike the Covid-19 virus, which accounts for the continued increase in potential sources of the virus.  In a food poisoning case, a plaintiff can use other people, such as family members, to demonstrate that they all became sick after eating at a restaurant.  In a Covid-19 case, even if a family develops the disease after visiting a defendant’s premises together, the defendant may still be able to argue that one person contracted the disease somewhere else and spread it to the rest of the family.  In limited circumstances, however, a Covid-19 plaintiff may actually have fewer potential sources of illness than the alleged food poisoning victim.  For example, a plaintiff who quarantined or remained in a confined location will likely be able to demonstrate few alternative sources of exposure, whereas food poisoning plaintiffs are unlikely to have abstained from eating (i.e., other sources of exposure) during the potential exposure period.  Even so, this may not remove the challenge of proving that it was the defendant’s negligence that caused the plaintiff’s harm.

B.     Toxic Torts and Statistical Proof

In toxic tort, medical device, and drug cases, courts typically divide the causal inquiry into two questions: (1) general causation (whether the chemical, device or drug is capable of causing the injury); and (2) specific causation (whether the agent caused the injury to the individual plaintiff).[104]  Although proof for both of those inquiries may be based on probabilities,[105] courts generally are more likely to allow probabilistic evidence through epidemiological studies to prove general causation but may not accept it to prove specific causation.[106]

With Covid-19 exposure cases, plaintiffs often will only be able to show that the defendant’s failure to take appropriate mitigation measures increased the likelihood that they were exposed to the virus (general causation) but not that the defendant’s negligence specifically caused them to contract the virus (specific causation).  As discussed earlier, outside of a completely contained environment for a prolonged period, like a nursing home or cruise ship, the probability of a particular exposure and contraction will be lower.  Plaintiffs will have difficulty showing that, absent the defendant’s conduct, they would not have contracted the virus when they did, which would fail to meet the traditional “but for” test for actual causation.[107]  As science improves, through greater knowledge of Covid-19 and personalized medicine and advances in genetics, scientists may be able to designate which plaintiffs contracted the virus due to defendant’s activities, and which suffered injury due to other exposures.  Science may one day permit us to distinguish where and when a plaintiff contracted the virus, but it is not yet at that point, and the best available evidence may be using probabilities and statistics to determine exposure in Covid-19 cases.[108]  Much of the causal proof may rely on clusters of cases in a given environment, but in any specific case, an alternative cause may have been responsible for the plaintiff’s injury.

Since specific causation is inherently individual, defendants in Covid-19 cases will likely be successful in defeating claims of causation on a one-on-one basis.   Courts and scholars have struggled with how to address situations in which some group of plaintiffs very likely have been injured by a defendant’s activity but cannot prove which individuals were harmed because of lack of specific causal proof.  These population exposure cases often occur in mass torts such as toxic tort, medical device, and drug exposure cases.[109]  Professor Levmore calls this problem “recurring misses,” which result in a defendant escaping liability even when it has clearly caused injury to someone.[110]  Scholars have proposed “proportional liability” based on the probability of causation to address this problem.[111]  This solution would adjust damages to the probability of causation, so that plaintiffs who can prove that there is, say, a 40 percent likelihood of injury due to the defendant’s activity should receive 40 percent of their damages from that defendant.[112]  Other scholars reject this approach as allowing courts to impose liability without enough proof of responsibility. [113]

Courts have adopted this proportional liability approach in limited toxic tort cases, such as imposing market share liability.[114]  Moreover, mass tort class actions settlements often appear to apply probabilistic causation in the settlement terms.[115]  As Professor Lahav observes, “[a]s a practical matter, . . . mass torts are routinely resolved collectively through global settlements that provide more or less proportional recovery to plaintiffs.”[116]  In other words, to address large scale injury from tortious behavior, litigants and courts may be adjusting traditional causal proof standards and turning to probabilities to achieve resolution of mass torts.  If we view an extensive viral outbreak that is linked to a large-scale event sponsored without adequate mitigation measures—say a motorcycle rally or a campaign rally—as a mass tort, it may make sense to resolve causal proof problems through proportional recovery methods.

Courts sometimes lower traditional causal proof standards for policy reasons.  Asbestos provides an interesting example.[117]  Following prolonged exposure, asbestos-related diseases can take twenty to fifty years to develop.[118]  Thus, it can be difficult to determine which asbestos exposure, if any, caused the disease, even though the defendant’s activities increased the likelihood of injury from asbestos exposure to a worker.[119]  As a result, some states have lowered the causation standard for asbestos cases.[120]  Without the lower causation standard, it would be nearly impossible for plaintiffs to recover.[121]

In asbestos cases, courts typically adopt one of two alternative causation standards to address the problem of causal uncertainty: the “substantial factor” test or the “frequency, regularity, proximity” test.[122]  Under the substantial factor test, plaintiffs can prove causation by demonstrating that, to a reasonable medical probability, their exposure was a substantial factor in contributing to the aggregate dose of asbestos that led to the plaintiff’s disease.[123]  The “frequency, regularity, proximity” test requires plaintiffs to identify a specific product as the probable cause of their injuries.[124]  The substantial factor test, which courts apply when multiple defendants are responsible for an injury,[125] is less useful in the Covid-19 context since the virus is contracted through a single exposure.  The “frequency, regularity, proximity” test, which requires plaintiffs to identify a specific product as the probable cause of their injuries, may be more useful. [126]  Under the test, the plaintiff must have worked in close proximity to the product “on a regular basis over some extended period of time.”[127]

Under the “frequency, regularity, proximity” test, Covid-19 plaintiffs could attempt to show causation by presenting evidence of the length of time spent at the defendant’s place of employment or business, their proximity to others, and the property’s environment, along with evidence of cluster outbreaks on the same property.  Applying the test would help overcome the almost insurmountable hurdle presented by the “but for” test in this context by allowing consideration of the probability of exposure to show specific causation.

In recent literature, scholars continue to argue that causal proof, in certain circumstances, should be attributed probabilistically[128] and on a collective basis.[129]  Professor Campos challenges the need to prove individual causation in a mass production case, often a roadblock to class action certification, to ensure a greater impact on unlawful behavior.[130]  As he states, after a finding of total liability, “one could relax specific causation requirements completely and simply choose a simple, rational way to distribute funds.”[131]

 Professor Lahav argues that in an important subset of cases, where a binary determination of cause is virtually impossible but certain behavior has a tendency to cause harm, the causal question should be untied from a strictly scientific question of fact (the “but-for” inquiry), and introduce a normative element.[132]  In these limited circumstances, she would apply a more value-laden test: “Should there be liability for this conduct?”[133]  According to her, where courts must rely on probabilistic evidence for both general and specific causation, and repeated behavior has an increased likelihood of causing injury in the future, the causal inquiry should be influenced by the policy outcome the decision maker finds would be more beneficial to society and not just physical law.[134]

Applying Lahav’s and Campos’s approaches to the causal difficulty imposed by Covid-19 personal injury cases may make sense.  Businesses face tremendous financial pressure to cut corners in safety measures in maintaining their workplaces and businesses during the pandemic, and those businesses may not be appropriately weighing the public health costs of their actions.  This risk is compounded by the likelihood that businesses can defeat tort claims based on the failure of causal proof.  Assuming that negligent behaviors by businesses and employers increase the likelihood of contraction of the virus, but that it is virtually impossible to prove with regard to individual cases, it is arguable that courts should be influenced by normative choices in determining liability.  If hotspots, superspreader events, and clusters arise on certain premises, policy reasons may argue in favor of using statistical proof for both general and specific causation.  This view of causation will have a greater impact on a potential defendant’s conduct and will create incentives to take appropriate safety measures to protect workers and consumers from contracting the virus.

 Introducing normative considerations into the element of causation may also argue in favor of legislatively creating a special compensation fund with lowered causal proof requirements.  Such a scheme may be particularly warranted for selected victims, like essential workers, as discussed below.

VI. Creating an Alternative Compensation Fund for Essential Workers

The difficulty of proving specific causation may be the undoing of most Covid-19 personal injury lawsuits against businesses.  Driven by policy reasons in specific settings, legislatures have created alternative compensation systems that lower causal proof.  Examples include compensating victims of vaccine injury to encourage use of vaccines while protecting vaccine manufacturers from personal injury lawsuits,[135] compensating veterans who may have been exposed to Agent Orange during the Vietnam War,[136] or compensating  innocent victims, including clean-up workers, of the 9/11 attacks while protecting the airline industry from lawsuits.[137]  Some state workers’ compensation systems have lowered the causal proof standard for showing that the disease or injury to the worker from Covid-19 resulted from an activity within the scope of employment.[138]  These alternatives may serve as models for creating a federal compensation system and lowering causal proof for the essential, frontline workers who likely experienced increased exposure to the virus at their workplace. [139] 

A.     Federal Compensation Systems

Congress has formed at least three compensation systems that create a presumption of causation.[140]  All of the settings involved challenging causation issues.  In these schemes, causation is presumed when people develop specific injuries or illnesses after receiving certain vaccines, being exposed to Agent Orange, or being injured or killed in the 9/11 attacks or its aftermath.[141]

The Vaccine Injury Compensation Program[142] creates a no-fault compensation system for people injured by certain vaccines, especially childhood vaccines.[143] The program was created to encourage vaccinations and limit lawsuits that could hinder vaccine manufacturers or the supply of vaccines.[144]  Individuals filing a claim must demonstrate they were injured by the vaccine.[145]  Proving injury from a childhood vaccine can be quite difficult, but the Vaccine Injury Table[146] creates a presumption of causation for certain injuries.[147]  To receive the presumption, an injured party only needs to demonstrate that he or she received a covered vaccine and experienced an illness, disability, injury, or condition listed in the table within a specific time period.[148]  If an injury is not listed in the table, the injured party does not receive the presumption and must prove causation-in-fact.[149]

Federal legislation permits creation of a similar scheme for injuries from vaccines and other countermeasures used in a public health emergency.  The Public Readiness and Emergency Preparedness Act (“PREP Act”) creates a compensation fund for individuals injured by countermeasures,[150] and the Secretary of Health and Human Services is authorized to create a list of injuries that will be presumed to be caused by a countermeasure.[151]  In the Covid-19 context, countermeasures includes vaccines.[152]  The policy behind creation of this fund is obvious: to encourage widespread use of vaccines and other countermeasures during a health emergency while protecting those who administer or create the countermeasures from liability.[153]

Veterans potentially exposed to Agent Orange during the Vietnam War also received a presumption of causation to receive compensation for certain diseases.  Proving a causal link between exposure to the defoliant used during the war and subsequent delayed illness was extremely difficult, and the veterans of the controversial war were a sympathetic group of plaintiffs.[154]  The Agent Orange Act of 1991[155] created a list of “presumptive diseases.”[156] In order to receive the presumption, a veteran must have developed a presumptive disease and have served in specific regions during certain time periods.[157]

Victims of the 9/11 terror attacks received compensation under the September 11th Victim Compensation Fund, which provides compensation to people substantially injured or to the families of people killed as a result of the terrorist attacks.[158]  Although the Fund initially only covered those who were injured or killed in the immediate aftermath of the attacks, it was extended to cover clean-up workers whose manifestations of injuries may have been delayed.[159]  To receive compensation, a claimant must demonstrate both a physical health condition and some exposure to the 9/11 crash site or clean-up efforts.[160]  There is a list of approved “WTC-related health conditions;”[161] however, the exposure must be determined to be “substantially likely to be a significant factor” in the health condition by a medical professional.[162]  This determination may be based on the length of exposure as well as the specifics of the exposure, such as actual involvement in clean-up efforts rather than only proximity.[163]  A claimant must have been present at a crash site, within a Victim Compensation Fund (“VCF”) NYC Exposure Zone, or near debris removal routes.[164]  Although it does not explicitly lower the burden of causation, the Fund’s list of qualifying health conditions and specific methods for determining exposure has a similar effect.

B.     State Compensation Systems

States have lowered causal proof requirements in compensation systems.  State workers’ compensation schemes generally require a worker to show that a disease or injury resulted from an activity within the course or scope of employment.[165]  This showing could be very difficult for Covid-19 victims because of the many alternative sources of exposure, as discussed above.   Some states, such as Alaska, Minnesota, and Wisconsin, have enacted legislation creating a presumption of causation that first responders contracted Covid-19 in the course of their employment.[166]  In California, even non-essential workers receive the presumption. [167]

C.     A Compensation Scheme for Essential Workers

The strong public policy interest in protecting essential workers from injury during the pandemic, and the difficulty of proving specific causation, argue in favor of creating a federal compensation fund for essential workers with a lower causal standard.  Otherwise, given the barriers to proving causation (including under most state workers’ compensation schemes), few front line employees would be able to recover for their injuries from negligent defendants.  These victims are serving in critical positions for society but face prolonged periods of exposure in risky environments.  Similar to the 9/11 first responders, the symbolic nature of ensuring compensation for these victims is significant.  The risks borne by these workers should be perceived of as commonly shared risks, which would justify the use of a federal compensation system.  Modeled on state workers’ compensation programs, Congress could create a national program that creates a presumption of causation for essential workers who contract Covid-19, which would make them eligible for personal injury damages resulting from the virus. [168]

Compensation funds can ensure efficient dispensation of victim compensation.  Any time a legislature goes outside the tort system and creates an alternative compensation system, however, it comes at a cost.  In particular, it removes incentives provided by the tort system to engage in reasonably safe behavior.[169]  One concern is that providing compensation to essential workers would create a disincentive to individuals from refraining from risky behaviors outside of work, like attending large public events or failing to socially distance.  Although such behaviors will inevitably occur, on balance the arguments in favor of creating a compensation scheme for this limited group of workers who provide enormous benefit to society outweigh the risk of the workers engaging in risky behaviors outside of work.  The anecdotal evidence of essential workers taking extreme measures to protect their families suggest that the risks of this behavior are minimal.[170] 

Similarly, a federal compensation scheme may remove an incentive for businesses to take reasonable safety measures to protect their workers.[171]  Like state workers’ compensation systems, the Fund would protect essential businesses from liability for claims brought by their employees, a form of tort immunity.  Removing the specter of tort liability could create disincentives from prioritizing the implementation of sufficient safety measures, especially given the enormous financial pressures businesses face in the pandemic.  Theoretically, regulators like the Occupational Safety and Health Administration (“OSHA”) fill in the gap left by no-fault workers’ compensation schemes.[172]  Regulation of Covid-19 safety measures may need to be increased in this area to countermand the risk of unsafe business practices.[173]  Even without increased regulation, the strong societal pressures to take appropriate mitigation measures, as well as the obvious need to create a healthy atmosphere for workers, should counteract the potential for reduced safety measures.  Furthermore, the scheme would be limited in scope and only apply to workplaces of essential workers.  Although a few states have already created presumptions to achieve the same result through state workers compensation funds,[174] most have not.

VII. Conclusion

Causation will be a significant barrier to personal injury lawsuits on business premises.  There will likely be no direct evidence attributing contraction of Covid-19 to a specific source available in the near future.  Although plaintiffs may be able to prove general causation by alleging that defendants’ negligent implementation of mitigation measures increased the likelihood of exposure to the virus generally, specific causation will be much more challenging.  Alternative sources of exposure will always be an issue.  The highly contagious nature of the virus and the lengthy incubation period make proof especially difficult.  Plaintiffs’ conduct will play a central role in the causal proof.

This does not mean that the causal element must always be fatal to plaintiffs’ personal injury suits.  Causal proof will be stronger when the premises involve contained environments over a lengthy period.  Evidence of cluster “hot spots” will also strengthen the inference that the plaintiff contracted the virus on the premises.  Plaintiffs may look to other precedent, such as food poisoning and toxic tort cases, where cases of clusters and statistical proof have been used, to bolster causation.

Finally, we should consider alternative methods of compensation for certain victims.  In particular, essential frontline workers, serving in critical positions to promote social interests, but facing prolonged periods of exposure in risky environments, may warrant special protection.  A federal compensation scheme would more equitably absorb the risk of no compensatory recourse due to failure of causal proof for these workers.  Federal and state no-fault compensation schemes, which create presumptions of causation, offer models to create a special compensation fund for essential workers.

* Jack E. Brown Chair in Law, Sandra Day O’Connor College of Law at Arizona State University. I thank Brie Alford and Samantha Orwoll for their excellent research assistance for this Article.

[1].     Jim Tankersley & Charlie Savage, Businesses Seek Sweeping Shield from Pandemic Liability Before They Reopen, N.Y. Times (June 12, 2020), https://www.nytimes.com/2020/04/28/business/businesses-coronavirus-liability.html (quoting Senator Mitch McConnell who stated that businesses will be “set up for an avalanche of lawsuits” if Congress doesn’t act).

[2]. See Covid-19 Case Tracking Research, Perkins Coie LLP 1 (September 2020), https://www.perkinscoie.com/images/content/2/3/v24/234690/Perkins-Coie-Client-Advantage-COVID-Case-Tracking-Research.pdf.  The largest number of suits filed this far have been against insurance companies for disputes over business interruption coverage.  Id.; see also COVID-19 Complaint Tracker, Hunton Andrews Kurth, https://www.huntonak.com/en/covid-19-tracker.html (last visited Oct. 30, 2020) (tracking relatively few tort claims).

[3].         See Betsy J. Grey & Samantha Orwoll, Tort Immunity in the Pandemic, 96 Ind. L. J. Supp. 66, 66–67 (2020), http://ilj.law.indiana.edu/articles/Grey_Tort-Immunity-in-the-Pandemic_10.23.pdf.

[4].   See id. at 3–4.

[5].       Renyi Zhang et al., Identifying Airborne Transmission as the Dominant Route for the Spread of COVID-19, 117 Proc. Nat’l Acad. Sci. U.S. 14857, 14857 (2020), https://www.pnas.org/content/pnas/117/26/14857.full.pdf.

[6].   Mahesh Jayaweera et al., Transmission of COVID-19 Virus by Droplets and Aerosols: A Critical Review on the Unresolved Dichotomy, 188 Elsevier Env’t. Res. 1, 1 (2020).

[7].   Deciding to Go Out, Ctrs. for Disease Control & Prevention (Sept. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/deciding-to-go-out.html.

[8].   Jayaweera et al., supra note 6, at 8.

[9].        Public Health Guidance for Community-Related Exposure, Ctrs. for Disease Control & Prevention (July 31, 2020), https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html.

[10].   Order Granting Joint Stipulation to File Second Amended Compl. and Granting in part Def’s Mot. to Dismiss at 8, Wortman v. Princess Cruise Lines Ltd., No. 2:20-CV-041690DSF-JC (C.D. Cal. Aug. 21, 2020) (No. 30).

[11].        See, e.g., Interim Guidance for Businesses and Employers Responding to Coronavirus Disease 2019, Ctrs. for Disease Control & Prevention (May 6, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html#:~:text=%2D%20Configure%20partitions%20as%20a,%2C%20pick%2Dup [hereinafter Interim Guidance].

[12].        See id.

[13].  Nicola Petrosillo et al., COVID-19, SARS and MERS: Are They Closely Related?, 26 Clinical Microbiology & Infection 729, 731–32 (2020).

[14].   Zhang et al., supra note 5, at 14,857.

[15]. Jayaweera et al., supra note 6, at 1.

[16]       Id.

[17].        Id. at 6.

[18].        Id.

[19].        Id. at 13–14.

[20].        Id. at 4.

[21].        Id. at 2.

[22].        Id. at 3.

[23].        Id. at 4.

[24].        William F. Marshall, Can COVID-19 (Coronavirus) Spread Through Food, Water, Surfaces and Pets?, Mayo Clinic (June 5, 2020), https://www.mayoclinic.org/diseases-conditions/coronavirus/expert-answers/can-coronavirus-spread-food-water/faq-20485479.

[25].        K.H. Chan et al., The Effects of Temperature and Relative Humidity on the Viability of the SARS Coronavirus, 2011 Advances Virology 1, 2 (2011).

[26].        Id. at 2–3.

[26].       Petrosillo et al., supra note 13, at 731–32.

[28].        Hua Qian et al., Indoor Transmission of SARS-CoV-2, medRxiv (forthcoming 2020) (preprint at 5) (on file with medRxiv and bioRxiv), https://www.medrxiv.org/content/10.1101/2020.04.04.20053058v1.

[29].       Aylin Woodward, You’re Less Likely to Catch the Coronavirus Outdoors, But the Amount of Time You Spend Near Other People Matters Most, Bus. Insider (May 17, 2020, 9:02 AM), https://www.businessinsider.com/risk-of-coronavirus-transmission-lower-outdoors-evidence-2020-5.

[30].        Id.

[31].        People with Certain Medical Conditions, Ctrs. for Disease Control & Prevention (Oct. 16, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-conditions.html. Patients with a higher viral load, or dose, of the virus may suffer from more severe symptoms of Covid-19.  Elisabet Pujadas et al., SARS-CoV-2 Viral Load Predicts COVID-19 Mortality, 8 Correspondence e70, e70 (2020), https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30354-4/fulltext

[32].        People with Certain Medical Conditions, supra note 31.

[33].        Jayaweera et al., supra note 6, at 8.

[34].        Id.

[35].        Id.

[36].        Id.

[37].        Id. at 9.

[38].        Id. at 12.

[39].        Id.

[40].        Id. at 13.

[41].        Id. at 13–14.

[42].        Id.

[43].        Id. at 14–15.

[44].        Stephen A. Lauer, et al., The Incubation Period of Coronavirus Disease 2019 (COVID-19) from Publicly Reported Confirmed Cases: Estimation and Application, Annals Internal Med. 1, 1, 3 (2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7081172/.

[45].        Id. at 4–5.

[46].        Id. at 3.

[47].        Seungjae Lee, et. al, Clinical Course and Molecular Viral Shedding Among Asymptomatic and Symptomatic Patients with SARS-CoV-2 Infection in a Community Treatment Center in the Republic of Korea, JAMA Internal Med. (Aug. 6, 2020), https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/2769235.

[48].        Dan B. Dobbs, et al., Hornbook on Torts § 12.6 (2d ed. 2000).

[49].        Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 13 (Am. L. Inst. 2010).

[50].        See Danielle Conway-Jones, Factual Causation in Toxic Tort Litigation, 35 U. Rich. L. Rev. 875, 918 (2002) (“Because the issue of factual causation in toxic tort cases is complex, expert testimony is crucial, especially to those courts that rely heavily on the ontological approach.”).

[51].        Interim Guidance, supra note 11. For example, all businesses should designate a point of contact for Covid-related concerns. Id.

[52].        Id.

[53].        Id.

[54].        Id.

[55].        Id.

[56].        Id. Examples include teaching employees proper etiquette for coughing, sneezing, and handwashing, and providing tissues, no-touch trashcans, soap and water, and hand sanitizer with at least 60 percent alcohol.  Id.  Restaurant and bar owners should monitor employee compliance with hand-washing protocol. Considerations for Restaurants and Bars, Ctrs. for Disease Control & Prevention (June 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/business-employers/bars-restaurants.html [hereinafter Considerations for Restaurants and Bars].

     [57].   Interim Guidance, supra note 11.

     [58].   Operating Schools During COVID-19: CDC’s Considerations, Ctrs. for Disease Control & Prevention (May 19, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/schools.html.

     [59].   Considerations for Restaurants and Bars, supra note 56.

     [60].   Interim Guidance, supra note 11.

     [61].   Considerations for Restaurants and Bars, supra note 56.

     [62].   Personal and Social Activities, Ctrs. for Disease Control & Prevention (Sept. 11, 2020), https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/personal-social-activities.html#gyms.

     [63].   Interim Guidance, supra note 11.

     [64].   Id.

     [65].   Id.

     [66].   Id.

     [67].   Id. Soap and water is sufficient for most surfaces; however, frequently touched surfaces, such as light switches, doorknobs, and handles, should be disinfected.  Reopening Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes, Ctrs. for Disease Control & Prevention (May 7, 2020), https://www.cdc.gov/coronavirus/2019-ncov/community/reopen-guidance.html [hereinafter Reopening Guidance]. Businesses should consult CDC guidelines to ensure they use the correct cleaner or disinfectant for the particular surface.  Id.  To reduce the cleaning burden, businesses may consider removing unnecessary items and replacing hard to clean surfaces, such as carpets and rugs.  Id.

     [68].   Businesses should run their ventilation 24/7 if possible, to increase ventilation rates. Interim Guidance, supra note 11. The American Society of Heating, Refrigeration, and air-Conditioning Engineers (“ASHRAE”) recommends single-space high ventilation to reduce concentrations of infectious aerosols.  See Erica J. Stewart et al., ASHRAE Position on Infectious Aerosols, ASHRAE (Apr. 14, 2020), https://www.ashrae.org/file%20library/about/position%20documents/pd_infectiousaerosols_2020.pdf.

     [69].   Interim Guidance, supra note 11.

[70].        See Stewart et al., supra note 68.

[71].        Considerations for Restaurants and Bars, supra note 56.

[72].        Id.

[73].        Id.

[74].        Interim Guidance, supra note 11.

[75].        COVID-19 State and Local Policy Dashboard, Multistate, https://www.multistate.us/research/covid/public (last visited Oct. 30, 2020).

[76].        See id.

[77].        Id.

[78].        Id.

[79].        See Pa. Exec. Order No. 2020-05 (2020), https://www.governor.pa.gov/wp-content/uploads/2020/05/20200506-GOV-health-care-professionals-protection-order-COVID-19.pdf. Notably, this legislation only protects individuals and not the healthcare entities. See Grey & Orwoll, supra note 3, at 69–75.

[80].        See Benedict Carey & James Glanz, Aboard the Diamond Princess, a Case Study in Aerosol Transmission, N.Y. Times (July 30, 2020), https://www.nytimes.com/2020/07/30/health/diamond-princess-coronavirus-aerosol.html?referringSource=articleShare (discussing evidence that small, airborne droplets may play a large role in the transmission of Covid-19 and may have “accounted for about 60 percent of new infections over all” on a cruise ship).

[81].       Jayaweera et al., supra note 6, at 8.

[82].        See Foster v. AFC Enters., 896 So. 2d 293, 297 (La. Ct. App. 2005) (finding that evidence of a cluster of food poisoning cases was not necessary to prove causation).  But cf. Hairston v. Burger King Corp., 764 So. 2d 176, 178 (La. Ct. App. 2000) (noting that clusters of food poisoning cases help establish causation).

[83].        Order Granting Joint Stipulation to File Second Amended Compl. and Granting in part Def’s Mot. to Dismiss at 6–8, Wortman v. Princess Cruise Lines Ltd., No. 2:20-CV-041690DSF-JC (C.D. Cal. Aug. 21, 2020) (No. 30) (allegations of Covid-19 outbreak on cruise ship, without quarantining passengers, sufficiently allege plaintiffs were exposed to virus while onboard; complaint dismissed with leave to amend to allege amount of time between alleged exposure and experiencing symptoms or receiving positive test to allege causation). 

[84].        Id.

[85].        Id. at 7–8, 12.

[86].        Id. at 7.

[87].        See Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 28, cmt. b (Am. L. Inst. 2010) (“The civil burden of proof merely requires a preponderance of the evidence, and the existence of other, plausible causal sets that cannot be ruled out does not, by itself, preclude the plaintiff from satisfying the burden of proof on causation.”).

[88].        Plaintiffs may have expressly or impliedly assumed the risk of contracting Covid-19 in a particular location.  Assumption of the risk may act as a complete bar to recovery.  Plaintiffs may have expressly assumed the risk if they signed a waiver releasing a business or organization from liability for contracting Covid-19 in their establishment.  Alternatively, a plaintiff who knowingly and voluntarily patronized a business that was not exercising appropriate precautions may have impliedly accepted the risk of contracting Covid-19.

[89].        Tracking Coronavirus Cases Proves Difficult Amid New Surge, Mod. Healthcare (June 29, 2020, 1:19 PM), https://www.modernhealthcare.com/technology/tracking-coronavirus-cases-proves-difficult-amid-new-surge.

[90].        Claire Jarvis, How Genomic Epidemiology is Tracking the Spread of COVID-19 Locally and Globally, Chem. & Eng’g News (Apr. 23, 2020), https://cen.acs.org/biological-chemistry/genomics/genomic-epidemiology-tracking-spread-COVID/98/i17.

[91].        Id.

[92].        Abigail Shew, Are You Sure It Wasn’t Food Poisoning, U.S. Dep’t Agric. (May 7, 2019), https://www.usda.gov/media/blog/2017/08/28/are-you-sure-it-wasnt-food-poisoning.

[93].        See, e.g., Listeria (Listeriosis), Ctrs. for Disease Control & Prevention (June 17, 2019), https://www.cdc.gov/listeria/symptoms.html; Salmonella and Food, Ctrs. for Disease Control & Prevention (July 9, 2020), https://www.cdc.gov/foodsafety/communication/salmonella-food.html.

[94].        One study found that only one third of plaintiffs receive compensation in foodborne illness cases tried before a jury.  Jean C. Buzby et al., U.S. Food & Drug Admin., Product Liability and Microbial Foodborne Illness, Agricultural Economics Reports No. 799, 25 (2001), https://www.ers.usda.gov/webdocs/publications/41289/19022_aer799f.pdf?v=0.  The USDA has identified additional challenges facing food poisoning plaintiffs. Id. at 24.

[95].        Louis R. Frumer, Products Liability § 48.06 Medico-Legal Aspects of Food Poisoning (2020), LEXIS.

[96].        Pulsed-field Gel Electrophoresis (PFGE), Ctrs. for Disease Control & Prevention (Feb. 16, 2016), https://www.cdc.gov/pulsenet/pathogens/pfge.html.  Whether a similar tool will be developed for Covid-19 remains to be seen, although it would be unlikely to help those already infected.

[97].        See, e.g., Craten v. Foster Poultry Farms Inc., 305 F. Supp. 3d 1051, 1061 (D. Ariz. 2018) (finding “sufficient circumstantial evidence to permit a jury to reasonably infer that [the plaintiff] more likely than not contracted his infection from raw chicken associated with the outbreak”).

[98].        See, e.g., Patterson v. Kevon, LLC., 818 S.E.2d 575, 579 (Ga. 2018) (“[The plaintiff showed that a] large number of persons who ate the food prepared by [the defendant] became ill; that some of those who became ill did not consume leftovers or other food at the rehearsal dinner or wedding; and that most fell ill within the same time frame as the [plaintiffs].”); Lohse v. Coffey, 32 A.2d 258, 260 (D.C. 1943) (affirming a jury verdict when the plaintiff “proved that another person who consumed the same foods at the same time (though with a different beverage) also became ill”).

[99].        See, e.g., Greenup v. Roosevelt, 267 So. 3d 138, 142 (La. Ct. App. 2019) (“[Plaintiff] need not negate every conceivable cause.”); Gardyjan v. Tatone, 528 P.2d 1332, 1334 (Or. 1974) (“The fact that there was another possible cause of the plaintiff’s illness is not fatal to his case.”).

[100].      See, e.g., China Doll Restaurants, Inc. v. MacDonald, 180 A.2d 503, 505 (D.C. 1962) (holding that a plaintiff who became ill shortly after eating at a restaurant, but whose only causal evidence was her own testimony the food did not taste good, did not establish causation); Landry v. Joey’s Inc., 261 So. 3d 112, 118–20 (La. Ct. App. 2018) (finding an “absence of evidence presented demonstrating any positive causal connection” when the plaintiff had demonstrated that she developed food poisoning after allegedly eating one of the defendant’s sandwiches).

[101].      How COVID-19 Spreads, Ctrs. for Disease Control & Prevention Control (Oct. 5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html.

[102].      Current science indicates that Covid-19 symptoms may manifest between two and fourteen days after exposure.  Symptoms of Coronavirus, Ctrs. for Disease Control & Prevention (May 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/symptoms-testing/symptoms.html.

[103].      As of October 13, 2020, the CDC reported over 7.7 million cases of Covid-19. CDC COVID Data Tracker, Ctrs. for Disease Control & Prevention (Oct. 13, 2020), https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html.

[104].      Sergio J. Campos, The Commonality of Causation, 46 Ohio N. U. L. Rev. 229, 253 (2020); Alexandra D. Lahav, Chancy Causation in Tort 14 (May 15, 2020) (unpublished manuscript), https://ssrn.com/abstract=3633923.

[105].      Campos, supra note 104, at 253.

[106].      Lahav, supra note 104, at 17.

[107].      Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 26 (Am. L. Inst. 2010) (“Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.”).

[108].      Even the causal link between an individual’s contraction of lung cancer and smoking remains probabilistic.  Lahav, supra note 104, at 9.

[109].      Id. at 14.

[110].      Saul Levmore, Probabilistic Recoveries, Restitution, and Recurring Wrongs, 19 J. Legal Stud. 691, 692 (1990).

[111].      David Rosenberg, The Causal Connection in Mass Exposure Cases: A “Public Law Vision” of the Tort System, 97 Harv. L. Rev. 851, 859 (1984).

[112].      Id. See generally Levmore, supra note 110, at 719; Steven Shavell, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. Legal Stud. 463 (1980) (discussing the role of probability in apportioning tort liability).

[113].      Michael Moore, Causation and Responsibility: An Essay in Law, Morals and Metaphysics 4–5 (2009); Jane Stapleton, Two Causal Fictions at the Heart of U.S. Asbestos Doctrine, 122 L.Q. Rev. 189, 192 (2006).

[114].      Courts developed market share liability under the cases brought against DES manufacturers.  DES, a drug administered during pregnancy, caused injury to the offspring after a long latency period.  The plaintiffs often were unable to identify which manufacturer’s drug their mother had ingested.  Courts developed the market share liability concept to address the causal proof problem, under which liability was assigned to a defendant based on its share of the DES market. See Sindell v. Abbott Labs., 607 P.2d 924, 937–38 (Cal. 1980); Hymowitz v. Eli Lilly & Co., 539 N.E.2d 1069, 1078 (N.Y. 1989). 

[115].      See In re NFL Players Concussion Injury Litig., 821 F.3d 410, 439, 448 (3d Cir. 2016) (approving class certification and settlement); Lahav, supra note 104, at 19–21.

[116].      Lahav, supra note 104, at 20.

[117].     Asbestos is a mineral often used in building materials, vehicle brakes and clutches, and tile.  Asbestos, U.S. Dep’t Labor (July 31, 2020), https://www.osha.gov/SLTC/asbestos/.  Consistent exposure can lead to a myriad of diseases including lung cancer, asbestosis, colon cancer, and mesothelioma.  Id.  Factory workers, construction workers, and automotive mechanics are among those at risk given their constant exposure.  Id.

[118].      Karen Selby, Mesothelioma Statistics, Mesothelioma Ctr. (Aug. 19, 2020), https://www.asbestos.com/mesothelioma/statistics/.

[119].      William L. Anderson & Kieran Tuckley, How Much is Enough? A Judicial Roadmap to Low Dose Causation Testimony in Asbestos and Tort Litigation, 42 Am. J. Trial Advoc. 39, 48–49 (2018) (“There . . . appears to be no way at present to trace any specific fibers in the lung back to an actual source of exposure.”); Myra Paiewonksy Mulcahy, Note, Proving Causation in Toxic Torts Litigation, 11 Hofstra L. Rev. 1299, 1301–02 (1983).

[120].      See Holcomb v. Georgia Pac., LLC, 289 P.3d 188, 195–96 (Nev. 2012).

[121].      See Brian M. DiMasi, Comment, The Threshold Level of Proof of Asbestos Causation: The “Frequency, Regularity and Proximity Test” and a Modified Summers v. Tice Theory of Burden-Shifting, 24 Cap. U. L. Rev. 735, 738–41 (1995) (“The many types of asbestos products, the many possible places of exposure, the lack of direct evidence of particular product exposure, and the possibility of contributing factors have forced the courts to develop various standards of causation that are either separate from the two traditional tests or are variations of the same.”)

[122].      See Holcomb, 289 P.3d at 193–95.

[123].      Id. at 193–94.

[124].      Id. at 195.

[125].      Id. at 194.

[126].      Id. at 195.

[127].      Id.

[128].      Lahav, supra note 104, at 1, 14. 

[129].     Campos, supra note 104, at 234 (arguing that the relevant inquiry is whether the defendant’s conduct caused the population harm as a whole in unlawful “mass production” cases).

[130].      Id.

[131].      Id. at 264.  He noted that statistical proof supporting general causation was admitted to prove specific causation in the pesticide Roundup MDL. Id. at 259–60.

[132].      Lahav, supra note 104 (arguing that “the but-for test should be jettisoned” in tort cases where causation is based on probabilities).

[133].      Id. at 21.

[134].      Id. at 23.

[135].      U.S.C. §§ 300aa-14–34.

[136].      Agent Orange Act of 1991, 38 U.S.C.§ 101.

[137].      Victim Comp. Fund, September 11th Victim Compensation Fund 4 (2020), https://www.vcf.gov/sites/vcf/files/media/document/2020-03/VCF_Overview.pdf.

[138].      See Grey & Orwoll, supra note 3, at 77–78.

[139].      See, e.g., Ariz. Exec. Order No. 2020-12 (Mar. 23, 2020), https://azgovernor.gov/executive-orders (deeming grocery stores, media, hardware stores, educational institutions, laundry services, restaurants, day care centers, hotels, and other businesses to be essential businesses); Vt. Exec. Order. No 01-20 add. 6 (Mar. 24, 2020), https://governor.vermont.gov/sites/scott/files/documents/ADDENDUM%206%20TO%20EXECUTIVE%20ORDER%2001-20.pdf (deeming businesses engaged in health care operations, law enforcement and public safety, critical infrastructure and manufacturing, retail services for human needs, fuel products, transportation, trash collection, agriculture, mail, banking, and other services as “critical to public health and safety”).

[140].      See infra notes 135–37 and accompanying text. 

[141].      See infra notes 135–37 and accompanying text.

[142].      42 U.S.C. §§ 300aa-14–34.

[143].      National Vaccine Injury Compensation Program, Health Res. & Servs. Admin. (Jan. 2020), https://www.hrsa.gov/vaccine-compensation/index.html.

[144].      See id.

[145].      42 U.S.C. § 300aa-11(c).

[146].      42 U.S.C. § 300aa-14.

[147].      National Vaccine Injury Compensation Program: Revisions to the Vaccine Injury Table, 82 Fed. Reg. 6,294, 6,295 (Jan. 19, 2017) (to be codified at 42 C.F.R. 100).

[148].      Id.

[149].      Id.

[150].      42 U.S.C. § 247d-6e.  For claims for injuries that may be caused by coronavirus vaccines, compensation will be distributed under the Countermeasures Injury Compensation Program, which is part of the PREP Act.  Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. 15198 et seq. (March 17, 2020), amending 42 C.F.R. § 110.100.

[151].      42 U.S.C. § 247d-6e(b)(5).

[152].      In the context of Covid-19, countermeasures can include antivirals, drugs, biologics, diagnostics, devices, or vaccines.  Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19, 85 Fed. Reg. at 15,202.

[153].      See Kevin J. Hickey, Cong. Rsch. Serv., LSB10443, The PREP Act and COVID-19: Limiting Liability for Medical Countermeasures 1 (2020) (“[The PREP Act serves to] encourage the expeditious development and deployment of medical countermeasures during a public health emergency.”).

[154].      See Ralph Blumenthal, How Judge Helped Shape Agent Orange Pact, N.Y. Times (May 11, 1984), https://www.nytimes.com/1984/05/11/nyregion/how-judge-helped-shape-agent-orange-pact.html (describing the judge’s warnings “that the veterans’ case had big problems” but that “a Brooklyn jury [would] be sympathetic to the veterans”).

[155].      Agent Orange Act of 1991, 38 U.S.C.§ 101.

[156].      38 U.S.C. 1116(a)(2); see also Agent Orange Exposure and VA Disability Compensation, U.S. Dep’t. Veterans Affs. (Sept. 18, 2020), https://www.va.gov/disability/eligibility/hazardous-materials-exposure/agent-orange/related-diseases/.

[157].      38 U.S.C. 1116(a)(1). The VA states that the presumption applies to veterans who served in Vietnam between January 9, 1962 and May 7, 1975 or in the Korean Demilitarized Zone between September 1, 1967 and August 31, 1971. Agent Orange Exposure and VA Disability Compensation, supra note 156.

[158].      Victim Comp. Fund, supra note 137, at 1, 4.

[159].      James Zadroga 9/11 Health and Compensation Act of 2010, Pub. L. No. 111-347, 124 Stat. 3623 (2011); Never Forget the Heroes: James Zadroga, Ray Pfeifer, and Luis Alvarez Permanent Authorization of the September 11th Victim Compensation Fund Act, Pub. L. No. 116-34, 133 Stat. 1040 (2019).

[160].      Victim Comp. Fund, supra note 137, at 7.

[161].      42 U.S.C. § 300mm-22(a).

[162].      Id.

[163].      Scott D. Szymendera, Cong. Rsch. Serv., R45969, The September 11th Victim Compensation Fund (VCF) 3 (2019).

[164].      Victim Comp. Fund, supra note 137, at 7.

[165].      Jim Pocius, Workers Compensation and Course of Employment, Int’l Risk Mgmt. Inst., Inc. (Feb. 2001), https://www.irmi.com/articles/expert-commentary/workers-compensation-and-course-of-employment.

[166].      See S.B. 241, 31st Leg., 2d Reg. Sess. (Alaska 2020); H.F. 4537, 91st Leg., Reg. Sess. (Minn. 2020); Wis. Stat. § 102.03(6) (2020).

[167].      Cal. Exec. Order N-62-20 (May 6, 2020), https://www.gov.ca.gov/wp-content/uploads/2020/05/5.6.20-EO-N-62-20-text.pdf.  Governor Newsom’s executive order created a rebuttable presumption that an employee who tests positive for Covid-19 within fourteen days of working at the employee’s place of employment caught the disease in the course of employment.  This presumption is “disputable” and does not apply if the employee’s place of employment is his own residence.  Id.

[168].      See Jon L. Gelman, Lessons from Asbestos Litigation Apply to Covid Claims 1, 8 (Aug. 4, 2020) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3659568 (calling for creation of federal fund to indemnify employers and workers’ compensation insurance companies for Covid-19 claims to maintain solvency).

[169].      See Elizabeth Chambee Burch, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation 32 (2019) (The values that accompany civil litigation include “deterrence, compensation, information production, victim empowerment, public participation in democratic trials, and equity before the law.”).

[170].     Emma Grey Ellis, How Health Care Workers Avoid Bringing Covid-19 Home, WIRED (Apr. 4, 2020, 8:00 AM), https://www.wired.com/story/coronavirus-covid-19-health-care-workers-families/ (describing how some healthcare workers “have moved into hotel rooms or sleep in their cars,” work “24-hour shifts to reduce the number of times they move between the hospital and home,” or “sent their children and families to stay with friends or grandparents rather than risk exposing them to the virus”).

[171].      See generally Andrew F. Popper, In Defense of Deterrence, 75 Alb. L. Rev. 181 (2012) (discussing the role of deterrence in tort law and tort reform).

[172].      See Jason R. Bent, An Incentive-Based Approach to Regulating Workplace Chemicals, 73 Ohio St. L.J. 1389, 1394–95 (2012) (“[T]he current workers’ compensation and OSHA systems are inadequate to correct the market[’s] failure[]” to take proper precautions.).

[173].      Why is OSHA AWOL?, N.Y. Times (June 21, 2020), https://www.nytimes.com/2020/06/21/opinion/coronavirus-osha-work-safety.html (“[T]he federal agency meant to protect America’s workers continues to sit on the sidelines.”). 

[174].   See supra note 166. 

By Sophia Pappalardo & Kenya Parrish

In re: Murphy-Brown, LLC

In this civil case, the Petitioner requested mandamus relief from a gag order issued by the United States District Court for the Eastern District of North Carolina. The gag order imposed strict requirements on participants and potential participants of interrelated nuisance suits brought against hog farms in North Carolina. The Fourth Circuit found the district court’s order to be defective and granted the petition. Thus, the Fourth Circuit directed the district court to vacate the gag order and allow the parties to begin their suits again under guidelines set forth by the Fourth Circuit, but only if warranted by exceptional circumstances.

 

By Elliott Beale and Cassidy Webb

Samuel James Ervin III was born on March 2, 1926 in Morganton, North Carolina.[1] Judge Ervin joined the U.S. Army and served as a lieutenant from 1944 to 1946.[2] After Judge Ervin earned his Bachelor of Science from Davidson College in 1948, he received his LL.B. from Harvard Law School in 1951.[3] Following another two year stint in the U.S. Army, Judge Ervin returned to Morganton to work in private practice.[4] Judge Ervin worked at Patton, Ervin, and Starnes, where he became associated in 1957.[5] While working in private practice, Judge Ervin served as a solicitor for the Burke County Board of Commissioners from 1954 to 1956 and North Carolina State Representative from 1965 to 1967.[6] Governor Dan K. Moore named Judge Ervin to fill a vacancy on the North Carolina Superior Court for the 25th Judicial District in July 1967.[7] Judge Ervin served on the North Carolina Superior Court until 1980.[8]

On April 2, 1980, President Jimmy Carter nominated Judge Ervin to a new seat on the U.S. Court of Appeals for the Fourth Circuit.[9] He was confirmed by the Senate on May 21, 1980 and received his commission on May 23, 1980.[10] He served as Chief Judge of the Fourth Circuit from 1989 to 1996.  While serving as Chief Judge, Judge Ervin was also a member of the Judicial Conference of the United States from 1989 to 1995.[11] His service terminated on September 18, 1999 upon his death.[12]

One of the most interesting cases Judge Ervin said he presided over as a North Carolina judge was when the court effectively rewrote James B. Duke’s, founder of Duke Power, will.[13] Judge Ervin had to determine what Duke would have done with the dispositional investment his foundation had in Duke Power Company had Duke known about the Tax Reform Act at the time he made his will.[14] Judge Ervin also presided over one of the first inverse condemnation cases in Charlotte.[15] He had to determine whether airplanes could inversely condemn the property by flying at low altitudes regularly over people’s houses and if this enabled the individuals to recover damages for their property’s loss of value.[16]

Following his death, Judge James Dickson Phillips, Jr. fondly remembered Judge Ervin as the “very model of prudence and temperance, of fortitude and fairness.”[17] Judge Phillips described Judge Ervin as a man who wore no masks and acted with integrity, courtesy, and civility in all circumstances.[18]

Judge Ervin was survived by his wife, two daughters, and two sons.[19] His sons, Samuel “Jimmy” Ervin IV and Robert C. Ervin, both followed in their father’s footsteps and became judges.[20] Judge Ervin IV currently serves as an Associate Justice of North Carolina Supreme Court, and Judge R. Ervin currently serves as a North Carolina Superior Court judge.[21] Judge Ervin IV says one of the biggest lessons his father taught him “was to remember that behind any case that comes before the court there are real people with real problems whose lives will be substantially affected by what the members of the court do.”[22]

 

 

[1]Ervin, Samuel James III, Fed. Jud. Ctr., https://www.fjc.gov/node/1380526 (last visited Oct. 23, 2018).

[2]Id.

[3]Id.

[4]Id.

[5]Jimmy Rhyne, 50 Years Ago, News Herald (Jul. 10, 2017), https://www.morganton.com/townnews/law/years-ago/article_30f8f7a0-6586-11e7-8b89-b33a295af7d6.html.

[6]Fed. Jud. Ctr., supra note 1.

[7]Rhyne, supra note 5.

[8]Fed. Jud. Ctr., supra note 1.

[9]Id.

[10]Id.

[11]Id.

[12]Id.

[13]Interview by Hilary L. Arnold with Judge Sam J. Ervin III, Chief Judge of the Fourth Circuit, in Morganton, NC, (Feb. 24, 1993 & Apr. 8, 1993), https://dc.lib.unc.edu/cdm/ref/collection/sohp/id/12622.

[14]Id.

[15]Id.

[16]Id.

[17]James D. Phillips, Jr., Sam J. Ervin III: A Tribute, 78 N.C. L. Rev. 1705, 1706 (2000).

[18]Id.

[19]Samuel James Ervin 3d, 73 Federal Judge, N.Y. Times (Sept. 21, 1999), https://www.nytimes.com/1999/09/21/us/samuel-james-ervin-3d-73-federal-judge.html.

[20]Sharon McBrayer, Taking the Bench: Sam Ervin Sworn in as NC Supreme Court Judge, News Herald (Jan. 8, 2015), https://www.morganton.com/news/taking-the-bench-sam-ervin-sworn-in-as-nc-supreme/article_44c98846-9796-11e4-a117-f7ef4aff205c.html.

[21]Id.

[22]Id.

By Kenya Parrish & Sophia Pappalardo

The Honorable James Dickson Phillips Jr. was born in Laurinburg, North Carolina on September 23, 1922.[1] Judge Phillips graduated as the salutatorian of his high school in 1939 and went on to attend Davidson College.[2] At Davidson, Judge Phillips was the captain of the baseball team and achieved Phi Beta Kappa academic honors.[3] In addition to playing baseball, Judge Phillips was also a member of the Army ROTC program at Davidson, and after graduating in 1943, Judge Phillips enlisted in the United States Army as a 2nd Lieutenant.[4] Judge Phillips then fought and was injured in World War II and was later honored with the Bronze Star and the Purple Heart for his military service.[5]

In 1945, Judge Phillips rode with his friend as he traveled to begin his studies at the University of North Carolina School of Law, and after meeting with the dean, Phillips was admitted on the spot to study at the law school as well.[6] Just as he did at Davidson, Judge Phillips excelled academically in law school, serving as Associate Editor of the North Carolina Law Review and earning Order of the Coif academic honors.[7] Judge Phillips’s first job after graduating from law school was serving as the assistant director of the UNC Institute of Government.[8] In 1949, Judge Phillips then returned to his hometown of Laurinburg to work in private practice with his longtime friend and law school classmate, Terry Sanford, who later served as Governor of North Carolina.[9]

After working as a trial lawyer, Judge Phillips returned to the UNC School of Law in 1959 as a visiting professor in civil procedure and related subjects.[10] Judge Phillips later became an associate professor, and in 1964, he became a tenured full professor and the eighth Dean of the UNC School of Law.[11] During his ten-year term as dean, the law school inaugurated the Holderness Moot Court program, sponsored of the school’s first clinical classes, carried out the largest fundraising effort in the school’s history, and had a North Carolina bar passage rate of 95.8% among its graduates.[12]

Judge Phillips was appointed to the U.S. Court of Appeals for the Fourth Circuit by President Carter on July 20, 1978.[13] He assumed senior status in 1994.  Judge J. Harvie Wilkinson, III described Judge Phillips as a “heroic man of courage, both on the military battlefield and in a courtroom.  He had a great feel for humanity, and a strong combination of intellect, integrity and humility.  He exemplified what is good about being a judge.”[14]

Many of the cases Judge Phillips addressed involved contentious topics that are still relevant today: minority voting rights, gerrymandering, and sex discrimination.[15] Notably, he wrote the opinion for Gingles v. Edminsten, where the court held that a North Carolina redistricting plan violated Section 2 of the Voting Rights Act.[16] The decision was appealed directly to the U.S. Supreme Court, which affirmed the judgment for all but one of the House Districts.[17]

Ten years later, Judge Phillips dissented from the Fourth Circuit panel’s majority decision in United States v. Virginia, a sex discrimination case.[18] The majority held that a state-sponsored all-male military program at the Virginia Military Institute did not violate the Fourteenth Amendment’s Equal Protection Clause as long as the state also supported an all-female leadership program at the all-female Mary Baldwin College.[19] Judge Phillips wrote, “I would . . . declare the VMI men-only policy still in violation of the Equal Protection Clause, and order that the violation be ended . . . .”[20] A year later, and consistent with Judge Phillips’s dissent, the U.S. Supreme Court overturned the Fourth Circuit’s decision.[21]

Judge Phillips sat on the Fourth Circuit until 1999.[22] After twenty-one years on the bench, he was succeeded by Judge James A. Wynn, who described Judge Phillips as “one who exuded grace and gentility coupled with great scholarship.  He was a role model.”[23] Others described him as a “colorful storyteller with a quick wit and sly sense of humor.”[24] At the age of ninety-four, the Honorable James Dickson Phillips Jr. passed away at his home on August 27, 2017.[25]

[1] John Charles Boger, J. Dickson Phillips Jr.: Preparation for Judicial Excellence, 92 N.C. L. Rev. 1789, 1789 (2014); Anne Blythe, He Earned a Purple Heart, Led UNC Law and Shaped Civil Rights as a Judge, News & Observer (Aug. 30, 2017, 5:59 PM), https://www.newsobserver.com/news/local/article170309727.html.

[2]  Boger, supra note 1 at 1790.

[3] Id.

[4] Id.

[5] Id. at 1791.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. at 1792.

[11] Id.; Martin H. Brinkley, Carolina Law Community Remembers Dean and Judge James Dickson Phillips Jr. ’48 (1922-2017), U.N.C. Sch. L.(Aug. 29, 2017), http://www.law.unc.edu/news/2017/08/29/remembering-dean-james-dickson-phillips-jr-48/.

[12] Boger, supra note 1 at 1793.

[13] Judge James Dickson Phillips, Jr., U. N.C. Sch. L., http://phillips.law.unc.edu/judicial-service/(last visited Oct. 1, 2018).

[14] Fourth Circuit Court of Appeals Remembers Judge J. Dickson Phillips, Jr., U.S. Ct. of Appeals for the Fourth Cir. (August 31, 2017), https://perma.cc/LN44-Z97N.

[15] Blythe, supra note 1.

[16] Gingles v. Edminsten, 590 F. Supp. 345, 350 (E.D.N.C. 1984).

[17] See Thornburg v. Gingles, 478 U.S. 30, 80 (1986).

[18] U.S. v. Virginia, 44 F.3d 1229, 1242–51 (4th Cir. 1995).

[19] Id. at 1232.

[20] Id. at 1243.

[21] U.S. v. Virginia, 518 U.S. 515, 515–18 (1996).

[22] Blythe, supra note 1.

[23] Id.

[24] Id.

[25] Id.

By Mackenzie Bluedorn and Jacqueline Canzoneri

Relevant Facts

This case began as an age discrimination claim.  The Equal Employment Opportunity Commission (“EEOC”) initially challenged that Baltimore County’s (“County”) retirement plan violated the Age Discrimination in Employment Act (“ADEA”) because its age-based contributions required older employees to pay higher percentages of their salaries.[1]  When adopting its retirement benefit plan in 1945, the County stated that employees were eligible to retire and receive pension benefits at the age of 65, no matter how long the individual had actually been employed and contributing the plan.[2] Because the payments of an employee who joined the plan at an older age would accrue less interest than payments made by younger employees before the employees actually started to draw from the fund, the County determined that older employees should be charged higher rates.[3] Although the retirement benefit plan was amended several times over the years, the different contribution percentages based on age were never fully eliminated.[4] In response to this policy, the EEOC first brought civil suit in the District Court of Maryland in 2007, requesting injunctive relief to bar the discriminatory contribution percentages and reimburse employees subject to the age discrimination through back pay.[5]

 

Procedural Posture

This opinion was the third issued in a series of appeals for this case.  In 2010, the court of appeals initially reversed and remanded the district court’s holding in favor of Baltimore County, prompting the district court to reconsider whether the retirement benefit rates violated the ADEA.[6]  The issue once again reached the court of appeals for opinion in 2014. The second time, the district court had determined that the rates were impermissible and granted partial summary judgment on liability in favor of the EEOC, but the court of appeals then remanded again for consideration of damages.[7]  Although the parties had entered into a consent order for injunctive relief, the order did not discuss monetary relief and stated that the issue would be considered on a later date.[8]

The case then reached the court of appeals for a third time in 2018 after the EEOC appealed the district court’s determination on damages that it had discretion to deny an award of back pay otherwise afforded under the ADEA.  In reaching its decision, the district court held that it had discretion over whether or not to award that remedy or, in the alternative, that even if back pay were mandatory under enforcement of the ADEA, the court’s equitable powers still granted it the authority to deny back pay because the EEOC delayed so long in originally bringing this case.[9] The underlying issue for the court of appeals to consider on this third appeal was under the ADEA, is the monetary award of retroactive back pay discretionary, after liability has been established.

 

Plaintiff-Appellant Argument: Equal Employment Opportunity Commission (“EEOC”)

While Baltimore County grounded its argument in statutory language of the ADEA, the EEOC highlighted specific Fair Labor Standards Act (“FLSA”) provisions that have been incorporated into the ADEA.[10]  Most notably, the ADEA adopted the FLSA provision that violators “shall be liable” for back pay.[11] The EEOC argued that because back pay is a mandatory legal remedy under the FLSA, and because the ADEA adopted this language, it is not a discretionary issue. The choice of language reflected Congress’ intent that remedies under both of these statutes should be construed in the same manner. Thus, the District Court lacked discretion to determine whether back pay was owed.

 

Defendant-Appellee Argument: Baltimore County (“County”)

Baltimore County argued that back pay was properly denied because the district court is granted wide authority under the ADEA.  Specifically, the County claimed that the court has broad authority under 29 U.S.C. § 626(b) “to grant such legal or equitable relief as may be appropriate,” which could include the denial of back pay.[12]  Under broad authority, the court should be allowed to determine appropriate remedies, similar to the discretionary nature of back pay under Title VII. The County tried to expand precedent, by relying on various United States Supreme Court cases regarding Title VII pension issues.[13]  In those cases, the Court held that retroactive monetary awards are discretionary under Title VII and did not award any retroactive monetary relief.[14]

As the district court itself determined following the second remand of this case, it would be equitable to deny back pay in this instance, even if it were mandatory under the ADEA, because the EEOC had delayed initiating this suit for years.[15]  The County emphasized the long delay in the EEOC’s action, which led to the County incurring substantially more liability in back pay.[16]

 

Holding & Rationale

The Court of Appeals for the Fourth Circuit agreed with the EEOC’s interpretation of the ADEA’s language and concluded that retroactive monetary award of back pay is mandatory, not discretionary, upon the finding of liability.  The initial matter of liability was already decided through issuance of partial summary judgment in favor of the EEOC following the first remand of the case. To assess the statutory language of the ADEA, the court considered the plain language of the statute, congressional intent, United States Supreme Court precedent, and legislative history.

The court addressed the plain language of enforcement under 29 U.S.C. § 626(b).  As a threshold matter, the court stated that the ADEA was a remedial statute and therefore warrants liberal interpretation. Furthermore, because specific FLSA language regarding back pay was incorporated into the ADEA enforcement provision, interpretation of the provision should mirror prior interpretations of the relevant back pay provisions in the FLSA.[17]  As such, under the FLSA, retroactive monetary damages are considered mandatory. Thus, by extension, there was an apparent congressional intent that such damages should also be mandatory under the ADEA.[18]

In regard to relevant precedent, the court’s touchstone of inquiry was a United States Supreme Court case, Lorillard v. Pons,[19] where the Court applied a similar analytical framework while interpreting another portion of the ADEA.[20]  There, the Court stated that since the ADEA adopted specific FLSA language, it should be interpreted as its original counterpart was interpreted.[21] The Fourth Circuit also rejected the County’s reliance on the Title VII pension cases because there, back pay was an equitable remedy, whereas here under the ADEA, back pay would be a legal remedy.[22]

Next, the court considered legislative history.  While drafting the enforcement clause of the ADEA, Congress was faced with various potential enforcement mechanisms.[23]  Ultimately, Congress specifically chose to incorporate FLSA remedial measures into the ADEA.[24] This conscious decision of incorporation, and rejection of other options, is relevant legislative history that assists with judicial interpretation of statutory language.[25]

Finally, the court next addressed the district court’s alternative holding that, even if the statutory language indicated back pay was mandatory, the court still had discretion through its equitable powers.  The court of appeals fully rejected the district court’s comparison of the ADEA to Title VII, under which the Supreme Court had held that retroactive monetary awards were, in fact, discretionary.[26] The court of appeals explained that an award of back pay under Title VII was up to a court’s discretion because it was an equitable remedy; under the ADEA, however, back pay was a legal remedy, and only the amount of back pay was open-ended, to be determined at the discretion of the factfinder.[27]

 

Conclusion

The district court’s opinion was vacated and remanded for the consideration of the amount of back pay owed to the affected employees under the ADEA.

 

 

[1] EEOC. v. Baltimore Cty., 747 F.3d 267, 1–2 (4th Cir. 2014).

[2] Id. at 3.

[3] Id. at 4–5.

[4] Id. at 6.

[5] Id. at 7.

[6] EEOC. v. Baltimore Cty., No. 16-2216, 2018 U.S. App. LEXIS 26644, at *2 (4th Cir. Sept. 19, 2018).

[7] Id.

[8] Id.

[9] Id. at *2–*3.

[10] Id. at *4–*5.

[11] Id. at *5.

[12] Id. at *3.

[13] Id. at *9.

[14] Id.

[15] Id. at *3.

[16] Id. at *11.

[17] Id. at *5–*6.

[18] Id. at *7.

[19] 434 U.S. 575 (1978).

[20] Baltimore Cty., 2018 U.S. App. LEXIS 26644, at *8.

[21] Id.

[22] Id. at *10.

[23] Id. at *8.

[24] Id. at *9.

[25] Id.

[26] Id. at *10.

[27] Id.