Before diving into the legal challenges that surrounded North Carolina’s 2022 congressional redistricting, it is important to understand the recent history of redistricting in the state. In 2010, a wave election year for North Carolina Republicans, the GOP stunned those who follow state politics by securing majorities in both houses of the General Assembly for the first time since 1898.[1] Underscoring the enormity of this shift, the State Senate flipped from a Democratic majority of 30–20 to a Republican majority of 31–19, while the State House of Representatives flipped from a Democratic majority of 68–52 to a Republican majority of 68–52.[2]
Having endured severe Democratic gerrymanders at the congressional level,[3] following their wins in 2010, legislative Republicans redrew congressional maps to generate a 10–3 Republican advantage.[4] Under the North Carolina Constitution, congressional districts are drawn by the General Assembly and are not subject to the governor’s veto.[5] Partially because of this structure, the Democratic aligned National Redistricting Action Fund, which is closely associated with former Attorney General Eric Holder, has frequently brought suit to enjoin maps favoring the GOP.[6] Under North Carolina statutes, when a congressional map is challenged in state court, a three-judge panel, composed of Wake County’s senior superior court judge and two additional superior court judges appointed by the chief justice of the North Carolina Supreme Court, have exclusive jurisdiction.[7] Appeals from this panel go directly to the state supreme court.[8]
In 2018, North Carolina Republicans saw their congressional advantage eroded from 10–3 to 8–5, following a federal court ruling that Republican state legislators “had violated the First amendment and the equal-protection clause of the Fourteenth Amendment when they drew congressional lines that favored their party.”[9] Given these losses, legislative Republicans went into 2022 looking to regain the lost seats.[10] Following the 2020 Census, buoyed by North Carolina’s increasing population, which resulted in the state gaining a fourteenth congressional seat,[11] legislative Republicans again drew congressional maps that would have generated a 10–4 majority, even in bad political climates for the GOP.[12] Likely due to an ideological shift in the North Carolina Supreme Court, which now has a 4–3 Democratic majority,[13] this year, Democratic–backed groups sued the General Assembly in state court, seeking to have the maps enjoined, according to the process outlined above.[14]
In a 260-page order, a three-judge panel upheld the map, ruling that “[a]t no point has restriction of redistricting for partisan advantage ever been made part of any North Carolina Constitution.”[15] The panel viewed the constraints on redistricting enumerated in the North Carolina Constitution—that members of Congress should represent nearly equal numbers of constituents, that districts should be contiguous, that maps should split as few counties as feasible, etc.—as exhaustive.[16] The panel was unwilling to infer that the equal protection and free speech clauses of the state constitution somehow limited the legislature’s redistricting power; rather, the court wrote that “[i]f the framers did intend to limit the partisan advantage that could be obtained through redistricting, ‘it is reasonable to presume it would have been declared in direct terms and not be left as a matter of inference.’”[17] The panel stressed that the judiciary should not involve itself in such a purely political question, writing, “[w]ere we as a Court to insert ourselves in the manner requested, we would be usurping the political power and prerogatives of an equal branch of government. Once we embark on that slippery slope, there would be no corner of legislative or executive power that we could not reach.”[18]
However, in an order dated February 14, the North Carolina Supreme Court reversed the lower court, writing that the congressional map was “unconstitutional beyond a reasonable doubt under the free elections clause, the equal protection clause, the free speech clause, and the freedom of assembly clause of the North Carolina Constitution.”[19] The court reasoned that to comply with the constraints in the North Carolina Constitution, “the General Assembly must not diminish or dilute any individual’s vote on the basis of partisan affiliation.”[20] The court further explained that when the legislature enacts a map that makes it more difficult for an individual to join with likeminded voters to elect a governing majority, “the General Assembly unconstitutionally infringes upon that voter’s fundamental right to vote.”[21]
Following its order, the court allowed the General Assembly a second opportunity to draw less partisan maps and suspended candidate filing during that period.[22] However, the legislature enacted another congressional map that would have likely resulted in a 10–4 Republican advantage.[23] On February 23, the reviewing three-judge panel rejected the second map drawn by the legislature and adopted a map drawn by four non-partisan special masters, which will likely result in either an 8–6 Republican advantage, or an evenly divided delegation.[24] The state supreme court subsequently approved of this map and reopened candidate filing.[25]
On February 25, the Speaker of the North Carolina House of Representatives, Tim Moore, filed an emergency appeal in the United States Supreme Court seeking to overturn the court-enacted congressional map,[26] arguing that the court-imposed map “usurped the legislature’s power to regulate congressional elections under the U.S. Constitution.”[27] The appeal—Moore v. Harper—was placed on the Court’s shadow docket.[28]
Moore asked the Court to expand its prohibition against judicial interference with redistricting to cover state courts.[29] The theory underlying the Speaker’s appeal is known as the independent state legislature doctrine.[30] The theory is grounded in Article I, Section 4 of the United States Constitution, which gives state legislatures the authority to determine the time, place, and manner of congressional elections.[31] While this grant of authority has been viewed as giving legislative leaders the authority to set the ground rules for elections, it has not previously prevented state court process.[32] However, Speaker Moore and legislative Republicans argued that the legislature’s power under the Constitution is supreme, thereby preventing state court interference, even in instances where a map might violate the state constitution.[33] Particularly, Moore argued that the state supreme court interfered with legislative authority to regulate the manner of elections when it enacted a map drawn by its own special masters.[34]
For over one-hundred years, the Supreme Court has rejected this expansive view of the powers granted to state legislatures.[35] In accord with this precedent, the Court rejected Moore’s appeal.[36] However, fissures are starting to appear in what had seemed to be a settled area of law. First, at least four of the Court’s current justices signaled some willingness to examine the independent state legislature doctrine during former President Trump’s challenges to the 2020 election.[37] Second, while the Court’s decision in Moore left in place the court-imposed maps, it did so over a pointed dissent penned by Justice Alito, who was joined by Justices Thomas and Gorsuch.[38] The dissenters noted that the “case present[ed] an exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”[39] Justice Alito stressed the importance of answering this question, before lamenting that the Court had missed another opportunity to do so.[40]
Justice Kavanaugh wrote separately, concurring in the denial of Moore’s application for a stay.[41] While Kavanaugh ultimately voted with the majority, he did so only because he felt that it was “too late for the federal courts to order that the district lines be changed for the 2022 primary and general elections[.]”[42] Kavanaugh largely agreed with Justice Alito that Moore had “advanced serious arguments on the merits” and posed a question that will “keep arising until the Court definitively resolves it.”[43]
This is likely not the end of the road for the independent state legislature doctrine. We now know at least four justices are willing to entertain the doctrine, enough to grant certiorari. Some “Court watchers” are predicting that the fate of the theory rests on the vote of Justice Amy Coney Barrett, the only justice who has been, as of yet, completely silent on the merits of the doctrine.[44] Time will tell.
[10]See Michael Wines, North Carolina Court Says G.O.P. Political Maps Violate State Constitution, N.Y. Times (Feb. 4, 2022), https://www.nytimes.com/2022/02/04/us/north-carolina-redistricting-gerrymander-unconstitutional.html.
[29] Adam Liptak, Supreme Court Allows Court-Imposed Voting Maps in North Carolina and Pennsylvania, N.Y. Times (Mar. 7, 2022), https://www.nytimes.com/2022/03/07/us/supreme-court-voting-maps.html (arguing “that the state legislature has sole responsibility for drawing congressional districts and that state courts have no role to play”).
[41] Moore v. Harper, No. 21A455, slip op. at 1 (U.S. Mar. 7, 2022) (Kavanaugh, J., concurring), https://www.supremecourt.gov/opinions/21pdf/21a455_5if6.pdf.
In 2020, the Supreme Court declared that a large part of Oklahoma was still Indian country[1] because Congress had never formally disestablished a reservation. While the McGirt v. Oklahoma[2] decision certainly had a large impact on the state of Oklahoma and was celebrated as a recognition of Native American treaty rights, its impact was felt less outside of the state. However, the Supreme Court left a question unanswered in McGirt that could fundamentally change the way that states prosecute crimes in Indian country.
Under the federal Major Crimes Act,[3] any American Indian[4] who commits certain offenses is subject to the exclusive jurisdiction of the United States.[5] As Justice Gorsuch put it, “[s]tate courts generally have no jurisdiction to try [American] Indians for conduct committed in ‘Indian country.’”[6] A neighboring statutory provision extends this rule more broadly, stating that “[e]xcept as otherwise expressly provided by law, the general laws of the United States . . . in any place within the . . . exclusive jurisdiction of the United States . . . shall extend to the Indian country.”[7]
Therefore, in addition to re-recognizing the Muscogee Creek Nation’s reservation, McGirt essentially removed between ten and fifteen percent of Oklahoma’s population from state criminal jurisdiction when they committed crimes in Indian country. While the Muscogee Creek reservation only covers approximately ten percent of Oklahoma, subsequent state court cases have extended McGirt to re-recognize the Cherokee, Choctaw, Chickasaw, and Seminole reservations, which together cover almost all of eastern Oklahoma.[8] As a result of these decisions, nearly half of Oklahoma’s four million residents now reside in Indian country.[9]
The McGirt decision only touched on whether states have jurisdiction under the Major Crimes Act to prosecute American Indians who commit crimes in Indian country.[10] In response to losing jurisdiction, Oklahoma petitioned the Supreme Court for review of the McGirt decision and the question of whether states have authority to prosecute non-American Indians in Indian country when the victims are American Indian.[11] Although the Supreme Court withheld certiorari on Oklahoma’s first question, it is taking up the second.[12]
Oklahoma argues that previous decisions from the Oklahoma Court of Criminal Appeals overstepped the bounds of both the Major Crimes Act, 18 U.S.C. § 1153, and the General Crimes Act, 18 U.S.C. § 1152.[13] In so doing, it relies on a mix of textual interpretation of the statutes and analysis of nineteenth century precedent. Oklahoma’s textual analysis begins with a study of the text of the General Crimes Act.
Oklahoma takes issue with the Court of Criminal Appeals’ interpretation of two phrases in the General Crimes Act. The state first argues that the phrase “sole and exclusive jurisdiction” as used in the statute describes which laws extend to Indian country, and not what governments have prosecutorial authority over those laws.[14] Next, Oklahoma disagrees with the Court of Criminal Appeals as to the meaning of the phrase “except as otherwise expressly provided by law.”[15] Instead of exempting Indian country from state criminal law without an act of Congress, Oklahoma argues that the phrase refers to federal laws that do not reach Indian country without congressional approval.[16] This distinction, the state argues, allows Oklahoma to exercise concurrent jurisdiction over non-American Indians who commit crimes against American Indians in Indian country.
In addition to the textual argument, Oklahoma also points to a pair of decisions allowing states to exercise prosecutorial authority in Indian country. One, New York ex rel. Cutler v. Dibble,[17] allowed New York to enforce trespass laws against non-American Indians who attempted to settle in Indian country.[18] However, Dibble did not interpret either the Major or General Crimes Act, instead analyzing whether the New York law violated the Commerce Clause or a treaty.[19] Oklahoma also relies on United States v. McBratney,[20] a case interpreting the predecessor to the General Crimes Act that held that Colorado had jurisdiction over a murder committed by a non-American Indian in Indian country.[21] However, McBratney involved a murder where both the defendant and the victim were not American Indians, a situation that the Court affirmed was still within the jurisdiction of the states in McGirt.[22]
In response, Castro-Huerta argues that precedent stands on his side and that the statutory interpretation undertaken by the Court of Criminal Appeals was correct. In analyzing precedent, Castro-Huerta first points to Williams v. United States,[23] where the Supreme Court held that:
“[w]hile the . . . courts of the State . . . may have jurisdiction over [criminal] offenses committed on this reservation between persons who are not [American] Indians, the . . . courts of the United States . . . have jurisdiction over offenses committed there . . . by one who is not an [American] Indian against one who is.”[24]
Next, Castro-Huerta argues that Williams v. Lee,[25] a civil case involving non-American Indians suing American Indians for a dispute that happened in Indian country, bolsters his case.[26] There, the Supreme Court held that state courts did not have jurisdiction because allowing it would “infringe on the right of the [American] Indians to govern themselves.”[27]
In analyzing the decision of the Court of Criminal Appeals, Castro-Huerta essentially takes the opposite position of Oklahoma. In ascertaining the meaning of “sole and exclusive jurisdiction,” Castro-Huerta argues that the phrase is meant to parallel federal enclaves, where state law is inapplicable.[28] Additionally, Castro-Huerta notes that if Oklahoma’s statutory interpretation is correct, Congress would have had no need to specifically give certain states criminal jurisdiction over crimes involving American Indians on reservations.[29] Castro-Huerta’s argument is, in essence, that if state jurisdiction already extended to crimes involving American Indians in Indian country, Congress would not have assumed the opposite.
If the Supreme Court decides that states have concurrent jurisdiction in criminal cases where the defendant is not ana American Indian but the victim is, the implications will be felt much farther than the bounds of the Sooner State. Although many of the largest reservations, such as the Navajo Nation which encompasses parts of Arizona, New Mexico, and Utah, lie in the western part of the United States, reservations can be found in half of the states.[30] In addition to greatly reducing the judicial autonomy afforded to the Five Tribes of Oklahoma after McGirt and its subsequent state court cases, a decision in favor of Oklahoma in Castro-Huerta could fundamentally reorder the way that state criminal law is applied in Indian country across the United States.
[1] “Indian country” is a legal term of art used to refer to lands under the control of federally recognized tribes. For the sake of accuracy, it is used in this article with the same meaning as the Major Crimes Act, the General Crimes Act, and the caselaw interpreting those statutes.
[4] The term “American Indian” was chosen for use by the author throughout this blog. Where an alternative term is used, the different term was the result of a quote or another source.
College athletics has undergone a seismic shift. For decades, athletes participating in Division I college athletics were unable to receive compensation for the use of their name, image, and likeness (“NIL”), and they risked becoming ineligible to participate in their sport for doing so.[1] Today, National Collegiate Athletic Association (“NCAA”) guidelines allow student athletes to profit off of their NIL,[2] over half of states have enacted some form of NIL legislation,[3] and progress is being made toward federal NIL legislation.[4]
In National Collegiate Athletic Association v. Alston,[5] the United States Supreme Court provided a push for the NCAA to change course with respect to NIL rules.[6] While the majority of the Court avoided the question of NIL on review,[7] Justice Kavanaugh’s concurrence squarely attacked the issue.[8] Justice Kavanaugh expressed doubt that the portion of the NCAA’s compensation rules that were unaddressed by the majority (including NIL) were legally valid, stating that “[t]he NCAA’s business model would be flatly illegal in almost any other industry in America.”[9] Finally, seeing potential difficulties in changing NCAA compensation rules through litigation, Justice Kavanaugh proposed that the issue could be resolved through either legislation or collective bargaining by the student athletes themselves.[10] In any event, the writing was on the wall for the NCAA, which decided to take action.
Just nine days after the Alston opinion, on June 30, 2021, the NCAA announced a change to its compensation rules that allowed student athletes to profit from their NIL beginning the next day.[11] Now, student athletes in states that have passed NIL legislation “can engage in NIL activities that are consistent with the law of the state where the school is located.”[12] Further, student athletes in states without NIL legislation “can engage in this type of activity without violating NCAA rules related to name, image and likeness.”[13] So long as it is consistent with applicable law, student athletes can also engage a professional service provider for NIL activities.[14] At least for the time being,[15] gone are the days of students being forced to choose between NCAA eligibility and compensation for their NIL.[16]
Today, twenty-eight states have passed NIL legislation with varying nuances and restrictions.[17] Common restrictions include prohibiting contracts from extending beyond the time an athlete participates in sports at a particular institution,[18] directly tying compensation to participation,[19] otherwise known as “pay-for-play,”[20] and allowing institutions to restrict athletes’ use of team logos for personal NIL activity.[21] Moreover, some states prohibit specific industries from contracting with student athletes.[22] Prohibited industries include adult entertainment, alcohol, tobacco, and firearms.[23] Other states, favoring a more ambiguous approach, prohibit all industries that “negatively impact[] the reputation or the moral or ethical standards” of the institution.[24]
North Carolina is poised to be a key player in NIL based on its position in college sports. Home to Duke University and the University of North Carolina at Chapel Hill, each with multiple NCAA basketball championships,[25] and the current top two football teams in the Atlantic Coast Conference (“ACC”)—Wake Forest University and North Carolina State University[26]—the State has the potential to attract top-flight high school talent to its institutions. Roy Cooper, the Governor of North Carolina, signed an Executive Order regarding NIL on July 2, 2021, providing guidance on the future of NIL in the state.[27] Student athletes in North Carolina can now “earn compensation, and obtain related representation, for the use of their name, image, and likeness while enrolled at the institution, and such compensation and representation . . . shall not affect a student-athlete’s scholarship eligibility.”[28] Restrictions include prohibitions against the use of NIL contracts “as a direct inducement to enroll . . . at a particular institution.”[29] Further, the institutions themselves may not compensate student-athletes for use of their NIL.[30] Similar to Mississippi,[31] institutions in North Carolina “may impose reasonable limitations or exclusions on the categories of products and brands that a student-athlete may receive compensation for endorsing” when the institution “reasonably determines that a product or brand is antithetical to the values of the institution or that association with the product or brand may negatively impact the image of the institution.”[32] Moreover, as is the case in Illinois,[33] an institution in North Carolina “may limit a student-athlete’s compensation for their name, image, and likeness as it pertains to use of the institution’s intellectual property,” and the Executive Order does not give “any student-athlete the right to use the name, trademarks, service marks, symbols, logos or any other intellectual property that belong to an institution, athletic conference, or athletic association.”[34] Finally, in anticipation of an influx of NIL compensation for student-athletes, “[p]ostsecondary educational institutions are encouraged to provide financial literacy and life-skill programs to their student-athletes.”[35] Therefore, Governor Cooper’s Executive Order provides the framework for NIL dealings in North Carolina, though this is unlikely to be the end of the issue.
Beyond state legislation, Senator Roger Wicker of Mississippi declared that there is “broad consensus” that the federal government should pass NIL legislation, which would unify the various restrictions of states under one common federal standard.[36] Even the President of the NCAA, Mark Emmert, called on Congress for a “federal framework.”[37] Emmert and others claim that the current “patchwork” of state NIL legislation leads to confusion and an uneven playing field in college athletics.[38] Therefore, while the current landscape of NIL in college athletics remains a variety of state laws and, in states without NIL legislation, NCAA rules, preempting federal legislation is likely to pass and reshape college athletics once again.
[1]See Matthew N. Korenoski, O’Bannon v. NCAA: An Antitrust Assault on the NCAA’s Dying Amateurism Principle, 54 Duq. L. Rev. 493, 497–98 (2016).
[18]See, e.g., Fla. Stat. Ann. § 1006.74(2)(j) (2021) (“The duration of a contract for representation of an intercollegiate athlete or compensation for the use of an intercollegiate athlete’s name, image, or likeness may not extend beyond her or his participation in an athletic program at a postsecondary educational institution.”).
[19]See, e.g., Exec. Order No. 2021-418 (Ky. 2021).
[21]See, e.g., Student-Athlete Endorsement Rights Act, 110 Ill. Comp. Stat. Ann. 190/1-99 (LEXIS through P.A. 102-450 of the 2021 Session of the 102nd Legislature).
[22]See, e.g., Ark. Code Ann. § 4-75-1307(b) (Westlaw through the 2021 Regular and First Extraordinary Session of the 93rd General Assembly) (effective Jan. 1, 2022).
[24]See, e.g., Mississippi Intercollegiate Athletics Compensation Rights Act, Miss. Code Ann. § 37-97-107(14) (Westlaw through the 2021 Regular Session).
[33]See Student-Athlete Endorsement Rights Act, 110 Ill. Comp. Stat. Ann. 190/1-99 (LEXIS through P.A. 102-450 of the 2021 Session of the 102nd Legislature).
When systems work as expected, people generally are content to let such systems work in the background—the shadows—without needing to know the details. When those same systems start producing different and unexpected results, however, people want to shine a light into the shadows to understand, diagnose, and if needed, fix the system.
The concept of the shadow docket has been around since the Supreme Court’s inception,[1] but the term itself was first coined in 2015 by William Baude to refer to the Court’s “range of orders and summary decisions that defy its normal procedural regularity.”[2] Unlike the more well-known process of the “merits docket,” where the Court writes an opinion after multiple rounds of briefing and oral arguments, rulings from the shadow docket almost always come as orders from either a single Justice or the Court.[3] These orders usually come after only one round, or less, of briefing, do not contain a majority opinion nor reasoning, and most of the time provide no record of voting.[4] Because these orders can be handed down at any time—even in the middle of the night—and lack transparency, “these rulings come both literally and figuratively in the shadows.”[5]
Although the Court issues thousands of orders via the shadow docket each year, until recently, many did not pay much attention to the shadow docket because it was meant to resolve “unremarkable scenarios.”[6] For example, the Court has utilized the shadow docket to issue uncontentious decisions such as denying uncontroversial petitions for certiorari, denying petitions that clearly did not meet the criteria for emergency relief, granting additional time for parties to file briefs, and other procedures related to the Court.[7] Recently, however, the shadow docket has faced increased scrutiny focusing on a relatively small subset of cases that employ the shadow docket to seek emergency relief.
Although the Supreme Court has the power to grant emergency relief through issuing injunctions, and issuing and lifting stays,[8] the Court recognizes that these are “drastic and extraordinary remedies,”[9] which should be granted only when “adequate relief cannot be obtained in any other form or from any other court.”[10] In order to circumvent the typical appeals process and petition the Court for emergency relief, petitioners must show that “irreparable harm [will] result from the denial of a stay.”[11]
Congress has begun investigating the Court’s emergency relief orders because of the increased number and variety of cases for such relief.[12] Between 2001 and 2017, the Department of Justice only filed eight applications for emergency relief.[13] During the four years of the Trump administration, however, the Department of Justice filed forty-one such petitions, twenty-four of which were granted in full, and four in part.[14]
Additionally, the types of cases on which the Court has rendered decisions through the shadow docket has not only broadened, but also has become more divisive.[15] Although there were some controversial rulings via the shadow docket in the past, most of these decisions concerned elections and the death penalty.[16] In the last few years, shadow docket decisions have expanded to include cases regarding the border wall,[17] gathering restrictions due to COVID-19,[18] federal executions,[19] abortion bans,[20] eviction moratoriums,[21] and immigration policy regarding asylum seekers.[22] The Justices, like the public, have also been divided on these controversial issues. Of the eight emergency relief applications filed by the Justice Department between 2001 and 2017, only one had a dissent.[23] Conversely, in twenty-seven of the thirty-six[24] orders regarding the emergency relief applications filed during the Trump administration, at least one Justice publicly dissented.[25] Moreover, during the October 2019 Term, the number of 5-4 decisions from the shadow docket was almost equal to the number of 5-4 decisions on the merits docket.[26]
A major criticism of the recent orders the Court has issued via the shadow docket is that they are inconsistent with one another and with past precedent, leading some to view the decisions as advancing policy rather than the law.[27] In some cases, the Court has changed substantive law through emergency relief orders, articulating new constitutional rules to support such relief.[28] For example, in Tandon v. Newsom,[29] the Court issued an emergency injunction against a California law that prohibited in-home gatherings, including Bible studies and prayer meetings.[30] In its order, the Court adopted an expansive view of the First Amendment’s Free Exercise Clause which “no prior majority opinion had ever adopted. . . .”[31]
Conversely, in other cases, the Court has refused to grant emergency relief for constitutional rights. For instance, in Whole Woman’s Health v. Jackson,[32] the Court denied injunctive relief regarding a Texas law banning abortions after a heartbeat is detected, which is usually around six weeks.[33] Although the Court explicitly stated the “order [was] not based on any conclusion about the constitutionality of Texas’s law,”[34] such a denial of injunction for “an obviously unconstitutional abortion regulation,”[35] defies precedent in such situations and led some to conclude that “the [C]ourt is advancing a partisan political agenda and not a legal one.”[36] When the Court uses the shadow docket to create a new interpretation of the First Amendment in one case but then refuses to utilize it to extend protection to an existing fundamental right in another, critics worry that such inconsistencies undermine the legitimacy of the Court.[37]
There are myriad problems with the recent shadow docket emergency relief cases. For one, the timing of these decisions, which can be handed down late at night,[38] and the usual absence of knowing which way Justices voted create opacity in the system.[39] Moreover, shadow docket orders often do not provide any reasoning for the decisions they hand down, making “it impossible to scrutinize the merits of the Court’s action in far too many of these cases.”[40] Due to this lack of reasoning, it is challenging for lower courts to know how to apply these decisions in subsequent cases, even though such orders are now meant to be treated as precedent.[41] Additionally, other interested parties do not provide input and the Court does not have the benefit of hearing oral arguments.[42] All of these issues ultimately culminate in reducing the Court’s legitimacy.[43]
In her dissent in Whole Woman’s Health, Justice Kagan denounced the majority’s decision stating, “[it] is emblematic of too much of this Court’s shadow-docket decisionmaking—which every day becomes more unreasoned, inconsistent, and impossible to defend.”[44] The Court’s new approach to emergency relief petitions via the shadow docket has garnered greater scrutiny of this system, shining a light into the shadowy process. Whether this new light allows the shadow docket decision making to continue, or whether Congress or the Court itself will attempt to recalibrate the system, remains to be seen.
[38] In 2020, two orders allowing the first federal executions in seventeen years were handed down at 2:10 am EST and 2:46 am EST. Another shadow docket was been handed down at 11:56 pm the night before Thanksgiving. The Supreme Court’s Shadow Docket, supra note 1, at 13–14.
In 2018, 128 people died every day from an opioid overdose, twenty-five percent of patients misused opioids prescribed for chronic pain, and approximately 1.7 million people developed a substance use disorder directly from prescription opioid use.[1] The effects were so devastating that the opioid epidemic was declared a national emergency.[2] In response, government officials and courts sought criminal and civil retribution to hold pharmaceutical executives responsible for their roles in the epidemic, most recently with the Racketeer Influenced and Corrupt Organizations Act (“RICO”).[3] When applied in the civil context, however, courts disagree on whether a fraudulent misrepresentation can satisfy the proximate cause requirements under RICO.[4] This Comment seeks to identify whether a misrepresentation of the addictive qualities of opioids would be a sufficient showing of proximate cause for a civil RICO claim to succeed and argues that such misrepresentations would be sufficient.
This Comment proceeds in five parts. Part I explains the progression of the opioid epidemic, pharmaceutical companies’ fraudulent misrepresentations, and the recovery options available to combat the epidemic—particularly RICO. Part II discusses RICO’s role in addressing fraudulent misrepresentations in the pharmaceutical industry. Part III describes the circuit split regarding fraudulent misrepresentations in civil RICO causation. Part IV analyzes the fraudulent misrepresentations that led to the opioid epidemic and argues that those misrepresentations are sufficient to establish proximate cause in a civil RICO claim. Part V recommends that the Supreme Court should grant certiorari on this issue and hold that misrepresentations of a drug’s harmful side effects are sufficient to show proximate cause in civil RICO cases.
I. Background
A. The United States Opioid Epidemic
The United States opioid epidemic is a major public health issue that has devastated the country’s social and economic welfare.[5] The epidemic began in the late 1990s when pharmaceutical companies began encouraging the medical community to prescribe prescription opioids to their patients.[6] During this time, pharmaceutical companies paid physicians to host informational seminars on drugs for their peers.[7] While hosting these events can be a positive source of information in the medical community, the speakers of these programs often received kickbacks to prescribe the drugs they were promoting.[8] The more prescriptions the physicians wrote, the more kickbacks they received.[9] By 2015, nearly fifty percent of physicians received kickbacks for prescribing pharmaceutical drugs.[10]
Often, physicians knew little about the drugs they were prescribing.[11] Pharmaceutical companies assured physicians of opioid safety, guaranteeing that patients would not become addicted.[12] As a result, physicians prescribed the drugs at high rates and quantities, leading to widespread addiction.[13] Newly addicted and reliant, patients soon turned to more potent drugs—like cocaine and heroin—culminating in the opioid epidemic now overtaking the United States.[14]
B. The History of Fraudulent Misrepresentations in the Pharmaceutical Industry
The pharmaceutical industry has a long history of systemic fraud related to the “testing, marketing, and distribution of dangerous pharmaceutical drugs.”[15] Throughout this history, pharmaceutical representatives have routinely concealed harmful side effects from physicians to convince them to prescribe dangerous drugs using “lies, bribes, and kickbacks.”[16] In fact, in the pharmaceutical industry, it is so common for physicians to be deceived about dangerous products “that it’s often dismissed as the equivalent of driving slightly over the speed limit.”[17]
Drug representatives are also targeted as these individuals are often offered large bonuses for selling harmful drugs.[18] For example, to increase sales of OxyContin, Purdue Pharma developed a “bonus system [that] encouraged sales representatives”[19] to use “any means necessary” to increase sales rates, even if it meant downplaying OxyContin’s addictive tendencies.[20] In this way, pharmaceutical manufacturers frequently engage in a “coordinated conspiracy to deceive the American public and the medical profession about the efficacy and safety of opioids.”[21]
C. RICO
In 2017, the federal government and state governments began to pursue criminal and civil retribution against pharmaceutical companies for their role in the opioid epidemic.[22] These entities often sought to recover for the economic harm they incurred due to increased rates of addiction in their communities.[23] While civil lawsuits were routinely unsuccessful early on, settlements have begun to increase in recent years, indicating their growing success.[24] For example, in 2007, Purdue Pharma settled in a civil suit with twenty-six states for $19.5 million.[25] In 2016, Cardinal Health and AmerisourceBergen, distributors of prescription opioids, did the same, settling with the State of West Virginia for $34 million.[26]
Generally, individual plaintiffs seeking damages for personalized injuries have also sought to recover via direct-injury lawsuits.[27] In the pharmaceutical context, direct-injury lawsuits “generally target opioid manufacturers for alleged misrepresentations during advertisement or opioid distributors for an alleged failure to monitor illicit distribution.”[28] When asserting direct-injury claims, plaintiffs generally rely on tort-based theories, one of which is RICO.[29]
RICO makes it “unlawful for any person employed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such [an] enterprise’s affairs through a pattern of racketeering activity” that affects interstate commerce.[30] To assert a RICO violation, a claimant must establish an “association-in-fact” enterprise, defined as a “group of persons associated together for a common purpose.”[31]To be a part of such an enterprise, a defendant must have either made decisions or intentionally performed acts that furthered the enterprise’s common purpose.[32]The enterprise’s common purpose must be “separate from the pattern of racketeering activity” that the enterprise is engaging in; otherwise, it will not amount to a RICO violation, only a general conspiracy to commit a crime.[33]
To establish a pattern of racketeering activity, there must be two or more acts that are “‘chargeable’ . . . under a host of state and federal laws,”[34] as well as interrelated, continuous, and occurring within a ten-year period.[35] Otherwise, the acts will be deemed “isolated” and will fail to constitute a pattern.[36] Furthermore, either the enterprise itself or the predicate acts of the enterprise must have a de minimis impact on interstate commerce.[37] This is generally a low threshold, as courts routinely find that most, if not all, economic behavior impacts interstate commerce.[38] Thus, to prosecute a defendant under RICO, a plaintiff must show that (i) a defendant performed two or more acts, (ii) those activities together formed a pattern of racketeering activity, (iii) the defendant benefitted from or participated in an enterprise, and (iv) the activities of that enterprise affected interstate commerce.[39]
II. RICO and the Pharmaceutical Industry
In the pharmaceutical context, defendants participate in a RICO enterprise when they give or follow a directive to engage in fraud or when they exert influence or control in a scheme to fraudulently profit from the sale of prescription drugs.[40] Thus, a RICO enterprise is formed when pharmaceutical companies conspire to misrepresent the efficacy and risks of opioids and opioid addiction.[41] While pharmaceutical executives are typically the easiest to implicate in such an enterprise, any person engaged in “false claims, kickback schemes, and acts of clinical and publication bias” are potential defendants for inclusion.[42]
A. Proving Causation in Civil RICO Claims
Standing to bring a civil RICO claim is stated under 18 U.S.C. § 1964(c).[43] Under the statute, a plaintiff has standing for a civil RICO claim when their injury (i) is to their business or property, and (ii) was caused “by reason of” the RICO violation.[44] The Supreme Court’s interpretation of “by reason of” requires the plaintiff to prove both proximate and but-for causation.[45] But-for causation asks whether the plaintiff’s injury would have occurred but for the defendant’s conduct.[46] Proximate causation serves to prevent liability when the link between the defendant’s conduct and the plaintiff’s injury has been severed.[47] Thus, proximate causation requires a plaintiff to show some sort of direct relationship between the defendant’s actions and the plaintiff’s injury.[48]
Holmes v. Securities Investor Protection Corp.[49] sets out three principles to guide the causation analysis[50]:
First, the less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct from other, independent, factors. Second, . . . recognizing claims of the indirectly injured would force courts to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the violative acts, to obviate the risk of multiple recoveries. And, finally, the need to grapple with these problems is simply unjustified by the general interest in deterring injurious conduct, since directly injured victims can generally be counted on to vindicate the law as private attorneys general . . . .[51]
The first Holmes principle asserts that an injured party must be readily identifiable with readily apparent damages.[52] Damages are considered to be readily apparent when the action that caused the plaintiff’s injury has already occurred, because this negates the need for factual speculation.[53] The second principle requires damages to be awarded to the plaintiffs without fear that multiple parties will receive overlapping damages.[54] To conform with this principle, a court can award damages when only one party is seeking recovery for their payments towards a drug or when each individual plaintiff seeks only to recover for the damages they individually paid for a prescription drug.[55] Finally, the third principle requires that those most directly injured are bringing the suit; thus, the parties bringing the suit must be those best suited to do so.[56]
Since Holmes, however, the Supreme Court has eased the proximate cause standard for plaintiffs bringing RICO claims on mail and wire fraud.[57] In Bridge v. Phoenix Bond & Indemnity Co.,[58] the Court held that a plaintiff asserting a RICO claim on mail or wire fraud does not need to show that they relied on the defendant’s alleged misrepresentations to establish proximate cause.[59] As such, the plaintiff may recover whether or not they are the direct recipient of the false statements made.[60] But because a plaintiff must establish both but-for and proximate causation, they often still must show that someone relied on the defendant’s misrepresentation.[61]
B. Criminal RICO Application
In 2019, a Massachusetts court found John Kapoor (“Kapoor”), former executive of pharmaceutical company Insys, guilty of conducting a national scheme to pay physicians to prescribe a highly potent and addictive fentanyl-spray.[62] In Kapoor’s case, United States v. Michael Babich,[63] the Insys executives knowingly instructed physicians to prescribe the fentanyl-spray at six times the FDA-approved limit to guarantee patient reliance.[64] To ensure compliance, the executives held speaker programs disguised as “educational lunches and dinners,” which they used to pay bribes and kickbacks to high-prescribing physicians.[65] The Insys executives also targeted third-party payors (“TPPs”) using fake call centers to trick insurance companies into covering the spray at higher rates than they otherwise would have if they had known of the spray’s addictive tendencies.[66]
Kapoor and six other Insys executives were found guilty of racketeering, wire fraud, and mail fraud conspiracy, marking the “first successful prosecution of top pharmaceutical executives for crimes related to the illicit marketing and prescribing of opioids.”[67] As such, this case serves as the beginning of a new era in civil litigation to hold executives responsible for their role in the opioid epidemic.[68]
III. Conflicting Interpretations of Misrepresentations Under RICO
Several federal circuit courts have addressed the question of whether, in the civil context, fraudulent misrepresentation can satisfy the direct-injury requirements necessary to establish proximate cause under RICO.[69] The First, Third, and recently the Ninth Circuit have held that fraudulent misrepresentations can satisfy the direct-injury requirement, while the Second and Seventh Circuit have held that they cannot.[70] To date, the Supreme Court has not granted certiorari to resolve this issue.[71]
A. Fraudulent Misrepresentation as a Sufficient Assertion of Proximate Cause
Ninth Circuit
In Painters & Allied Trades District Council 82 Health Care Fund v. Takeda Pharmaceuticals,[72] the Ninth Circuit reviewed whether patients and TPPs can sufficiently meet the proximate cause requirements in a civil RICO claim when a pharmaceutical manufacturer fraudulently misrepresents a drug’s allegedly known safety risks.[73] There the defendants allegedly knew of and concealed that Actos, a drug prescribed to regulate blood sugar for Type II diabetics, increased a patient’s risk of developing bladder cancer.[74] The plaintiffs alleged that they would never have paid for or taken the drug if they had known of the risk of bladder cancer.[75]
The court concluded that the plaintiffs were the direct victims of the defendants’ alleged misrepresentations and therefore that the defendants’ fraudulent misrepresentations were directly related to the plaintiff’s harm.[76] Thus, the Ninth Circuit held that both patients and TPPs who paid for Actos could successfully meet the proximate cause requirements.[77] In so holding, the Ninth Circuit noted that because physicians commonly prescribe prescription drugs—like Actos—it is foreseeable that physicians would prescribe such a drug and therefore “play a causative role” in the defendant’s fraudulent scheme.[78] Accordingly, physician actions do not sever proximate cause.[79]
The Painters decision marked an express change of opinion for the Ninth Circuit.[80] Ten years prior, in 2009, the Ninth Circuit conversely found that misrepresentation claims could not successfully assert proximate cause in civil RICO claims.[81] Now, with the Ninth Circuit basing its decision on policy implications and societal interest, Painters introduces new considerations on the issue that cannot be ignored.[82]
First Circuit
In In re Neurontin,[83] the First Circuit considered whether the Kaiser Foundation (“Kaiser”) could recover for an alleged injury arising from Pfizer’s alleged fraudulent marketing of Neurontin for off-label uses.[84] Kaiser argued that Pfizer’s campaign explicitly targeted TPPs to influence formulary and prescribing decisions and encouraged physicians to serve on speaker’s bureaus and sponsor informational sessions to promote Pfizer drugs, while disguising bribe and kickback payments.[85] Through expert witness testimony, the court found that three out of ten Neurontin prescriptions made for such off-label uses would not have been written but for Pfizer’s fraudulent marketing scheme.[86] As such, the court held that Kaiser was a primary, intended, and direct victim that successfully met the proximate cause requirements under RICO.[87]
Third Circuit
In In re Avandia,[88] GlaxoSmithKline (“GSK”) marketed Avandia as a safer and more effective alternative to existing medications currently available for Type II diabetes treatment.[89] As a result, TPPs added Avandia to their formularies and covered Avandia prescriptions at preferred rates.[90] Soon after, however, risks arose regarding heart-related side effects, which GSK actively denied and countered despite knowledge to the contrary.[91]
The Third Circuit held that the presence of intermediaries did not sever proximate cause because the TPPs’ injury was a foreseeable result of GSK’s scheme.[92] Since TPPs covered the costs of Avandia directly because of GSK’s misrepresentations of Avandia’s risks, the TPPs were held to be intended and direct victims.[93] Thus, the court concluded that reliance on GSK’s misrepresentations was sufficient to allege proximate cause.[94]
B. Fraudulent Misrepresentation as an Insufficient Assertion of Proximate Cause
In a Seventh Circuit case, Sidney Hillman Health Center of Rochester v. Abbott Labs.,[95] Abbott Labs allegedly solicited physicians to prescribe Depakote, a drug approved to treat seizures and migraines, for off-label uses.[96] There the Seventh Circuit reasoned that because it would be too difficult to calculate the plaintiff’s damages due to unknown factors—some patients likely benefitted from taking Depakote for an off-label use, and some physicians would undoubtedly have prescribed Depakote for off-label uses regardless of solicitation—misrepresentations made to physicians fail the first Holmes factor and do not constitute a direct injury.[97] As such, the Seventh Circuit held that such misrepresentations cannot meet the proximate cause requirements of civil RICO claims.[98] Similarly, in UFCW Local 1776 v. Eli Lilly & Co.,[99] the Second Circuit concluded that a physicians’ reliance on misrepresentations is not a but-for cause of a drug’s higher price because physicians do not consider a drug’s price when they order prescriptions.[100] Thus, the Second Circuit held that fraudulent misrepresentations do not sufficiently establish proximate cause for a civil RICO claim.[101]
IV. Analysis
Painters, In re Avandia, and In re Neurontin discuss the issue of recovery for TPPs (and patients as well in the case of Painters) when dealing with fraudulent misrepresentations of a prescription drug’s harmful side effects.[102] These cases more closely align with the issues arising out of the opioid epidemic—as seen in Michael Babich—where pharmaceutical manufacturers and their executives fraudulently misrepresented the addictive qualities of opioids, in the form of a fentanyl-spray, resulting in economic injury to both patients and TPPs.[103]
A. The Opioid Epidemic Compared to Other Civil Applications
Like the pharmaceutical manufacturers in In re Avandia who falsely promoted Avandia as safe for use, the Insys executives in Michael Babich misrepresented the risks of the addictive qualities of their fentanyl-spray to ensure its coverage and use.[104] In In re Avandia, the pharmaceutical manufacturer knew of Avandia’s increased cardiac complications; in Michael Babich, the pharmaceutical manufacturer knew their fentanyl-spray risked addiction and misuse.[105] Like the pharmaceutical manufacturer in In re Avandia who promoted Avandia knowing its cardiac risks, the pharmaceutical executives in Painters also actively misled physicians, consumers, and TPPs to prescribe and use Actos despite knowing its risk for bladder cancer.[106] Thus, in all three cases, pharmaceutical manufacturers formulated schemes to misrepresent the harmful side effects of their touted drugs to increase prescription rates at the expense of patients and TPPs.
Michael Babich also mimicked these cases’ use of speakers’ bureaus and physician targeting. Both Michael Babich and In re Neurontin used speaker programs to target physicians with high prescription numbers and pay bribes and kickbacks to these physicians in exchange for increased prescription orders and dosages.[107] Furthermore, like Pfizer’s marketing scheme in In re Neurontin that actively targeted TPPs to add drugs to their formularies and influence prescribing decisions, Insys’ marketing scheme in Michael Babich targeted TPPs through the use of a fake call center that was used to guarantee insurance coverage of their fentanyl-spray.[108] In both cases, the use of these schemes directly targeted TPPs, causing them to prescribe more opioids than they otherwise would have prescribed.[109] In these ways, the facts of Michael Babich reflect those of Painters, In re Avandia, and In re Neurontin.
Thus, as the fraudulent misrepresentations presented in the aforementioned cases all constituted a direct injury,[110] it is likely that a civil RICO claim based on the fraudulent misrepresentations of the opioid epidemic would be successful. Therefore, opioid epidemic plaintiffs should bring civil—as well as criminal—suits when seeking retribution for their injuries caused by pharmaceutical companies’ fraudulent misrepresentations of the addictive qualities of opioids.
B. Analyzing the Proximate Cause Requirements of Civil RICO Claims
How Opioid Epidemic Plaintiffs Can Meet the Damages Attributable Requirement
In situations where plaintiffs can allege damages due to the failure to warn of a drug’s harmful side effects, damages are not based on factual speculation and are thus readily apparent.[111] In these situations, plaintiffs bring suit because they incurred an injury from taking a drug. To have such an injury, a plaintiff must have already taken the drug, meaning that their injury has already occurred and cannot be based on factual speculation. In the context of the opioid epidemic, a plaintiff brings suit asserting injury for the harm incurred from taking a drug with addictive characteristics. Because the factual scenario seen in the opioid epidemic falls squarely into this context, a plaintiff’s damages will be readily apparent and meet the damages attributable requirement.
Damages in these cases will also be readily determinable.[112] When a plaintiff’s injury is based on a fraudulent misrepresentation of a drug’s harmful side effects, the amount of damages attributable would amount to the difference between the cost of the injurious drug and the cost of a cheaper, alternative drug.[113] Thus, in the context of the opioid epidemic, the damages alleged would amount to the cost between what a patient, or TPPs, would have paid for an alternative drug and what they paid for the harmful drug prescribed. Because this amount is easily determinable, patients and TPPs would likely meet this requirement in any civil litigation arising from the opioid epidemic.
How Opioid Epidemic Plaintiffs Can Avoid Duplicative Recovery
In opioid epidemic cases, multiple parties, including patients and TPPs, will likely look to recover damages. In these cases, each individual plaintiff will be limited in what they can recover while still conforming with the second Holmes principle.[114] To ensure that there is no duplicative recovery, and thus no violation of the second principle, each plaintiff will only be able to recover damages for what they individually paid for a prescription drug.[115] Because both TPPs and patients will have incurred economic injury in a civil litigation suit, such a limitation is the only way to ensure compliance with the second Holmes principle and sufficiently assert proximate cause.[116]
How Opioid Epidemic Plaintiffs Can Meet the Direct-Injury Requirement
In civil opioid epidemic litigation, patients are directly injured parties because they incur financial and personal injury when they suffer harmful effects from using dangerous drugs.[117] Patients suffer financial injury in paying out-of-pocket for expensive, harmful drugs that often lead to complications and further health problems, including addiction and drug misuse. TPPs are directly injured parties that incur financial loss when they are targeted to add drugs to their formularies at preferred rates.[118] For the preceding reasons, TPPs and patients are the most directly injured parties of pharmaceutical companies’ fraudulent schemes to market and promote harmful drugs; thus, they are the best suited plaintiffs to bring suits against pharmaceutical companies. As such, both patients and TPPs would meet this third and final requirement in any future civil litigation related to the opioid epidemic.
C. Policy Considerations
Policy considerations further drive the argument in favor of allowing pharmaceutical companies’ fraudulent misrepresentations to sufficiently constitute proximate cause for patients and TPPs in civil RICO claims. For one, if courts hold that the causal chain is too attenuated to constitute proximate cause for TPPs and patients—like the Second and Seventh Circuits do—the implications would effectively allow pharmaceutical companies to avoid liability for their fraudulent marketing schemes.[119] In this way, pharmaceutical companies would be shielded from liability and permitted to hide behind the physicians who prescribed their drugs.[120]
For example, in the context of the opioid epidemic, such a holding would allow pharmaceutical companies to go unpunished for encouraging physicians to prescribe opioids at dangerous doses and rates. While arguably physicians should still be held liable for their own roles in the opioid epidemic, by not extending this same liability to pharmaceutical companies there would be no deterrence to stop pharmaceutical companies from engaging in these fraudulent schemes too. As such, pharmaceutical companies are likely to continue utilizing these harmful and fraudulent methods and will undoubtedly continue to use physicians as a proxy for engaging in such methods in the future if such actions are not met with liability.
Fraudulent misrepresentations should also be held to constitute proximate cause in civil RICO claims to allow plaintiffs to recover for their injuries. Patients and TPPs routinely incur economic injury in paying for expensive drugs.[121] Patients often incur additional financial harm when forced to sustain their habits.[122] For example, following the onset of addiction, patients must often pay to continue to use prescription opioids, or when prescription opioids are unavailable, they must pay for other drugs, such as heroin and cocaine.[123] When the financial harm stems from the patients’ continued use of prescription opioids, TPPs are also financially affected.[124] Since addiction to these drugs results in the need for continued use, permitting such recovery would allow patients and TPPs to obtain some compensation for the harms wrongfully inflicted upon them.[125] Therefore, pharmaceutical companies should not be allowed to cause such extreme harm and avoid responsibility,[126] especially when the societal harm caused by these misrepresentations far outweighs the corporate gains. Thus, for society to fully recover, adequate recovery must be allowed.
Ensuring liability would also allow trust to be restored in the medical system. Patients need to feel comfortable seeking care from their physicians. For this to occur, patients and other medical consumers must maintain a certain level of trust in the field of science and medicine. Patients need to feel that their physicians are prescribing them medications for their own betterment, not for the personal gain or profit of the prescribing physician. Thus, if pharmaceutical schemes, aimed to profit to the detriment of patients and TPPs, are ensured to be met with litigation, then pharmaceutical companies’ wrongful conduct will be deterred while increasing societal trust in the medical system.
Pharmaceutical executives must be held accountable before progress can be efficiently made. Allowing plaintiffs to satisfy the requirements of proximate cause in civil RICO claims will allow the largest societal benefit. Therefore, this position should be upheld in future civil litigation surrounding the opioid epidemic.
V. Recommendation
While pharmaceutical companies misrepresenting drugs to consumers and insurers to increase profits is certainly not a new occurrence, the opioid epidemic has arguably been the most widespread incidence of such an event. Because the opioid epidemic can affect anyone and everyone, the opioid epidemic is arguably one of the most transcendent public health issues that the United States has ever encountered. For this reason, the Supreme Court should grant certiorari on the issue of whether a fraudulent misrepresentation can constitute proximate cause in a civil RICO claim, especially regarding recovery for cases dealing with the opioid epidemic and the addictive tendencies of opioids.
The Supreme Court should grant certiorari on this issue because it is crucial for a uniform approach to be created and adhered to in the United States. If the Supreme Court denies certiorari and allows this issue to remain with the various circuits, then pharmaceutical companies could continue to avoid liability. Without a uniform approach, pharmaceutical companies can continue to bypass responsibility, establishing their companies in circuits that do not regard fraudulent misrepresentations as a sufficient means of causation in civil RICO claims. Thus, by failing to grant certiorari on this issue, the Supreme Court would be allowing pharmaceutical companies, and their executives, to avoid prosecution for their wrongful acts by allowing them the opportunity to reside in circuits with favorable precedent. Since the opioid epidemic affects every state on a national level, this sort of piecemeal approach across the circuits is not a suitable option; instead, the only way to truly curb these immense harms is with a uniform, national standard guaranteed to be consistently applied.
Should the Supreme Court grant certiorari to hear this issue of fraudulent misrepresentation as sufficient for proximate cause, the Court should follow the approach taken by the First, Third, and Ninth Circuits. Victims of the opioid epidemic have suffered. Not only have patients suffered physical injury, dealing with increased risk of disease or a newfound lifelong addiction, but patients have incurred financial injury in paying for drugs that not only did not ease their existing medical ailments, but also created new conditions that have further exacerbated their financial situations. States and local communities have also suffered economic injury. These communities have seen spikes in crime rates as consumers seek to maintain their habits and incur increased costs stemming from the need to provide treatment for their constituents. As such, if the Court grants certiorari on the issue, not only should it hold that fraudulent misrepresentations are enough to assert proximate cause, but it should also hold that patients, TPPs, state governments, and municipal communities are all victims of such misrepresentations, and thus, are entitled to recovery.
The Supreme Court should also hold that fraudulent misrepresentations should be sufficient allegations of proximate cause because of the effect that such a holding would have on the legal system moving forward. Allowing pharmaceutical companies to fraudulently misrepresent drugs at the peril of consumers and TPPs effectively contributes to the overburdening of the legal system. With fewer persons addicted to drugs that often lead to addiction of more potent drugs, such as heroin and cocaine, the crime rates in local communities would arguably decrease. With fewer crimes being committed by addicts attempting to maintain their habits, heavily impacted communities and the legal system would become less strained. As such, the deterrence of fraudulent misrepresentations of a harmful drug’s side effects, especially opioids, would have immense societal benefit. Thus, not only should the Court grant certiorari on this issue, but it should also hold that fraudulent misrepresentations of the addictive qualities of opioids are sufficient to allege proximate cause in civil RICO claims.
Conclusion
The opioid epidemic has recently subjected pharmaceutical companies to increased scrutiny, which will likely result in an uproar of future opioid epidemic litigation. Should this litigation arise, the Supreme Court should grant certiorari on the issue of whether fraudulent misrepresentations of the addictive qualities of opioids are sufficient to show proximate cause for civil RICO claims. Due to the policy considerations and societal implications the opioid epidemic has created, the Supreme Court should hold—as the First, Third, and Ninth Circuits have held—that misrepresentations of the addictive qualities of opioids are sufficient to show proximate cause for a civil RICO claim.
[2]. See Edgar Aliferov, Note, The Role of Direct-Injury Government-Entity Lawsuits in the Opioid Litigation, 87 Fordham L. Rev. 1141, 1142 (2018).
[3]. See 18 U.S.C. §§ 1961–1968.
[4]. Seeinfra Part III.
[5]. Societal costs soared in recent years, rising from roughly $55.7 billion in 2011 to $78.5 billion in 2016. Aliferov, supra note 2, at 1144; see also Nat’l Inst. on Drug Abuse, supra note 1.
[8]. Id. Hosting such events is not illegal until and unless physicians receive kickbacks in exchange for prescribing the drugs. Id. A kickback is any form of payment provided in exchange for an action or transaction that is usually illegal or improper. See What Is Kickback?, The Law Dictionary, https://thelawdictionary.org/kickback/#:~:text=Black’s%20Law%20Dictionary)-,What%20is%20KICKBACK%3F,job%2C%20contract%2C%20or%20order (last visited Aug. 24, 2021) (defining kickback as “a bribe for routing a job, contract, or order.”).
[15]. Eugene McCarthy, A Call to Prosecute Drug Company Fraud as Organized Crime, 69 Syracuse L. Rev. 439, 442 (2019).
[16]. Id.
[17]. Id. at 478 (quoting Stephanie M. Greene, After Caronia: First Amendment Concerns in Off-Label Promotion, 51 San Diego L. Rev. 645, 648 (2014) (internal citation omitted)).
[18]. McCarthy, supra note 15, at 478.
[19]. Id. (brackets in original source) (quoting Art Van Zee, The Promotion and Marketing of OxyContin: Commercial Triumph, Public Health Tragedy, 99 Am. J. Pub. Health 221, 222 (2009)).
[20]. Id. (quoting Zee, supra note 19, at 222).
[21]. Richard Ausness, The Current State of Opioid Litigation, 70 S.C. L. Rev. 565, 586 (2019) (quoting Complaint and Demand for Jury Trial at 135, City of Lansing v. Purdue Pharma L.P., No. 1:17-CV-01114 (W.D. Mich. Dec. 19, 2017)).
[22]. See Aliferov, supra note 2, at 1152–53, 1155.
[23]. Id. at 1144.
[24]. Id. at 1152.
[25]. Id.
[26]. Id. at 1153–54 (noting that Cardinal Health was sued for its failure to monitor suspicious orders for opioids, which West Virginia argued “facilitated the operation of pill mills throughout the state”). Cardinal Health agreed to pay $20 million of the $36 million settlement. Id. at 1154 n.94.
[27]. See, e.g., id. at 1156–57 (“When initiated by a party other than the government, a direct-injury claim is simple: a plaintiff’s personal interests (e.g., health or property) have been injured by a third party and the plaintiff seeks to recover damages flowing from that injury.”).
[28]. Id. at 1156.
[29]. See generally id. at 1160 (noting that “plaintiffs employ either a tort-based theory or equitable theory to complete the direct-injury claim” and subsequently referencing the various tort theories, including RICO). While RICO was enacted primarily to combat organized crime, its use in other contexts—including the opioid epidemic—has grown substantially, particularly because of its ability to “prosecute an entire criminal enterprise and its constituent members at once.” McCarthy, supra note 15, at 471, 441.
[30]. 18 U.S.C. § 1962(c).
[31]. In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804, 2019 WL 4279233, at *2 (N.D. Ohio Sept. 10, 2019) (quoting Boyle v. United States, 556 U.S. 938, 946 (2009)).
[32]. Id. at *3; see also 18 U.S.C. § 1962(c) (stating that defendants must participate “directly or indirectly”).
[33]. In reNat’l Prescription Opiate Litig., 2019 WL 4279233, at *2 (quoting Frank v. D’Ambrosi, 4 F.3d 1378, 1386 (6th Cir. 1993)).
[34]. David Farve et al., Racketeer Influenced and Corrupt Organizations, 57 Am. Crim. L. Rev. 1191, 1195, 1197 (2020) (quoting Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256–57 (1994)).
[35]. Id. at 1197. Such acts could include murder, robbery, bribery, extortion, or federal offenses involving bankruptcy or securities fraud. Id. at 1195–96. In the criminal context, the required acts that amount to racketeering activity can also include “mail fraud, wire fraud, insurance fraud, false claims, and honest services fraud.” McCarthy, supra note 15, at 465.
[36]. Farve et al., supra note 34, at 1197–98.
[37]. Id. at 1207.
[38]. McCarthy, supra note 15, at 466.
[39]. Farve et al., supra note 34, at 1194.
[40]. McCarthy, supra note 15, at 476. In the pharmaceutical context, “[pharmaceutical] [e]xecutives, sales representatives, doctors, lawyers, and politicians” often make up such enterprises. Id.
[41]. See, e.g., In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804, 2019 WL 4279233, at *3 (N.D. Ohio Sept. 10, 2019) (holding that the plaintiffs “produced sufficient evidence for a reasonable jury to conclude that all [d]efendants . . . associated together for the common purpose of expanding the prescription opioid market,” thereby forming a RICO enterprise).
[42]. McCarthy, supra note 15, at 477–78.
[43]. 18 U.S.C. § 1964(c); Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharmas., 943 F.3d 1243, 1248 (9th Cir. 2019).
[44]. 18 U.S.C. § 1964(c); Painters, 943 F.3d at 1248.
[45]. Painters, 943 F.3d at 1248 (citing Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 268 (1992)).
[46]. Ausness, supra note 21, at 595 (asking “whether the injury would have occurred in the absence of the defendant’s conduct”).
[47]. Id. at 599. In Ashley County v. Pfizer, Inc., drug companies selling over-the-counter cold medicines used to produce methamphetamine were said not to have proximately caused the counties’ increased costs even though they knew the medicine would be used to make methamphetamine. 552 F.3d 659, 662–73 (8th Cir. 2009). The court held that the act of selling cold medicine was “totally independent” from the defendant’s production of methamphetamine. Id. at 670; see also Ausness, supra note 21, at 599–600 (discussing the Ashley County opinion).
[48]. Holmes, 503 U.S. at 268.
[49]. 503 U.S. 258.
[50]. See id. at 269.
[51]. Id. at 269–70 (citations omitted).
[52]. Id. at 269.
[53]. In re Avandia Mktg., Sales, Pracs. & Prod. Liab. Litig., 804 F.3d 633, 640 (3d. Cir. 2015); see also Sidney Hillman Health Ctr. of Rochester v. Abbott Labs, 873 F.3d 574, 577 (7th Cir. 2017). In Sidney Hillman, the plaintiffs’ claim was too speculative to meet the first Holmes requirement. 873 F.3d at 577. The court held that it was too difficult for the court to determine whether TPPs would have incurred costs from paying for another medication or whether physicians would have prescribed the drug for off-label uses without solicitation; thus, there was too much speculation for the damages to be readily apparent. Id.
[54]. Holmes, 503 U.S. at 269.
[55]. In re Neurontin Mktg. & Sales Pracs. Litig., 712 F.3d 21, 37 (1st Cir. 2013); Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharms., 943 F.3d 1243, 1251 (9th Cir. 2019).
[56]. In re Neurontin, 712 F.3d at 38.
[57]. Farve et al., supra note 34, at 1235.
[58]. 553 U.S. 639 (2008).
[59]. Id. at 649 (citing Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 476 (2006) (“Because an individual can commit an indictable act of mail or wire fraud even if no on relies on his fraud, he can engage in a pattern of racketeering activity . . . without proof of reliance.”)).
[60]. See id. at 656. The RICO statute “provides no basis for imposing a first-party reliance requirement.” Id. at 660.
[63]. First Superseding Indictment, supra note 62 at 16.
[64]. Id. at 25–26. This was especially dangerous due to the potency of the fentanyl-spray; if the fentanyl-spray was prescribed at the same dosage as other fentanyl-based products on the market, then the patient could risk a fatal overdose. Id. at 10.
[71]. See Sergeants Benevolent Assoc. Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 137 S. Ct. 140 (2016).
[72]. 943 F.3d 1243 (9th Cir. 2019).
[73]. Id. at 1252–53.
[74]. Id. at 1246 (alleging that defendants misrepresented the risk of bladder cancer to increase sales of Actos).
[75]. Id. at 1247, 1251.
[76]. Id. at 1251.
[77]. Id. at 1252 (reasoning that “all patients and TPPs who paid for Actos on the premise that it did not cause an increased risk of bladder cancer were allegedly defrauded by Defendants and suffered the same direct, economic injury: payments for a drug which would not have been purchased if suitably described”).
[78]. Id. at 1257.
[79]. Id.
[80]. See generallyIn re Epogen & Aranesp Off-Label Mktg. & Sales Pracs. Litig., No. MDL 08-1934 PSG, 2009 WL 1703285 (Cal. June 17, 2009) (detailing the contrary holding).
[81]. See In re Epogen, 2009 WL 1703285, at *7–8.
[82]. See Painters, 943 F.3d at 1257–59 (discussing the benefits of deterring wrongful conduct and allowing economic recovery for victims).
[83]. 712 F.3d 21 (1st Cir. 2013).
[84]. Id. at 25–26.
[85]. Id. at 28.
[86]. Id. at 30.
[87]. Id. at 37–38.
[88]. 804 F.3d 633 (3d Cir. 2015).
[89]. Id. at 635.
[90]. Id.
[91]. Id. at 635–36.
[92]. Id. at 645.
[93]. Id.
[94]. Id.
[95]. 873 F.3d 574 (7th Cir. 2017).
[96]. Id. at 575. While physicians can prescribe medications to their patients to treat off-label conditions, drug manufacturers are prohibited from promoting drugs for such purposes. Id.
[97]. Id. at 577; see also Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 269 (1992).
[98]. Sidney Hillman, 873 F.3d at 578.
[99]. 620 F.3d 121 (2d Cir. 2010).
[100]. Id. at 133–34.
[101]. Id. at 134.
[102]. See supra Part III.A. Sidney Hillman and UFCW deal with fraudulent promotions of “off-label” uses and pricing decisions rather than a fraudulent failure to warn of a drug’s known risk of harmful side effects. See supra Part III.B.
[103]. See First Superseding Indictment, supra note 62, at 7–8.
[104]. See id. at 26–27; see also Kuchler et al., supra note 67; Emanuel, supra note 62; In re Avandia Mktg., Sales, Prac. & Prod. Liab. Litig., 804 F.3d 633, 635 (3d Cir. 2015).
[105]. See First Superseding Indictment, supra note 62, at 7–8, 26–27; In re Avandia, 804 F.3d at 635.
[106]. See Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharmas., 943 F.3d 1243, 1246 (9th Cir. 2019).
[107]. See First Superseding Indictment, supra note 62, at 17–18, 20 (quoting Burlakoff telling a sales representative “[t]hey do not need to be good speakers, they need to write a lot of . . . [prescriptions for the Fentanyl-Spray]”); In re Neurontin Mktg. & Sales Prac. Litig., 712 F.3d 21, 28 (1st Cir. 2013).
[108]. SeeIn re Neurontin, 712 F.3d at 40; Emanuel, supra note 62; seealso First Superseding Indictment, supra note 62, at 32–33 (misleading insurers as to their employment, patient diagnoses, and past medications used).
[109]. In re Neurontin, 712 F.3d at 40; First Superseding Indictment, supra note 62, at 20–22, 27, 30–31.
[110]. See supra Part III.A.
[111]. See In re Avandia Mktg., Sales, Prac. & Prod. Liab. Litig., 804 F.3d 633, 640 (3d Cir. 2015).
[112]. See supra notes 52–53 and accompanying text.
[113]. In reAvandia, 804 F.3d at 644.
[114]. See Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 269–70 (1992); see alsosupra notes 54–55 and accompanying text.
[115]. Painters, 943 F.3d at 1251–52; see also In reNeurontin, 712 F.3d at 37.
[116]. In re Avandia, 804 F.3d at 645–46; Painters, 943 F.3d at 1251–52.
[117]. See, e.g., Painters, 943 F.3d at 1251–52. It does not matter if some plaintiffs incurred extra or less harm from taking a drug that has harmful benefits; all patients are held to suffer the same direct economic injury. Id.
[118]. In In re Avandia, the court noted that TPPs are held to “suffer[] direct economic harm when, as a result of [a pharmaceutical company’s] alleged misrepresentations, they pa[y] supracompetitive prices for [brand drugs] instead of purchasing lower-priced generic [drugs].” In reAvandia, 804 F.3d at 639–40 (citing In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 531 (3d Cir. 2004)).
[119]. Painters, 943 F.3d at 1257.
[120]. Id.
[121]. See, e.g., id. at 1252 (discussing how patients and TPPs suffered economic injury paying for the drug Actos, which they would not have purchased if not for the fraudulent misrepresentation).
[122]. See generally Nat’l Inst. on Drug Abuse, supra note 1 (discussing the “total ‘economic burden’ of prescription opioid misuse . . . including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement”).
[123]. See id. (stating that roughly five percent of those who developed an opioid addiction transitioned to heroin and roughly eighty percent of those who use heroin misused opioids before using heroin).
[124]. See, e.g., In re Neurontin Mktg. & Sales Prac. Litig., 712 F.3d 21, 38–39 (1st Cir. 2013) (showing that TPPs incur injury from paying for additional prescriptions due to fraudulent marketing schemes).
[125]. Id.
[126]. Id. at 38–39.
*. J.D. Candidate 2022, Wake Forest University School of Law. Shannon would like to thank the Wake Forest Law Review Board and Staff for their hard work and time on this Comment. She would also like to thank her family and friends for their unyielding support and encouragement.
Horizontal restraints are unlawful per se unless a court can identify some redeeming virtue that such restraints may create. In National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma (“NCAA”),[1] the Supreme Court rejected this standard, refusing to condemn horizontal restraints on price and output imposed by the NCAA without specifying any possible redeeming virtues.[2] The Court emphasized that other restraints not before the Court were necessary to create and maintain athletic competition like that supervised by the NCAA.[3] This exemption for sports leagues ensures that all restraints imposed by such entities merit Rule of Reason scrutiny, regardless of how harmful they appear.
Building on a forthcoming article,[4] this Essay contends that NCAA’s sports league exemption contravenes traditional antitrust principles, including the ancillary restraints doctrine (which NCAA ignored). This Essay also argues that the exemption increases the number of false negatives and potentially impedes the conduct of Rule of Reason analysis. Finally, this Essay explains how the exemption inspired and informed an ill-advised doctrinal innovation, the so-called “Quick Look” methodology of Rule of Reason analysis, whereby courts condemn certain restraints “in the twinkling of an eye.”[5] Some lower courts have recently extrapolated from this approach and exempted restraints limiting rivalry for the services of student athletes from Rule of Reason scrutiny, rendering such restraints lawful per se.[6]
The United States Supreme Court is currently reviewing the Ninth Circuit’s holding in National Collegiate Athletic Association v.Alston, which condemned NCAA regulations limiting the size of athletic scholarships.[7] This Essay provides the Alston Court with a roadmap for eliminating the sports league exemption, thereby placing such restraints on equal footing with restraints imposed by other entities. The Essay also advises the Court to reject lower court decisions that built upon the Quick Look doctrine and have treated restraints governing student athlete eligibility as lawful per se, thus exempting them from Rule of Reason scrutiny. Finally, the Essay concludes that the restraints before the Court in Alston may well produce cognizable antitrust benefits by overcoming the market failure that would result from unbridled rivalry for the services of student athletes. The Essay submits that the Court should articulate a Rule of Reason methodology in Alston that reflects the non-technological nature of such efficiencies.
II. The Rule of Reason and the Per Se Rule
The Sherman Act bans agreements “in restraint of trade.”[8] In Standard Oil Co. of New Jersey v. United States,[9] the Court read the Act to prohibit only agreements that restrain trade “unreasonably,”[10]i.e., produce monopoly or its consequences: higher prices, reduced output. and/or reduced quality.[11] Ordinary application of this Rule of Reason is fact-intensive, requiring plaintiffs to establish that the restraint produces concrete antitrust harm.[12] But certain restraints are “unlawful per se,” and do not warrant full-blown analysis.[13] In Northern Pacific Railway Co. v. United States (“NPR”), the Court articulated a two-part standard for determining whether restraints in a particular category are always unreasonable and thus unlawful per se.[14]NPR requires courts to ask two questions about restraints in the category: do such restraints produce a “pernicious effect on competition” and, if so, do they also always lack redeeming virtues.[15]
Despite NPR’s reference to pernicious effects, application of this first prong does not require a judicial prediction that restraints will produce actual economic harm.[16] Instead, courts treat elimination of rivalry as itself a “pernicious effect.”[17] Numerous garden variety restraints, including formation of partnerships and restraints ancillary thereto, produce a “pernicious effect” under this prong.[18] Whether this standard condemns a restraint thus turns on the second prong, namely, whether restraints lack redeeming virtues.[19] For example, price fixing between two independent lawyers is unlawful per se because such agreements cannot create redeeming virtues.[20] But formation of a partnership by the same lawyers might produce redeeming virtues and thus merits Rule of Reason treatment.[21] Both restraints extinguish horizontal price rivalry. But formation of the partnership may also produce redeeming virtues.[22]
The NPR standard post-dates the ancillary restraints doctrine.[23] But both doctrines ultimately ask the same question about horizontal restraints: can eliminating rivalry also produce efficiency benefits? While the NPR standard takes a categorical approach, the ancillary restraints doctrine applies case-by-case.[24] Repeated applications of the ancillary restraints doctrine could establish that particular categories of restraints never or sometimes produce redeeming virtues, thus informing application of the NPR standard.[25]
If restraints cannot produce such virtues, courts may safely conclude that parties have invested resources to create an agreement that restricts rivalry with no prospect of efficiencies. This conclusion implies that the parties believe they can exercise market power.[26] Even if the parties are incorrect, condemnation of such restraints does no harm and deters future price fixing.[27]
If restraints may produce such virtues, further inquiry is warranted regarding their ultimate impact. Moreover, a court assessing such restraints under full-blown Rule of Reason analysis must begin by assuming that the restraint before it might produce such benefits and calibrate the methodology of such inquiry accordingly.
The Court initially recognized very few redeeming virtues, limiting the category to what Nobel Laureate Oliver Williamson describes as technological efficiencies.[28] Beginning with Continental T.V. v. GTE Sylvania, Inc.,[29] the Court has repeatedly recognized a different category of virtues—namely, correction of market failures that would occur if parties to the restraint had instead continued unbridled rivalry.[30] As this Essay submits, the methodology of full-blown Rule of Reason analysis should turn upon the nature of these virtues.
III. NCAA’s Misapplication/Ignorance of NPR and Resulting Sports League Exemption
In Board of Regents of the University of Oklahoma v. National Collegiate Athletic Association,[31] the Court evaluated an agreement setting the price and output of televised college football games.[32] Plaintiffs University of Georgia and University of Oklahoma, who presumably supported restrictions on player compensation, challenged the price and output restrictions.[33] Courts at the time defined redeeming virtues narrowly in the horizontal context, banning as unlawful per se restraints that seemed plainly ancillary to legitimate ventures.[34] Nonetheless, the Tenth Circuit rejected automatic condemnation, at least arguendo, and assessed whether the restraints were ancillary to the NCAA’s legitimate venture.[35] Answering this question in the negative, the court condemned the restraints.[36]
The defendants reiterated their invocation of the ancillary restraints doctrine in the Supreme Court in NCAA.[37] However, the Court did not mention the NPR standard or the ancillary concept. Thus, the Court did not ask whether the restraints might produce redeeming virtues or enhance the efficiency of a valid venture. Instead, the Court immunized the restraints before it from per se condemnation because the NCAA had adopted other restraints not before the Court that would survive per se condemnation.[38] Such other restraints included horizontal agreements ensuring that players were bona fide students and were not semi-professional athletes that vaguely associated with the university.[39] These latter rules, the Court said, included bans on paying players.
Lower courts, including the Ninth Circuit in In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (“Alston”),[40] have properly read NCAA to exempt restraints imposed by sports leagues from per se condemnation, regardless of whether the restraint may produce redeeming virtues.[41] As Professor Hovenkamp has explained, this exemption would “shelter an agreement between member schools fixing the price of admission tickets or of hot dogs purchased in the stands.”[42] Unlike restraints that merit Rule of Reason scrutiny because they survive the NPR standard or the ancillary restraints test, restraints enjoying the sports league exemption will necessarily include entire categories of restraints that would ordinarily be unlawful per se because they cannot produce redeeming virtues. Thus, courts cannot assume there is some probability that such restraints might produce redeeming virtues. Instead, courts must assume that application of NPR’s second prong would condemn some such restraints as unlawful per se.
By invoking restraints not before it to justify the sports league exemption, the Court assumed that such restraints would themselves avoid per se condemnation. This assumption was surprising, given the Court’s recent condemnation of apparently beneficial horizontal restraints in decisions it expressly reaffirmed.[43] While the Court admitted that restrictions on player compensation prevented price competition, it opined that unbridled rivalry for the services of student athletes would transform the NCAA into a semi-professional league, tarnishing the league’s brand—college football—associated with an academic tradition.[44] The Court analogized such restraints to vertical agreements that simultaneously restricted intra-brand rivalry but enhanced inter-brand competition by overcoming market failure.[45] Lower courts have read this language as retracting the scope of the per se rule vis a vis horizontal restraints more generally.[46]
IV. The Sports League Exemption Has No Basis
NCAA’s sports league exemption saved numerous restraints, including those before it, from a substantially overinclusive per se rule.[47] Many such restraints were likely procompetitive. Perhaps the exemption was a second-best tactic for mitigating the anti-consumer impact of an overly broad per se rule. The Supreme Court, however, has undermined this justification by narrowing the scope of the per se rule. Moreover, this exemption contradicts basic antitrust principles and has produced other negative consequences, including an additional and stronger exemption, as described below in Part V.
The Court did not explain why antitrust treatment of restraints not before it determines the per se status of those restraints that are. Horizontal cooperation is necessary to create and maintain numerous other ventures besides sports leagues.[48] However, courts do not immunize restraints imposed by such other ventures from per se condemnation simply because the restraints accompany a valid venture. Instead, courts employ the ancillary restraints doctrine to test whether such restraints might produce cognizable benefits that further the venture and thus warrant an additional fact-based assessment.[49] The content and nature of this threshold inquiry assumes that sometimes the answer to this question will be “no.” That is, some restraints that accompany an otherwise valid joint venture cannot produce any cognizable benefits but will instead simply reduce rivalry simpliciter.[50] Courts condemn such restraints while allowing the venture to proceed.[51]
Robert Bork, who rehabilitated the ancillary restraints doctrine, endorsed this approach in a path-breaking article.[52] Bork explained that horizontal restraints that accompanied lawful ventures were not ancillary if they were “incapable of adding to the efficiency of the integration which they seemingly accompany.”[53] Bork instanced a restrictive covenant that accompanied formation of a “product safety testing laboratory” by horizontal rivals.[54] The formation and operation of the laboratory would constitute lawful concerted action, just like formation and continued operation of the NCAA.[55] Still, Bork concluded that the covenant could not be ancillary and was thus unlawful per se.[56] Bork’s analysis confirms that is no reason to treat restraints that accompany sports leagues more favorably than those that accompany other ventures when applying the NPR standard.
V. Retaining the Sports League Exemption Does Positive Harm
Perhaps the sports league exemption is a case of “no harm, no foul.” Most exempted restraints would merit Rule of Reason scrutiny under more recent applications of the NPR standard anyway. Moreover, both NPR and Rule of Reason analysis ultimately ask whether challenged restraints produce monopoly or its consequences.[57]Per se condemnation reflects a conclusion that Rule of Reason analysis will condemn the restraint.[58] As shown below, however, the sports league exemption still does positive harm, both by weakening the per se rule and also by distorting related aspects of antitrust doctrines. In particular, the exemption has contributed to a distortion of the methodology of Rule of Reason analysis that courts apply and not merely those adopted by sports leagues.
V.A. The Sports League Exemption Deters Legitimate Challenges and Increases False Negatives.
Full-blown Rule of Reason analysis is not free. Plaintiffs must expend resources to establish a prima facie case by proving either: (1) the restraint produces actual detrimental effects or (2) the parties possess the economic power necessary to impose harm.[59] Defendants can contest these assertions, further increasing adjudication costs. Plaintiffs fail to establish such a case 97 percent of the time.[60] Presumably, numerous potential plaintiffs do not attempt such a showing, leaving harmful restraints unchallenged. Knowing this, defendants will, at the margin, adopt some unambiguously harmful restraints they otherwise would not have adopted, knowing, as they will, that the sports league exemption will raise the bar for plaintiffs challenging such restraints.[61] In sum, the sports league exemption both increases the number of false negatives and encourages additional harmful restraints.
V.B. The Sports League Exemption Distorts the Rule of Reason Methodology That Courts Employ.
Rule of Reason methodology should turn upon the nature of possible redeeming virtues that save restraints from per se condemnation. Application of the NPR standard and ancillary restraints doctrine, both of which NCAA ignored, identifies the relevant virtues, if any, that restraints might produce. If such virtues are technological, the three-part Rule of Reason test applied in Alston and informed by NCAA is generally appropriate.[62] Proof of higher prices (or in Alston, reduced compensation) should establish a prima facie case, casting upon the defendants a burden to adduce evidence of such efficiencies.[63] If defendants satisfy this burden, plaintiffs can prove a less restrictive alternative or show that the restraint’s harms exceed its benefits.[64] This framework assumes whatever benefits defendants prove coexist with the harms that plaintiffs purportedly demonstrated to establish a prima facie case.[65]
However, some restraints survive per se condemnation because they may produce non-technological efficiencies by overcoming market failure.[66] Here, a price-based standard makes no sense. If restraints overcome market failure, pre-restraint prices reflect a poorly functioning market that the restraint corrects. Such prices are not a useful benchmark for comparison to post-restraint prices. Instead, proof that post-restraint prices exceed the pre-restraint baseline is entirely consistent with a conclusion that the agreement overcomes a market failure and produces redeeming virtues, the prospect of which resulted in Rule of Reason treatment.[67] Antitrust procedure thus precludes allowing plaintiffs to prevail based solely upon such evidence.[68]
Moreover, once a plaintiff does make out a prima facie case in whatever way, proof that the restraint produces significant non-technological benefits undermines the rationale for balancing benefits against harms. Such balancing presumes that the restraint produces simultaneous harms and benefits, like a merger to monopoly that generates economies of scale that may offset the transaction’s harms.[69] However, a defendant’s showing that a restraint overcomes a market failure undermines the assumption that benefits coexist with harms.[70] Instead, the evidence is at least equally consistent with the conclusion that the restraint only produces benefits—benefits that manifest themselves as prices higher than those produced by the pre-restraint, poorly functioning market.[71] Similar logic undermines the search for “less restrictive” alternatives, because there is no reason to assume that the challenged restraint is “restrictive” in the first place.
The sports league exemption deprives courts of the information necessary to ascertain what Rule of Reason methodology makes sense. Alston may be such a case.
V.C. The Exemption Encouraged Adoption of an Ill-Considered “Quick Look” Methodology of Rule of Reason Analysis.
The restraint before the Court in NCAA expressly set price and output. Without identifying any redeeming virtues, the Court nonetheless assessed the restraints under the Rule of Reason, because they accompanied a sports league and were thus exempt from the NPR standard.[72] The Court began by invoking the District Court’s findings that the restraint had increased prices compared to a (hypothetical) non-restraint baseline.[73] Absent possible redeeming virtues, this price-based method of making out a prima facie case made perfect sense. Nonetheless, the NCAA contended that the plaintiffs’ case should fail absent proof that the defendants possessed sufficient shares of a properly defined market.[74]
The Court could have invoked its ultimate conclusion that the defendants did, in fact, possess a large share of a properly defined market.[75] Instead, the Court issued a broader pronouncement, applicable well-beyond the case before it, regardless of a defendant’s market position. In a passage that quoted National Society of Professional Engineers v. United States,[76] the Court announced:
As a matter of law, the absence of proof of market power does not justify a naked restriction on price or output. To the contrary, when there is an agreement not to compete in terms of price or output, ‘no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement.’[77]
The Court also quoted Professor Areeda’s assertion that some restraints were so obviously harmful that courts could condemn them “‘in the twinkling of an eye.’”[78]
The Court’s quotation of Professional Engineers suggests that it equated “naked” restraints with those that could not produce redeeming virtues.[79] Combined with the “twinkling of an eye” metaphor, this language inspired the so-called “Quick Look” methodology of Rule of Reason analysis.[80] Under this approach, plaintiffs may avoid establishing actual detrimental effects or market power if they convince the tribunal that, while not unlawful per se, the restraint is nonetheless “inherently suspect.”[81] Initially, some proponents touted the Quick Look as a pro-defendant “safety valve” that tempered an overbroad per se rule.[82]
As a matter of decision theory, this approach makes perfect sense in a case like NCAA. If a particular class of restraint is usually anticompetitive and rarely, if ever, produces benefits, the chance of false positives is extremely low. Reducing plaintiffs’ burden of establishing a prima facie case would (properly) encourage such challenges and minimize the resources expended on litigation.
However, advocates and courts have not confined the Quick Look to restraints deemed “naked” because they lack redeeming virtues.[83] Indeed, the Alston plaintiffs began their argument before the Supreme Court by attempting to expand the definition of “naked,” contending that the challenged restraints were “naked,” despite the finding below that they produced significant benefits.[84] Moreover, scholars and courts have held out the possibility that a restraint may be inherently suspect and thus subject to the Quick Look, regardless of whether it is “naked” as defined by NCAA.[85] Once courts and agencies created the Quick Look methodology, plaintiffs naturally pressed courts to declare numerous restraints “inherently suspect,” hoping to eliminate the burden of establishing antitrust harm.[86] The result has been an increase in expensive and distracting disputes about whether various restraints are “inherently suspect”—disputes that defendants almost always win.[87] The cost of such disputes produces no offsetting social benefits, as failure to establish that a restraint is inherently suspect relegates plaintiffs to the standard requirement to prove anticompetitive harm anyway.
To be sure, a more expansive definition of “inherently suspect” could seemingly lighten plaintiffs’ burdens in a larger number of cases. However, proponents of the Quick Look have not offered a tractable methodology for distinguishing “inherently suspect” restraints from those properly assessed under full-blown Rule of Reason analysis.[88] Absent such a methodology, the pro-plaintiff Quick Look is probably best reserved for those restraints that do not merit Rule of Reason scrutiny in the first place—a set that would be empty if courts properly and uniformly applied the NPR standard and ancillary restraints test.
In any event, the Quick Look has always rested on shaky jurisprudential ground.[89]NCAA’s suggestion that the nakedness of a restraint itself establishes a prima facie case was dicta, given the district court’s finding that the restraint produced actual detrimental effects.[90] Moreover, Professor Areeda’s “twinkling of an eye” metaphor described a hypothetical case in which courts determined at the summary judgment stage that defendants possessed a dominant market position and thus market power.[91] This conclusion did not support any suggestion that the mere existence of a restraint, no matter how apparently harmful, could itself establish a prima facie case.[92] Finally, while the Supreme Court has endorsed the Quick Look in concept,[93] it has never condemned a restraint under the Rule of Reason without first finding that the agreement produced concrete anticompetitive harm.[94]
Moreover, NCAA’s assertion that “naked” restraints should themselves establish a prima facie case regardless of market share or anticompetitive effects was dicta, given the Court’s holding that the plaintiffs had in fact established market power and actual detrimental effects. Finally, the actual agreement before the Court, which could not produce redeeming virtues, bore little meaningful resemblance to restraints such as those in Alston that could produce such virtues. It would thus be hazardous, to say the least, to generalize these dicta to apply to potentially beneficial restraints.[95] Indeed, the only restraints that would seem analogous to those before the NCAA Court are those that should be condemned as unlawful per se in the first place. NCAA’s unjustified exemption of the restraints before it from per se condemnation thus inspired a methodology of Rule of Reason analysis that was in fact only appropriate for restraints that were not properly subject to Rule of Reason analysis in the first place.
V.D. NCAA Inspired a New and More Powerful Exemption.
NCAA spawned another, more powerful exemption, one squarely before the Court in Alston. The Quick Look’s logic cuts both ways. If some restraints that survive per se condemnation are almost always harmful on balance, presumably some are nearly always beneficial. An antitrust regime could reflect this fact, making it especially difficult for plaintiffs to establish a prima facie case and/or easier for defendants to rebut such a case. Over a decade ago, the Seventh Circuit embraced such logic, holding that a NCAA Bylaw is “presumed procompetitive” when it is “clearly meant to help maintain the ‘revered tradition of amateurism in college sports’ or the ‘preservation of the student-athlete in higher education.’”[96] The court built upon dicta in American Needle, Inc v. National Football League,[97] which itself invoked NCAA’s mistranslation of Professor Areeda’s “twinkling of an eye” metaphor.[98]
Defendants have invoked this line of precedent, albeit without the term “Quick Look,” preferring instead the phrase “twinkling of an eye.”[99] Indeed, this pro-defendant approach is really a rule of per se legality and thus an outright exemption from antitrust scrutiny for covered restraints because the “presumption” in favor of such restraints is irrebuttable.[100] It is likely no coincidence that this pro-defendant irrebuttable presumption arose in the context of sports leagues in general and the question of student athlete eligibility in particular. After all, the very existence of NCAA’s sports league exemption broadcasts that “sports are different” and are therefore susceptible to more relaxed antitrust scrutiny than more mundane commercial endeavors. Thus, a pro-plaintiff methodology born from an unjustified sports league exemption has morphed into a second and more ironclad exemption. This Essay contends that the Court should reject this exemption as contrary to antitrust doctrine and policy.[101]
VI. What the Court Can Do About It In Alston
What, then, can the Supreme Court do to correct for this untethered and harmful sports league exemption and the subsequent doctrinal consequences described above? Most aggressively, the Court could order re-argument and add three questions for consideration: (1) are all restraints imposed by sports leagues exempt from per se condemnation under the NPR standard?; (2) do restraints such as those reviewed in Alston possibly produce redeeming virtues?; and (3) if so, what are those virtues? After such re-argument, the Court could overrule that portion of NCAA creating the sports league exemption, while reiterating the condemnation of express limitations on price and output of televised games.[102] The Court would then have to face the question that has eluded a fully considered decision since 1984, namely, whether horizontal restrictions on player compensation can produce redeeming virtues and thus survive per se condemnation under the NPR standard.
The Court could also take a different approach altogether, confining itself to the present record and arguments. The Court could still begin by noting that it is only applying the exemption arguendo because neither party challenged it. It could also note that it generated the exemption when courts misapplied the NPR standard and banned bona fide ancillary restraints, such that the exemption saved many procompetitive restraints from wrongful condemnation.[103] The Court could then note that, given today’s more accurate application of the NPR standard, the exemption no longer performs this function.[104] Such a statement could encourage lower courts to abandon the exemption, teeing up Supreme Court review.
Application of the exemption would ordinarily preclude consideration of whether the challenged restraints might produce redeeming virtues until after the plaintiff establishes a prima facie case. But the Alston Court could answer this question before a full-blown analysis. The defendants’ bid to exempt their restraints from even Rule of Reason scrutiny necessarily assumes that such restraints usually, or even always, produce redeeming virtues by protecting and enhancing the amateur nature of NCAA sports from unbridled rivalry for players.[105] While not a sufficient condition for such an exemption, this assumption is certainly necessary.[106]
Recent commentary and some questions at oral argument, however, seem to take issue with this threshold assumption by, for instance, analogizing limits on player compensation to putative limits on coaches’ salaries.[107] The latter, of course, would be unlawful per se absent the sports league exemption.[108] Indeed, the plaintiff began its oral argument by characterizing the restraints before the Court as “naked horizontal monopsony restraints that would be per se unlawful in any context.”[109]
This Essay submits that the NCAA dicta correctly signaled that agreements restricting player compensation could create redeeming virtues, notwithstanding Nick Saban’s unregulated salary.[110] To be sure, the restraints restrict atomistic rivalry for players. But as Standard Oil itself recognized, some agreements that restrict atomistic rivalry have the “legitimate purpose of reasonably forwarding personal interest and developing trade” and are thus not unreasonable.[111] The Court in Sylvania concurred, explaining that some restrictions on “a purely competitive situation” can overcome free riding, correct a market failure, and enhance inter-brand competition.[112] There is no reason to suspend this logic because the restraints govern buying rather than selling.[113]NCAA’s dicta, which addressed the validity of compensation limits, expressly invoked Sylvania, suggesting that such restraints could “enhance market-wide competition.”[114]
Sylvania and NCAA assumed that product differentiation is beneficial. Moreover, the “more accurate economic conceptions” that courts must apply when assessing restraints in “the light of reason” bolster NCAA’s assertion that unbridled rivalry will produce insufficient differentiation.[115] Imagine that schools could include non-students on teams, perhaps providing compensation equal to the cost of attendance.[116] Each team would fully internalize the private benefits of including non-students. These benefits could include, for example, improved winning percentages. But no school would internalize the full impact of such participation upon the nature of the product. If a few schools chose this route, others would predictably follow suit, producing an equilibrium where few, if any, schools fielded teams exclusively populated by students. Only a horizontal agreement preventing rostering non-students would reliably prevent a race to the bottom that would transform college football into a football team owned by a college but full of non-students.
The agreement just described is as “pernicious” under NPR as one restricting player compensation.[117] Both restrict rivalry for inputs. But plaintiffs have properly declined to challenge such restrictions.[118] This concession reflects recognition that unbridled rivalry over the composition of rosters would produce a market failure manifesting itself in negative differentiation of the NCAA’s product, reduced inter-brand competition, and decreased consumer welfare.[119] Translated into the NPR standard and ancillary restraints test, such restrictions can produce redeeming virtues and enhance the efficiency of an otherwise valid venture.
Defendants’ bid for a stronger exemption regarding compensation restrictions rests upon a similar claim. Unbridled compensation rivalry, they say, will result in an additional market failure, also undermining the quality of the NCAA’s product and reducing demand.[120] Indeed, plaintiffs have asserted that the challenged restraints reduce student-athlete compensation compared to what unfettered rivalry will produce.[121] Such limits on compensation rivalry reinforce the requirement that participants be students. If schools could pay whatever the market would bear, the supply of non-student labor would increase significantly, in both numbers and quality, thus increasing schools’ temptation to include non-student participants and undermining the “student-only” policy.
The defendants, district court, and Ninth Circuit agree that the propensity of a restraint to prevent unbridled compensation rivalry helps differentiate collegiate from professional sports, improving consumer welfare.[122] They only disagree as to the magnitude of benefits and as to whether the restrictions are broader than necessary.[123] Thus, both lower courts agreed that restrictions on compensation unrelated to education—that is, restrictions that prevent the payment of an outright salary—are procompetitive, even though such restrictions extinguish the very rivalry that would produce the largest increase in student-athlete compensation.[124] Indeed, one implication of Alston’s result is that a less restrictive means of achieving the objective would entail voluntary integration, independent of any exercise of market power.[125] No one has articulated a similar account of how limiting coaching staffs to students, for instance, or limiting coaches’ salaries to the cost of attendance, would distinguish the quality of the product that schools offer to paying fans in a manner that would appeal to consumers.[126]
However, a conclusion that compensation restraints may produce redeeming virtues is simply a necessary condition for application of the player eligibility exemption. Proponents must also explain why this stronger exemption is superior to Rule of Reason scrutiny. Hopefully, the Court will reject this proposed new exemption, at least for now. As explained in Subpart V.C of this Essay, the basis for the original Quick Look, on which American Needle’s dicta tried to build, was questionable at best.[127]
Therefore, the pro-plaintiff Quick Look has very little to recommend it and is surely no model for further doctrinal evolution that completely shields some concerted action from Sherman Act scrutiny. NCAA’s apparent endorsement of “a great majority of such restrictions” was dicta and rested in part upon a concession by plaintiffs—the University of Georgia and the University of Oklahoma—with strong economic interests to preserve such restrictions.[128] Even on their own terms, these dicta conceded that some such restrictions did not enhance competition, thereby implying that courts should assess such restraints under the Rule of Reason to separate the wheat from the chaff.
Proponents of narrowing the scope of per se rules in favor of full-blown Rule of Reason analysis in other contexts have persuasively explained that such fact-intensive scrutiny can generate information about the actual impact of restraints previously condemned, thereby informing future assessment regarding whether something other than full-blown analysis is appropriate.[129] Such scrutiny can also help parties, courts, and scholars hone their theoretical conceptions regarding how to think about the impact of such restraints and what questions a tribunal should ask when examining them. By analogy, the exemption sought by the defendants would prevent the generation of information about the impact of exempted agreements that decisions such as O’Bannon and Alston have themselves produced, information that scholars and practitioners alike can employ to assess their true economic effect. Perhaps such assessments would confirm defendants’ assumption regarding the uniformly procompetitive nature of such agreements, but perhaps not.
Of course, at least in the short run, a full-blown Rule of Reason assessment will consume more resources than the defendants’ new exemption. But this would be true of any exemption from ordinary full-blown analysis. Moreover, this putative benefit is partly illusory. Once parties understand that inclusion in a particular category will obviate Rule of Reason scrutiny, defendants will predictably invest resources attempting to convince courts that restraints in fact fall into this category, while plaintiffs will invest resources to prove the opposite.[130] These additional litigation-related investments will partly offset the savings from eliminating full-blown scrutiny. Finally, as noted earlier, the prospect of complete exemption from any antitrust scrutiny will encourage potential defendants to adopt some eligibility related restraints that are anticompetitive on balance, knowing as they will that such restraints will be immune from antitrust scrutiny.[131]
Assuming the Court does reject the defendant’s bid for a new exemption, it will finally have to wrestle with the problem that consumed the Ninth Circuit—namely, application of the full-blown Rule of Reason to the challenged restraints. Here, NCAA itself strongly bolsters the Ninth Circuit’s approach, which found that plaintiffs had established a prima facie case by showing that, but for the restraints, NCAA members would have provided greater compensation to student-athletes—at least those playing football and basketball.[132] However, as explained in Part V.B of this Essay, this approach seems to contradict the apparent rationale for rejecting per se condemnation of such restraints in the first place.[133] After all, if such restraints do in fact avoid per se condemnation, they do so because they may produce non-technological efficiencies by eliminating or attenuating a market failure.[134] Thus, proof that such restraints reduce player compensation below the level that unbridled rivalry would produce is unremarkable given that such restraints would properly survive per se condemnation in the first place.[135] That is, a conclusion that such proof establishes a prima facie case rests upon an arbitrary choice between two entirely different accounts of the impact of such restraints; one reflecting a harmful exercise of market power and the other reflecting an entirely beneficial example of horizontal voluntary integration, closely analogous to the numerous almost mundane restraints agreed upon by franchisees upon entry into a particular franchise system.[136]
To be sure, the plaintiffs have also convinced the Ninth Circuit that the defendants possess market power—indeed, a monopsony—in a properly defined relevant market, although defendants apparently stipulated this market.[137] Still, even dominant firms enter agreements that overcome market failures and produce benefits.[138] Proof that such a firm has entered a contract does not, without more, logically give rise to a presumption that the agreement produces antitrust harm. This is so even if the restraint produces prices that are higher than those that a non-restraint world would create. Only proof that the challenged restraint reduces output, properly defined, would, as a logical matter, suffice to establish a prima facie case.[139] However, plaintiffs apparently made no attempt to define the proper measure of output in this context or link the imposition of the restraints to any reduction in that measure.
The Court could therefore reverse and remand for additional assessment of whether the plaintiffs have established a prima facie case. The plaintiffs would thus have an opportunity to define the proper measure of output and prove that the restraint reduced output measured in this manner.
In any event, regardless of how the plaintiffs have established a prima facie case, the defendants have in fact satisfied their burden of producing evidence that the challenged restraints produce significant benefits. If the defendants had not discharged this burden, there would have been no need for the plaintiffs to adduce evidence of a less restrictive alternative that supposedly produces identical benefits. Moreover, as explained earlier, proof of such benefits further undermines any presumption that a restraint produces anticompetitive harm, in this case, by establishing that the agreement overcomes a market failure.[140] As a result, there is no rationale for calculating the magnitude of these benefits or comparing such benefits to presumed harms—because there is no longer any reason to presume that such harms exist. Indeed, proof that the restraint in fact overcomes a market failure both negates any presumption of harm and establishes that the restraint produces benefits, thus requiring a conclusion that the practice unambiguously improves welfare.
Proponents of the lower court’s decision may respond that courts should nonetheless assess whether there is a less restrictive means of achieving the same benefits as the challenged restraints. Proof that such an alternative exists, they might say, suggests that the defendants have adopted the restraint mainly or just partly to exercise market power. But any such argument begins with the assumption that the restraints are restrictive to begin with. Absent evidence that the restraints have reduced output, proof that they in fact overcome a market failure that would have manifested as lower pre-restraint prices undermines any presumption that such restraints are restrictive in the first place.
* Ball Professor of Law and Co-Director, Center for the Study of Law and Markets, William & Mary Law School. The author thanks the editors of the Wake Forest Law Review, both print and online editions, for their thoughtful edits and diligent efforts.
[1]. 468 U.S. 85 (1984).
[2]. Infra Part III.
[3]. Id.
[4]. See Alan J. Meese, Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine, 56 Wake Forest L. Rev. (forthcoming Dec. 2021).
[11]. Id. at 52 (listing three “evils which led to the public outcry against monopolies”).
[12]. Cont’l T.V. v. GTE Sylvania, Inc., 433 U.S. 36, 49 n.15 (1977).
[13]. See generally N. Pac. Ry. Co. v. United States (“NPR“), 356 U.S. 1 (1958).
[14]. Id. at 5.
[15]. Id.; see alsoSylvania, 433 U.S. at 50 (quoting NPR with approval).
[16]. Alan J. Meese, Price Theory, Competition, and the Rule of Reason, 2003 U. Ill. L. Rev. 77, 94–95 (2003) (recognizing that the Court defines “anticompetitive” broadly).
[17]. Id. at 94 (explaining that the Court has “equated the term [‘competition’] with ‘rivalry’ for the purpose of per se analysis, with the result that any coordination of previously independent activity is anticompetitive”).
[18]. Id. at 95.
[19]. Id. at 96.
[20]. See id. at 96–98.
[21]. See Robert H. Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division II, 75 Yale L. J. 373, 383 (1966) (distinguishing between antitrust’s treatment of naked price fixing and “close-knit combinations” such as partnerships on this basis); Richard A. Givens, Affirmative Benefits to Industrial Mergers and Section 7 of the Clayton Act, 36 Ind. L. J. 51, 52–53 (1960) (concluding that “‘lack of any redeeming virtue’ is the chief distinction between those kinds of loose-knit combinations which are held in unreasonable restraint of trade in and of themselves and the close-knit combinations”); Alan J. Meese, In Praise of All or Nothing Dichotomous Categories: Why Antitrust Law Should Reject the Quick Look, 104 Geo. L.J. 835, 849–51 (2016) (explaining the NPR standard’s disparate treatment of naked price fixing and the formation of partnerships).
[22]. Bork, supra note 21, at 383.
[23]. See generally United States v. Addyston Pipe & Steel Co., 85 F. 271 (6th Cir. 1898) (articulating the ancillary restraints doctrine sixty years before NPR).
[24]. Compare N. Pac. Ry. Co. v. United States (“NPR”), 356 U.S. 1, 5 (stating that “[the] principle of per se unreasonableness . . . makes the type of restraints proscribed by the Sherman Act more certain . . . .”), withAddyston Pipe, 85 F. 271 at 282–83 (illustrating that the “very statement of the rule” implies that the court must determine whether “the contract [at issue is] one in which there is a main purpose, to which the covenant in restraint of trade is merely ancillary”).
[25]. See Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 344 (1982) (explaining that restraints are condemned as unlawful per se “[o]nce experience with a particular kind of restraint enables the Court to predict with confidence that the Rule of Reason will condemn it”).
[26]. See FTC v. Superior Ct. Trial Lawyers Ass’n, 493 U.S. 411, 435 n.18 (1990) (“Very few firms that lack power to affect market prices will be sufficiently foolish to enter into conspiracies to fix prices.”) (quoting R. Bork, The Antitrust Paradox, 269 (1978)); Rothery Storage v. Atlas Van Lines, 792 F.2d 210, 221 (D.C. Cir. 1986) (Bork, J., for the court).
[27]. Areeda, infra note 78, at 21–22.
[28]. See Oliver E. Williamson, Economic Institutions of Capitalism, 7 (1985) (“The prevailing orientation toward economic organization [during this period] was that technological features of firm and market organization were determinative.”); see also Meese, supra note 16, at 124–32 (documenting how the Supreme Court relied upon the applied price theory tradition that Williamson discusses when expanding the scope of the per se rule).
[29]. 433 U.S. 36 (1977).
[30]. Id. at 55 (explaining how non-standard agreements could ensure production of services retailers might not provide “in a purely competitive situation”).
[34]. United States v. Topco Assocs., Inc., 405 U.S. 596, 607–12 (1972).
[35]. Bd. of Regents of the Univ. of Okla., 707 F.2d at 1153–54.
[36]. Id.
[37]. Brief for Respondents at 23, Nat. Collegiate Athletic Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85 (1984) (No. 83-271), 1984 WL 1036477, *23.
[38]. NCAA, 468 U.S. at 101.
[39]. Id. at 102.
[40]. 958 F.3d 1239 (9th Cir. 2020).
[41]. See, e.g., id. at 1256; O’Bannon v. NCAA, 802 F.3d 1049, 1069–1070 (9th Cir. 2015); Law v. NCAA, 134 F.3d 1010, 1017–1020 (10th Cir. 1998).
[42]. See Herbert Hovenkamp, The NCAA and the Rule of Reason, 52 Rev. Indus. Org. 323, 324–26 (2017) (reading NCAA in this manner); see also Alan J. Meese, Competition and Market Failure in the Antitrust Jurisprudence of Justice Stevens, 74 Fordham L. Rev. 1775, 1791–92 (2006).
[43]. See, e.g., Topco, 405 U.S. at 608–12; see also NCAA, 468 U.S. at 99 & nn.18–19 (citing Topco with approval).
[44]. NCAA, 468 U.S. at 101–02.
[45]. Id. at 103 (“[A] restraint in a limited aspect of a market may actually enhance market-wide competition.”).
[46]. Rothery Storage v. Atlas Van Lines, 792 F.2d 210, 226 (D.C. Cir. 1986); Polk Bros, Inc. v. Forest City Enters., Inc., 776 F.2d 185, 188–89 (7th Cir. 1985).
[47]. See, e.g., O’Bannon, 802 F.3d at 1057.
[48]. See Alan J. Meese, Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine, 56 Wake Forest L. Rev. (forthcoming Dec. 2021).
[49]. Rothery Storage, 792 F.2d at 224 (“To be ancillary, and hence exempt from the per se rule, an agreement eliminating competition must . . . serve[] to make the main transaction more effective in accomplishing its purpose. Of course, the restraint imposed must be related to the efficiency sought to be achieved.”) (emphasis added).
[50]. See, e.g., In re Brunswick Corp., 94 F.T.C. 1174, 1275 (1979) (Pitofsky, Commissioner), aff’d 657 F. 2d 971 (8th Cir. 1981); see also Polygram Holding v. FTC, 416 F.3d 29 (D.C. Cir. 2004) (holding that a restraint that accompanied an otherwise legitimate venture could produce no cognizable benefits).
[51]. See, e.g., Polygram Holding, 416 F.3d at 38–39.
[52]. See Bork, supra note 21, at 380; see alsoPolk Bros., 776 F.2d at 189 (“A court must ask whether an agreement promoted enterprise and productivity at the time it was adopted. If it arguably did, then the court must apply the Rule of Reason . . . .”) (emphasis added).
[53]. Bork, supra note 21, at 383 (emphasis added).
[54]. Id.
[55]. See Am. Needle, Inc. v. NFL, 560 U.S. 183, 197–200 (2010) (treating conduct of a corporation jointly owned by thirty-two NFL teams as concerted action because agreement joined “independent centers of decision making”); Rothery Storage, 792 F.2d at 214–15 (analogizing challenged restraints to those challenged in Topco and NCAA and concluding that all such restraints were concerted action).
[56]. Bork, supra note 21, at 382–84; id. at 384 (treating non-ancillary restraints as unlawful per se). It should not matter that restraints that accompany a joint venture “are likely to survive the Rule of Reason” in the context of sports leagues. SeeAm. Needle, 560 U.S. at 203. This is equally true with respect to restraints that accompany other joint ventures.
[57]. Professional Engineers, 435 U.S. at 692–93 (explaining that the per se rule and full-blown Rule of Reason scrutiny are “two complimentary categories of Rule of Reason analysis” and that “[i]n either event, the purpose of the analysis is to form a judgment about the competitive significance of the restraint”).
[58]. See Maricopa Cnty. Med. Soc., 457 U.S. at 344.
[59]. See Realcomp II, Ltd. v. FTC, 635 F.3d 815, 827 (6th Cir. 2011) (describing these alternative means of establishing a prima facie case).
[60]. Michael A. Carrier, The Rule of Reason: An Empirical Update for the 21st Century, 16 Geo. Mason L. Rev. 827, 827–29; 837 (2009).
[61]. This impact will also alter the ratio of harmful to beneficial restraints in this category.
[62]. Alston, 958 F.3d at 1256 (invoking and applying Rule of Reason’s three-part framework).
[63]. NCAA opined that the defendants there bore a “heavy burden of establishing an affirmative defense[.]” Nat. Collegiate Athletic Ass’n v. Bd. Of Regents of the Univ. of Okla., 468 U.S. 85, 113 (1984). Such an approach makes sense with respect to explicit price and/or output restraints that apparently cannot produce redeeming virtues. However, lower courts, including Alston, have generalized this language, applying this standard to restraints that would survive per se condemnation under the NPR standard because they may produce redeeming virtues. SeeAlston, 958 F.3d at 1257 (describing the NCAA’s “‘heavy burden’” of “‘competitively justify[ing]’” its undisputed “‘deviation from the operations of a free market’” under the Rule of Reason) (quoting NCAA, 468 U.S. at 113)). There is, however, no warrant for imposing upon defendants more than the traditional burden of production when a restraint properly survives per se condemnation under the NPR standard. See Meese, supra note 16, at 108 n.156 (collecting authorities characterizing defendants’ burden as a burden of production). Thus, exemption of the naked restraints before it from per se condemnation resulted in a misleading and non-generalizable pronouncement regarding this aspect of Rule of Reason analysis.
[64]. The exact nature of this balancing, of course, will depend on the welfare standard that the court selects. See generally Roger D. Blair & D. Daniel Sokol, The Rule of Reason and the Goals of Antitrust: An Economic Approach, 78 Antitrust L.J. 471 (2012).
[65]. Cf. Oliver E. Williamson, Economies as an Antitrust Defense: The Welfare Trade-offs, 58 Amer. Econ. Rev. 18 (1968). See also Law, 134 F.3d at 1017 (holding that, after plaintiffs make out a prima facie case, “[t]he inquiry then shifts to an evaluation of whether the procompetitive virtues of the alleged wrongful conduct justifies the otherwise anticompetitive impacts” (emphasis added)).
[66]. Alan J. Meese, Market Failure and Non-Standard Contracting: How the Ghost of Perfect Competition Still Haunts Antitrust, 1 J. Comp. L. & Econ. 21 (2005).
[67]. See, e.g., Leegin Creative Leather Prod., Inc. v. PSKS, Inc., 551 U.S. 877, 878, 882–85, 889–90, 893, 896–98 (2007) (holding that higher retail prices resulting from additional promotion are not antitrust harm).
[68]. Meese, supra note 16, at 100–01.
[69]. See Oliver E. Williamson, Economies as an Antitrust Defense: The Welfare Tradeoffs, 58 Amer. Econ. Rev. 18 (1968).
[70]. See Thomas G. Krattenmaker & Steven Salop, Anticompetitive Exclusion: Raising Rivals’ Costs to Achieve Power Over Price, 96 Yale L. J. 209, 278, 278 nn.216–17 (1986) (explaining that courts often treat proof of efficiencies as reason to scrutinize more carefully claims that the restraint produced harms in the first place).
[71]. See Meese, supra note 16, at 163–65.
[72]. SeeNCAA, 468 U.S. at 107–08.
[73]. See id. at 104–108. While the Court also claimed that the restraints had reduced output, it made no effort to adjust that reduction for the quality of the remaining games. Id.
[74]. Brief for Petitioner at 33–34, NCAA, 468 U.S. 85 (1984) (No. 83-271).
[75]. SeeNCAA, 468 U.S. at 111–113; see also id. at 115, 115 n.55 (resting the rejection of one of the defendants’ justifications on finding that the defendants possessed market power).
[76]. 435 U.S. 679 (1978).
[77]. NCAA, 468 U.S. at 109 (quoting Professional Engineers, 435 U.S. at 692).
[78]. Seeid. at 109 n.39 (quoting Phillip Areeda, The “Rule of Reason” in Antitrust Analysis: General Issues 37–38 (Federal Judicial Center, June 1981) (parenthetical omitted), https://www.fjc.gov/sites/default/files/2012/Antitrust.pdf (last visited June 9, 2021).
[79]. See Meese, supra note 42, at 1780, 1789–91, 1800 (reading Professional Engineers in this manner).
[80]. Id. at 1801–02.
[81]. See, e.g., Polygram Holding v. FTC, 416 F.3d 29, 32–33, 36–37 (D.C. Cir. 2005) (detailing and applying this approach).
[82]. See Meese, supra note 21, at 873.
[83]. See, e.g., Polygram, 416 F.3d at 35 (detailing this approach).
[84]. Transcript of Oral Argument at 42, NCAA v. Alston, No. 20-512 (Mar. 31, 2021).
[85]. See Andrew I. Gavil, Moving Beyond Caricature and Characterization: The Modern Rule of Reason in Practice, 85 S. Cal. L. Rev. 733, 777–81 (2012) (endorsing application of the Quick Look to restraints regardless of how they avoid per se condemnation); Meese, supra note 21, at 866 n.165 (collecting numerous decisions asking whether numerous restraints, including exclusive dealing contracts, are “inherently suspect”).
[86]. See Meese, supra note 21, at 864–65 (describing plaintiffs’ strong incentives to convince tribunals that challenged restraints are “inherently suspect” so as to avoid almost certain failure to establish a prima facie case under standard Rule of Reason analysis); id. at 863 (explaining that the first step in Rule of Reason analysis is to ask whether a restraint is inherently suspect).
[87]. Id. at 866 n.165 (collecting numerous decisions evaluating and (nearly) always rejecting plaintiff’s claim that restraint was “inherently suspect”).
[88]. Seeid. at 876–80.
[89]. See Alan J. Meese, The Rule of Reason’s Prima Facie Case: Did Harvard Get it Right?, 168 U. Penn. L. Rev. Online (2021) (forthcoming).
[90]. See Meese, supra note 21, at 856 & n.104 (explaining why this language was dicta).
[91]. See Areeda, supra note 78, at 37–38.
[92]. Seesupra note 89 and accompanying text.
[93]. See Cal. Dental Ass’n v. FTC, 526 U.S. 756, 770 (1999).
[94]. See Meese, supra note 21, at 856 & n.104 (explaining that Supreme Court decisions endorsing or implying a Quick Look approach are dicta); see also, e.g., Cal. Dental Ass’n, 526 U.S. at 770–81 (rejecting application of the Quick Look to the case before it).
[95]. Seegenerally Neal Devins & Alan J. Meese, Judicial Review and Nongeneralizable Cases, 32 Fla. State L. Rev. 323 (2005) (contending that precedents adopted in cases with idiosyncratic facts may not reflect appropriate consideration of factors that should inform the resulting rule).
[96]. See Deppe v. NCAA, 893 F.3d 498, 501, 503 (7th Cir. 2018); Agnew v. NCAA, 683 F.3d 328, 342–43 (7th Cir. 2012). But see O’Bannon v. NCAA, 802 F.3d 1049, 1063–64 (9th Cir. 2015) (rejecting this approach and assessing restrictions under the Rule of Reason).
[97]. 560 U.S. 183 (2010).
[98]. Id. at 203; see also Agnew, 683 F.3d at 341 (quoting Am. Needle, 560 U.S. at 203).
[99]. Petition for Writ of Certiorari, at 19–20, 24–25, Nat. Collegiate Athletic Ass’n v. Alston, No. 20-512 (Oct. 2020) (invoking Agnew and Deppe); see also Transcript, supra note 84, at 7 (NCAA disclaiming reliance on the term Quick Look). Of course, the NCAA is seeking more than what the Quick Look provides plaintiffs.
[100]. See Deppe, 893 F.3d at 501–502 (holding that courts should dismiss challenges to such restraints on the pleadings without opportunity for rebuttal); Agnew, 683 F. 3d at 343, n.6 (same); see also Michael H. v. Gerald D., 491 U.S. 110, 119 (1989) (plurality opinion) (explaining that an irrebuttable presumption is really a substantive rule).
[101]. Seeinfra notes 122–28 and accompanying text.
[102]. Transcript, supra note 84, at 33.
[103]. Cf. Meese, supra note 21, at 873 (describing assertions by proponents of the “Quick Look” Rule of Reason analysis that this approach could soften an over-inclusive per se rule).
[104]. See id. at 873–74 (explaining how more selective application of the per se rule eliminated any putative need for “safety valve” function of the Quick Look).
[105]. See Brief for Petitioner at 9–11, 18–21, Nat. Collegiate Athletic Ass’n v. Alston, No. 20-512 (Mar. 31, 2021).
[106]. Of course, under a straightforward application of the NPR standard or ancillary restraints doctrine, courts would have asked and answered this question earlier in the process of assessing these restraints.
[107]. See Transcript, supra note 84, at 10 (Thomas, J., asking question).
[108]. Seegenerally Law v. Nat’l Collegiate Athletics Ass’n, 134 F. 3d 1010 (10th Cir. 1998).
[109]. Transcript, supra note 84, at 42.
[110]. See generally Nat’l Collegiate Athletics Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85 (1984).
[111]. Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 58 (1911).
[112]. Cont‘l T.V. v. GTE Sylvania, Inc., 433 U.S. 36, 55 (1977).
[113]. Id. at 54.
[114]. NCAA, 468 U.S. at 103.
[115]. Standard Oil, 221 U.S. at 55, 63.
[116]. The analysis propounded by this paragraph does not depend upon the provision of such compensation.
[117]. Seesupra notes 13–18 and accompanying text.
[118]. Transcript, supra note 84, at 50–51 (“[O]f course, we’re not challenging any restrictions or rules regarding that they be students.”).
[119]. Id. at 50 (articulating the plaintiffs’ contention that the main distinction between professional and collegiate athletics is that the latter is exclusively comprised of students).
[120]. See In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig. (“Alston”), 958 F.3d 1239, 1248–50, 1257–58, 1260, 1268 (9th Cir. 2020).
[121]. See id. at 1256–57 (describing the district court’s finding that elite student-athletes are “forced to accept . . . whatever compensation is offered to them”). If this is truly the case, then one might ask why the NCAA does not replicate the approach taken by the Ivy League, that is, ban members from providing any athletic financial aid. See Prospective Athlete Information, The Ivy League, https://ivyleague.com/sports/2017/7/28/information-psa-index.aspx (last visited June 9, 2021).
[122]. See, e.g., Alston, 958 F.3d at 1246–47, 1256–57, 1260.
[123]. Seeid. at 1254, 1257 (“The NCAA does, however, quarrel with the district court’s analysis at the Rule of Reason’s second step[.]”).
[124]. Seeid. at 1254–55, 1258 (“Not paying student-athletes ‘unlimited payments unrelated to education, akin to salaries seen in professional sports leagues’ is what makes them ‘amateurs.’” (quoting In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig. (“Alston”), 375 F. Supp. 3d 1058, 1083 (N.D. Cal. 2019))).
[125]. The Ivy League, which provides no athletic scholarships, provides an example of such horizontal voluntary integration that would be difficult to attribute to market power. Indeed, the Ninth Circuit in Alston apparently assumed that individual conferences could, without market power, impose restraints identical to those the court invalidated. SeeAlston, 958 F.3d at 1256–57; see also Rothery Storage v. Atlas Van Lines, 792 F.2d 210, 221 (D.C. Cir. 1986) (stating that absence of market power established that defendants adopted challenged practice to “make the conduct of their business more effective”); Broad. Music, Inc. v. Columbia Broad. Sys., 441 U.S. 1, 22 & n.39 (1979) (highlighting the fact that firms without market power had adopted a practice similar to challenged restraint, thereby suggesting that the practice might be reasonable).
[126]. Cf. Law v. Nat’l Collegiate Athletic Ass’n, 134 F. 3d 1010, 1021–24 (10th Cir. 1998) (describing and rejecting different purported redeeming virtues that supposedly justified limits on the salaries of so-called “restricted earnings coaches”).
[127]. Seesupra Subpart V.D.
[128]. Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 103 (1984) (“Respondents concede that the great majority of the NCAA’s regulations enhance competition among member institutions.”).
[129]. See, e.g., Alan J. Meese, Farewell to the Quick Look: Redefining the Scope and Content of the Rule of Reason, 68 Antitrust L. J. 461, 488–89 & nn.113–14 (2000); see also Cal. Dental Ass’n v. FTC, 526 U.S. 756, 781 (1999) (suggesting that courts can ultimately dispense with full-blown Rule of Reason assessment “if rule-of-reason analyses in case after case reach identical conclusions”).
[130]. See Meese, supra note 21, at 863–66.
[131]. Seesupra Subpart V.D.
[132]. SeeNCAA, 468 U.S. at 104–07 (invoking the finding that challenged restraints resulted in higher prices and reduced output compared to a non-restraint baseline to establish prima facie case).
[133]. Seesupra text accompanying notes 62–71.
[134]. Seesupra notes 66–68 and accompanying text.
[135]. See Meese, supra note 16, at 149–52.
[136]. Id.; see also Alan J. Meese, Intrabrand Restraints and the Theory of the Firm, 83 N.C. L. Rev. 5, 69 & nn.312–14 (2004) (collecting authorities demonstrating that franchising contracts are horizontal).
[137]. See In re. Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig. (“Alston”), 958 F.3d 1239, 1248, 1270 (9th Cir. 2020) (reporting that district court adopted this market definition at “the parties’ request”), cert granted sub nom. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 1231 (2020) (mem.).
[138]. See Alan J. Meese, Monopolization, Exclusion, and the Theory of the Firm, 89 Minn. L. Rev. 743, 845 (2005) (explaining that some “exclusionary agreements can overcome market failures” and result in “significant cognizable benefits”).
[139]. See Hovenkamp, supra note 42, at 324 (“The plaintiff generally makes out a prima facie case by finding an anticompetitive effect, which means either a restraint that tends to reduce output or that excludes a significant firm or firms.”).
By: Ashley Oldfield (Wake Forest School of Law alumnus)
In Niz-Chavez v. Garland,[1] the Supreme Court of the United States addressed, for the second time, what constitutes a notice to appear under 8 U.S.C. § 1229(a)(1).[2] In doing so, the Court may have also resurrected challenges to an immigration court’s jurisdiction which first arose following the Court’s decision in Pereira v. Sessions.[3]
In Pereira, the Court answered a “simple, but important, question of statutory interpretation”: does a putative “notice to appear” that does not specify the time and place of a removal hearing trigger the stop-time rule with regard to cancellation of removal?[4] The Court’s answer? A resounding “no.”[5] In order to trigger the stop time rule under § 1229b(d)(1), a notice must include all of the statutorily required information specified in § 1229(a)(1), including the time and place of the removal proceedings. Absent that information, such a notice is not actually a “notice to appear” at all.[6]
This commonsense decision, however, created an uproar in the immigration world. Immigration advocates saw in Pereira an opportunity to challenge an immigration court’s jurisdiction.[7] They argued that since jurisdiction only vests with the immigration court when a valid charging document (e.g., a notice to appear) is filed, and a notice to appear lacking time-and-date information is not valid, then the filing of an invalid notice to appear fails to vest jurisdiction with the immigration court.[8] Relying on this argument, immigration advocates moved to terminate active removal proceedings, challenge in absentia removal orders, and dismiss illegal reentry charges.[9]
Unsurprisingly, the Board of Immigration Appeals (the “BIA”) rejected this argument. In Matter of Bermudez-Cota,[10] the BIA distinguished Pereira, reasoning that it did not apply where, as in the case at hand, the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” such that he was “sufficiently informed to attend his hearings.”[11] The BIA also insisted that Pereira’s holding was “narrow” and thus only applied when the stop-time rule was at issue.[12] Furthermore, the BIA found support in the regulation applicable to vesting jurisdiction, which did not mandate time-and-date information.[13] Finally, relying on pre-Pereira decisions from the Fifth, Seventh, Eighth, and Ninth Circuits, the BIA determined “that a two-step notice process is sufficient to meet the statutory notice requirements” and “vest[] an Immigration Judge with jurisdiction over the removal proceedings.”[14] Since Bermudez-Cota, the majority of circuits have also rejected Pereira-based jurisdictional challenges, albeit for varying reasons.[15] Furthermore, in Matter of Mendoza-Hernandez,[16] the BIA, again distinguishing Pereira, expressly held that service of a second document with time-and-place information satisfies notice requirements and triggers the stop-time rule.[17]
In Niz-Chavez, the Court, in an opinion written by Justice Neil Gorsuch, addressed the two-step notice process head-on. There, the government had sought to initiate removal proceedings against Mr. Niz-Chavez by serving him with a document entitled “Notice to Appear,” but which lacked the time and place for the hearing.[18] The government later sent Mr. Niz-Chavez a second document that included the previously missing information, and he appeared at his hearing and was found removable.[19] Following the Court’s decision in Pereira, Mr. Niz-Chavez asserted that the notices he received were insufficient to trigger the stop-time rule, and thus, having now accrued the required period of continuous presence, he should be eligible for cancellation of removal.[20] The government responded that the second document completed the notice to appear and consequently triggered the stop-time rule.[21]
The Court, in a 6:3 decision, rejected this argument, holding that a notice to appear sufficient to trigger the stop-time rule is a single document, which must include all of the information listed in § 1229(a)(1).[22] Much of the Court’s decision hinged on the statute’s use of the indefinite article “a” before the word “notice.”[23] While the government and the dissent argued that “a” could precede “a single thing that can be delivered in multiple installments,”[24] the Court concluded that Congress’s use of “a” here indicated a single notice delivered at a discrete time, similarly to how Congress used indefinite articles before other case-initiating pleadings, such as a civil complaint or an indictment, which are never delivered by installment.[25]
The Court then found support for the single notice requirement in several related statutory provisions: 8 U.S.C. § 1229(e)(1), which provides “special rules the government must follow when it seizes [a noncitizen] at a sensitive location”; 8 U.S.C. § 1229a(b)(7), which speaks to a noncitizen’s ineligibility for relief under certain circumstances; and 8 U.S.C. § 1229(a)(2), which applies when the government wishes to change the noncitizen’s hearing date.[26] Each of these provisions refers to a notice of some type, pairs an article with a singular noun, and seems to contemplate a discrete document.[27]
Turning next to the statute’s history for support, the Court noted that under a previous law, removal proceedings were initiated by “an order to show cause” and that the law expressly permitted the government to specify the time and place for the hearing “in the order to show cause or otherwise.”[28] Congress’s decision not to include “or otherwise” in § 1229(a)(1) indicated that it intended for the government to no longer have the leeway to provide time and place information in a later document, but must instead include it in the notice to appear.[29]
Finally, the Court addressed, with little sympathy, the policy arguments advanced by both the government and the dissent. The Court rejected the idea that the administrative inconvenience of including time and place information in a notice to appear justified allowing the government “to send a person who . . . may be unfamiliar with English and the habits of American bureaucracies [] a series of letters[] . . . over the course of weeks, months, maybe years, each containing a new morsel of vital information.”[30] As for the dissent’s speculations regarding disadvantages to noncitizens, the Court found these both off the mark and irrelevant.[31] In short, neither administrative inconvenience nor hypothetical disadvantages warranted disregarding the plain statutory command.[32]
Where does this decision leave noncitizens seeking to use Pereira to challenge an immigration court’s jurisdiction? Although the Court did not directly address jurisdiction issues in Niz-Chavez,[33] the decision upends the BIA’s rationale for rejecting Pereira-based jurisdiction arguments.
First, the BIA can no longer argue that Pereira does not apply where the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” because those are the precise facts found in Niz-Chavez.[34] Second, contrary to the BIA’s assertion that Pereira’s holding was “narrow,” the Court indicated that its holding has implications outside of the stop-time rule, explaining that a notice to appear “serves as the basis for commencing a grave legal proceeding”[35] and that references to a “notice to appear” in other statutory provisions refer to the same “specific document in which the government can (and must) ‘include’ the required certification.”[36] Third, the Court explained that “pleas of administrative inconvenience and self-serving regulations never ‘justify departing from the statute’s clear text.’”[37] Finally, Niz-Chavez completely forecloses the two-step notice process championed by the BIA, making crystal clear that a “notice to appear” is a single document containing all of the information listed in § 1229(a)(1).[38]
Thus, Niz-Chavez presents another opportunity to challenge an immigration court’s jurisdiction. After all, “if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”[39]
[2]Id. at *7–8. This “seemingly simple rule has generated outsized controversy” because service of a notice to appear on a noncitizen triggers the stop-time rule, which stops the clock on a noncitizen’s period of continuous presence in the country. Id. at *7 (citing 8 U.S.C. § 1229b(d)(1)). An otherwise removable noncitizen must accrue ten years of continuous presence in the U.S. in order to qualify for cancellation of removal and remain in the country. Id. at *6–7 (citing 8 U.S.C. § 1229b(b)(1)). Thus, what qualifies as a notice to appear sufficient to trigger the stop-time rule may have life-altering implications for some noncitizens.
[4]Id. at 2113. By 2018, “almost 100 percent” of notices to appear served in the previous three years omitted time-and-date information. Id. at 2111. The government, however, asserted that these initial notices were sufficient to trigger the stop-time rule.
[9]See generally Dan Kesselbrenner et al., Nat’l Immigration Project of the Nat’l Lawyers Guild & the Immigrant Def. Project, Practice Advisory: Challenging the Validity of Notices to Appear Lacking Time-and-Place Information (2018). For a discussion of Pereira-based challenges to indictments for illegal reentry after deportation, see Ashley Oldfield, Note, Pereira v. Sessions: The Supreme Court’s Call for Common Sense, 55 Wake Forest L. Rev. 415 (2020).
[33] The Court’s failure to address jurisdiction does not indicate that it accepted the immigration court’s jurisdiction. See Oldfield, supra note 10, at 436–37.
[34]SeeNiz-Chavez, 2021 U.S. LEXIS 2232, at *29–30 (Kavanaugh, J., dissenting).
In the short time since its release, Bostock v. Clayton County[1] has well-earned its self-praise as “simple and momentous.”[2] The opinion, which holds that Title VII of the Civil Rights Act of 1964 applies to homosexuals and transgender persons in the workplace, instructs employers nationwide that discrimination against LGBTQ employees solely “because of [their] sex” is no longer legal.[3]
The Court’s 6:3 opinion is unique in several ways. For one, its author—Justice Neil Gorsuch—was not known for his affinity for LGBTQ rights.[4] For another, it was joined by Chief Justice Roberts, a first for a conservative who was previously reluctant to expand LGBTQ rights.[5] Most importantly, while the Court was split as to the result, all three opinions claimed to have relied on the same statutory interpretation theory—textualism. That claim was not entirely persuasive, however, as the three opinions not only differed markedly but were contradictory at times. Surely such diversity of conclusions, all allegedly stemming from the same interpretive theory applied to the same statutory language, would lead to some form of intramural textualist controversy.[6]
And controversy it was. In his dissenting opinion, Justice Alito (joined by Justice Thomas) castigated the majority opinion as nothing short of “a pirate ship . . . sail[ing] under a textualist flag . . . [but] actually represent[ing] . . . a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”[7] Justice Kavanaugh, in his dissent, claimed that the majority opinion took a “literalist,” rather than a textualist, approach.[8] In his words, this approach “simply split statutory phrases into their component words, look[ed] up each in a dictionary, and then mechanically put them together again.”[9] He, too, invoked Justice Scalia’s real interpretive method as the complete opposite of the majority’s opinion, accusing the Court of “miss[ing] the forest for the trees.”[10]
This Article would leave others to resolve the “holy-grail” question of which opinion—if any—best represents Justice Scalia’s “true legacy.”[11] The aim of this short Article is entirely different: The Bostock majority opinion, it argues, was so convincing not because it was the product of a particular interpretive theory, but because it was a product of formal logic. The reason both Chief Justice Roberts (who never before agreed to grant meaningful rights to LGBTQ members) and Justice Ruth Bader Ginsburg (whose life mission was to guarantee equality in the workplace to all) have joined the opinion in full was precisely because it was built on the sound foundations of deductive reasoning, rather than the more dubious ones of “textualism.”
Justice Gorsuch’s opinion, in fact, is written more as an exercise in formal logic than a typical legal opinion.[12] While paying lip service to textualism, the opinion actually erects a well-reasoned logical structure—complete with sound definitions, logical model, and several hypothetical and actual applications. Indeed, so solidly built and so well-defended is that structure that neither an institutional conservative nor a liberal icon saw reason to add a single brick to it. Even more, the attempts by both Justice Alito and Justice Kavanaugh to undermine its foundations (in their dissents) merely emphasize—rather than weaken—its stability. In short, Justice Gorsuch wrote—in the words of Justice Kagan honoring Justice Scalia—“with the elegance of a mathematical proof.”[13]
This short Article proceeds as follows: Part I presents the assumptions and definitions that guided Justice Gorsuch in building his Model. Part II discusses the theorem at the heart of the Model, and its main logical strength. Part III analyzes eight hypotheticals appearing in the opinion—some in response to questions presented during oral argument—and their relation to the Model. Part IV applies the Model to three previous Court cases dealing with Title VII discrimination. Part V applies the Model to the cases at hand. Finally, Part VI will claim that the logical approach—as opposed to one grounded in politically-identified ideology—is much superior to authoring judicial opinions in general, and especially those expanding statutory and constitutional rights.
Assumptions & Definitions
Title VII of the Civil Rights Act of 1964 states, in relevant part:
It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwiseto discriminate againstany individualwith respect to his compensation, terms, conditions, or privileges of employment, because ofsuch individual’s race, color, religion, sex, or national origin.[14]
The question presented in Bostock was whether this language outlaws workplace discrimination against LGBTQ employees “simply for being homosexual or transgender.”[15]
Justice Gorsuch opens his opinion with a positive conclusion: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undistinguishable role in the decision, exactly what Title VII forbids.”[16]
The Justice then reverse engineers the process that led him to that conclusion. While not saying so specifically, he relies entirely on a formal logic model (“Model”). Such Model begins, naturally, with formal assumptions and definitions later used in the Model. Here is a formal presentation of these assumptions:
Let α be “sex”—which is defined for the purposes of this Model as the “biological distinctions between male and female.”[17]
Let ~ α (“not α”[18]) refer to a more expansive definition of sex, including “at least some norms concerning gender identity and sexual orientation.”[19]
Let ß be “because of”—which is defined here as a “but-for” test: “[A] but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”[20] For purposes of Title VII, this standard means that “a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.”[21] Thus, sex may not be “the only factor, or maybe even the main factor [in the decision to discriminate], but [may still constitute] one but-for cause,” which is enough to satisfy the definition.[22]
Let ~ ß (“not ß”) refer to either “solely” or “primarily because of”—two more restricting standards favored by other acts of Congress but avoided here: “If anything, Congress has moved in the opposite direction . . . [toward] a more forgiving standard.”[23]
Let γ be “discriminate against any individual [employee]”—which is defined here as “treating that individual [employee] worse than others who are similarly situated . . . intentionally.”[24] It should be noted the label, title, or reason given to such discriminatory practice is not relevant for purposes of this definition; what matters is the finding of a discriminatory practice.[25]
Let ~ γ (“not γ”) refer to discrimination against groups of people, as opposed to individual employees. Indeed, Justice Gorsuch asserts the Act “tells us three times—including immediately after the words ‘discriminate against’—that our focus should be on individuals.”[26] And, obviously, “individuals are distinguished from a class, species, or collection.”[27]
II. The Theorem
Based on the previous assumptions, Justice Gorsuch arrives at the following conclusion: “An employer violates Title VII when it intentionally fires an individual employee” (γ), and that decision is “based in part” (ß) “on sex” (α).[28] In more formal terms, a violation (V) of Title VII occurs whenever a court finds all three components (γ, ß, and α) present, such that:
If γ & ß & α—then V (Major Premise)
Thus, “if the employer intentionally relies in part [(ß)] on an individual employee’s sex [(α)] when deciding to discharge the employee” (γ), then Title VII is violated (V).[29]
So far, the proposition seems unremarkable. All previous Title VII cases would rest comfortably on these—or similar—assumptions. It is then that Justice Gorsuch adds the logical lynchpin on which his entire case—and logical edifice—relies: For purposes of the Act, Justice Gorsuch holds discrimination based on sex is equal to (and identical with) discrimination based on sexual orientation or sexual identity.[30]
The reason for that is simple: “[I]t is impossible to discriminate against a person for being a homosexual or transgender[31] without discriminating against that person based on sex.”[32] Indeed, “homosexuality and transgender status are inextricably bound up with sex.”[33] Therefore, “discrimination on [homosexuality and transgender] grounds requires an employer to intentionally treat individual employees differently because of sex.”[34] Thus, even if the employer’s “ultimate goal might be to discriminate [solely] on the basis of sexual orientation,” in order to achieve that goal “the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.”[35] Accordingly, “[w]hen an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII has ever demanded to establish liability.”[36]
If we let H refer to homosexual or transgender employees, then the following equivalency emerges:
Throughout his opinion, Justice Gorsuch tests the validity of his Model with a variety of hypotheticals. One by one, he demonstrates how it can apply to a variety of scenarios. Below are some of those scenarios, transcribed to formal form.
Hypo # 1: Assume “an employer fires a woman for refusing his sexual advances.”[38] Could the employer defend himself by arguing that “he gives preferential treatment to female employees overall”?[39]
If the “group” definition (~ γ) prevails, then an employer could plausibly so argue. But since γ is defined as the opposite of (~ γ)—that is, discrimination against an individual is not the same as discrimination against a group—the argument fails: The employer “is liable for treating this woman worse [(γ)] in part because of [(ß)] her sex [(α)].”[40] Since all three components are present, we have a violation (V).
Hypo # 2: Assume “an employer . . . fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine.”[41] Could the employer defend himself by arguing that he discriminates (equally) against both men and women “because of sex?”[42]
If the “group” definition (~ γ) prevails, then an employer could plausibly so argue. But since γ is defined as discrimination against an individual, this argument fails: “[I]n both cases the employer fires an individual [(γ)] in part because of [(ß) their respective] sex [(α)]. Instead of avoiding Title VII exposure, th[e] employer doubles it.”[43] Thus, since we have two instances of all three components present, we have two violations (V*2). Or, in less formal terms, two wrongs do not make a right.
Hypo # 3: Assume “an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman.”[44]
“If the employer fires the male employee [(γ)] for no reason other than [(ß)] the fact that he is attracted to men [(H)], the employer discriminates against him [(γ) but] for [(ß)] traits or actions it tolerates in his female colleague [(α)].”[45] Thus, a violation (V) occurs.
Hypo # 4: Assume “an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female.”[46]
“If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes [(γ)] a person identified as male at birth [but] for [(ß)] traits or actions that it tolerates in an employee identified as female at birth [(α)].”[47] Again, since all components are present, we have a violation (V).
Hypo # 5: Assume “an employer who fires a female employee [(γ)] [but] for [(ß) her] tardiness or incompetence or simply supporting the wrong sports team.”[48]
Clearly, missing from that example is any action related to her sex (α); thus, there is no violation of Title VII: If (γ) & (ß) but no (α), then no (V).
Hypo # 6 (The “Multiple Causes” Scenario): Assume “an employer with a policy of firing any woman he discovers to be a Yankees fan.”[49]
If the employer would have tolerated the same allegiance in a male employee, then a violation has occurred: “Carrying out that rule [(γ)] because [(ß)] the employee is a woman [(α)] and a fan of the Yankees”[50] still constitutes a violation since all the conditions for the occurrence of (V) have been met, and the addition of the new (random) cause for firing does not change the analysis. Thus, if we mark “random cause for firing” as R, then ifγ & ß & α & R–then (still) V.
The same is true for firing homosexuals or transgender (H) employees:
When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee [(γ)] but for [(ß)] that individual’s sex [(α)], that statute’s causation standard is met, and liability may attach.[51]
Hypo # 7 (The “Equal Treatment” Scenario): Assume an employer is “equally happy to fire male and female employees who are homosexual or transgender.”[52]
Since “the law makes each instance of discriminating against an individual employee [(γ)] because of [(ß)] that individual’s sex [(α)] an independent violation of Title VII [(V)],” then Title VII liability will be attached.[53]
Recall Hypo # 2 (“Hannah and Bob”): “So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.”[54]
Hypo # 8 (The “Check the Box” Scenario): Assume “an employer asked homosexual or transgender applicants to tick a box on its application form. The employer then had someone else redact any information that could be used to discern sex.”[55] Thus, the employer does not know the applicant’s sex, but does know they are homosexual or transgender, which is the reason for the discrimination against them. Can the employer argue that since it doesn’t know the applicant’s sex, there is no discrimination “based on sex?”[56]
The answer is “no” and relies on the definitions of both “because of” (ß) and “sex” (α).[57] The employer still must consider the applicant’s sex before deciding to discriminate against them:
Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.[58]
The same holds here . . . . [T]here is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating [(γ)] in part because of [(ß)] an applicant’s sex [(α)]. By discriminating against homosexuals [(H)], the employer intentionally penalizes men for being attracted to men and women for being attracted to women. By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today. Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.[59]
IV. Applying the Model to Previous Cases
Once Justice Gorsuch established the Model’s application on some hypothetical examples, he turned to apply the Model to actual cases. Specifically, he applies the Model to the three previous Title VII “because of sex” Court cases.[60] Below is a short description of each, coupled with a Model application.
In Philips v. Martin Marietta Corp.,[61] “a company allegedly refused to hire women with young children, but did hire men with children the same age.”[62] The company made two arguments: First, the “discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children”; second, the company argued that “as a whole, it tended to favor hiring women over men.”[63] Both arguments fail under Bostock’s logic.
The first argument fails because, as we have seen in Hypo # 6, the fact that another random cause for firing (R) is added—here, having young children—does not change the result that all three other components—discrimination (γ) because of (ß) sex (α)—are present. Thus, a violation (V) is triggered.
The second argument fails because, as we have seen in Hypo # 1, the “group definition” as target of the discrimination has been rejected (~ γ). Therefore, the fact that the employer prefers (or targets) women as a class does not alter the triggering of a violation (V), so long as an individual employee has been targeted.
In Los Angeles Department of Water v. Manhart,[64] “an employer required women to make larger pension fund contributions than men.”[65] The employer, trying to justify the discrimination, relied on “what appeared to be a statistically accurate statement about life expectancy” in claiming that women “are likely to receive more from the pension fund over time.”[66]
The employer’s argument fails under the Model. As we have seen in Hypo # 1, the fact that the employer favored (in its mind) women as a group (~ γ), does not change the fact that it discriminated against individual female employees (γ) because of (ß) their sex (α), thus triggering a violation (V).
In Oncale v. Sundowner Offshore Services, Inc.,[67] “a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment.”[68] The employer presented three arguments: First, since the discrimination was conducted by “members of the same sex” then no violation was triggered; second, “men as a group were [never] subject to discrimination”; and third, that something else, “in addition to sex contributed to the discrimination, like the plaintiff’s conduct or personal attributes.”[69] All three arguments fail Bostock’s logic.
The first argument fails because, as we have seen in the definition of “discrimination against [an individual] employee,”[70] (γ), so long as an individual employee was intentionally treated worse than other employees—which all agreed had happened here—then the identity or sex of those who caused such treatment are irrelevant for the purposes of triggering a violation (V).
The second argument also fails because, as demonstrated in Hypo # 1, the fact that men as a group (~ γ) were not discriminated against does not change the fact that the employer did discriminate against an individual male employee (γ) because of (ß) his sex (α), thus triggering a violation (V).
Finally, the third argument fails because, as we have seen in Hypo # 6, the fact that another random cause for discrimination (R) is added—here, the employee’s attributes—does not change the result that all three required factors, namely discrimination (γ) because of (ß) sex (α), are present, thus triggering a Title VII violation (V).
V. Applying the Model to the Cases at Hand
When it comes to the cases at hand, Justice Gorsuch first noted that the employers in all three cases “do not dispute that they fired the plaintiffs for being homosexual or transgender.”[71] Thus, it follows inevitably that all three components of the Model are present: The employers have fired the plaintiffs (γ) because of (ß) their sexual orientation or sexual identity (H), therefore triggering a Title VII violation (V). (Recall that ifγ& ß & H—then V.) The inquiry, then, seems to have come to a sudden end.
What, then, was left for employers to argue?
First, the employers tried to attack the minor premise of the theorem (equating “γ& ß & α” with “γ& ß & H”). But since their arguments were not rooted in logic, but rather in conversational norms, these arguments were quickly dismissed.[72]
Second, the employers tried to suggest that component (ß)—the “because of” causal connection—was not satisfied in these cases because the discriminatory actions were not “intentional.”[73] Justice Gorsuch’s answer, based on (ß)’s definition, was swift:
[A]s we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men, and female employees for being attracted to women.[74]
The third argument made by the employers was that unlike “sex,” the terms “homosexuality” or “transgender status” were not included in the text of Title VII: The employers argued that because Congress never included those terms in the Act, they were “implicitly excluded from Title VII’s reach.”[75] This argument was not only adopted by, but also served as, the main impetus to the two dissenting opinions by Justices Alito[76] and Kavanaugh.[77] Justice Gorsuch’s response at this point is as predictable as it is sound. Referring to his Model’s minor premise, he quips: “As we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”[78]
Finally, the employers tried to attack the causal connection component—“because of.”[79] As Justice Gorsuch summarized the issue: “At bottom, the employers’ argument unavoidably comes down to the suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow. And, as we’ve seen, that suggestion is at odds with everything we know about the statute.”[80] In other words, the employers tried to use (~ ß) to establish that there was no liability; but the very definition of (ß) rejected that assumption, and therefore a violation (V) occurred.
VI. Conclusion
Justice Gorsuch’s opinion in Bostock is close to a logical masterpiece. To be sure, this was not always the case with Justice Gorsuch’s other opinions.[81] But there is value—well beyond this specific case—in writing opinions in a similar, formal-logic, fashion. For one, logic is universal. It transcends ideological camps and may create interesting coalitions (such as in this case). Second, a logic-based opinion—as opposed to, say, a “textualist” or “purposive” opinion—serves an important function in directing courts below, as well as future litigants. The more logic-based opinions, the less confusion and uncertainty below. Finally, Bostock was a seminal decision, granting rights previously denied to LGBTQ members. Title VII LGBTQ cases—which are prone to invite criticism from those who oppose such grant—would likely be more widely received if properly rested on the neutral basis of logic, rather than on a theory more closely identified with one ideological camp or another.
* Cleveland-Marshall College of Law, Cleveland-State University. This Article owes a great debt to a series of conversations with Professor Avidan Cover. I would also like to thank Michael Borden, Chris Sagers, and Jonathan Witmer-Rich for their careful reading of and wise comments on an earlier version of this Article.
[1]. 140 S. Ct. 1731 (2020).
[2]. Id. at 1741.
[3]. Id. at 1754 (“An employer who fires an individual merely for being gay or transgender defies the law.”). See also 42 U.S.C. § 2000e-2(a)(1).
[4]. See, e.g., Drew Anderson, What a Justice Neil Gorsuch Would Mean for LGBTQ Americans, GLAAD (Jan. 31, 2017), https://www.glaad.org/blog/what-justice-neil-gorsuch-would-mean-lgbtq-americans (Justice Gorsuch’s profile on GLAAD’s (Gay & Lesbian Alliance Against Defamation) website cataloging several statements and judgments made against LGBTQ interests prior to Bostock).
[5]. See, e.g., Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, C.J., dissenting); United States v. Windsor, 570 U.S. 744, 775 (2013) (Roberts, C.J., dissenting).
[6]. Arguably, Bostock is even more unusual in its textualist controversy than District of Columbia v. Heller, 554 U.S. 570 (2008) was in its originalist controversy, as Justice Stevens (who wrote the dissent in Heller) was never an avowed originalist, while all three authors in Bostock are self-proclaimed textualists. Was that action hould be the longest portion)ases, ying the issue, moving the rule, applying what you have studied, and then – a
[7]. Bostock, 140 S. Ct. at 1755–56 (Alito, J., dissenting).
[8]. Id. at 1827–28 (Kavanaugh, J., dissenting).
[9]. Id. at 1827.
[10]. Id.
[11]. For a recent critical examination of the term, see Edward A. Purcell, Jr., Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon, xvi–xviii (2020).
[12]. That the Justice is well versed in such form of writing should come as no surprise, as both his Ph.D dissertation advisors at Oxford—John Finnis and Timothy Endicott—are trained philosophers. See Neil M. Gorsuch, The Right to Receive Assistance in Suicide and Euthanasia, with Particular Reference to the Law of the United States (2004) (Ph.D. thesis, University of Oxford) (on file with Oxford University Research Archives, University of Oxford), https://ora.ox.ac.uk/objects/uuid:688e5b8c-bb06-4d86-abe0-440a7666ffc1. See also Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia 229 (2006) (“Appendix B: Statistical Calculations”).
[13]. Elena Kagan, Foreword to Antonin Scalia, The Essential Scalia, xvi (Jeffrey S. Sutton & Edward Whelan eds., 2020). To be sure, Justice Scalia himself was a great proponent of using logic in legal argument. See, e.g., Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 41–43, 46–48 (2008) (explaining how to “[t]hink syllogistically”).
[14]. 42 U.S.C. § 2000e-2(a)(1) (emphasis added).
[15]. Bostock, 140 S. Ct. at 1737.
[16]. Id.
[17].Id. at 1739.
The sign “~” (“not”) is used here, as in most propositional connective language, in a “weak” sense—“to deny the claim made by the negated part.” John T. Kearns, The Principles of Deductive Logic 142 (1988). It is not used to claim the opposite of the negated part.
[19]. Bostock, 140 S. Ct. at 1739.
[20]. Id.
[21]. Id.
[22]. Id. at 1745; see alsoid. at 1748 (“Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window. Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window. That doesn’t change just because you also would have opened the window had it been warm outside and cold inside. In either case, no one would deny that the window is open ‘because of’ the outside temperature.”).
[23]. Id. at 1739–40.
[24]. Id. at 1740.
[25]. Id. at 1743–44.
[26]. Id. at 1740.
[27]. Id. (quoting Webster’s New International Dictionary 1267).
[28]. Id. at 1741 (emphasis added).
[29]. Id.
[30]. See id. (“An individual’s homosexuality or transgender status is not relevant to employment decisions.”).
[31]. As the Court later noted, in the cases at bar the employers never disputed “that they fired the plaintiffs for being homosexual or transgender.” Id. at 1744. In this manner, the cases were distinct from others where “[s]orting out the true reasons for adverse employment decision is often hard business.” Id.
[32]. Id. at 1741.
[33]. Id. at 1742.
[34]. Id.
[35]. Id.
[36]. Id. at 1744.
[37]. Or, in other words: “[T]o discriminate [against an employee] on [the grounds of homosexuality or transgender status] requires an employer to intentionally treat individual employees differently [(γ)] because of [(ß)] their sex [(α)].” Id. at 1742; see also id. at 1743 (“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women [(γ)] in part because of [(ß)] sex [(α)]. That has always been prohibited by Title VII’s plain terms—and that ‘should be the end of the analysis.’” Id. at 1743 (quoting Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2d Cir. 2018) (Cabranes, J., concurring), aff’d sub nom., Bostock, 140 S. Ct. 1731)).
[38]. Id. at 1741.
[39]. Id.
[40]. Id.
[41]. Id.
[42]. 42 U.S.C. § 2000e-2(a)(1).
[43]. Bostock, 140 S. Ct. at 1741 (second and third emphasis added). Indeed, in such cases not only do two wrongs do not make a right—they actually multiply the wrong.
[44]. Id. (emphasis added).
[45]. Id. (emphasis added).
[46]. Id.
[47]. Id.
[48]. Id. at 1742.
[49]. Id.
[50]. Id.
[51]. Id.
[52]. Id.
[53]. Id.
[54]. Id. at 1742–43.
[55]. Id. at 1746.
[56]. Id.See also 42 U.S.C § 2000e-2(a)(1).
[57]. 42 U.S.C. § 2000e-2(a)(1).
[58]. Bostock, 140 S. Ct. at 1746,
[59]. Id.
[60]. 42 U.S.C. § 2000e-2(a)(1).
[61]. 400 U.S. 542 (1971).
[62]. Bostock, 140 S. Ct. at 1743.
[63]. Id.
[64]. 435 U.S. 702 (1978).
[65]. Bostock, 140 S. Ct. at 1743.
[66]. Id.
[67]. 523 U.S. 75 (1998).
[68]. Bostock, 140 S. Ct. at 1743.
[69]. Id. at 1743–44.
[70]. 42 U.S.C § 2000e-2(a)(1).
[71]. Bostock, 140 S. Ct. at 1744 (emphasis added).
[72]. Id. at 1739–40.
[73]. Id. at 1740.
[74]. Id. at 1745 (emphasis added).
[75]. Id. at 1746.
[76]. Id. at 1754–84 (Alito, J., dissenting). E.g., id. at 1761 (“The Court proclaims that ‘an individual’s homosexuality or transgender status is not relevant to employment decisions.’ That is the policy view of many people in 2020, and perhaps Congress would have amended Title VII to implement it if this Court had not intervened.”).
[77]. Id. at 1822–37 (Kavanaugh, J., dissenting). E.g., id. at 1830 (“As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows how to prohibit sexual orientation discrimination.”).
[78]. Id. at 1747 (Gorsuch, J., for the Court).
[79]. Id. at 1747–48.
[80]. Id. at 1748.
[81]. See, e.g., Doron M. Kalir, Artis v. District of Columbia—What Did the Court Actually Say?, 94 Notre Dame L. Rev. Online 81 (2018), http://ndlawreview.org/wp-content/uploads/2018/11/3-Kalir.pdf (criticizing Justice Gorsuch’s opinion in another case).
In a decision that expanded religious liberties for prisoners on the verge of execution, the Supreme Court held in the late evening hours of Feb. 11 that Alabama prisoner Willie Smith could not be executed unless Alabama permitted Smith’s chaplain to accompany him into the execution chamber.[1]
Smith filed a complaint in the Middle District of Alabama on Dec. 14, 2020, alleging that the Alabama Department of Corrections’ policy of restricting all except the prison’s execution team from the execution chamber violated his rights under the Religious Land Use and Institutionalized Persons Act of 2000[2] (“RLUIPA”).[3] Smith sought an injunction against his execution scheduled for Feb.11, 2021, claiming that the policy violated RLUIPA by excluding his Christian minister from the execution chamber.[4] Smith’s complaint explained that it was “integral to [his] faith” that his pastor “be physically present with him at the time of his execution.”[5] The district court denied Smith’s request for an injunction,[6] relying on Alabama’s argument that allowing a chaplain into the execution chamber would undermine security measures.[7] However, the Eleventh Circuit reversed and granted the injunction,[8] which the Supreme Court declined to vacate in Dunn v. Smith.[9]
In her concurring opinion that elaborated on the Court’s one-sentence decision to uphold the injunction, Justice Kagan declared that “[t]he law guarantees Smith the right to practice his faith free from unnecessary interference, including at the moment the state puts him to death.”[10] Alleged violations of RLUIPA are analyzed under an “exceptionally demanding” strict scrutiny standard,[11] which mandates that a prison must employ “the least restrictive means of furthering [its] compelling governmental interest.”[12] Although Kagan acknowledged that Alabama does have a “compelling state interest” in maintaining “prison security,”[13] Alabama’s policy failed to implement the least restrictive means available because “a prison may ensure security without barring all clergy members from the execution chamber.”[14] Kagan admonished that she could find no example where “the presence of a clergy member . . . disturbed an execution.”[15] As she recommended, the prison could perform background checks and interview the minister to ensure that the minister is fit to attend the execution.[16]
Prior Case Law Development on Execution Litigation
Smith is the latest installment in a recent line of cases evaluating prisoners’ religious liberties in the context of executions. In Dunn v. Ray,[17] the Supreme Court vacated the Eleventh Circuit’s stay of execution for Domineque Ray in an unsigned order on Feb. 7, 2019.[18] Ray, a practicing Muslim and Alabama prisoner, had petitioned for a stay of execution because the prison refused to allow his imam to enter the execution chamber, even though Christian ministers were permitted in the chamber.[19] The Court’s unsigned order did not elaborate on its decision to vacate the stay of execution, only citing Gomez v. United States District Court for the Northern District of California[20] for the proposition that a reviewing court can take into account the “last-minute nature of an application to stay execution.”[21] Kagan vehemently dissented, stating that the Court’s decision was “profoundly wrong.”[22] According to Kagan, the Court’s decision failed to recognize Ray’s “powerful claim that his religious rights will be violated.”[23] Kagan further argued that Ray’s request was timely, as he filed his complaint only five days after Alabama denied his request to have his imam accompany him into the execution chamber.[24]
Another execution-related religious liberty case came just a month later in Murphy v. Collier.[25] The Supreme Court blocked Patrick Murphy’s execution in March 2019 because Texas’s policy did not permit a Buddhist spiritual advisor to accompany Murphy into the execution chamber.[26] At the time, Texas only allowed Christian or Muslim ministers to enter the execution chamber.[27] In a brief paragraph, the Supreme Court explained that Murphy’s execution could not proceed until Texas permitted a Buddhist spiritual advisor to “accompany Murphy in the execution chamber.”[28] Justice Kavanaugh, who concurred in the decision to grant the stay of execution, attempted to distinguish Murphy from the Court’s decision in Ray, emphasizing that Murphy submitted his request for a Buddhist minister an entire month before the date of his scheduled execution.[29] Despite Kavanaugh’s explanation, the “disparate outcomes” of Ray and Murphy have been characterized as arbitrary.[30]
Five days after the Supreme Court granted the stay of execution in Murphy, Texas revised its policy to bar all religious ministers from the execution chamber.[31] Although Kavanaugh wrote a concurring opinion in the Murphy case, he also released an additional statement, opining that Texas’s revised policy “solve[d] the equal-treatment constitutional issue” and “likely passe[d] muster under [RLUIPA].”[32] In essence, Kavanaugh advised death penalty states to remedy religious discrimination concerns by simply barring all religious ministers from the execution chamber.[33] Relying on Kavanaugh’s statement, Alabama amended its policy in April 2019 and joined Texas in excluding all religious officials from its execution chamber.[34]
Shortly after Texas’s policy revision, prisoner Ruben Gutierrez challenged the new policy, arguing that it violated his religious liberties under RLUIPA by prohibiting his chaplain from accompanying him in the execution chamber.[35] However, the Supreme Court did not weigh in on the merits of Gutierrez v. Saenz.[36] Instead, the Court merely issued a one-paragraph remand, instructing the district court to consider “the merits” of Gutierrez’s claims based on the district court’s earlier findings that allowing a spiritual advisor into the execution chamber would not result in serious security problems.[37] Thus, Smith was the first case where the Supreme Court’s decision actually indicated that barring religious ministers from the execution chamber could violate RLUIPA.
Concerns About the Supreme Court’s Surreptitious Shadow Docket
Smith also marks one of the most recent decisions from the Supreme Court’s “shadow docket,” a term used to refer to emergency orders that are granted separately from the Court’s “normal merits docket.”[38] Shadow docket decisions are viewed with some skepticism because they are decided without oral argument and are typically short, supported by minimal legal reasoning or explanations, and can be unsigned by individual justices.[39] The shadow docket has recently received national attention because of the Trump administration’s high volume of requests for emergency relief in the form of shadow docket decisions,[40] as well as the heightened divisiveness on display in recent shadow docket rulings.[41] In fact, these concerns led the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet to hold a hearing Feb. 18 to discuss the shadow docket.[42] In his testimony before the subcommittee, University of Texas law professor Stephen Vladeck referenced the uncertainty about whether Justice Alito or Justice Gorsuch (or both) joined Kagan’s opinion in Smith to provide the fifth (or sixth) vote to block Smith’s execution.[43] According to Vladeck, this anonymity in shadow docket decisions can “complicate[] efforts to decipher the potential impact of the Court’s ruling beyond the instant case.”[44]
In his own testimony, Amir H. Ali, Deputy Director of the Supreme Court and Appellate Program of the MacArthur Justice Center, criticized the “arbitrariness” and “disparate outcomes” of the Supreme Court’s recent shadow docket execution decisions.[45] In order to combat the trend of unexplained, arbitrary decisions, Ali advised Congress to codify a standard of review for the Supreme Court to implement when reviewing shadow docket cases[46] and to also require the Court to supply reasonings for these decisions.[47]
The Potential Impact of Smith
Despite the uncertainty surrounding shadow docket decisions, the Supreme Court’s stance in Smith will likely affect several of the other twenty-seven states that continue to recognize the death penalty.[48] As Kavanaugh noted in his statement following Murphy,[49] Texas has explicitly barred religious ministers from the execution chamber since April 2019.[50] Additionally, Idaho’s current execution protocol implies that religious ministers may not enter the execution chamber with the prisoner, as “a spiritual advisor of the offender’s choosing” is expected to witness the execution from the “condemned offender’s witness area.”[51] Similarly, North Carolina’s execution protocol also indicates that religious ministers cannot accompany the prisoner into the execution chamber, stating that religious ministers “will be seated in the first row of chairs” during the execution.[52]
As of Feb. 24, none of these states appear to have publicly acknowledged Smith or addressed how it will impact their current policies. Nevertheless, policy adjustments will likely be necessary to avoid an onslaught of litigation and, more importantly, to respect prisoners’ religious liberties. As Ali testified to the House subcommittee, “[w]hen it comes to the death penalty, the importance of getting things right is at its zenith: there is no do-over.”[53]
[3] Smith v. Dunn, No. 2:20-CV-1026, 2021 WL 358374, at *1 (M.D. Ala. Feb. 2, 2021), rev’d sub nom. Smith v. Comm’r, No. 21-10348, 2021 WL 490283, at *1 (11th Cir. Feb. 10, 2021), aff’d sub nom.Smith, 2021 WL 517473, at *1.
[27]Id. (Kavanaugh, J., concurring) (“[T]he relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room.”).
[29]Id. at 1477 (Kavanaugh, J., supplementary statement).
[30]The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 4 (2021) (statement of Amir H. Ali, Deputy Director, Supreme Court & Appellate Program of the MacArthur Justice Center) [hereinafter Ali Hearing Statement] (“The disparate outcomes of these cases demonstrate the arbitrariness of present Shadow Docket practice in terms of who dies without this basic dignity.”).
[31]Murphy, 139 S. Ct. at 1476 (Kavanaugh, J., supplementary statement) (“Texas now allows all religious ministers only in the viewing room and not in the execution room.”).
[33]See Howe, supra note 1 (describing Kavanaugh’s supplementary statement in Murphy as “suggesting” the “solution” of excluding all religious ministers from the execution chamber).
[34]See Smith v. Dunn, No. 2:20-CV-1026, 2021 WL 358374, at *2 (M.D. Ala. Feb. 2, 2021) (explaining that following “litigation in both Alabama in Texas,” Alabama revised its execution policy in April 2019 to restrict all religious ministers from the execution chamber), rev’d sub nom. Smith v. Comm’r, No. 21-10348, 2021 WL 490283, at *1 (11th Cir. Feb. 10, 2021), aff’d sub nom. Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021).
[37]Id. at *1. An earlier grant from the Supreme Court to issue a stay for the execution (while Gutierrez’s petition for certiorari was still pending) had instructed the District Court to evaluate “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.” Gutierrez v. Saenz, 141 S. Ct. 127, 128 (2020) (mem.); see alsoSmith, 2021 WL 358374, at *3 (noting that the district court in Gutierrez had found that “no serious security problems would result” from the presence of spiritual advisors in the execution chamber (citing Gutierrez v. Saenz, No. 19-cv-185 (S.D. Tex. 2019), Doc. 124, p.2))).
[40]The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 4–5 (2021) (statement of Stephen Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law) [hereinafter Vladeck Hearing Statement] (explaining that over four years, the Trump administration filed forty-one applications with the Supreme Court for emergency relief, which was “more than twenty times” the number of applications prior administrations submitted between January 2001 and January 2017). The Supreme Court granted twenty-four of these applications “in full and four in part.” Id. at 5.
[41]Id. at 5 (“[D]uring the October 2019 Term, there were almost as many public 5-4 rulings on the shadow docket (11) as there were on the merits docket (12).”).
[43] Vladeck Hearing Statement, supra note 40, at 6. Justices Breyer, Sotomayor, and Barrett joined Justice Kagan’s opinion in Smith, Justice Kavanaugh’s dissent was joined by Chief Justice Roberts, and the opening sentences of the decision note that Justice Thomas would have vacated the injunction. Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021). The decisions of Justices Gorsuch and Alito remain unknown, leading to speculation about which of the two joined the majority decision. See, e.g., Jonathan H. Adler, SCOTUS Refuses to Let Alabama Execute Willie Smith Without His Pastor Present (Without Noting Who Cast the Fifth Vote), Reason: Volokh Conspiracy (Feb. 18, 2021, 1:46 PM), https://reason.com/volokh/2021/02/13/scotus-refuses-to-let-alabama-execute-willie-smith-without-his-pastor-present-without-noting-who-cast-the-fifth-vote/ (“If I had to guess, I would think Justice Gorsuch provided the fifth vote to deny the application, though it is also possible both opted to leave the lower court’s injunction in place.”).
[44] Vladeck Hearing Statement, supra note 40, at 6.
[46]See id. at 5. In particular, Ali recommended adopting the standard currently used for overturning certain state court decisions concerning prisoners, which requires that the Supreme Court should disturb “a lower court’s request for additional time to consider the lawfulness of an execution” only when “it is apparent to the Supreme Court that the lower court’s decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law’ or rested on ‘an unreasonable determination of the facts in light of the evidence presented.’” Id. at 6 (quoting 28 U.S.C. § 2254(d)).
[52]Execution Procedure Manual for Single Drug Protocol (Pentobarbital), N.C. Dep’t Pub. Safety 7 (Oct. 24, 2013), https://www.ncdps.gov/document/execution-procedure-manual-single-drug-protocol-pentobarbital. The protocols also provide that the religious minister should remain with the prisoner in the Preparation Room “until orders are given to move the condemned prisoner into the Death Chamber.” Id. at 16.
Pop culture is filled with references to hidden Nazi treasure. Monuments Men tells the story of the real hunt for stolen Nazi art[1] Television channels are rife with shows focusing on the search for hidden Nazi gold around the world.[2] However, one hoard is hidden in plain sight, and is now the subject of a dispute that made it all the way to the Supreme Court of the United States, which, in a decision released Feb. 3, sided with the treasure’s current owners regarding whether the dispute should be decided by U.S. courts.[3]
The collection, currently housed in Berlin’s Kunstgewerbemuseum,[4] is filled with artifacts of immense cultural and monetary value, and includes beautiful, gilded ecclesiastical artifacts such as the Cupola Reliquary, the Guelph Cross, and the Portable Altar of Eilbertus.[5] The beauty of the artifacts hides a long and rich history. Although that history originates in the beginnings of the German church, the conflict that brought the treasure before the Supreme Court is rooted in the beginnings of the Nazi Party’s control over Europe. In 1929, a consortium of Jewish art dealers based in Germany purchased the Guelph Treasure and displayed it around the world.[6] After their rise to power in 1933, the Nazi government began pressuring the group to sell their collection to Prussia, which promptly gifted the treasure to Hitler.[7] However, this transaction was for only a third of the collection’s appraised market value.[8]
The unjustly low price paid over 80 years ago is the cause of the current legal battle. A group of the original Jewish art dealers’ descendants composed of Alan Philipp, a resident of the United Kingdom, and United States residents Gerald Stiebel and Jed Leiber, [9] seek legal recourse for what they allege was an unjust transaction. Before availing themselves of the United States court system, the group first tried to use the Limbach Commission in Germany, which was established in 2003 to consider the fate of Nazi-acquired artifacts with questionable provenance that are currently in government possession.[10]
In that commission hearing, the museum foundation currently holding the collection argued that because the collection was in Amsterdam, and not under German control at the time of the sale, it cannot automatically be presumed that the Jewish art dealers faced pressure and threats from the Nazi Party to sell.[11] Arguably, this assertion failed to consider that one member of the group lived in Germany at the time of the deal, and while the treasure might not have been subject to Nazi control, the man may have felt that his life was in danger.[12] Furthermore, the museum claimed that because the market declined due to the Great Depression, the collection was worth much less at the time it was sold, and therefore the sale price was fair,[13] despite evidence of a letter from a Nazi official to Hitler outlining his intent to purchase the collection for a mere third of its value.[14]
The commission agreed with the museum, and determined that the Guelph Treasure was sold for a reasonable price that was not a result of duress.[15] Thus, the museum, whose deputy director has described the Guelph Treasure as “the highlight, the center, the heart of [their] medieval collection,” was not required to return the artifacts to the descendants of the original dealers.[16]
Understandably displeased, the heirs decided to bring their fight to the United States.[17] Most of their causes of action are straightforward, like replevin, conversion, and unjust enrichment;[18] but the question of whether an American court could actually decide these issues is a jurisdictional quagmire that halted the case’s progress in the U.S.
Both the district court[19] and the D.C. Circuit Court of Appeals[20] determined that the claims surrounding the sale of the Guelph Treasure were connected to the genocide of German Jews during the Holocaust, and therefore the Foreign Sovereign Immunities Act (“FSIA”) would not prevent the United States courts from gaining jurisdiction. But the museum appealed this decision to the Supreme Court, arguing that the FSIA’s expropriation exception should not apply, both because the claims are of a domestic taking, from a German citizen to the German government, and because the principle of international comity would require that American courts refrain from making a decision on a matter with only a tenuous connection to the United States.
Normally, foreign governments are granted sovereign immunity from suits in the United States under the FSIA, but there are a few exceptions.[21] Under the FSIA’s expropriation exception, when a foreign state takes property “in violation of international law,” and “that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States,” then the foreign government is susceptible to suits in the United States regarding the taken property.[22] The museum, of course, does not believe this exception applies.
The museum’s first contention seems to rest on the fact that the actual transaction only involved German parties, that the sale itself did not violate international law, and that the transaction’s connection with the horrors of the Holocaust cannot bring claims surrounding the transaction under the purview of the expropriation exception.[23] The taking itself must violate international law, and historically, that can only happen when the government takes from a foreign national.[24] The heirs of the art dealers argue that the court should consider only the plain text of the law, and as “taken in violation of international law” is not defined within the FSIA statute and not an obvious term of art, it should be interpreted according to its plain meaning.[25] Because genocide is an obvious violation of international law, and the potentially unjust sale of the Guelph Treasure was directly related to the Holocaust genocide, then the sale should render the treasure “taken in violation of international law.”[26]
Although the museum is correct and the sale of the Guelph collection was not genocide, Justice Thomas suggested in oral argument that it is impossible to separate actions taken by the Nazi party against the German Jewish population from the Holocaust.[27] However, despite this incisive comment during argument, Justice Thomas joined in a unanimous decision to vacate the lower courts’ interpretation of the expropriation exception.[28] Writing for the court, Chief Justice Roberts adopted the German museum’s perspective on the FSIA.[29]
Because the rest of the FSIA mentions only property related offenses, the Supreme Court stated that the expropriation exception should not be extrapolated to apply to events surrounding human rights violations.[30] This is because international law governing property tends to abide by the “domestic takings rule,” which holds that a government’s seizure of the property of its own citizen is not a matter governed by international law.[31] The Court articulated that Congress’s intention to allow American courts to intervene only when there is state action against property held by a citizen of another state is obvious because the verbiage used in the FSIA expropriation exception is identical to that of the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964.[32] This amendment dictated that federal courts could intervene in situations in which foreign nations had taken adverse action against the property of a non-citizen, and was passed as a reaction to the former Supreme Court’s reluctance to exercise jurisdiction over the actions of a foreign nation on foreign soil involving an American company’s property.[33] However, Congress did not alter the traditional “domestic takings rule” when it passed the Second Hickenlooper Amendment, and instead left state actions against the property of their own citizens out of the purview of international law.[34] Because the sale of the Guelph Treasure was a transaction between German citizens, there is no invocation of international law, and therefore, there is no possibility that the transactions could have violated international law for the purposes of jurisdiction under the FSIA exception.[35]
However, the Supreme Court did leave one small door open to allow the dealers’ descendants another chance at U.S. jurisdiction. If the dealers were no longer considered German citizens at the time of the transaction due to Germany stripping Jewish Germans of citizenship status, the “domestic takings rule” may not apply.[36] However, the Court declined to address this important factor and sent the issue back to the district court to ascertain whether that issue was properly preserved for appeal.[37]
The museum’s next argument is that the principle of comity should prevent American courts from presiding over these claims because Germany has a system that would adjudicate the claims and because the claims hold significant historical and political implications for Germany.[38] At a basic level, comity is the principle that governments should respect the governmental decisions of foreign states.[39] After asserting comity, the nation of Germany was dismissed as a party to the case, but the museum foundation asserts that this principle should cover them as well.[40] The descendants contend that not only is the museum’s comity argument just a restatement of the forum non conveniens argument that was dismissed earlier and not appealed,[41] but also that discretionary comity would be inappropriate here because the descendants would not be able to recover for their claims in Germany.[42] The Supreme Court artfully avoided stepping on international toes by declining to address this issue and basing the outcome of the case solely on the dispute under the FSIA.[43] Therefore, the issue of comity in similar cases is left for another day.
On one hand, the Supreme Court had a sympathetic set of plaintiffs and extreme, visceral disgust for the atrocities committed by the Nazis during the Holocaust. On the other hand, the Court faced the possibility of overly encroaching on international affairs.[44] Although faced with two very compelling arguments and the competing goals of both preserving international relations and recognizing the injustices inflicted on the German Jews by the Nazis, the Court effectively struck a balance between preserving traditional tenants of international law and recognizing the injustices that faced the art dealers at the time of the sale.[45]
On November 25, the United States Supreme Court issued a five to four opinion enjoining New York Governor, Andrew Cuomo, from implementing a COVID-19 restriction which would limit religious services to gatherings of no more than ten people.[1] The deciding vote? Newly appointed Justice Amy Coney Barrett.[2] Joining Justice Barrett in the unsigned opinion were Justices Neil Gorsuch and Brett Kavanaugh,[3] who were also both recently appointed to the Supreme Court.[4] The three President Trump-appointed justices make up just half of the conservative bloc on the Court, effectively outnumbering the liberal justices by six to three.[5] The Democratic Party has vehemently expressed concern over the growing conservative majority and what it could mean for issues like abortion, healthcare, and LGBTQ+ rights.[6] Many notable figures on the left have responded to this shift by calling for judicial reform, namely court expansion, which is most commonly referred to as “court-packing.”[7]
The concept of packing the court (or decreasing its size) is not necessarily new.[8] This is in part because the U.S. Constitution did not set out a specific number of Supreme Court justices in Article III, leaving the makeup of the Court for Congress to decide.[9] Consequently, since 1789, the number of justices on the Court has changed seven times, the last of those changes in 1869, with an increase from seven to nine.[10] Although the number has not changed in 151 years, one key challenge arose in 1937: President Franklin D. Roosevelt’s “court-packing” plan.[11] After two years of facing a consistent blocking of New Deal legislation by a conservative Supreme Court, President Roosevelt proposed a plan to change the makeup of the court.[12] The plan would, in effect, increase the number of justices from nine to fifteen and tip the Court in President Roosevelt’s favor.[13] This was met with strong opposition in Congress and across the legal community, including members of President Roosevelt’s own administration.[14] Moreover, after the plan was introduced, the Court began to shift its position in favor of key pieces of New Deal legislation, and thus, the court-packing plan became futile.[15] The Senate subsequently voted against it by an overwhelming 70 to 22.[16]
Unlike President Roosevelt’s infamous plan, the recent talks of expanding the Court have been met with a fairly equal amount of support and opposition.[17] Proponents in favor of court-packing have largely based their reasoning on three grounds. First, and perhaps what ignited support for this issue in the first place, is the fact that the last three Justices appointed to the Supreme Court were appointed by a president that lost the popular vote in his election.[18] As such, President Trump’s appointees may be seen to some as less legitimate,[19] and thus their decisions less reflective of the national preferences.[20] Second, proponents contend that expanding the court would allow for greater judicial bipartisanship, especially if expanded using the five-five-five approach.[21] This method would restructure the court by mandating that there be exactly five justices affiliated with the Democratic Party and five justices affiliated with the Republican party (the confirmation process remaining much the same).[22] Together, those ten justices would have to unanimously agree on five additional justices and if they could not come to an agreement, they would lack the quorum needed to officially hear cases.[23] This would ensure that neither political party maintains a stronghold majority in the Court. Finally, many support court-packing because they believe that other alternatives would take longer to implement, thus increasing the likelihood that many liberal policies could be overturned or narrowed in the interim.[24] Proponents argue the consequences of such reversals could be far-reaching, from immediate impacts on the environment[25] to interfering with a woman’s access to abortion.[26]
In contrast, opposing arguments are focused less on policy implications and more on the threat that court-packing posits to democracy and judicial legitimacy.[27] First, opponents contend that court-packing would, in effect, decrease tolerance for opposing viewpoints in an already deeply polarized America.[28] One of the foundations of democracy is the people’s faith in the system, essentially “liv[ing] with ‘bad’ policies until [one has] the chance to reverse them through the voting process.”[29] Specifically, opponents worry that restructuring the court to best fit a party agenda—either by the Democrats now or the Republicans later—could signal a breakdown of the democratic system.[30] Second, opponents have expressed concern over how court-packing could delegitimize the Court.[31] Packing the Court with liberal justices to balance out (or perhaps outnumber) the amount of conservative justices could be seen as political interference in what is supposed to be a “no politics” zone.[32] Opponents argue this could jeopardize judicial independence, which has been a distinguishing tenet of the Court since its inception.[33] Lastly, opponents predict that this kind of political restructuring would set the precedent for a future back and forth cycle, leading to great instability in the Court over time.[34] If the Democrats were successful in packing the Court in 2021, the Republicans could reverse this expansion or further pack the court as soon as they regain control of Congress, and the Democrats could reverse the Republican’s reversal the next time they were in control, and so on and so forth. Opponents have argued this would “yield short-term political victories at the cost of the long-term health of [the] Republic.”[35]
While it is clear where some stand on the issue, President-elect Joe Biden, who openly opposed court-packing before the passing of Justice Ruth Bader Ginsburg, remained relatively tight-lipped on the topic in the last weeks of his campaign,[36] and has yet to address his stance on the issue since winning the election last month. However, even if the Biden administration were to put a court-packing plan at the top of its agenda, it would still need a Democratic majority in Congress, and further, a Democratic majority that collectively supports the idea.[37] Although these requirements seem daunting, it is not entirely far off, even if Biden has to wait until 2022 for a Democratic-controlled Congress. If that were the case and Biden wanted to act sooner, or if he wanted to avoid court-packing altogether, he could rely on alternatives for Court reform that may garner more bipartisan support.[38] Scholars have suggested proposals ranging from term limits[39] to a “binding set of nonpartisan rules.”[40] These rules could set a firm deadline for nominations to the Court during presidential election years, make confirmation hearings private, and address the issue of nominating young justices to get long-term control.[41]
While these reforms sound promising, they could take time to pass through Congress, which means that the outrage felt by the Democratic Party over the current makeup of the Court is not going away anytime soon. This is especially true in light of the fact that there are several significant cases that come before the Court every year, and the Cuomo case will likely not be the last time Justice Barrett is the deciding vote. However, it is conceivable that history could repeat itself and the Court could respond to the threat of expansion like it did in 1937 by adjusting its position on key cases. Whatever the outcome, change on the Supreme Court in the coming months and years is inevitable.
[1] Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020 WL 6948354, at *1, *3 (U.S. Nov. 25, 2020).
[2] Justice Ruth Bader Ginsburg had voted against similar religious challenges in the months preceding her death, after which Justice Barrett took over her seat on the Court. Adam Liptak, Splitting 5 to 4, Supreme Court Backs Religious Challenge to Cuomo’s Virus Shutdown Order, N.Y. Times (Nov. 26, 2020), https://www.nytimes.com/2020/11/26/us/supreme-court-coronavirus-religion-new-york.html.
[19]See Richard Mailey, Court-Packing in 2021: Pathways to Democratic Legitimacy, 44 Seattle U. L. Rev. 35, 52 (2020) (suggesting that popular vote-losing President Trump’s “consequential” picks on the Supreme Court illustrates the argument that checks on the judicial appointments process is lacking, which can allow a president to seize the court without the will of the people).
Donald Trump is once again at the center of a legal dispute. The Forty-Fifth President of the United States has been no stranger to legal controversies during and before his presidency,[1] but the latest update in Knight First Amendment Institute at Columbia University v. Trump[2] has President Trump petitioning for a writ of certiorari to the Supreme Court after more than three years of litigation.[3]
The case began in July 2017 when the Knight First Amendment Institute at Columbia University (“Knight Institute”) filed a lawsuit against President Trump in federal court alleging that he violated the First Amendment by blocking Twitter users from his @realDonaldTrump account after they criticized his policies and presidency.[4] The U.S. District Court for the Southern District of New York found that Donald Trump, as President, exercised sufficient control over the Twitter account such that the @realDonald Trump account was “susceptible to analysis under the Supreme Court’s [First Amendment] forum doctrines, and is properly characterized as a designated public forum.”[5] The District Court then held that President Trump’s blocking of these Twitter users was discrimination based on the users’ viewpoints and impermissible under the First Amendment.[6] In July 2019, a three-judge panel for the U.S. Court of Appeals for the Second Circuit unanimously affirmed the district court’s decision[7] and subsequently denied rehearing, sitting en banc, in March of this year.[8] Despite his lack of success so far, the administration has continued his fight against the Knight Institute as Acting Solicitor General Jefferey Wall submitted a petition for a writ of certiorari to the Supreme Court at the end of August.[9]
The petition includes both legal and policy-based arguments about the importance of the case.[10] In terms of legal arguments, Solicitor General Wall argues that the Second Circuit wrongly concluded that (1) President Trump’s blocking of the Twitter users was a state action susceptible to the First Amendment rather than an act of a private citizen; (2) the @realDonaldTrump account was a designated public forum; and (3) the governmental-speech doctrine, which would exempt President Trump’s account from a First Amendment challenge, did not apply to President Trump’s actions.[11] Putting the legal arguments aside, Solicitor General Wall also argues, “the court of appeals’ decision . . . has important legal and practical implications that reach beyond the circumstances of this case.”[12] That is, public officials are “increasingly likely to maintain social media accounts to communicate their views, both personal and official,”[13] so if the Second Circuit’s decision were allowed to stand, it would significantly hinder the ability of these public officials to choose who they want to interact with on their own accounts: a choice afforded to every other social media user.[14] According to the petition, this choice—or lack thereof—takes on an even greater significance when the public official in question in the President of the United States.[15]
In response, the Knight Institute filed its brief in opposition on Sept. 21.[16] The Knight Institute first argues that there is no reason for the Court to hear the case because amongst the various lower courts that have dealt with this issue, all agree that public officials blocking critics from their social media accounts violates the First Amendment.[17] It additionally argues that the second circuit properly concluded that blocking users from the @realDonaldTrump account was state action, was not government speech, and that the account itself is a public forum.[18] The Knight Institute also counters Solicitor General Wall’s policy-based arguments, asserting that the impact of the Second Circuit’s decision has not and will not hinder the President’s or other public officials’ use of social media to communicate to the general public.[19] Finally, the Knight Institute maintains that the only cases where the Court has granted certiorari solely due to presidential implications, and absent a circuit split, are those that deal with “fundamental issues of executive power” (such as separation-of-power concerns), unlike the case at hand, which only deals with whether President Trump can block Twitter users from his @realDonaldTrump account.[20]
Given the procedural history, the above arguments, and the fact that the Court usually only hears cases that have “national significance, might harmonize conflicting decisions in the federal circuit courts, and/or could have precedential value,”[21] it seems unlikely that the Court will grant certiorari. Looking at the procedural history, the two lower courts were in agreement that President Trump violated the First Amendment (with one panel holding that unanimously).[22] Therefore, the Court has little incentive to rehear a case that has already been decided so clearly, unless, as Solicitor General Wall argues, the court of appeals erred in its conclusions. The petition for rehearing was denied by the Second Circuit en banc, [23] however, so the decision has already been affirmed in some sense. Along similar lines, there is no conflict among federal circuit or district courts on the issue of public officials blocking users from their social media accounts, as the Knight Institute points out.[24] On the other hand, there has been an influx of cases dealing with this issue as of late,[25] so the Court might want to decide the issue once and for all to deter future litigation. Nevertheless, given, again, that so many lower courts are all in agreement on the issue, the Court probably will not wish to devote time and resources on a well-settled area of the law simply to deter future litigation—particularly as the issue does not reach an issue of traditional significance in executive authority, such as a separation-of-powers issue. As a final matter, neither the Court’s current make-up of Justices nor the projected addition of Amy Coney Barrett should have much effect on the decision-making process in light of the above factors weighing so heavily against granting certiorari.
While it is unlikely that the Court will grant President Trump’s petition, if it does grant certiorari, the case would be interesting to watch unfold at the nation’s highest court. If heard, Knight First Amendment Institute at Columbia University could set the precedent for the ever-prevalent issue of freedom of speech in social media, so it is certainly worth keeping an eye out for the Court’s decision on the petition for writ of certiorari in the coming weeks.
[7]See Knight First Amendment Inst. at Colum. Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019);Knight First Amendment Inst. at Colum. Univ., supra note 4.
[8]See Knight First Amendment Inst. at Colum. Univ. v. Trump, 953 F.3d 216 (2d Cir. 2020) (en banc); Knight First Amendment Inst. at Colum. Univ., supra note 4.
[25]See Petition for Writ of Certiorari, supra note 9, at 28 n.2 (noting six recent cases from around the country concerning public officials’ blocking social media users on their personal accounts).
