Juvenile Life Without Parole: Where the Law Stands After Jones v. Mississippi

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Margo McGehee, Blog Chair, University of Cincinnati Law Review

I. Introduction

The United States is the only country in the world that sentences juveniles to life in prison without the possibility of parole.[1] Although twenty-four states and the District of Columbia have banned these sentences for juveniles, nearly 1,500 people are still serving life-without-parole sentences for crimes committed as juveniles.[2] Since 2005, the Supreme Court has issued a handful of decisions limiting the circumstances in which a juvenile may be sentenced to life in prison. In each of these cases, the Supreme Court relied upon scientific research to conclude that the brain function of juveniles is significantly different than that of adults, and youths who commit even the most serious crimes have the capacity to change.

Recent legal developments on both the state and national level have reintroduced discussion of when, if ever, juveniles should be sentenced to life in prison and what should be done about individuals currently serving life-without-parole sentences for crimes committed as juveniles. In November 2020, the Supreme Court heard oral arguments in Jones v. Mississippi to decide whether a judge must determine if a juvenile convicted of a homicide crime is “permanently incorrigible,” meaning they have no hope of rehabilitation, before sentencing them to life without parole.[3] On April 22, 2021, the Court issued its decision.

Part II of this article will overview the current state of the law as it relates to juveniles sentenced to life without parole and the impact of Jones v. Mississippi. Part III will discuss why juveniles convicted of crimes should be treated differently than adults in sentencing.

II. Background

A. Supreme Court Precedent

In 2005, the Supreme Court ruled in Roper v. Simmons that imposing the death penalty on juveniles violates the Eighth Amendment’s protection against cruel and unusual punishment, effectively banning the practice nationwide.[4] The Court considered the cognitive differences between juveniles and adults in reaching its decision, noting that immaturity diminishes a juvenile’s culpability and recognizing that juveniles have a heightened capacity for reform.[5]

In 2010, in Graham v. Florida, the Supreme Court held that the Eighth Amendment also prohibits life without parole sentences for juveniles convicted of non-homicide crimes.[6] Justice Kennedy noted that “[t]he concept of proportionality is central to the Eighth Amendment,” and precedent decisions establish that non-homicide offenses do not warrant the most serious punishment available.[7] The Court called life without parole “an especially harsh punishment for a juvenile . . . A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.”[8] The Court again noted the fundamental cognitive differences between juveniles and adults when reaching its decision.[9]

In the 2012 case of Miller v. Alabama, the Supreme Court expanded on its previous decisions by striking down mandatory life sentences without the possibility of parole for juveniles convicted of homicide crimes—again, on Eighth Amendment grounds.[10] However, juveniles may still be sentenced to life without parole on a case-by-case basis for homicide crimes.[11] The Court noted that adolescence is marked by “transient rashness, proclivity for risk, and inability to assess consequences,” all factors that should mitigate the punishment received by juvenile defendants.[12]

In 2016, the Supreme Court determined in Montgomery v. Louisiana that the Miller decision applied retroactively to convictions that became final before Miller was decided, making thousands of automatically-sentenced prisoners eligible for parole.[13] States are not required to resentence individuals in cases where a juvenile received a mandatory life sentence without the possibility of parole, but states must permit juvenile homicide offenders to be considered for parole.[14]

After Miller and Montgomery, state courts may sentence juveniles to life without the possibility of parole for homicide crimes as long as the sentence is not a mandatory penalty under the law. Currently, twenty-six states still allow life without parole as a sentencing option for juveniles.[15]

B. Jones v. Mississippi

On April 22, 2021, the Supreme Court issued its decision in Jones v. Mississippi,[16] the most recent juvenile life-without-parole case to reach the highest court since Montgomery in 2016. The Court evaluated whether states may sentence juveniles to life in prison without the possibility of parole for homicide crimes without finding that the juvenile is so incorrigible that there is no hope of rehabilitation.[17]

Brett Jones was sentenced to life without parole—Mississippi’s mandatory sentence for murder—for killing his grandfather less than a month after his 15th birthday.[18] After Miller was decided, the Supreme Court of Mississippi ordered resentencing in Jones’ case, and the resentencing judge upheld Jones’ original sentence.[19]

Jones argued that the resentencing judge operated under a fundamental misunderstanding of Miller when the judge failed to determine that he was permanently incorrigible before sentencing him to life without parole.[20] The phrase “permanent incorrigibility” comes from Montgomery, where the Supreme Court stated that Miller barred life without parole “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.”[21] Mississippi is among a small minority of states that allows life-without-parole sentences for juvenile homicide crimes without requiring a finding of permanent incorrigibility, and Jones argued that this is inconsistent with the Supreme Court’s interpretation of Miller.[22]  

The State in Jones argued that the judge was not required to make a permanent incorrigibility determination under Miller, and the Eighth Amendment does not require a finding that the juvenile is incapable of rehabilitation before sentencing him to life without parole.[23] Instead, the State contended that judges must only “consider the mitigating circumstances of youth before sentencing a juvenile to life without parole” and that permanent incorrigibility is just “one way of testing the sentence’s proportionality.”[24]

On this issue, the Supreme Court held that Miller and Montgomery do not require a separate factual finding of permanent incorrigibility before sentencing a juvenile defendant to life in prison without the possibility of parole.[25] The Court reasoned that “a discretionary sentencing system is both constitutionally necessary and constitutionally sufficient.”[26]

III. Discussion

In each of the aforementioned cases decided before Jones, the Supreme Court considered key differences between adult and adolescent brain development and other relevant factors to limit life-without-parole sentencing of juveniles. Despite the ultimate holding of Jones, courts should continue to consider these cognitive differences when sentencing juveniles.

One key difference is the lack of prefrontal cortex development in young brains. This lack of development impacts juveniles’ ability to delay and reflect upon their actions, leading to rash and impulsive decisions.[27] Lack of prefrontal cortex development also diminishes juveniles’ abilities to contemplate risks and consequences.[28] Furthermore, juveniles have different social-emotional systems than adults: they have an increased need to seek reward and sensation, are more emotionally reactive to both positive and negative emotions, and are more susceptible to “peer-pressure.”[29] However, as the cognitive control system develops with age, the development leads to increased impulse control, better emotional regulation, more foresight and resistance to stress and peer pressure, and better anticipation of consequences and outcomes.[30] These drastic changes in development contribute to the understanding that juveniles have a better chance at rehabilitation than their adult counterparts.

Apart from cognitive differences, courts should also consider other factors when deciding a juvenile’s sentence. Justice Kagan noted in Miller that juvenile defendants are at a substantial disadvantage in criminal proceedings, as they are less able to assist in their own defenses and are more likely to respond to the high pressure of interrogation than adults.[31] Moreover, juveniles are treated differently in many other contexts, as almost every state prohibits juveniles from voting, buying cigarettes, and serving on juries.[32] These state legislatures recognize that juveniles have different qualities that should exclude them from some activities available to adults, and courts should not ignore these differences. The sheer cost of life sentences for juveniles should also give sentencing judges pause: it costs $34,135 per year, on average, to house a prisoner, and this number roughly doubles when that prisoner is over the age of 50.[33] A juvenile sentenced to life without parole could live eighty years or more, imposing a significant financial burden on the state. Finally, courts should consider racial disparities within the criminal justice system when sentencing. Black individuals convicted of homicide crimes are sentenced to life without parole at approximately double the rate of white individuals convicted of the same crime, demonstrating that race and ethnicity may play a subconscious role in a judge’s decision-making.[34]

IV. Conclusion

Under Jones v. Mississippi, judges are not required to find a juvenile permanently incorrigible before sentencing them to life in prison without the possibility of parole for a homicide crime. Instead, judges may use discretion to determine whether such a judgment is appropriate under the circumstances. Despite the outcome of Jones, courts should continue to consider scientific research on adolescent brain development and other relevant factors that distinguish juveniles from adults when sentencing juveniles.

[1] Josh Rovner, Juvenile Life Without Parole: An Overview, The Sentencing Project (Mar. 8, 2021), https://www.sentencingproject.org/publications/juvenile-life-without-parole/.

[2] Id.

[3] Jones v. Mississippi, 140 S. Ct. 1293 (2020); Nina Totenberg, Supreme Court Examines When Juveniles May Be Sentenced to Life Without Parole, NPR (Nov. 3, 2020), https://www.npr.org/2020/11/03/930892945/supreme-court-examines-when-juveniles-may-be-sentenced-to-life-without-parole.

[4] Roper v. Simmons, 543 U.S. 551, 578 (2005).

[5] Id. at 568-74.

[6] Graham v. Florida, 560 U.S. 48 (2010).

[7] Id. at 59; Kennedy v. Louisiana, 554 U.S. 407 (2008).

[8] Graham, 560 U.S. at 70.

[9] Id. at 68.

[10] Miller v. Alabama, 567 U.S. 460, 479 (2012).

[11] Id. at 489.

[12] Id. at 472.

[13] Montgomery v. Louisiana, 577 U.S. 190, 207 (2016).

[14] Montgomery Slip Op. at 21.

[15] Rovner, supra note 1.

[16] 593 U.S. 1307 (2021).

[17] Totenberg, supra note 3.

[18] Amy Howe, Case preview: Court to consider life sentences for juveniles – again, SCOTUSblog (Nov. 2, 2020), https://www.scotusblog.com/2020/11/case-preview-court-to-consider-life-sentences-for-juveniles-again/.

[19] Totenberg, supra note 3.

[20] Id.

[21] Montgomery, 577 U.S. at 209.

[22] Totenberg, supra note 3.

[23] Howe, supra note 18.

[24] Id.

[25] Jones v. Mississippi, 593 U.S. 1307, 1309 (2021).

[26] Id.

[27] Morgan Tyler, Understanding the Adolescent Brain and Legal Culpability, ABA (Aug. 1, 2015), https://www.americanbar.org/groups/public_interest/child_law/resources/child_law_practiceonline/child_law_practice/vol-34/august-2015/understanding-the-adolescent-brain-and-legal-culpability/.

[28] Id.

[29] Id.

[30] Id.

[31] Miller v. Alabama, 567 U.S. 460, 477-78 (2012).

[32] Rovner, supra note 1.

[33] Id.

[34] Id.

Religious Liberty in America: Where We Were, Where We’re At, and Where We’re Going

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Jacob Hoback, Citations Editor, University of Cincinnati Law Review

I. Introduction

Since 1990, free exercise jurisprudence has been relatively straightforward. Under Employment Division v. Smith, religiously motivated conduct is not exempt from neutral and generally applicable laws.[1] In other words, a law could substantially burden a sincere religious practice and still be constitutional as long as it does not single out the religious practice.[2] Though it has received widespread bipartisan criticism since its inception,[3] Smith has largely remained intact.

In only the last few months, however, Smith has begun its sunset. As a result of COVID-19, some state governments have issued orders that have impermissibly infringed religious liberties, even under Smith.[4] These cases have provided the Court an opportunity to re-evaluate its jurisprudence; some even argue that the Court has already done so.[5] And COVID-19 was just the beginning. In June 2021, the Court decided Fulton v. City of Philadelphia, in which five justices expressed a willingness to overrule Smith.[6]

There’s a lot to be said about what the Court has done to Smith as it exists today and what free exercise jurisprudence will look like five years from now. This Article provides a brief overview of the history of the Court’s free exercise jurisprudence, its current state, and where it is likely to go.

II. Where We Were

Substantial development of Free Exercise Clause jurisprudence began in 1963 in Sherbert v. Verner.[7] The plaintiff was a Seventh-Day Adventist whose faith prohibited her from working on Saturdays, ultimately causing her to lose her job.[8] When she applied for unemployment benefits, the Employment Security Commission declared that her refusal to work on Saturdays barred her from receiving benefits.[9] She argued that the disqualification abridged her free exercise of religion, and the Supreme Court agreed.[10]

The Court reasoned that her ineligibility was a direct consequence of her religion, and the state could not force religious observers to choose between following their faith and foregoing government benefits.[11] Having concluded that the state’s actions imposed a substantial burden on the plaintiff, the Court explained that for the state to prevail, it had to prove that denying the plaintiff benefits was advancing a compelling governmental interest.[12] Despite the state’s attempts to justify its actions, the Court held that the justification was insufficient.[13] Thus, because the state substantially burdened the plaintiff’s religious beliefs and could not identify a compelling justification for doing so, the Court ruled in favor of the plaintiff.[14]

Sherbert did not withstand the test of time, however. In 1990, the Court adopted a new rule, which made it considerably more difficult for religious plaintiffs to prevail under a free exercise claim.[15] In Employment Division v. Smith, the government refused to grant unemployment benefits to two Santerians (members of the Native American Church) for ingesting peyote for sacramental purposes.[16] The Santerians lost their jobs because they engaged in “work-related misconduct,” which was grounds for denial of benefits under the state’s unemployment policy.[17] Like the policy in Sherbert, the policy precluding the Santerians from receiving benefits was not designed for the specific purpose of burdening religious observers; it was applicable to any claimant.[18] In other words, a secular claimant who was terminated for smoking marijuana recreationally would have suffered the same consequence. For that very reason, the Court held that the denial of benefits was constitutional.[19] Thus, the Court rejected Sherbert’s “compelling governmental interest” test—commonly referred to as strict scrutiny—and essentially held that a neutral and generally applicable law must only pass rational basis review, a standard under which the government almost always wins.[20]

From the day it was decided, Smith received widespread objection, from the American Civil Liberties Union to the Traditional Values Coalition.[21] More important, though, Smith received a bipartisan, legislative overhaul through the Religious Freedom Restoration Act (RFRA), which was essentially a statutory revival of Sherbert.[22] It passed 97 to 3 in the Senate and unanimously in the House, with then-Representative Chuck Schumer as one of the sponsors.[23] Finally, on November 16, 1993, President Clinton signed the bill into law.[24] State governments also enacted their own RFRAs, and now there are twenty-one state RFRAS across the country.[25] Recently, though, RFRAs have lost bipartisan support and have gained significant opposition.[26]

III. Where We’re At

Despite the legislative victories for religious observers, Smith has largely remained good case law.[27] Since the beginning of 2021, however, the Court has shown a willingness to overrule Smith, or at least give it a death by a thousand cuts. Before COVID-19, few, if any, cases have demonstrated how ambiguous Smith is. An example of this is Commonwealth v. Beshear.[28] There, Kentucky Governor Andy Beshear closed all public and private schools in the state but allowed gyms, fitness centers, and other indoor recreation facilities to remain open.[29] This raised a question that the Supreme Court had never answered: What does a free exercise plaintiff need to show to prevail under Smith? The Sixth Circuit held that the plaintiffs must show that the government allowed a secular exemption comparable to the religious activity, rather than the government allowed any secular exemption, no matter its relation to the religious conduct.[30] The plaintiffs appealed to the Supreme Court, but the Court declined to address the issue because the order would shortly expire.[31]

Only a few months later, the Supreme Court finally addressed the issue in Tandon v. Newsom.[32] The Court ruled that “government regulations are not neutral and generally applicable, and therefore trigger strict scrutiny under the Free Exercise Clause, whenever they treat any comparable secular activity more favorably than religious exercise.”[33] The Court further explained that treating some secular activities “as poorly or even less favorably than the religious exercise at issue” is not probative of neutrality and general applicability.[34] Some argued that this holding was an unfaithful interpretation of Smith.[35] No matter one’s stance on Tandon, everyone can agree that it will make it much easier for free exercise plaintiffs to prevail.

Finally, in June, the Court decided Fulton v. City of Philadelphia,[36] the case that many thought would be the apotheosis of all free exercise jurisprudence. But that was far from the case. It was a unanimous decision with a very narrow holding. Fulton involved a challenge to a Philadelphia policy that provided certain secular exemptions, but no religious ones.[37] For that simple reason, the Court applied strict scrutiny, and, as is often the case with strict scrutiny, the plaintiffs prevailed.[38]

Despite the narrow, fifteen-page ruling, the ninety pages of concurrences suggest that a post-Smith world is likely. In Justice Barrett’s concurrence, joined by Justice Kavanaugh, she stated that “the textual and structural arguments against Smith are more compelling” and “it is difficult to see why the Free Exercise Clause .  . . offers no more than protection from discrimination.”[39]

Justice Barrett, this time joined by both Justice Kavanaugh and Justice Breyer, struggled with what to replace Smith with.[40] She expressed skepticism with returning to the Sherbert approach because other First Amendment rights are “much more nuanced.”[41] Nevertheless, she explained that Fulton was not the case to address those problems because Fulton fell outside the scope of Smith.[42]

Justice Alito, joined by Justice Thomas and Justice Gorsuch, concurred in the judgment, advocating for the Court to overrule Smith in Fulton itself.[43] He demonstrated how easily the government could curtail religious liberties, even while being consistent with Smith.[44] For example, he explained that the Prohibition Amendment would have been constitutional even without an exception for the sacramental use of wine, which would have essentially outlawed the celebration of a Catholic Mass.[45] He also explained that if a state made it unlawful to slaughter an animal that had not yet been rendered unconscious, the law would be constitutional, even though it would effectively outlaw kosher and halal slaughter.[46] Most significant to the case, he explained that if Philadelphia had eliminated the secular exemptions, which have never been used, the policy that infringed on the plaintiff’s religious freedom would nevertheless be constitutional under Smith.[47] After a long discussion of the original meaning of the Free Exercise Clause and the factors considered to determine whether to overrule precedent in general, Justice Alito concluded that Smith should be replaced with the Sherbert test.[48]

Justice Gorsuch’s concurrence joined by Justice Thomas and Justice Alito expressed concern over not acting upon Smith hastily enough.[49] He explained that the delay in clarifying the law will further confuse the lower courts, highlighting the Court’s constant intervention in COVID-19 cases throughout the pandemic.[50] Further, he stated, “We owe it to the parties, to religious believers, and to our colleagues on the lower courts to cure the problem this Court created.”[51]

Thus, Smith remains good law. Although Tandon has seemingly narrowed Smith’s holding, the Court has refused to fully get rid of it. Nevertheless, there is good reason to believe that Smith will not be here forever.

IV. Where We’re Going

The road ahead looks promising for free exercise plaintiffs. Now, the Free Exercise Clause exists like an antidiscrimination statute; the government can infringe on one’s exercise of religion, as long as it does not single it out. But in the future, the Free Exercise Clause is more likely to exist as an unassailable categorical protection for religious observers. On the other hand, even if the Court ultimately decides to reaffirm Smith in subsequent developments, Tandon places religious plaintiffs in better shape than they were a year ago.

The Court is more than ready to overrule Smith when apposite. Now, perhaps for the first time, there are five Justices on the Supreme Court who have expressed a desire to overrule it: Thomas, Alito, Gorsuch, Kavanaugh, and Barrett.[52] Although Justices Kavanaugh and Barrett declined to overrule it in Fulton, they made their dissatisfaction with Smith clear.[53]

Overruling Smith would not be easy, however, and it would require the right set of facts. As Justice Barrett explained, the problem with using Fulton as the vessel to overrule Smith was that they are not analogous cases.[54] Even when Smith overruled Sherbert, the facts were very similar.[55] Accordingly, Smith’s demise would likely have to involve a truly neutral and generally applicable law.

Although a post-Smith world is likely, a revived-Sherbert world is not. Only three of the Justices agreed that the Court should return to the Sherbert test for free exercise claims. One should ask then, what will replace Smith? Probably a hybrid between Sherbert and Smith. Some might argue that Tandon is that hybrid, but to the conservative bloc, Tandon is just a fair application of Smith, which ostensibly does not go far enough.

To conclude, even if the Court does not overrule Smith, its current state replicated in Tandon provides greater liberty for religious observers than they have been afforded in the past thirty years. Even assuming arguendo that Tandon is a fair application of Smith, religious plaintiffs still have a guarantee that religious conduct now has a “most-favored nation status”—a theoretical approach to interpreting Smith proposed by Professor Douglas Laycock, under which religious conduct is entitled to an exemption where any secular exemption exists.[56] This reading of Smith is far more favorable to religious plaintiffs than those proposed by other First Amendment scholars.[57] Opponents of Smith may not have won the war yet, but they have certainly won the battle for the time being.

V. Conclusion

For free exercise plaintiffs, the tide is turning. Since the advent of Smith, challenging a law that burdens religiously-motivated conduct has been substantially more difficult. Developments in the past few months, however, have made it considerably easier for religious plaintiffs to prevail. Whether Smith is long gone in five years or still good law as it exists in Tandon, religious plaintiffs will enjoy greater protection of the First Amendment than they have in a long time.

[1] 494 U.S. 872 (1990).

[2] Id. at 882.

[3] See e.g., Thomas C. Berg, What Hath Congress Wrought – An Interpretive Guide to the Religious Freedom Restoration Act, 39 Vill. L. Rev. 1, 12-13 (1994)

[4] See e.g., Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, slip op. (Nov. 25, 2020); Tandon v. Newsom, No. 20A151, slip op. (Apr. 9, 2021) (per curiam).

[5] Mark Joseph Stern, The Supreme Court Broke Down Its Own Rules to Radically Redefine Religious Liberty, Slate (Apr. 12, 2021, 2:51 PM), https://slate.com/news-and-politics/2021/04/supreme-court-religious-liberty-covid-california.html.

[6] No. 19-123, slip op. (June 17, 2021) (Barrett, J., concurring); Id. (Alito, J., concurring in the judgment).

[7] 374 U.S. 398.

[8] Id. at 399.

[9] Id. at 401.

[10] Id. at 402.

[11] Id. at 404.

[12] Id. at 406.

[13] Id. at 407.

[14] Id. at 410.

[15] Employment Div., Dep’t. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

[16] Id. at 874.

[17] Id.

[18] Id.

[19] Id. at 890.

[20] Id. at 885.

[21] Berg, supra note 3.

[22] Id. at 12.

[23] Peter Steinfels, Clinton Signs Law Protecting Religious Practices, N.Y. Times, Nov. 17, 1993.

[24] Id.

[25] Paul Baumgardner & Brian K. Miller, Moving from the Statehouses to the State Courts? The Post-RFRA Future of State Religious Freedom Protections, 82 Alb. L. Rev. 1385, 1391 (2019).

[26] Id. at 1393.

[27] But see Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., 565 U.S. 171, 190 (2012) (narrowing Smith to apply to only “government regulation of only outward physical acts”).

[28] 981 F.3d 505 (2020).

[29] Plaintiff’s Motion for Emergency Hearing and Temporary Restraining Order at ¶ 1, Danville Christian Academy, Inc. v. Beshear, No. 3:20-CV-00075, 2020 WL 8513856 (E.D.N.Y. Nov. 25, 2020).

[30] Beshear, 981 F.3d at 508.

[31] Danville Christian Academy, Inc. v. Beshear, No. 20A96, slip op. (Dec. 17, 2020).

[32] No. 20A151, slip op. (Apr. 9, 2021) (per curiam).

[33] Id. at 1 (citing Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, slip. op. (Nov. 25, 2020) (per curiam)).

[34] Id. (citing Cuomo, slip op. at 2-3 (Kavanaugh, J., concurring)).

[35] See e.g., Stern, supra note 5. I made a similar argument in this Blog last year when the Sixth Circuit decided the Kentucky school closure case. Rebekah Durham & Jacob Hoback, Seeing Both Sides: Was the Sixth Circuit Right About Kentucky School Closures?, U. Cin. L. Rev. Blog (Dec. 23, 2020), https://uclawreview.org/2020/12/23/seeing-both-sides-was-the-sixth-circuit-right-about-kentucky-school-closures/. But although I believe that Tandon was an unfaithful interpretation of Smith, I do think that Tandon is a more faithful interpretation of the Free Exercise Clause itself.

[36] No. 19-123, slip op. (June 17, 2021).

[37] Id. at 7.

[38] Id. at 13-15.

[39] Id. at 1 (Barrett, J., concurring). Justice Breyer also joined the concurrence, but he did not join the first paragraph from which the quoted portions stem.

[40] Id.

[41] Id. at 1-2.

[42] Id. at 2-3.

[43] Id. at 1 (Alito, J., concurring in the judgment).

[44] Id. at 1-2.

[45] Id.

[46] Id. at 2.

[47] Id. at 8.

[48] Id. at 73.

[49] Id. at 8 (Gorsuch, J., concurring in the judgment).

[50] Id. at 8.

[51] Id.

[52] Id. (Barrett, J., concurring); Id. (Alito, J., concurring in the judgment).

[53] Id. at 1 (Barrett, J., concurring).

[54] Id. at 2.

[55] Supra Section II.

[56] Douglas Laycock, The Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 49 (1990).

[57] See e.g., Brief for Professor Eugene Volokh as Amicus Curiae in Support of Neither Party, Fulton, No. 19-123, slip op.

Debunking Twombly/Iqbal: Plausibility is More than Plausible in Ohio and Other States

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Matthew Marino, Executive Editor, University of Cincinnati Law Review

This article was originally published in Volume 89, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

Access to justice is a cornerstone of the American judicial system.[1] Although justice is promoted through wide access to the courts, this interest must be balanced to prevent lawsuits that are frivolous, revenge-seeking, or unreasonable.[2] Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”[3] In Bell Atlantic v. Twombly,[4] the Supreme Court abruptly departed from the longstanding “notice pleading”standard developed for Rule 8(a)(2) fifty years earlier in Conley v. Gibson. The Conley standard was lenient and justified a complaint’s dismissal only if “no set of facts” could be shown to demonstrate a plaintiff’s entitlement to relief.[5] The Court in Twombly set a more stringent standard to govern complaints, holding antitrust plaintiffs alleging violations of Section 1 of the Sherman Act must plead sufficient factual matter to support a plausible claim for relief.[6] The Supreme Court subsequently extended Twombly to all civil cases in Ashcroft v. Iqbal in 2009.[7]

A major policy motive behind the Twombly/Iqbal standard (“Twombly/Iqbal”) is to protect defendants from burdensome discovery requests, especially from plaintiffs who rely almost exclusively on discovery to uncover whether their claims have merit.[8] “Plausibility” therefore requires a complaint to set out “enough facts to raise a reasonable expectation that discovery will reveal evidence” of a claim for relief.[9] This has become more relevant with the advent of e-discovery, where the use of evidence from large, electronically stored databases has become both necessary and commonplace, making discovery more costly and time-consuming.[10]

State courts remain free to follow notice pleading, and indeed most state courts still follow some form of the Conley standard.[11] Some Ohio courts have adopted Twombly/Iqbal while others have either not decided or expressly rejected plausibility, suggesting the issue is ripe for the Ohio Supreme Court.[12]

This Comment argues that the Ohio Supreme Court should adopt Twombly/Iqbal. Although Twombly/Iqbal is more stringent than notice pleading, implementing Twombly/Iqbal in Ohio and other states will not impair access to the courts as many fear,[13] but rather will serve benefits by encouraging more factually precise complaints and motions at the initial pleading stages of a lawsuit. This will lead to more viable complaints, better case management, and clearer expectations for practitioners, all of which will reduce the costs associated with early pre-trial litigation. Adoption of the standard in Ohio also comports with Ohio’s tradition of modeling its own rules of procedure after the Federal Rules of Civil Procedure (“Federal Rules”) and relying on federal case law to interpret those rules. Further, plausibility does not mark a drastic departure from notice pleading because it has long been implicitly embedded in early pre-trial litigation.

This Comment will proceed as follows. First, Section II will discuss how states have modeled their own procedural rules after the Federal Rules, examine whether states should rely on federal law at all, and outline Ohio’s tradition of modeling its own rules of civil procedure after the Federal Rules and using federal case law to interpret those rules. Section II will also dissect Twombly/Iqbal in its entirety. Sections II-C, II-D, and II-E will serve as a guide for practitioners seeking to understand Twombly/Iqbal. Next, Section III will argue that adoption of Twombly/Iqbal comports with Ohio’s tradition of adopting federal procedural law. Section III will also respond to opponents’ concerns surrounding state court adoption of the Twombly/Iqbal. Section IV will conclude that Twombly/Iqbal is as sensible in application as it is in theory, reasserting that Ohio and other state courts should adopt Twombly/Iqbal to promote pretrial litigants’ best interests.

[1] See Hon. Earl Johnson Jr., Equal Access to Justice: Comparing Access to Justice in the United States and Other Industrial Democracies, 24 FORDHAM INT’L L.J. 83, 84 (citing Reginald Herber Smith, Justice and the Poor (1919)).

[2] See Erin Schiller & Jeffrey A. Wertkin, Frivolous Filings and Vexatious Litigation, 12 GEO J. LEGAL ETHICS 909 (2000-2001).

[3] Fed. R. Civ. P. 8(a)(2). 

[4] 550 U.S. 544 (2007).

[5] See Conley v. Gibson, 355 U.S. 41, 45 (1957).

[6] Id. at 556.

[7] 556 U.S. 662, 685 (2009).

[8] Twombly, 550 U.S. at 558 (citing Car Carriers v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).

[9] See id. at 556.

[10] See Richard L. Marcus, E-Discovery Beyond The Federal Rules, 37 U. Balt. L. Rev. 321, 322 (2008).

[11] See Darcy Jalandoni & David Shouvlin, Ohio and Twombly/Iqbal: Plausible? Ohio Law. (Ohio State Bar Ass’n), May/June 2015, at 26 (“Inasmuch as Twombly/Iqbal dealt with procedural issues, state courts are not bound to follow their rulings under the Erie Doctrine, and most have not. By our recent count, of the 12 state supreme courts that have substantively examined Twombly/Iqbal, only three—Massachusetts, Nebraska and South Dakota—have adopted the plausibility standard or something akin to it. Nevada has declined to decide. The remaining states have declined to shift from established basic notice pleading principles to the plausibility requirement. They are Arizona, Iowa, Minnesota, Montana, Tennessee, Vermont, Washington and West Virginia.”). Id.

[12] See infra notes 135-138.

[13] See infra notes 144-146.

Supreme Court Preview: Dobbs v. Jackson Women’s Health

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Rebekah Durham, Publications Editor, University of Cincinnati Law Review

I. Introduction

In the upcoming 2021 October Term, the Supreme Court of the United States will hear argument in Dobbs v. Jackson Women’s Health Organization, a case that has the potential to be one of the most significant abortion rulings of this generation.[1] The center of the dispute in Dobbs is a law passed by the state of Mississippi in 2018 that bans abortion after 15 weeks gestation, with a few limited exceptions.[2] The Mississippi law, titled the Gestational Age Act, conflicts with the current standard recognized by courts for state regulation of abortion. Since the 1992 Supreme Court decision of Planned Parenthood v. Casey, courts[3] have held it to be unconstitutional for a state to ban abortions before the point in a pregnancy where the child becomes “viable.”[4] As Mississippi’s 15-week ban appears to be a blatant violation of the viability standard, Dobbs presents a chance for the Court to wave a white flag over one of the most polarizing and contentious areas of constitutional law of the last century. This post will first give a brief background of abortion law in the U.S. and the facts of the Dobbs case, then discuss the issues presented in Dobbs and finally analyze potential outcomes.

II. Background

A. Abortion Law in the United States

Current abortion jurisprudence in the United States can best be described as fragmented and evolving. Abortion has been protected under the label of the constitutional right to privacy since Roe v. Wade[5]in 1973, but the details of what exactly that right entails have been in flux ever since. Roe set up a rigid trimester-based legal system under which states could regulate abortion to a greater degree with each trimester of a woman’s pregnancy.[6] In 1992, the Court’s decision in Planned Parenthood v. Casey scrapped the trimester framework while “reaffirming the central holding of Roe.”[7] The Court held in Casey that before a fetus reaches “viability,” states may not impose an “undue burden” on a woman seeking an abortion.[8]

In addition to replacing Roe’s trimester framework with the undue burden standard, Casey also marked a shift in the language used by the Court to discuss the abortion right. Roe had characterized it as a part of the “right to privacy,” which the Court described as one of those “personal rights that can be deemed ‘fundamental’ or ‘implicit in the concept of ordered liberty.’”[9] Casey, however, discussed abortion in the context of a woman’s liberty more than privacy.[10] It framed this “liberty” as necessary in light of the intrinsically more substantial impact that bearing children has on women as opposed to men.[11] Rather than labeling a specific individual right that was violated by state regulation of abortion, the plurality expounded that “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[12] Justice Scalia, somewhat sardonically, would later term this the “famed sweet-mystery-of-life passage.”[13]

After Casey, a handful of significant abortion cases modified various elements of the jurisprudence. Gonzales v. Carhart, decided in 2007, held that the Partial-Birth Abortion Ban Act passed by Congress in 2003 was constitutional.[14] The fact that other safe medical options were available meant that “protecting innocent life from a brutal and inhumane procedure” did not impose an undue burden, and the Act was upheld.[15] Significantly, the Court was not swayed by the fact that the Act did prohibit certain abortion procedures pre-viability.[16] Next, in Whole Women’s Health v. Hellerstedt, the Court considered a challenge to a Texas abortion regulation requiring a doctor performing abortions to maintain admitting privileges[17] at a hospital within 30 miles.[18] The Court struck down the Texas law, and in doing so it applied the Casey standard in a slightly modified way. Instead of considering simply the burden on a woman seeking an abortion, the Court stated that the correct approach was to “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”[19] Most recently, in June Medical Services v. Russo, a Louisiana law almost identical to the statute at issue in Hellerstedt was struck down by a plurality of the Court.[20]

B. Facts of Dobbs

On March 19, 2018, Mississippi passed the Gestational Age Act (“GAA”).[21] The GAA instituted two requirements: first, that a physician must, in most cases, determine the probable gestational age of the fetus prior to performing an abortion, and second, it prohibited performing an abortion if the age of the fetus was found to be greater than 15 weeks.[22] The Jackson Women’s Health Organization is the only licensed abortion facility in Mississippi.[23] On the day that the GAA was enacted, Jackson Women’s Health filed a lawsuit against the state, alleging that the GAA was unconstitutional and requesting an injunction against Mississippi’s enforcement of it.[24] Jackson Women’s Health also requested that the court limit discovery in the case to whether 15 weeks was before or after viability, consistent with the Casey viability standard.[25]

The District Court granted the request to limit discovery, viewing all of the Mississippi legislature’s purported state interests as irrelevant, given that the law was a ban rather than a regulation: “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.”[26] Then, concluding that 15 weeks was before viability, the Southern District of Mississippi said that other issues were immaterial and permanently enjoined the Gestational Age Act.[27] After the Fifth Circuit upheld the injunction, Mississippi petitioned the Supreme Court to consider the case, and on May 17, 2021, the Court granted certiorari on one issue: whether all pre-viability prohibitions on elective abortions are unconstitutional.[28]

III. Issues

In its petition for certiorari, Mississippi asked the Court to take up three issues.[29] The first issue, which the Court agreed to consider, was whether all pre-viability prohibitions on elective abortions are unconstitutional.[30] The second question presented asked whether pre-viability regulations should be analyzed under the Casey undue burden standard or the Hellerstedt burdens vs. benefits framework.[31] The third issue was whether abortion providers have third-party standing to challenge laws that protect women’s health.[32] These final two questions, which are more limited in their scope, were left on the table, suggesting that the Court may be ready to tackle the heart of the abortion controversy.

The Court’s choice of which case to hear is also notable. Dobbs was one of three major abortion-related cases with a petition for certiorari pending before the Supreme Court. Rutledge v. Little Rock Family Planning Services involves a challenge to an Arkansas abortion anti-discrimination statute—a law that bans abortions when the reason for the abortion is that the child has been diagnosed with Down Syndrome.[33] Also pending before the Court is Planned Parenthood of Indiana and Kentucky v. Box, a case that has been mired in the judicial system since 2017 and has already been to the Supreme Court once.[34] Box is a challenge to Indiana regulations governing if and when minors can get abortions without parental consent.[35] Either of these other two cases would have provided the Court with an opportunity to clarify key questions regarding the state’s ability to regulate abortion, but neither of them challenged the central holding of Roe in the way that Dobbs does.

IV. Outcomes

Because the case and the question presented in Dobbs cut straight to the heart of the standards established in Roe and Casey, the Court’s ultimate ruling will likely revisit the constitutionality of the viability standard. Although the case could possibly be decided for either party without revisiting that standard at all—Mississippi argued in the lower court that a 15-week ban did not amount to an undue burden because it merely limited the amount of time a woman had available prior to viability to choose an abortion[36]—the fact that the Court only granted certiorari on the single biggest issue suggests that the justices will be evaluating the heart of the abortion question.

A ruling on the constitutionality of the viability standard could take one of three paths. The Court could reaffirm Roe and Casey, even more deeply entrenching the right to abortion and the viability standard in American jurisprudence. This is the least likely option. If the justices intended to reaffirm the already existing standard, they would probably have agreed to consider the second and third questions presented, in order to add much-needed clarity to a confusing framework that has been questioned in three Supreme Court cases in the past five years.[37]

A second option would be for the Court to reaffirm Roe’s right to abortion, but set a new standard that depends less on the whims of medical technology[38] and provides more freedom for the states to pass laws aimed at maximizing the health and safety of both mother and child. Some have advocated for the detection of cardiac activity, or heartbeat, to mark the line before which abortion cannot be regulated.[39] If the Court chooses this route and creates a new standard, renewed doubt will be cast over the consistency of abortion precedent, and Roe will likely be on just as shaky ground as before.

The third route that the Court could take in deciding Dobbs is to overturn Roe and Casey altogether. Such a ruling could take on a variety of different forms, ranging from recognition of a constitutional right to life all the way to the Court’s removing itself from the abortion business and sending the issue entirely back to state legislatures. This option, although seemingly the most radical, could prove to be advantageous for the members of the Court with concerns of legitimacy, as it would extricate the Court from the position of defining what some view as a “court-created right.”[40]

Although overturning Roe may sound like a drastic step, sending abortion back to the states actually might not change as much as it would seem at first glance. Ten states currently have “trigger bans” in place—laws that would be put into effect to ban abortion in that state as soon as the Court overturns Roe.[41] However, five of those ten states have only one abortion clinic in the State.[42] If Roe were to be overturned, states where abortion is already highly regulated would be free to impose outright bans, and states that currently have very few limitations on abortion would be free to remain the same.

In addition to its implications for the legality of abortion in the U.S., a Dobbs ruling that overturns Roe and Casey, even partially, would have some side effects as well. One likely consequence is that the calls would become louder to change the structure of the Supreme Court, either through court-packing or through alterations to the appointment process and tenure of the justices. However, the concerns of those who fear the consequences of having a majority of conservative-leaning justices on the high court may be over-exaggerated. As the last term revealed, the six so-called “conservative” justices have not shifted the Court meaningfully to the right; in fact, the Court’s decisions in the 2020 term were overall significantly more aligned with the three Democratic-appointed justices than in the previous year.[43] Moreover, removing the Court from the abortion debate and sending the issue back to the states would be a quintessentially apolitical choice, one that says more about a restrained view of the Court’s role as judicial activist rather than an endorsement of any political position.

V. Conclusion

As Judge David F. Hamilton of the Seventh Circuit described, “constitutional standards for state regulations affecting a woman’s right to choose to terminate a pregnancy are not stable, but they have not been changed.”[44] From the right to privacy, to the due process liberty interest, to the undue burden standard, to the burdens vs. benefits test, pinning down the precise nature of the abortion right has been like trying to grab hold of a wet fish. Dobbs, however, presents a challenge to the very origins of abortion doctrine, and thus gives the Court a chance to bring clarity to a troubled area of law.

[1] Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019), cert. granted, 2021 U.S. LEXIS 2556 (U.S. May 17, 2021) (No. 19-1392).

[2] Dobbs, 945 F.3d at 269.

[3] See EMWomen’s Surgical Ctr., P.S.C. v. Friedlander, 978 F.3d 418, 429 (6th Cir. 2020) (“The constitutionality of laws regulating abortion is governed by the ‘undue burden’ test set forth in Planned Parenthood of Southeastern Pennsylvania v. Casey.”); Edwards v. Beck, 786 F.3d 1113 (8th Cir. 2015) (“a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.” (quoting Planned Parenthood v. Casey, 505 U.S. 833, 879 (1992)).

[4] Planned Parenthood v. Casey, 505 U.S. 833, 846 (1992) (“Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.”).

[5] Roe v. Wade, 410 U.S. 113 (1973).

[6] Id. at 164-65.

[7] Planned Parenthood v. Casey, 505 U.S. 833, 853 (1992).

[8] Id. at 876-79.

[9] Roe, 410 U.S. at 152.

[10] Casey, 505 U.S. at 896 (“It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s. The effect of state regulation on a woman’s protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman.”).

[11] Id.

[12] Casey, 505 U.S. at 851.

[13] Lawrence v. Texas, 539 U.S. 558, 588, (2003) (Scalia, J., dissenting).

[14] Gonzales v. Carhart, 550 U.S. 124 (2007).

[15] Id. at 132.

[16] Id. at 156, 166-67.

[17] Admitting privileges are the rights that physicians have to admit patients to specific hospitals or for specific treatments. The specific requirements to obtain admitting privileges vary between hospitals. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 951 F. Supp. 2d 891, 898 (W.D. Tex. 2013).

[18] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016).

[19] Id. at 2309.

[20] See June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020) (Court struck down a Louisiana admitting privileges requirement for physicians performing abortions because the “findings mirror those made in Whole Woman’s Health in every relevant respect and require the same result.” The plurality used the Hellerstedt “benefits against the burdens” framework for its analysis).

[21] Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 269 (5th Cir. 2019).

[22] Miss. Code Ann. § 41-41-191 (The act made an exception for abortion in cases of medical emergency or in the case of a severe fetal abnormality, when the child has a life-threatening medical condition such that it would not survive birth regardless of treatment).

[23] Dobbs, 945 F.3d at 269.

[24] Id.

[25] Id. at 269-70.

[26] Jackson Women’s Health Org. v. Currier, 349 F. Supp. 3d 536, 539 (S.D. Miss. 2018) (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 883, 860, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992) (plurality opinion)).

[27] Dobbs, 945 F.3d at 270.

[28] Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265 (5th Cir. 2019), cert. granted, 2021 U.S. LEXIS 2556 (U.S. May 17, 2021) (No. 19-1392).

[29] Petition for Writ of Certiorari, Dobbs, 945 F.3d 265 (No. 19-__).

[30] Id.

[31] Id.

[32] Id.

[33] Little Rock Family Planning Servs. v. Rutledge, 984 F.3d 682 (8th Cir. 2021).

[34] See Box v. Planned Parenthood of Ind. & Ky., Inc., 141 S. Ct. 187 (2020).

[35] Planned Parenthood of Ind. & Ky., Inc. v. Box, 991 F.3d 740 (7th Cir. 2021).

[36] Jackson Women’s Health Org. v. Dobbs, 945 F.3d 265, 270 (5th Cir. 2019) (“the State opposed summary judgment because the Act “merely limits the time frame” in which women must decide to have an abortion and because the Supreme Court has left unanswered whether Mississippi’s asserted state interests can justify the Act.”).

[37] Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016); June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103 (2020).

[38] See Petition for Writ of Certiorari, Dobbs, 945 F.3d 265 (No. 19-__) (“medical advances make viability itself a moving target …Given the many medical advances our scientific community is constantly achieving, it is only a matter of time before development of an artificial womb moves ‘viability’ all the way back to the moment of conception.”).

[39] See Mary Ziegler, Abortion and the Law of Innocence, 21 U. Ill L. Rev. 865, 916-917 (2021). Ziegler discusses the work of Janet Folger Porter, who has advocated for the heartbeat standard to “replace viability, which she described as uncertain and fluid, with the ‘consistent and certain’ marker of a heartbeat.”

[40] Jones v. Mississippi, 141 S. Ct. 1307, n.9 (April 22, 2021) (Thomas, J., concurring).

[41] Abortion Policy in the Absence of Roe, Guttmacher Institute (June 17, 2021). https://www.guttmacher.org/state-policy/explore/abortion-policy-absence-roe

[42] Holly Yan, These 6 States Have Only 1 Abortion Clinic Left. Missouri Could Become the First with Zero, CNN (June 21, 2019). https://www.cnn.com/2019/05/29/health/six-states-with-1-abortion-clinic-map-trnd/index.html

[43] See Adam Liptak, The Supreme Court’s Newest Justices Produce Some Unexpected Results, The New York Times (June 18, 2021). https://www.nytimes.com/2021/06/18/us/politics/supreme-court-conservatives-liberals.html

[44] Planned Parenthood of Ind. & Ky. v. Box, 991 F.3d 740, 741 (7th Cir. 2021).

Satisfying Lodging or Illegal Hotels? Analyzing the Legal Issues of Airbnb

Photo by Andrea Davis on Unsplash

Bennett Herbert, Citations Editor, University of Cincinnati Law Review

I. Introduction

In 2007, Brian Chesky and Joe Gebbia had an idea to help pay the bills in their expensive San Francisco, California apartment: rent out an air mattress to travelers for cheaper than the cost of a hotel.[1] Fifteen years later, Airbnb is the largest home-sharing company in the world, valued at 31 billion dollars.[2] However, Airbnb is also second place in that they have sued the U.S. government more than any other company over the last four years, second only to Uber.[3]

Airbnb argues that it provides an income opportunity for middle-class citizens, tourism revenue for locations around the world, and a democratization of income from hotel corporations into the hands of individual homeowners.[4] But various legal issues have led to increased tension as to the level of government oversight over Airbnb and its renters.[5] These problems include Airbnb’s impact on housing supply, renters who violate zoning or health regulations, and failure to pay occupancy taxes that hotels and other renters are required to pay.[6]

Part II of this article will provide a background into the ways Airbnb has hurt the housing supply of various communities, discuss how local governments are attempting to better regulate Airbnb, and analyze the success of these attempts. Part III will discuss how governments should approach Airbnb going forward and forecast Airbnb’s likely struggles in the near future.

II. Background

Airbnb has become the most popular home-sharing service in the United States, making up about 51% of all short-term rental listings.[7] The company promotes itself on its positive impact on tourist-created revenue and opportunity for middle-class homeowners to earn money, all while providing a unique and satisfying experience for travelers.[8] However, as its popularity soars, Airbnb’s success brings some undesirable consequences in the form of legal battles.

One large criticism of Airbnb’s business model is that it encourages homeowners to remove their property from being a full-time rentable option for locals, thus lowering the housing supply and raising tenant prices.[9] In Palma de Mallorca, Airbnb contributed to a 40% increase in residential rent prices, forcing many locals to leave the island.[10] As a result, the island voted to ban Airbnb to make housing affordable for residents.[11] Additionally, many of those who rent out their property through Airbnb do so without complying with the zoning or health codes that are required of short-term rentals.[12] For example, according to a report from the New York Attorney General, about 72% of all Airbnb listings in New York City in 2014 were illegal.[13] Finally, many Airbnb hosts fail to pay occupancy taxes that are required of short-term rental properties.[14] A large function of these taxes, normally levied at hotels, is to help alleviate the negative effect that a property being unavailable for long-term vacancy has on the housing market.[15]

Airbnb argues that it is not permitted to collect occupancy taxes from its renters and that it is not responsible for ensuring the properties its users rent comply with zoning or health regulations.[16] It claims the company is merely a platform that connects hosts and visitors, more like Facebook than Marriott.[17] According to Airbnb, the onus is on the hosts to comply with required codes and pay proper taxes.[18]

Not all city and state governments share this sentiment, however.  Many have passed legislation imposing stricter regulation of Airbnb hosts, limiting how many days properties can be used for short-term rentals and one host can rent out on a short-term basis, and requiring Airbnb to share specific information of its hosts.[19] Airbnb has argued this last point is an infringement on its freedom of speech, an illegal search and seizure, and jeopardizes the privacy and safety of its hosts.[20] Local officials have argued it is necessary to ensure Airbnb properties are healthy for visitors and paying their fair share of taxes.[21]

This issue of transparency vs. privacy was recently settled in a New York City lawsuit. In 2018, New York City passed an ordinance that would require Airbnb to share data monthly about its hosts.[22] In January of 2020, a judge blocked the ordinance until litigation finished, calling the law a “breathtaking overreach of privacy.”[23] Despite this ruling, in July of 2020, Airbnb reached an agreement with New York City to provide its hosts’ information on a quarterly basis.[24]

III. Discussion

The number of lawsuits against the U.S. government by Airbnb have dramatically increased in recent years.[25] “Airbnb will be fighting regulatory brush fires across the world for the next decade,” said Aswath Damodaran, a professor at New York University’s Stern School of Business.[26] Considering the inconsistency and wide variety with which state governments have legislated with respect to Airbnb and the lack of case law on Airbnb’s lawsuits against local governments, it is worth evaluating how some of these lawsuits will resolve.

For governments wishing to regulate Airbnb more strictly, a 2018 Supreme Court case provides a good sign for their prospects. In South Dakota v. Wayfair, South Dakota implemented a sales tax for out-of-state merchants that sell at least $100,000 annually in sales.[27] When Wayfair failed to pay this tax, the state sued.[28] The Court ruled that states can require merchants to collect sales tax for online purchases, even if the merchant does not have a physical presence in the state.[29] This overturned a 1992 ruling that such a tax would be unconstitutional.[30] By comparing Airbnb’s business model to Wayfair’s, government officials can undercut one of Airbnb’s strongest arguments of why it should not be accountable for its hosts taxes.

In an attempt to avoid costly litigation, Airbnb has signed Voluntary Collection Agreements (“VCAs)” with some local governments.[31] These VCAs are negotiated agreements that serve in the place of statutes and regulate, among other things, how Airbnb is to collect and deliver taxes from its hosts.[32] As of 2019, Airbnb had agreed to over 150 VCAs across the country.[33] However, in recent years, many cities have felt that the VCA is too weak, not transparent enough, or that Airbnb was hiding their data in violation of the VCA.[34]

For their part, Airbnb could avoid the most restrictive statutes and millions of dollars in legal fees if, instead of fighting these battles in the court, they agree to new VCAs. Even if these are stricter than the previous agreements, they would likely be more beneficial to Airbnb than the future legislation would be if federal courts give local governments the green light they are looking for. This type of concession from Airbnb would be similar to the deal they struck with New York City in June of 2020 when they agreed to provide quarterly information on their hosts.[35] Even though this deal will likely cost Airbnb thousands of New York locations, the benefit of securing legal status in the largest tourist site in the world outweighed those costs, especially because the company went public six months later.[36] “We hope that our willingness to be transparent enables the State and the City to feel reassured that short-term rentals can be effectively regulated without blunt prohibitions,” said Airbnb co-founder Nathan Blecharczyk.[37]

IV. Conclusion

The ramp up of litigation between Airbnb and local officials around the U.S. has resulted in varying outcomes.[38] The VCAs that local governments have made with Airbnb seek to offer a mutually beneficial solution, and while they may have been an improvement in some regards, they have generally failed at effectively securing adequate regulation of Airbnb or guard against its least desirable behaviors.[39] Subsequently, the Airbnb venues in different states, and even different cities within certain states, have different levels of operation.[40] As more localities seek to better regulate Airbnb, it is unlikely the lawsuits will slowdown anytime soon.[41]

Despite some recent rulings in Airbnb’s favor, the Court’s decision in South Dakota v. Wayfair gives reason to believe that Airbnb’s argument that it is merely a mediator between host and traveler will not succeed in a federal court. A federal court will likely allow states to hold Airbnb accountable for its hosts’ taxes despite not having a physical presence in that state, just as the Court ruled South Dakota could tax Wayfair. Local officials should use this ruling to guide future lawsuits against Airbnb. For its part, Airbnb could benefit from continuing to reach agreements like it did in the New York City lawsuit about hosts’ information, and proactively seeking to sign new VCAs with city and state governments. Doing so will result in more regulation than Airbnb faced five years ago, but will allow Airbnb to save millions of dollars in legal fees, avoid being at the mercy of a statute that it has no say in, and maintain investor trust.

[1] Rebecca Aydin, How 3 Guys Turned Renting Air Mattresses in Their Apartment Into a $31 Billion Company, Airbnb, Business Insider (Sep. 20, 2019), https://www.businessinsider.com/how-airbnb-was-founded-a-visual-history-2016-2.

[2] Id.

[3] Olivia Carville, Andre Tartar and Jeremy C. F. Lin, Airbnb to America’s Big Cities: See You in Court, Bloomberg (Feb. 14, 2020), https://www.bloomberg.com/graphics/2020-airbnb-ipo-challenges/.

[4] Alyssa Foote, Inside Airbnb’s ‘Guerilla War’ Against Local Governments, Wired (Mar. 20, 2019), https://www.wired.com/story/inside-airbnbs-guerrilla-war-against-local-governments/.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Raphael Minder, To Contain Tourism, One Spanish City Strikes a Ban, on Airbnb, New York Times (June 23, 2018), https://www.nytimes.com/2018/06/23/world/europe/tourism-spain-airbnb-ban.html.

[11] Id.

[12] Jessica Glenza, Most Airbnb Rentals in New York City Are Illegal, Says State Attorney General, Guardian (Oct. 16, 2014), https://www.theguardian.com/technology/2014/oct/16/airbnb-illegal-hotels-new-york-city-schneiderman.

[13] Id.

[14] Alyssa Foote, Inside Airbnb’s ‘Guerilla War’ Against Local Governments, Wired (Mar. 20, 2019), https://www.wired.com/story/inside-airbnbs-guerrilla-war-against-local-governments/.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Brendan Pierson, Judge Blocks New York City Law Requiring Airbnb to Hand Over User Data, Reuters (Jan. 3, 2019), https://www.reuters.com/article/uk-airbnb-lawsuit/judge-blocks-new-york-city-law-requiring-airbnb-to-hand-over-user-data-idUSKCN1OX19L.

[21] Id.

[22] Id.

[23] Id.

[24] Olivia Carville, Airbnb Agrees to Give Host Data to NYC in Settlement, Bloomberg (June 12, 2020), https://www.bloomberg.com/news/articles/2020-06-12/airbnb-settles-lawsuit-with-nyc-over-providing-host-data.

[25] Olivia Carville, Andre Tartar and Jeremy C. F. Lin, Airbnb to America’s Big Cities: See You in Court, BLOOMBERG (Feb. 14, 2020), https://www.bloomberg.com/graphics/2020-airbnb-ipo-challenges/.

[26] Id.

[27] South Dakota v. Wayfair, 138 U.S. 2099 (2018).

[28] Id. at 2089.

[29] Id. at 2099.

[30] Quill Corp. v North Dakota, 504 U.S. 298 (1992).

[31] Alyssa Foote, Inside Airbnb’s ‘Guerilla War’ Against Local Governments, Wired (Mar. 20, 2019), https://www.wired.com/story/inside-airbnbs-guerrilla-war-against-local-governments/.

[32] Id.

[33] Id.

[34] Id.

[35] Olivia Carville, Airbnb Agrees to Give Host Data to NYC in Settlement, Bloomberg (June 12, 2020), https://www.bloomberg.com/news/articles/2020-06-12/airbnb-settles-lawsuit-with-nyc-over-providing-host-data.

[36] Danielle Abril, Airbnb’s IPO: 6 Key Things to Know, Fortune (Dec. 10, 2020), https://fortune.com/2020/12/09/airbnb-ipo-share-price-covid-revenue-profit-2020-brian-chesky-abnb-nasdaq/.

[37] Olivia Carville, Airbnb Agrees to Give Host Data to NYC in Settlement, Bloomberg (June 12, 2020), https://www.bloomberg.com/news/articles/2020-06-12/airbnb-settles-lawsuit-with-nyc-over-providing-host-data.

[38] Alyssa Foote, Inside Airbnb’s ‘Guerilla War’ Against Local Governments, Wired (Mar. 20, 2019), https://www.wired.com/story/inside-airbnbs-guerrilla-war-against-local-governments/.

[39] Id.

[40] Id.

[41] Olivia Carville, Andre Tartar and Jeremy C. F. Lin, Airbnb to America’s Big Cities: See You in Court, Bloomberg (Feb. 14, 2020), https://www.bloomberg.com/graphics/2020-airbnb-ipo-challenges/.

Sure, you were harassed at work. But were you harassed enough? A look at the Supreme Court’s ‘severe or pervasive’ standard under Title VII

Photo by Mihai Surdu on Unsplash

Rachel Ford, Blog Editor, University of Cincinnati Law Review

I. Introduction

Mechelle was hired at a bank.[1] During her time at the bank, Mechelle rapidly climbed the ranks.[2] However, throughout her four years at the bank, Mechelle had been subject to sexual harassment by her boss.[3] Her boss invited her out to dinner and suggested they go to a motel afterward to have sex.[4] Out of fear of losing her job, she agreed.[5] Thereafter, Mechelle’s boss commonly demanded sexual favors from her, sometimes even at the bank during work hours.[6] She complied.[7] Mechelle’s boss also repeatedly groped her in front of her coworkers and followed her to the bathroom on multiple occasions, where he forced himself on her.[8] Mechelle’s boss stopped when she told him she had a boyfriend.[9]

Reading this in 2021, it is clear that Mechelle was being sexually harassed by her boss; she was subject to a hostile work environment and potentially a quid pro quo. However, Mechelle’s case was not a certain victory when she brought suit in the late 1970s, and the federal district court actually ruled against her.[10] Yet, Mechelle’s case was resilient and eventually made its way up to the Supreme Court.[11] The Supreme Court agreed with Mechelle that she had experienced sex discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”) and, with guidance from the Equal Employment Opportunity Commission (“EEOC”), confirmed a new cause of action under the all-encompassing federal workplace anti-discrimination statute: the “hostile work environment” for sex discrimination cases.[12]

However, the Supreme Court announced this major win for workers with a major caveat: only hostile work environments where the sexual harassment is “severe or pervasive ‘to alter the conditions of [the victim’s] employment and create an abusive work environment’” are prohibited under Title VII.[13] This has become the ubiquitous standard for hostile work environment discrimination claims under Title VII, no matter what the employee’s protected class is.[14] The standard also applies to the American with Disabilities Act of 1990 (“ADA”) and the Age Discrimination in Employment Act of 1967 (“ADEA”).[15]

Because the Supreme Court imposed the “severe or pervasive” standard for harassment claims, employees must bear harsh harassment to have actionable claims under federal discrimination laws.[16] One in four Black employees reported to have experienced race discrimination in 2020.[17] According to Rutgers’ Center for Women and Work, up to 85% of women experienced sexual harassment in the workplace in 2019.[18] While social movements like #MeToo and Black Lives Matter have likely contributed to a greater societal perception of harassment and higher rates of harassment reports, a massive number of victims still have no actionable claims under federal discrimination statutes due to the “severe or pervasive standard.” Before bringing suit, an employee must ask herself, “Have I been harassed enough to reach the ‘severe or pervasive’ standard for a hostile work environment claim?”

II. Background

The Supreme Court in Meritor Savings Bank v. Vinson made clear that prohibited discrimination under Title VII is not limited to “economic” or “tangible” discrimination, which is discrimination that affects an employee’s compensation or terms, conditions, or privileges of employment.[19] The Court agreed with the EEOC in recognizing that discrimination resulting in noneconomic injury, such as hostile work environments that “unreasonably interfer[e] with an individual’s work performance,” violates Title VII, too.[20] The Court noted that not all harassment constituted a violation of Title VII; the hostile work environment must be sufficiently “severe or pervasive.”[21]

In defining “severe or pervasive” harassment, the Court in Meritor Savings Bank provided some examples to help understand the standard. Employees who are called a racial, ethnic, or sexual epithet once or twice, although it is undoubtedly offensive, do not experience conduct which is severe or pervasive enough to violate Title VII.[22] However, employees who endure repeated epithets based on their sex, in addition to unwanted sexual advances, may have viable sexual harassment claims under Title VII.[23] Courts have been struggling to define “severe or pervasive” harassment ever since the Supreme Court decided Meritor Savings Bank.

The “severe or pervasive” standard has both objective and subjective components in its interpretation.[24] The employee must subjectively feel that her work environment was hostile or abusive, and a reasonable, objective person in the employee’s shoes must also find the conduct to be “severe or pervasive.”[25] Because of this, courts must look at the totality of the circumstances when deciding whether an employee’s harassment claim survives a motion for summary judgment.[26] The Supreme Court has issued guidance on what facts courts should pay attention to when determining whether conduct reaches to the “severe or pervasive” threshold.[27] These facts include the “frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”[28] Courts have stressed that the reasonable, objective person should not be too strict or lenient.[29] A “mild, isolated incident does not make a work environment hostile,”[30] and the proper test is whether “the harassment is of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.”[31]

III. Discussion

Because courts use an objective, reasonable person standard in determining whether harassment is “severe or pervasive” enough to make an actionable claim under Title VII, the standard is subject to change based on society’s ever-shifting views.[32] Recent social justice movements – #MeToo and Black Lives Matter – have brought equality and discrimination to the forefront of conversations happening nationwide. While this may be enough to change some members of society’s viewpoints,[33] courts are typically not on the forefront of implementing societal change.

Courts have yet to lower the “severe or pervasive” standard to match society’s new-and-improved view on harassment. As recently as June 24, 2021, which is the day this article is being written, the Northern District of Illinois reiterated the Seventh Circuit’s standard that “one or two utterances of the N-word are not severe or pervasive enough to rise to the level of establishing liability absent an unusually severe, physically threatening, or humiliating incident.”[34] Likewise, on June 23, 2021, the District Court of Maryland repeated the Fourth Circuit’s standard that “‘callous behavior by one’s supervisors’”[35] or “‘a routine difference of opinion and personality conflict with one’s supervisor’[36] [] do not rise to the level of actionable harassment.”[37] Clearly, courts across the country are not ready to stray from precedent that fails to recognize harassment in all forms.

IV. Conclusion

Most of us would conclude that one instance of harassment is “too much.” However, the Supreme Court has created a standard under Title VII that only bans harassment which is “severe or pervasive.”[38] Because of this, many employees who have been harassed at work do not have viable discrimination claims under Title VII. The purpose of Title VII is for “the workplace [to] be an environment free of discrimination, where [protected classes are] not [] barrier[s] to opportunity.”[39] To hold true to Title VII’s purpose, the “severe or pervasive” standard should be significantly reduced to allow those with true harassment claims to survive a motion for summary judgment. Workplace harassment and discrimination are pervasive and allowing victims to merely stand trial and hold their aggressors accountable helps combat their omnipresent nature.

[1] Meritor Savings Bank v. Vinson, 477 U.S. 57, 59 (1986).

[2] Id. at 59-60.

[3] Id. at 60.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Vinson v. Taylor, 753 F.2d 141, 144-45 (1985).

[11] Meritor Savings Bank, 477 U.S. at 57.

[12] Id. at 65.

[13] Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 904 (11th Cir. 1982)).

[14] See Harassment, U.S. Equal Employment Opportunity Commission, https://www.eeoc.gov/harassment (last visited June 24, 2021).

[15] Id.

[16] See Rogers v. EEOC, 454 F.2d 234, 238 (5th Cir. 1971) (“mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee” would not affect the conditions of employment to a sufficiently significant degree to violate Title VII).

[17] Camille Lloyd, One in Four Black Workers Report Discrimination at Work, GALLUP (Jan. 12, 2021), https://news.gallup.com/poll/328394/one-four-black-workers-report-discrimination-work.aspx.

[18] Debra Lancaster and Yana van der Meulen Rodgers, Economic Impacts of Sexual Harassment: Combating Sexual Harassment Can Further Gender Equality, Center for Women and Work 1 (Feb. 2020), https://smlr.rutgers.edu/sites/default/files/Documents/Centers/CWW/Publications/CWW%20Issue%20Brief%20Economic%20Impacts%20of%20Sexual%20Harassment.pdf.

[19] Meritor Savings Bank, 477 U.S. at 64.

[20] Id. (citing 29 C.F.R. § 1604.11(a)(3) (1985)).

[21] Id. at 67.

[22] Id. (quoting Rogers, 454 F.2d at 238).

[23] Henson, 682 F.2d at 903.

[24] Wilson v. N.Y. City DOT, 2005 U.S. Dist. LEXIS 21620, *63 (S.D.N.Y. 2005).

[25] Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003).

[26] Wilson, 2005 U.S. Dist. LEXIS 21620 at *63.

[27] Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).

[28] Id.

[29] Wilson, 2005 U.S. Dist. LEXIS 21620 at *64; Terry, 336 F.3d at 148.

[30] Terry, 336 F.3d at 148.

[31] Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000) (emphasis in original).

[32] See Susanna L. Blumenthal, The Default Legal Person, 54 UCLA L. Rev. 1135, 1149 (2007) (“The outlines of [the reasonable man] seemed to change over time, reflecting the influence of scientific developments beyond the courtroom, particularly in the emergent disciplines of psychiatry, psychology, and neurology.”).

[33] See Ro’ee Levy and Martin Mattsson, The Effects of Social Movements: Evidence from #MeToo, SSRN (Jul. 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3496903.

[34] Winston v. Dart, 2021 U.S. Dist. LEXIS 118015, 31 (N.D. Ill. 2021) (quoting Gates v. Bd. of Educ. Of Chi., 916 F.3d 631, 637-38 (7th Cir. 2019)) (internal quotations omitted).

[35] Stovall v. H&S Bakery, 2021 U.S. Dist. LEXIS 117251, *17 (D. Md. 2021) (quoting Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir.2003)).

[36] Id. (quoting Hawkins v. PepsiCo, Inc., 203 F.3d 274, 276 (4th Cir. 2000)).

[37] Id.

[38] Meritor Savings Bank, 477 U.S. at 67 (quoting Henson, 682 F.2d at 904).

[39] Ricci v. DeStefano, 557 U.S. 557, 580 (2009).

The Right to Remain Silent: First Amendment Rights of Physicians in States with Narrated Ultrasound Laws

Photo by Edward Cisneros on Unsplash

Sabrina Jemail, Associate Member, University of Cincinnati Law Review

This article was originally published in Volume 89, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

Is it truly possible to teach an old dog new tricks? More specifically, what if the old dog is the federal judiciary and the new trick is a different constitutional provision with which to contest state abortion laws? For decades, federal courts across the country have grappled with questions surrounding state abortion regulations, deciphering the constitutionality of the state’s involvement in such deeply personal, private decisions.[1] The traditional arguments come from the Fourteenth Amendment Due Process Clause’s rights for patients.[2] But recently enacted state abortion laws target the doctors performing these medical procedures rather than the patients seeking them.[3] These laws require that doctors must perform a narrated ultrasound on the pregnant woman before performing an abortion.[4] Specifically, Kentucky, North Carolina, and Texas all require the patient to hear an explanation of the ultrasound, even if she decides to avert her eyes of the sonogram images.[5] They each also characterize the description of the fetus as a “medical description” that includes the size of the embryo, presence of cardiac activity, and location and existence of limbs and internal organs.[6] As a result, the nature of the legal arguments challenging these laws has shifted. Lately, doctors are challenging the constitutionality of these state laws in federal court as violations of the First Amendment’s free speech protections because the laws impose verbal requirements on the doctors.[7] While the Fifth and Sixth Circuits have upheld such laws as merely informed consent laws regulating a medical procedure, the Fourth Circuit has taken the opposite position and struck down such laws in violation of the doctors’ constitutionally-protected free speech.[8]

Part II of this Note provides an overview of the judicial history surrounding abortion regulations, including the Supreme Court’s opinion upholding informed consent laws that require risk and health disclosures before abortion procedures. Part II also discusses the split between the Fifth and Sixth Circuits and the Fourth Circuit. Part III of this Note examines the propriety of analogizing mandatory narrated ultrasound laws to informed consent laws and determines which circuit opinion is a proper interpretation of First Amendment free speech protections. Finally, Part IV argues in favor of the Fourth Circuit’s line of reasoning and discusses the implications of this legal direction.

[1] See, e.g., Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[2] See, e.g., Roe, 410 U.S. 113; Casey, 505 U.S. 833; U.S. Const. amend. XIV.

[3] See, e.g.,Ultrasound Informed Consent Act, Ky. Rev. Stat. Ann. § 311.727 (West 2017); N.C. Gen. Stat. § 90-21.85 (West 2011); Act Relating to Informed Consent to an Abortion, Tex. Health & Safety Code Ann. § 177.0122 (West 2011).

[4] See, e.g.,Ky. Rev. Stat. Ann. § 311.727; N.C. Gen. Stat. § 90-21.85; Tex. Health & Safety Code Ann. § 177.0122.

[5] See, e.g.,Ky. Rev. Stat. Ann. § 311.727; N.C. Gen. Stat. § 90-21.85; Tex. Health & Safety Code Ann. § 177.0122.

[6] See, e.g., Ky. Rev. Stat. Ann. § 311.727; N.C. Gen. Stat. § 90-21.85; Tex. Health & Safety Code Ann. § 177.0122.

[7] See, e.g.,Nat’l Ins. Fam. & Life Adv.  v. Becerra,138 S. Ct. 2361 (2018); EMW Women’s Surgical Ctr. P.S.C. v. Beshear, 920 F.3d 421 (6th Cir. 2018); Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570 (5th Cir. 2012); Stuart v. Camnitz, 774 F.3d 238 (4th Cir. 2014).

[8] See, e.g., Becerra,138 S. Ct. 2361; EMW Women’s Surgical Ctr. P.S.C., 920 F.3d 421; Tex. Med. Providers Performing Abortion Servs., 667 F.3d 570; Stuart, 774 F.3d 238.

“And They’re Off” … to the Courts?: An Analysis of Recent Kentucky Derby and Horse Racing Litigation

“Start of a Horse Race” by Rennett Stowe is licensed under CC BY 2.0

Brandon Bryer, Editor in Chief, University of Cincinnati Law Review

I. Introduction

Each May, the world looks to Churchill Downs to watch the Kentucky Derby.[1] While “the most exciting two minutes in sports” generates great thrill, it has also generated great controversy.[2] Most recently, the 2021 winner, Medina Spirit, tested positive for an anti-inflammatory medicine called betamethasone that is not permitted to be in a horses’ body fourteen days prior to a race.[3] After a second confirmed test, Medina Spirit has been disqualified and the second-place horse, Mandaloun, is soon to be declared the official victor.[4] The official shift in the running order, however, will have no bearing on the cash payouts made at the 2021 Derby.[5] Per horse racing rules and state regulations, once the Derby commission displays the results as “official,” bettors are able to cash in based on those results.[6] This deep-rooted horse racing rule ensures bettors will not be required to return their winnings should a horse later be disqualified.[7] Thus, even if the 2021 results are changed to declare Mandaloun the winner, those who have hundreds if not thousands of dollars riding on that result are simply out of luck.

Because bettors who wagered on Mandaloun have no remedy under horse racing rules, some have taken legal action. These bettors have filed numerous class action lawsuits against Medina Spirit’s decorated owner, Bob Baffert.[8] Among other arguments, the complaints seek recovery against Baffert on a theory of civil negligence.[9] This argument, however, is misplaced and courts should dismiss the negligence claims against Baffert. First, this article previews the history of horse racing disqualifications and prior lawsuits stemming from those controversies. Next, this article details the landmark lawsuits filed against Baffert for the disqualification of his horse in the 2021 Kentucky Derby. Ultimately, this article argues that while the horse racing rules indeed create a tension between those who profit from an ineligible horse and the “technical” winners, the negligence claims against Baffert are unlikely to prevail.

II. Background

Horse racing disqualifications are not new phenomena. In the 2019 Kentucky Derby, Maximum Security bounded off the final corner, veered into a separate lane, impeded the path of another horse, and was disqualified.[10] In the 1968 Derby, a post-race urinalysis test revealed that the first-place horse, Dancer’s Image, had traces of an anti-inflammatory medicine.[11] Dancer’s Image was disqualified, and the second place horse was registered as the true winner more than four years later.[12] In a 2016 horse race at Meadowlands Race Track in New Jersey, a first-place horse was later disqualified when it tested positive for performance enhancing drugs.[13] Most recently, following a twice-confirmed positive drug test, the 2021 Kentucky Derby winner Medina Spirit was officially disqualified a month after the event and is expected to have his title removed.[14]

Perhaps the most controversial facet of horse disqualification occurs off the track with the payout of bets. The degree of controversy hinges on whether a disqualification is made before or after the governing board renders the results official.[15] If the results have not been made official when a horse is disqualified, like in the case of Maximum Security’s 2019 Derby infraction, bet payouts are adjusted accordingly.[16] Those who bid on the second place horse can cash in as if the horse crossed the finish line first, and most people are happy.[17] Increasingly more common and more controversial, however, are disqualifications that are made days or weeks after the results become official. This occurred at the 2016 Meadowlands race and the Kentucky Derby in both 1968 and 2021.[18] Per horse racing regulations, bets paid according to a now-disqualified horse remain valid while those who had their horse elevated to first place get nothing more than the paper ticket as a souvenir.[19]

Although disqualifications have existed since horse racing began, lawsuits by disgruntled bettors are rather novel. In fact, the 2016 Meadowlands race gave rise to a “first of its kind” lawsuit.[20] In March 2018, Jeffrey Tretter bet that a certain four-some of horses would finish first, second, third, and fourth.[21] While the horses finished in the precise order that Tretter had bet on, they finished second, third, fourth, and fifth behind a first-place horse that was disqualified a few days later for use of performance enhancing drugs.[22] Once the first-place horse was disqualified, the updated official results matched Tretter’s winning order precisely.[23] But due to the long-standing rule of not reappropriating funds based on post-race disqualifications, the track refused to honor his now-winning ticket.[24] The payout would have been $31,835.[25]

Financed by the People for the Ethical Treatment of Animals (“PETA”), Tretter filed suit against the disqualified horse’s trainer and owner in the U.S. District Court for the District of New Jersey.[26] The complaint’s primary theory of liability was fraud and racketeering.[27] Although it was a unique lawsuit, the case was never decided on its merits but rather settled in August 2020 for $20,000.[28] In a written statement following the settlement, PETA and Tretter stated that “bettors must organize and go after the cheats for every verifiable dime that was lost.”[29] The lawsuit’s goal was to help “clean up harness racing” and hold owners and trainers accountable for “blatant cheating.”[30]

The Tretter case settlement could not have come at a more inopportune time for Hall of Fame racehorse owner, Bob Baffert. Baffert is the owner of Medina Spirit, the disqualified horse who failed post-race tests at the 2021 Kentucky Derby.[31] At face value, the Tretter case serves as a thorn in the side precedent for Baffert’s defense against a growing number of lawsuits. To date, Baffert and his company, Zedan Racing, are named as defendants in three class action lawsuits before federal courts in Kentucky and California.[32] Among other claims, the complaints seek recovery on theories of negligence, namely that Baffert “failed to care” for Medina Spirit prior to the running of the Derby.[33] While no formal answer has been filed, Baffert has publicly stated that neither he nor his racing staff ever administered the substance to Medina Spirit.[34] Baffert has publicly maintained that the only way Medina Spirit would have tested positive is if an ointment or feed handled by a third party accidently contained betamethasone.[35]

III. Discussion

The Baffert lawsuits seem similar to the Tretter settlement, but there are substantial differences. If the Tretter case is truly destined to serve as a blueprint for future horse racing litigation, the Baffert lawsuits are poor test vehicles. Regardless of one’s view on Baffert’s history, competitive practices, or veracity, he nor his company is liable for negligence stemming from the 2021 Kentucky Derby. At present, the known facts do not lend themselves well to a favorable outcome for the class of bettors, and courts should dismiss those claims against Baffert.

To support a cause of action for civil negligence, the plaintiff class must demonstrate that Baffert had a duty of care to bettors, that he breached that duty, the breach resulted in damages, and Baffert’s breach was the cause of those damages.[36] The bettors are able to demonstrate a financial harm and for purposes of this article, it is assumed that Baffert owed a duty to the betting community. The plaintiff class will struggle, however, to prove either causation element, thus defeating any claim of negligence against Baffert.[37]

To prevail, the plaintiff class would have to prove both factual cause and legal cause. As to factual cause, the class would have to demonstrate that without the presence of betamethasone in Medina Spirit, Mandaloun would have won the race and therefore, all of those bets would have been honored. For two primary reasons, the plaintiffs cannot do so. First, the nature of the drug test failure is crucial. In fact, it is somewhat misleading to assert that Medina Spirit failed a “drug” test. Rather, Baffert’s horse failed post-Derby testing for the presence of betamethasone, an anti-inflammatory. Unlike in the Tretter case where the winning horse was disqualified for a performance enhancing drug, Baffert’s horse tested positive for a relatively harmless substance that is commonly used in the industry.[38] Second, Medina Spirit’s tests reveal a miniscule presence of betamethasone.[39] The confirmed test results demonstrate that there were only 21 picograms per millimeter of plasma.[40] A single picogram is one-trillionth of a standard gram.[41] That amount is so tiny, experts are skeptical that it would have provided any performance enhancement to Medina Spirit at the 2021 Derby.[42] Unlike in the Tretter case where the winning horse’s victory was arguably due to the use of a performance enhancing drug, it is likely that such a small amount of an anti-inflammatory provided zero performance boost to Medina Spirit’s race.[43] Thus, even if one hypothetically concedes that Baffert injected the betamethasone into Medina Spirit himself, it is unlikely that the plaintiff class could show that such negligence was the but-for cause of their second-place horse not winning.

As any good plaintiff’s attorney would argue in response, perhaps the correct causation inquiry is not whether or not Medina Spirit would have won with betamethasone in his system, but rather whether Baffert knew or should have known that the presence of betamethasone would disqualify his winning horse, thus leaving those who bet on the second place horse without recourse. That argument can also be dismissed because it would fail the legal cause element of negligence. Legal cause is all about foreseeability—did the defendant have a reasonable certainty that his conduct would cause the harm or is the causal chain too attenuated?[44] To demonstrate proximate cause, the plaintiff class would have to demonstrate that it was reasonably foreseeable that the almost non-existent level of betamethasone would propel Baffert’s horse to victory in the Kentucky Derby only to later be disqualified, thus leaving the second-place bettors empty handed.

As the phrasing of the standard suggests, this is a tall task for the plaintiff class to surmount. The Kentucky Derby is regarded not only as the most exciting two minutes in sports, but also as a wildly unpredictable event. Anyone’s guess on what horse will be victorious is as good as the next person’s. In fact, six other horses had better odds to win than Medina Spirit.[45] Further undermining any argument of reasonable foreseeability is that unlike a performance enhancing substance, a mundane anti-inflammatory like betamethasone would not have improved Medina Spirit’s odds. Even with betamethasone in the bloodstream, it cannot be said that Medina Spirit’s victory and subsequent disqualification was foreseeable enough to justify holding Baffert liable for millions of dollars in bet payouts. Rather, if the plaintiffs take issue with the horse betting rules and procedures that resulted in this legal conundrum, Churchill Downs or the horse racing governance body, not Baffert, ought to be their target.[46] Irrespective of the arguments made, the plaintiffs cannot sustain a claim of negligence against Baffert.  

IV. Conclusion

Current horse betting rules create unfortunate predicaments where tempers run high and financial losses can be substantial. It is therefore unsurprising that legal action soon follows. While those who bet on Mandaloun at the 2021 Derby are validated in their frustration, litigation may not be the best avenue for change. Perhaps more detailed, thorough pre-race substance testing would provide more certainty in horse race betting. Perhaps a solution lies in banning horse owners such as Baffert from competition at the Derby—as Churchill Downs has announced that it will.[47] But a habit of suing horse owners on long-shot negligence theories is unlikely to provide a remedy or vindicate anyone’s interests. Under a straightforward analysis, courts should deny recent claims that Bob Baffert is liable for negligence to second-place Derby bettors.

[1] History & Tradition, The Race, Kentucky Derby, https://www.kentuckyderby.com/history/the-race (last visited June 6, 2020).

[2] Grason Passmore, Experts discuss latest Kentucky Derby controversy; what it could mean for future of horse racing, WKYT (May 9, 2021), https://www.wkyt.com/2021/05/10/experts-discuss-latest-kentucky-derby-controversy-what-it-could-mean-for-future-of-horse-racing.

[3] Ed Barkowitz, If Medina Spirit is disqualified, Kentucky Derby betting losers will not collect, The Philadelphia Inquirer (May 20, 2021), https://www.inquirer.com/sports/medina-spirit-disqualified-betting-betamethasone-kentucky-derby-20210510.html.

[4] Id.

[5] Victor Mather, A Derby Winner’s Drug Test Won’t Affect Any Bets. Here’s Why, The New York Times (May 12, 2021), https://www.nytimes.com/2021/05/10/sports/horse-racing/kentucky-derby-bets-medina-spirit.html.

[6] Id.

[7] Id.

[8] Natalie Voss, Baffert the Center of Two More Civil Suits in Federal Court in Medina Spirit Case, Paulick Report (May 26, 2021), https://www.paulickreport.com/news/the-biz/baffert-the-center-of-two-more-civil-suits-in-federal-court-in-medina-spirit-case.

[9] Id. The complaints also seek relief on theories of breach of contract, fraud, and liability under the federal racketeering law, the Racketeer Influenced and Corrupt Organizations Act. Id. Because the litigation is at an adolescent stage and not many facts are know, this article only analyzes the negligence claims against Baffert.

[10] Dylan Scott, The unprecedented disqualification of a Kentucky Derby winner, explained, Vox (May 6, 2019), https://www.vox.com/2019/5/6/18531087/kentucky-derby-winner-video-replay-maximum-security-disqualified.

[11] Gary Graves, Another horse racing scandal? Bob Baffert suspended, Derby winner may be disqualified, York Dispatch (May 9, 2021), https://www.yorkdispatch.com/story/sports/2021/05/09/another-horse-racing-scandal-derby-winner-may-disqualified/5014548001.

[12] Mather, supra note 5.

[13] Man who lost bets due to horse doping at Meadowlands settles suit for $20K, (Aug. 12, 2020), https://www.nj

[14] Ryan Gaydos, Medina Spirit’s elevated betamethasone levels confirmed in second sample, lawyer says, Fox News (June 2, 2021), https://www.foxnews.com/sports/medina-spirit-betamethasone-levels-confirmed-second-sample.

[15] Mather, supra note 5.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] supra, note 13.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] supra, note 13.

[27] Id.

[28] Id.

[29] Id.

[30] Id.

[31] Voss, supra note 8.

[32] Id.

[33] Id.  

[34] Aristos Georgiou, What Is Betamethasone and How Is It Used in Horses?, Newsweek (May 10, 2021), https://www.newsweek.com/what-betamethasone-horses-medina-spirit-kentucky-derby-1590150.

[35] Gaydos, supra note 14.

[36] Blackmon v. Tri-Arc Food Systems, Inc., 782 S.E.2d 741, 745 (N.C. Ct. App. 2016).

[37] Notably, a plaintiff would have to prove that Baffert’s actions or inactions were both the but-for and proximate cause of their damages. This article focuses solely on the but-for cause standard.

[38] Georgiou, supra note 34.

[39] Id.

[40] Id.

[41] Id.

[42] Id.

[43] CJ Daniels, What is Betamethasone? Here’s what experts say about the drug found in Medina Spirit, WHAS11 (May 9, 2021), https://www.whas11.com/article/sports/horses/betamethasone-medina-spirit-kentucky-derby-winner-bob-baffert-trainer/417-5e45ed1e-5625-4901-925c-4fbc45254210.

[44] Blackmon, 782 S.E.2d at 745.

[45] 2021 Kentucky Derby odds, best predications, CBS SPORTS (May 1, 2021), https://www.cbssports.com/general/

[46] In fact, one of the lawsuits against Baffert includes a negligence claim against Churchill Downs.

[47] Dan Mangan, Churchill Downs bans Bob Baffert after 2nd positive drug test for Kentucky Derby winner Medina Spirit, CNBC (June 2, 2021), https://www.cnbc.com/2021/06/02/churchill-downs-suspends-bob-baffert-for-2-years-as-kentucky-derby-winner-medina-spirit-fails-2nd-drug-test.html.

Heads I Win, Tails You Lose: The Taxing Risk When Invoking The Fifth Amendment on a Tax Return

Photo by Jizhidexiaohailang on Unsplash

Jacob Hoback, Associate Member, University of Cincinnati Law Review

This article was originally published in Volume 89, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

Every calendar year includes fun holidays, such as Christmas, Valentine’s Day, and Independence Day. But not all famous dates of the calendar year are affiliated with the same joy as other holidays. On April 15th, taxpayers must file their tax returns with the Internal Revenue Service.[1] Due to the complexity and cost of filing taxes, Tax Day is not a day that many citizens celebrate.[2] In 2018, the average American family paid $15,748 in taxes.[3] Further, taxpayers almost unanimously agree that the U.S. tax system is too complicated.[4] Therefore, in both cost and practice, Tax Day is an onerous day for citizens.

An already unfavorable holiday is even more burdensome for taxpayers who have acquired income through illegal activity. When taxpayers report their gross income, they must include illegally-earned income.[5] Additionally, they must disclose the income’s nature and source.[6] As a result, the government can use that specific information to prove that a taxpayer engaged in illegal activity and is thus criminally liable.[7] Nevertheless, taxpayers may invoke the Fifth Amendment[8] on their tax returns to protect themselves from prosecution by not disclosing the incriminating information.[9] But this protection is not sufficient, because if a court holds that a taxpayer’s Fifth Amendment claim is not valid, the government can prosecute the taxpayer under federal law for tax evasion, specifically for not providing the information necessary to calculate tax liability.[10]

To provide taxpayers with the full protection of the Fifth Amendment, the government should offer taxpayers precompliance review. Precompliance review is an opportunity to have a neutral decisionmaker review the validity of an individual’s Fifth Amendment claim before the individual would face penalties for tax evasion.[11] Under the law today, when taxpayers invoke the Fifth Amendment on their tax returns, the IRS can sue the taxpayers for not disclosing the particular information on their tax returns necessary to calculate tax liability and will prevail if the court finds that their claims are invalid.[12] On the other hand, however, offering precompliance review would allow taxpayers to receive a preliminary judicial ruling on the validity of their claims before facing penalties for failing to comply. Consequently, taxpayers would know whether their claims would prevail and not have to face federal tax evasion charges for invalid claims made in good faith. To be clear, this Note does not argue that taxpayers should be excused from paying taxes on illegally-earned income. Even if a taxpayer does have a valid claim of Fifth Amendment privilege, the taxpayer should still face tax liability, but the taxpayer should not have to disclose the specific incriminating information.[13]

Taxpayers should not have to risk federal prosecution for tax evasion to invoke constitutional protection. Therefore, this Note argues that taxpayers who invoke the Fifth Amendment should be entitled to an opportunity for precompliance review. First, Section II presents the background of Fifth Amendment jurisprudence generally and as applied to tax returns. Next, Section III explains what precompliance review is and how the government offers precompliance review in other areas of the law. Finally, Section IV discusses why the government should afford taxpayers with an opportunity for precompliance review.

[1] 26 U.S.C § 6072(a) (2020).

[2] Unless, of course, they received a significant refund.

[3] How much does the average American family pay in taxes?, USA Facts (Sept. 28, 2020, 11:35 AM), https://usafacts.org/articles/average-taxes-paid-income-payroll-government-transfers-2018/ [https://perma.cc/HP3Q-XCQP].

[4] Why are taxes so complicated?, Tax Pol’y Center, https://www.taxpolicycenter.org/briefing-book/why-are-taxes-so-complicated#:~:text=POLITICS%20OF%20TAX%20POLICY,sources%20and%20uses%20of%20income.  [https://perma.cc/98XD-NGA7] (last visited Nov. 30, 2020).

[5] James v. United States, 366 U.S. 213, 218 (1961) (“[U]nlawful, as well as lawful, gains are comprehended within the term ‘gross income.’”).

[6] Richard B. Stanley, Comments: Conflict Between the Internal Revenue Code and the Fifth Amendment Privilege Against Self-Incrimination, 15 U. Balt. L. Rev. 527, 551 (1986).

[7] See, e.g., Garner v. United States, 424 U.S. 648 (1976).

[8] “Fifth Amendment” in this Article will refer exclusively to the privilege from self-incrimination. The use of “Fifth Amendment” does not include the other securities therein, such as the right to due process.

[9] United States v. Sullivan, 274 U.S. 259, 263 (1926). To be clear, under Sullivan, taxpayers would still have to provide the relevant, non-incriminating information. See Stanley, supra note 6, at 558.

[10] Garner, 424 U.S. at 663; 26 U.S.C. § 7203 (2020).

[11] City of Los Angeles v. Patel, 576 U.S. 409, 421 (2015).

[12] Garner, 424 U.S. at 663; 26 U.S.C. § 7203 (2020).

[13] See Stanley, supra note 6, at 558. (“A taxpayer must prepare a return, or make a similar calculation, to determine the exact amount of his annual liability. The filing of the return with the final tax payment is, of course, unnecessary for the IRS to receive the tax payment. The government’s power to collect tax, therefore, does not require the filing of an income tax return from individuals who are incriminated by filing.”).

I’m Not, Not Lying to You: A (Very Brief) Discussion of Categorical and Contextual Approaches to Lawyer-Lying

Photo by Sean Riley on Flickr

Liam McMillin, Managing Editor, University of Cincinnati Law Review

I will try not to lie to you. You may not believe me, but I’ll do my best to tell you the truth. In this particular situation, I have no reason to not be truthful.

This is not always the case, of course. Lawyers are often put in situations where being objectively truthful is not beneficial to them or their clients. How should lawyers handle these situations, especially those that do not involve the court? When presented with a situation in which lying to a third-party would be incredibly beneficial to their client, what is a lawyer to do?

Regarding communications between a lawyer and opposing counsel or third-parties,[1] the text of the Model Rules of Professional Conduct (“Model Rules”) is straightforward: Rule 4.1 reads, in part: “In the course of representing a client a lawyer shall not knowingly . . . make a false statement of material fact or law to a third person . . .”[2] To violate Rule 4.1, a lawyer needs to make a statement to a third-party that is both “false” and “material.”[3] To determine whether a statement is of law or fact, the Model Rules tell us to look to the circumstances.[4] How we interpret those circumstances, or rather, when a false statement because a false statement of fact under Rule 4.1, is the important question here: is there ever a time where it is “okay” to lie?

In William H. Simon’s article, Virtuous Lying: A Critique of Quasi-Categorical Moralism,[5] he describes a situation where he told a lie—regarding what I would consider is a non-material matter—to get his client much needed emergency assistance. Simon pushes back against what he describes as “quasi-categorical moralism,” or the idea that lying is always morally wrong, and “only where a lie is a last resort can one even begin to consider whether it is morally justified.”[6] Even then, as Simon describes, a quasi-categorical moralist would find that the lie cannot be morally justified.

To Simon, this approach is logically inconsistent. Sissela Bok, his emblematic quasi-categorial moralist, he argues, “never succeeds in finding a resting place between the uninteresting claim that one shouldn’t lie without moral reason and the untenable claim that, when one has such reason, it is presumptively trumped by a duty of honesty.”[7] Simon, a self-described contextual moralist, spends the majority of his article working through Bok’s “uninteresting” and “untenable” claims, and while worth a read and analysis in its own right, this short Note addresses one particular concept Simon raises, namely that of credibility.[8]

Simon discusses credibility in the context of the “costs” of lying-as-a-lawyer. He finds Bok’s argument—that when someone lies, they lose credibility—lacking. For Bok, lying is a threat to a person’s credibility for truthfulness and honesty, or as Simon puts it, “credibility-as-honesty.”[9] For Simon, the more important form of credibility—“credibility-as-power,” as he puts it—is the credibility of a person to have the capacity and power to fulfill the intentions of the statement.[10] A credible threat, as he reminds us, is not just a threat that “the speaker is sincerely committed to, but also one that she is likely to bring about.”[11] This credibility-as-power is especially important to lawyers, “especially those in practices oriented towards redistributive or reformist values.”[12]

For Simon, it seems, telling a lie to advance the needs of his client may threaten his credibility for honesty, but is morally justified by the support that lie provides for his credibility to act powerfully on behalf of his client. As a contextual moralist, this is all the justification that he needs to lie to a third party: the benefit to his client, and the strengthening of his credibility-as-power is worth any of the other potential “costs.”

Simon is on to something here. Understanding the context of the statement—what is behind it, around it, in front of it—matters almost as much as the statement itself. Simon would argue, using his hypothetical, that the purpose of the statement, why the statement is being made at all, can trump the objective truthfulness of the statement itself. Even the Model Rules seem to acknowledge this, at least implicitly. The Rules include guidance as to statements of fact in the context of Rule 4.1: “[w]hether a particular statement should be regarded as one of fact can depend on the circumstances.”[13] As way of example, the Rules mention the contexts of negotiations, estimations of price/value, or the existence of undisclosed principals. If whether a statement is a “fact” is contextual, why not also whether or not the statement is “false”?

What the categorical approach to lawyer-lying assumes is that there is a truth, and therefore a statement that does not match that truth is false, or a lie. But the truth is rarely so objective, rarely so specific, and rarely so “true.” Any lawyer or law student who has participated in any of the many adversarial aspects of the legal field knows that while the stated goal is to have each side make their arguments and the “finder of fact”—for our purposes, the “finder of truth”—discerns the objective truth, this is rarely the case. Instead, it is the more persuasive, the more coherent “truth” that is victorious.

Once this is understood, the lawyer is presented with two options: ignore or dispute this reality, or embrace it. In the context of communications with third-parties, quasi-categorical moralists, who would usually employ the former option, are left with a difficult choice: either they hold fast to their love of an objective truth, ignoring the realities of our adversarial system, or they are forced to say that the context of the adversarial is different than that of third-party interactions.

This is not “gotcha journalism,” and this latter option is not an impossible position for quasi-categorical moralists to hold. The Model Rules recognize that statements made in an adversarial setting, “to the tribunal,” are different in context than those made to third-parties: there are different rules for each.[14] But what the quasi-categorical moralist approach misses is that a logical expansion of the variation between contexts makes for a better understanding of the lawyer’s role when representing a client.

As Simon draws out, credibility-as-power, in many instances, should be given more weight than credibility-as-honesty. Simon here recognizes that being true to the client, in some situations, is more important than being true to an objective truth. What those “situations” are depends on the context, of course, but what Simon is advocating for is an understanding that a blind adherence to an invisible objective truth does not make better lawyers.

Instead, people who recognize that truth is rarely so objective make better lawyers. This does not mean that those lawyers lie more. What it does mean is that when they do, they have good reason to do so. This Note does not attempt to lay out what those “reasons” could or should be. What this Note attempts to do is provide a rationale for looking at contexts differently. Rather than blind followers of a concept of an objective truth, we should instead exist in the world, not above it, operating as supposed harbingers of truth.[15] The three extra years of schooling and the passing the Uniform Bar Exam does not make lawyers more (or less) apt to know and hold the truth. What it does provide lawyers is the opportunity to examine and engage with these questions every day. The problem with any categorical approach, quasi or not, is that it precludes any actual engagement with these ideas. What a contextual approach provides, at the very least, is more opportunities to ask these questions and search for answers. When I make a statement to a third party, what else is at play here? What are the consequences of my statement in this particular situation? Who is harmed? Who is benefited?

This is encompassed, implicitly, in Rule 4.1. For a statement to violate Rule 4.1, the statement must regard a “material” fact.[16] This, combined with the various examples discussed in Comment 2, indicates a contextual understanding of the Rule already.[17] What this Note proposes is solely an expansion of that contextual approach, applying it also to “false.” Lawyers should recognize that lawyering is a practical occupation, and there are situations where being true to our clients is more important to being true to truth. The consequences of those choices in those situations are real and should be considered carefully; this Note is not advocating for more lying, only a more contextual understanding of such situations.

[1] The scope of this Note is focused solely on lies made to third-parties while representing a client, and does not include statements made to the tribunal (covered by Rule 3.3), regarding the falsification of evidence (covered by Rule 3.4(b)), or false statements related to bar admission or other disciplinary matters (covered by Rule 8.1). See generally Model Rules of Prof’l Conduct r. 3.3, 3.4(b), and 8.1 (Am. Bar Ass’n, 2019).

[2] Model Rules of Prof’l Conduct r. 4.1 (Am. Bar Ass’n, 2019) [hereinafter Rule 4.1].

[3] Id.

[4] Id., cmt. 2.

[5] William H. Simon, Virtuous Lying: A Critique of Quasi-Categorical Moralism, 12 Geo. J. Legal Ethics 433 (1999).

[6] Id. at 436.

[7] Id. at 447.

[8] Id. at 435, 437.

[9] Id. at 439.

[10] Id. at 440.

[11] Id.

[12] Id.

[13] Rule 4.1, cmt. 2.

[14] Model Rules of Prof’l Conduct r. 3.3 (Am. Bar Ass’n, 2019) (addressing statements made in the adversarial setting); Rule 4.1.

[15] Much of this idea comes from Emerson’s concept of the “Scholar,” or “Man Thinking,” from his address at Cambridge titled “The American Scholar.” Ralph Waldo Emerson, Essays & Lectures Library of America 63 (1983). As Emerson puts it, there is a tendency for people to divide themselves, to categorize themselves and thus “amputate” the other areas from themselves. An attorney, says Emerson, becomes “a statute-book,” separate from the world in which he lives.

[16] Rule 4.1

[17] Id.