Verdict » David S. Kemp Legal Analysis and Commentary from Justia Fri, 28 Aug 2015 04:01:37 +0000 en-US hourly 1 Copyright © Verdict 2013 (Verdict) (Verdict) 1440 Verdict 144 144 Legal Analysis and Commentary from Justia Verdict Verdict no no U.S. Supreme Court Recognizes Constitutional Right to Same-Sex Marriage Fri, 26 Jun 2015 16:30:17 +0000 United States v. Windsor was decided in June 2013. Continue reading →]]> Gay Pride FlagToday, the U.S. Supreme Court handed down one of the most highly anticipated decisions of the term. Justice Kennedy delivered the opinion of the Court, which held:

  1. The Constitution requires that all states perform same-sex marriages.
  2. A state cannot refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character.

The case, Obergefell v. Hodges, was actually four cases consolidated into one for the purposes of argument and decision.

Verdict columnists have written about these cases in nearly every stage of litigation and appeal:

Two years ago, Justice Kennedy authored the 5–4 majority opinion in United States v. Windsor striking down the provision of the federal Defense of Marriage Act that defined marriage, for purposes of federal law, as a union between a man and a woman only. Justice Kennedy also authored the majority opinion in the seminal 2003 case Lawrence v. Texas, which held that the Due Process Clause of the Constitution protects private sexual intimacy between consenting adults, regardless of their sex. And even before that case, in 1996 Justice Kennedy authored the majority opinion in Romer v. Evans, in which the Court held unconstitutional a Colorado referendum prohibiting any type of legal protections for individuals on the basis of sexual orientation. A somewhat unlikely champion of gay rights, Justice Kennedy has been the center of attention among those who sought to predict the outcome of Obergefell.

Unlike in Windsor, where proponents of federalism (of whom Justice Kennedy is one) and proponents of gay rights (of whom Justice Kennedy would seem to be one, given his role in the seminal gay rights cases) were aligned in the outcome they sought, Obergefell ostensibly pitted one group against the other. The Court’s powerful language clearly articulates what it found more persuasive:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Predictably, Chief Justice Roberts and Justices Scalia, Thomas, and Alito each filed their own written dissent decrying the majority’s holding and warning of the dangers of supposedly departing from the Constitution.

But today, much of the nation celebrates that we are more equal.

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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Comparing Two Federal Appellate Court Decisions on Same-Sex Marriage Wed, 30 Jul 2014 04:01:03 +0000 Continue reading →]]> Same-Sex MarriageOn Monday, a panel of the U.S. Court of Appeals for the Fourth Circuit ruled that Virginia’s ban on same-sex marriages in that state violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the U.S. Constitution. This decision follows closely on the heels of a decision by a panel of the U.S. Court of Appeals for the Tenth Circuit, which came to the same conclusion just over a month ago with respect to Utah’s same-sex marriage ban.

In this column, I examine the Fourth Circuit panel majority’s reasoning striking down Virginia’s ban and compare that with the reasoning employed by the Tenth Circuit panel that struck Utah’s similar law last month. I note that the majority opinions from both courts closely track one another, both in precedents cited and in reasoning. I also discuss the similarities and differences between the dissenting opinions and argue that these dissenting opinions likely indicate the focal points of these cases if and when they reach the U.S. Supreme Court.

Bostic v. Schaefer: The Fourth Circuit Strikes Down Virginia’s Same-Sex Marriage Ban

A panel of the U.S. Court of Appeals for the Fourth Circuit held Monday that Virginia’s constitutional and statutory bans on same-sex marriage are unconstitutional. In a 2-1 decision, the panel quickly disposed of the arguments put forth by the proponents of the law, making it the second federal appeals court this summer to rule against a state’s same-sex marriage ban.

The panel first considered the threshold question whether the plaintiffs had judicial standing to bring their claims in federal court at all. Finding that they had, the court turned to a second preliminary question: whether the U.S. Supreme Court’s summary dismissal of a case in 1972 “for want of a substantial federal question” precluded the instant case. That prior case, Baker v. Nelson, involved an appeal from the Minnesota Supreme Court upholding a ban on same-sex marriage. Summary dismissals are considered to be rulings on the merits, but they do not carry the same precedential value as an opinion after briefing and oral arguments. They do, however, prevent lower courts from “coming to opposite conclusions on the precise issues presented and necessarily decided by those actions” except “when doctrinal developments indicate otherwise.” The majority found that the Supreme Court’s decisions in Lawrence v. Texas, in 2003, and United States v. Windsor, a decade later, constituted such doctrinal developments. Thus, it concluded, Baker was no longer binding.

The panel then turned to the opponents’ Fourteenth Amendment arguments. First, it considered the appropriate level of constitutional scrutiny: rational basis review or some form of heightened scrutiny. The laws’ opponents argued that the ban infringes on their right to marriage, which the Supreme Court has recognized as a fundamental right subject to strict scrutiny. The proponents agreed that marriage is a fundamental right, but argued that the fundamental right to marriage does not encompass a right to same-sex marriage and thus that the law triggers only rational basis review. The panel found that the Supreme Court’s precedents on the fundamental right to marriage do not define the rights in question as “the right to interracial marriage,” “the right of people owing child support to marry,” and “the right of prison inmates to marry”; rather these seminal cases speak of “a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.” Thus, the panel held, the right to marriage encompasses the right to marry the person of one’s choosing and therefore includes the right to same-sex marriage. Finding that the law implicated the fundamental right of marriage, the panel applied strict scrutiny. Under this level of review, the government must show that the laws in question are narrowly tailored and necessary to further compelling state interests.

The law’s proponents put forth five interests that they argued justified the laws: “(1) Virginia’s federalism-based interest in maintaining control over the definition of marriage within its borders, (2) the history and tradition of opposite-sex marriage, (3) protecting the institution of marriage, (4) encouraging responsible procreation, and (5) promoting the optimal childrearing environment.” Even assuming that each of these reasons was indeed compelling, the panel still found that the laws prohibiting same-sex marriage were not sufficiently narrowly tailored to further any of these interests.

In reaching its conclusion that Virginia’s ban on same-sex marriage violates the Constitution, the panel notably placed great weight on the Supreme Court’s language in Lawrence and Windsor recognizing the equal legitimacy of gay couples’ intimate relationships.

Comparison to the Tenth Circuit’s Decision in Kitchen v. Herbert

At the end of June, a panel of the U.S. Court of Appeals for the Tenth Circuit issued a similar ruling striking down Utah’s same-sex marriage ban. Verdict co-columnist Joanna Grossman discusses that decision here. In that case, the majority also found that the plaintiffs had standing to challenge the state law and that Baker v. Nelson was no longer binding authority.

The law’s proponents provided four allegedly compelling state interests: “(1) fostering a child-centric marriage culture that encourages parents to subordinate their own interests to the needs of their children; (2) children being raised by their biological mothers and fathers—or at least by a married mother and father—in a stable home; (3) ensuring adequate reproduction; and (4) accommodating religious freedom and reducing the potential for civic strife.”

The Tenth Circuit panel’s reasoning was very similar to that of the Fourth Circuit panel, albeit more directly critical of the law. The panel questioned the state’s purported interests, stating that “each of the appellants’ justifications rests fundamentally on a sleight of hand in which same-sex marriage is used as a proxy for a different characteristic shared by both same-sex and some opposite-sex couples.” However, even assuming the interests are compelling, the panel found the argument “that procreative couples must be channeled into committed relationships in order to promote the State’s interests in childbearing and optimal childrearing . . . fails because the prohibition on same-sex marriage has an insufficient causal connection to the State’s articulated goals.”

I found the Fourth Circuit’s reasoning somewhat more thoroughly explained and supported as to the question whether same-sex marriage is encompassed in the fundamental right to marriage, particularly in that it more directly relied on Loving v. Virginia to reach its conclusion.

The Dissenting Opinions

Judge Paul Kelly concurred in part and dissented in part with the Tenth Circuit panel majority. He concurred only with respect to the issue of standing and dissented with respect to the treatment of Baker v. Nelson as no longer binding, the conclusion that same-sex marriage is encompassed within the fundamental right to marry (and therefore he concluded that under the rational basis test, the law should be upheld).

Judge Paul Niemeyer dissented from the Fourth Circuit panel’s majority opinion and argued that the fundamental right to marry does not include a right to marry someone of the same sex.

While Baker v. Nelson is certainly important and a determination of its applicability may ultimately affect the outcome of the issue if it reaches the U.S. Supreme Court, the scope of the fundamental right to marry is at the crux of both cases, as the two dissents illustrate.

It seems to me disingenuous to deny the strong parallels between these cases and Loving. The dissents both contend that the fundamental right to marry is distinguishable from a right to marry someone of the same sex, and that the latter is a “new” right that departs from history and tradition. Yet at the same time, they deny that Loving involved a similar  departure, even though marriage had historically been denied to interracial couples.

To attempt to characterize same-sex marriage as a category separate and apart from marriage as an institution is to ignore exactly what it is that gay couples seek—recognition of their relationships as equal to those of straight couples. As Justice Kennedy wrote in Lawrence, and as quoted by the Tenth Circuit majority, the drafters of the Fifth and Fourteenth Amendments “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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The Fair Use Doctrine Revisited: Part Two in a Three-Part Series of Columns Mon, 10 Mar 2014 04:01:45 +0000 Continue reading →]]> CongressOn January 28, the Judiciary Committee of the U.S. House of Representatives heard from several witnesses about the fair use doctrine of copyright law. The witnesses presented arguments for and against legislation changing the doctrine. In the first of this series of columns, I described the fair use doctrine as it currently is defined in the Copyright Act and interpreted by courts.

In this column, I will summarize the various perspectives presented at the Judiciary Committee hearing. In a subsequent column, I will argue that, if anything, Congress should strengthen the doctrine of fair use to encourage creativity and innovation.

The Committee heard from five witnesses during the January 28 hearing: Professor Peter Jaszi, Director of the Glushko-Samuelson Intellectual Property Clinic at American University Washington College of Law; Professor June Besek, Executive Director of Kernochan Center for Law, Media and the Arts at Columbia Law School; Ms. Naomi Novik, author and co-founder of Organization for Transformative Works; Mr. David Lowery, singer/songwriter and lecturer at the Terry College of Business at the University of Georgia; and Mr. Kurt Wimmer, General Counsel for the Newspaper Association of America.

Testimony of Peter Jaszi

Professor Peter Jaszi testified that, in his opinion, fair use does not need legislative “reform” so much as “certain kinds of legislative support in years to come—especially relief from the operation of other statutory provisions (such as the current law of statutory damages) that have the unintended consequence of discouraging its legitimate exercise.” In support of his position, Professor Jaszi made four points:

  • Citizens’ ability to make socially and economically positive uses of copyrighted materials without permission is a positive right, connected to the First Amendment right to freedom of expression.
  • Courts’ evolving interpretation of the fair use doctrine, including the greater emphasis on the inquiry whether a work is transformative and the consideration of factors supplementing the four enumerated by statute, support the conclusion that the doctrine is serving its intended purpose.
  • While critics argue that the doctrine is too vague and thus unpredictable, lawyers seem to have relatively little difficulty predicting likely outcomes in most situations where precedents may apply directly or by logical extension.
  • The doctrine of fair use does not need legislative change, as courts have developed a robust “unified field theory” of fair use that is already suitable for adjudicating questions of digital use and other foreseeable issues presented by technological advances. Any legislative change could potentially disrupt the accrual of precedents and effectively weaken the doctrine rather than

He concluded that while he strongly recommended that Congress not overhaul the doctrine of fair use, there are some limited aspects of the doctrine that could stand improvement and revision. Professor Jaszi suggested that if Congress insists on making legislative changes, it should:

  • Take measures to prevent private parties from contractually eliminating a consumer’s right to fair use, as in adhesion contracts (such as terms of service offered to consumers on a take-it-or-leave-it basis).
  • Update the notice-and-takedown provisions that currently incentivize Internet Service Providers (ISPs) to remove allegedly infringing content without regard to any consideration whether it actually infringes or constitutes legitimate fair use.
  • Eliminate statutory damages in all actions for non-willful infringement brought against non-commercial users.

Testimony of June Besek

Professor June Besek testified that in her opinion, the doctrine of fair use has expanded significantly and needs to be reined in through legislative action. She cited as an example that until recently, the copying of an entire work would not constitute fair use. However, the Second Circuit in Authors Guild v. Google held that Google’s scanning of entire copyrighted works and putting them online in a restricted searchable format constituted sufficiently “transformative purpose” to fall within the scope of fair use.

Besek pointed to the increasing weight given to the “transformative use” inquiry as part of the reason for the growth of fair use. First introduced by the U.S. Supreme Court in Campbell v. Acuff-Rose Music, Inc., “transformative use” was originally one aspect of the first factor—the character and nature of the allegedly infringing use—to be balanced with the other three factors outlined in the Copyright Act.

According to Besek, “[p]rior to Campbell, fair use cases involving transformative (or productive) use were premised on changes made to the subject work itself: annotating a work, analyzing or critiquing it, creating a parody, and so on. Campbell introduced the notion that a work could be transformative if it does not “merely supersede” the original work but instead “add[s] something new, with a further purpose or a different character, altering the first with new expression, meaning or message.” However, Besek pointed out that courts have taken concept of “transformative use” and run with it. She argued that post-Campbell decisions have expanded “transformative use” to encompass “not only changes to the substance of a work, but also changes to how the work is used,” even in cases where, although the purpose of the use is different, no new work is actually created at all. Thus was born the notion of fair use through transformative purpose, or “functional transformation.”

Besek argued that recognizing functional transformation as a means to fair use departs significantly from the original intent of the doctrine in copyright law. She highlighted several cases in which courts have eschewed the enumerated factors of fair use in favor of a mere finding of transformative use. Besek also pointed to cases in which the court seems to have conflated transformative works (which can be, under the current system, fair use) and derivative works (which are, by definition, within the copyright of the original creator). Finally, she posited that the expansive view of fair use that U.S. courts are currently taking may violate international treaties to which the United States is a party, including The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), the Berne Convention, and the WIPO Copyright Treaty.

Despite her criticism, however, Besek stopped short of calling for the legislative to strictly prescribe what constitutes fair use, instead praising the value of having judges interpret and apply the law to specific factual situations. She called upon the legislature merely to clarify the intended scope of fair use and thereby correct what she perceived as an overly expansive interpretation by judges.

Testimony of Naomi Novik

Author and co-founder of Organization for Transformative Works Naomi Novik testified from the perspective of an author—someone whose works both originated from the fair use of copyrighted material and have been used fairly by others in subsequent works.

She related her own personal journey as a writer and the practical implications of restricting or eliminating the doctrine of fair use. She argued that for many artists and creators, obtaining a license to use copyrighted materials at best is unfeasible, and at worst actually stifles creativity and transformation.

Novik asks Congress not to weaken the doctrine of fair use, but if anything, to facilitate its exercise. Among her suggestions to this end is to establish protections for fair users against frivolous lawsuit threats by copyright holders, as many copyright holders have significantly deeper pockets than those who seek to fairly use their works, and many authors do not have the resources to defend a lawsuit. She also suggests that Congress consider reducing damages for infringement when the infringing party did so with the good faith belief that the use was fair.

Testimony of David Lowery

Singer/songwriter and lecturer David Lowery testified primarily on the effects of fair use and copyright as it pertains to the music industry. He described the current state of copyright law as working exactly as it should and asks Congress not to intervene.

In support of his argument, Lowery provided two examples. First, he described the process by which artists seek a license to sample or remix a portion of a copyrighted work. Typically, artists will seek a license agreement from the copyright holder, and if they cannot reach an agreement, the artist will create an entirely new mix. Both possibilities serve the purposes of copyright: either the holder gets paid for the use of his or her creation, or an entirely new work is created. Lowery argued that the expansion of fair use would upset this balance and permit “freeloaders” to benefit unfairly from the creations of others.

Second, Lowery described the difference between websites that publish song lyrics with a license from the copyright holders and those that do not. He pointed out that both types of sites exist simultaneously, and one fairly compensates the copyright holder, while the other merely benefits from the creations of other people—essentially freeloading. He argued that even sites providing services like explanations or annotations for lyrics do not sufficiently transform the material to be able to circumvent the requirement of a license.

Finally, he argued that the process of obtaining permission from copyright holders, in general, has never been easier. For these reasons, he asked that Congress not make any legislative changes to the doctrine of fair use.

Testimony of Kurt Wimmer

Finally, in his testimony, Kurt Wimmer, general counsel for the Newspaper Association of America, testified that the newspaper industry believes that the doctrine of fair use should not be changed from its current formulation in the Copyright Act.

Wimmer acknowledged that the case law on fair use is imperfect, but he argued that the courts, not the legislature, are still best suited to balance individual interests in copyright against the interests of society as a whole. Specifically, Wimmer pointed to fair use as the most important reason copyrights and First Amendment free expression rights do not directly conflict with each other. He argued that by “conducting a case-by-case analysis, courts can appropriately consider all relevant interests, changing norms, and other relevant factors when setting the limits of fair use.”

Although Wimmer expressed concern that courts may be giving too much weight to the “transformative use” inquiry in the fair use analysis, he predicted that courts will, over time, change course slightly to use a more balanced consideration of the factors.


After hearing testimony from these various experts and practitioners, the House panel should have a fairly good sense of the players affected by any changes to the doctrine of fair use. In the last of this series of columns, I will offer my own perspective on the doctrine of fair use and its continued role in the encouragement of innovation and creativity.

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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The Fair Use Doctrine Revisited: Part One in a Three-Part Series of Columns Mon, 10 Feb 2014 05:01:16 +0000 Continue reading →]]> CopyrightOn January 28, several members of the Judiciary Committee of the U.S. House of Representatives held a hearing on the copyright doctrine of fair use. The panel heard arguments from witnesses for and against current limitations on U.S. copyright protections as part of the Committee’s greater objective of reviewing the current state of copyright law in the United States.

The witnesses included the General Counsel for the Newspaper Association of America; a singer/songwriter and lecturer; several law professors; and a co-founder of the Organization for Transformative Works. Each witness discussed his or her perspective on the doctrine of fair use as it exists today in American jurisprudence and offered opinions as to whether legislative modifications were necessary to further the objectives of copyright.

In the first of this series of columns, I will provide background on the doctrine of fair use. In a subsequent column, I will summarize the arguments of each of the different witnesses before the Judiciary Committee, and finally I will argue—in accordance with some of the witnesses’ arguments—that, if anything, Congress should strengthen the doctrine of fair use in order to encourage innovation in furtherance of one of the purposes of copyright law.

The Doctrine of Fair Use

The U.S. Constitution gives Congress the authority “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Pursuant to that authority, Congress has passed several Copyright Acts, the most recent one being the Copyright Act of 1976, which, though it has been amended several times, remains the primary source of copyright law in the United States today.

Prior to the passage of the Copyright Act of 1976, the doctrine of fair use existed only at common law. The codified version of the doctrine defines fair use as follows:

[T]he fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

When presented with a question of whether the use of a copyrighted work constitutes fair use, courts balance these four factors against each other. The presence or absence of any one factor is not dispositive to a finding of fair use; rather, all four factors must be considered in light of the specific facts at hand.

The Purpose and Character of the Use

The first factor—the purpose and character of the use—gets at whether the use in question promotes creativity and enriches the general public, or whether it merely supersedes the original for individual gain. A key inquiry in assessing this factor is the extent to which the use is transformative (that is, whether it alters the original with a “new expression, meaning, or message”). The U.S. Supreme Court held in Campbell v. Acuff-Rose Music that “[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

For example, parodies are often considered fair use because they comment upon an original work and are usually substantially transformative. However, to constitute fair use, even parodies must meet the threshold question “whether a parodic character may reasonably be perceived.” That is, an infringing work may not simply parade as parody and benefit from the protection of fair use when no reasonable person would view it as a parody.

A second key inquiry for this factor is whether the use in question stands to gain commercially. Although a commercial purpose does not preclude the defense of fair use, it does weigh against a finding of fair use. In Fisher v. Dees, however, the U.S. Court of Appeals for the Ninth Circuit held that the parodic work in that case, despite being sold for a profit, served as “an editorial or social commentary” rather than “an attempt to capitalize financially on the [original work],” and thus was deemed fair use.

The Nature of the Copyrighted Work

The nature of the copyrighted work, the second statutory factor, concerns the value of the work used. If the original work closely resembles the type of work that is intended to benefit from copyright protections, then any use of that work is less likely to be fair. However, this factor has all but faded into disuse, as the U.S. Supreme Court has recognized that the availability of copyright protection should not depend on the quality or merit of a work. Indeed, while, in theory, creative works of fiction are “more” entitled to copyright protection than works assimilating objective facts, the latter are still entitled to copyright protection, albeit possibly less so than the former.

The Amount and Substantiality of the Use

This factor goes to the amount of the original work that is used: the more of the original work that is used, the less likely it is that use is deemed to be fair. In some cases, however, even substantial copying may constitute fair use if the new use is significantly transformative (see the first factor) or if the copied material is the minimum amount necessary for the intended use.

In other cases, however, even a small amount of copied material could fall outside the scope of what constitutes fair use if the small amount represents the “heart” of the material.

The Effect of Use on Potential Markets

Although the U.S. Supreme Court in Campbell rejected the proposition that the fourth factor—whether the use in question has an effect on the market of the original—is the most important factor in a fair use analysis, that inquiry remains important to consider. Courts tend to look at two different markets: (1) the original market where the original material is sold, and (2) a potential derivative market where the copyright owner might develop or license others to develop the material.

When assessing effect on the original market, courts look to whether the infringing use displaces demand for the original work. In some cases, the second work might criticize the original, thus hurting the original market. However, courts have distinguished harm due to criticism from harm due to displacement, with the former still being within the ambit of fair use.

A potential derivative market is the space for any “derivative works” of the original copyrighted material. The Copyright Act defines a derivative work as any work “based upon one or more preexisting works . . . consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship.” Although the potential market for derivative works is a broad concept, courts have attempted to find a balance “between the benefit the public will derive if the use is permitted and the personal gain the copyright owner will receive if the use is denied.”


In this column, I have outlined the basic principles behind the doctrine of fair use in American copyright law. In my next column in this series, I will describe the criticism this doctrine has faced and is currently facing, and I will argue that the legislature should, if anything, strengthen the doctrine of fair use to encourage creativity and innovation.

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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On Brain Death and Civil Rights Mon, 06 Jan 2014 05:01:08 +0000 Continue reading →]]> VentilatorThe unfortunate situation of Jahi McMath, the 13-year-old girl who was pronounced brain dead a few days after a tonsillectomy surgery at Children’s Hospital Oakland last month, has captured national attention after the girl’s family refused to accept the doctors’ diagnosis of death. Although the case raises many interesting issues around end-of-life decisions, the legal definition of life (and death), the ethics of providing care to a deceased person, and many others, I will discuss here only the complaint filed in federal court asking for declaratory and injunctive relief against the hospital.

The complaint makes the following allegations:

  1. Violation of the Free Exercise Clause of the First Amendment of the U.S. Constitution
  2. Violation of the Right to Privacy under the Fourth Amendment of the U.S. Constitution
  3. Violation of the Right to Privacy under the Fourteenth Amendment of the U.S. Constitution
  4. Violation of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794)
  5. Violation of the Americans with Disabilities Act (42 U.S.C. § 12101)

In this column, I will briefly describe the facts of the situation, and then I discuss why each of these allegations is not likely to succeed.

The Sad Death of Jahi McMath

Jahi McMath, a 13-year-old girl, underwent a complex tonsillectomy surgery on December 9, 2013. After observing significant blood loss, cardiac arrest, and then complete loss of blood flow to her brain, doctors declared McMath brain dead on December 12. The family reportedly asked that she remain on a ventilator for 48 hours after that declaration, which is not atypical in that type of situation. However, during that time the family sought an attorney and asked the hospital to keep McMath on a ventilator through Christmas.

They also asked both federal and state courts to intervene, and the hospital was ordered to continue the use of the ventilator until 5:00 PM on January 7. The federal court declined, however, to require the hospital to insert a gastric tube and tracheostomy tube. As of the time of writing, a facility in New York has reportedly stated that it will offer long-term care to McMath, and she has been transferred to an undisclosed location.

Commentators reference ostensibly similar cases such as that of Terry Schiavo, whose family and husband engaged in a protracted and highly publicized legal battle over the appropriate care given her persistent vegetative state. Unlike those other cases, however, McMath lacks any perceptible brain activity. Thus, this is the first instance where the family of a legally and medically deceased patient outright refuses to accept the declaration of death.

Constitutional Violations Require State Action

Although the complaint names only the mother, Latasha Winkfield, as the plaintiff in the case, the allegations contained within suggest that both the mother and the daughter suffered violations of their constitutional and other rights. The defendants are Children’s Hospital Oakland (CHO), Dr. David Durand, and ten unnamed “Does.”

The most significant problem with the complaint is that a private actor, such as a nonprofit hospital like CHO, cannot violate an individual’s constitutional rights. The Constitution guarantees certain rights against government intrusion; it does not directly impose restrictions on the actions of private individuals. Thus, neither CHO nor any of the medical personnel named can violate the constitutional rights of any individual. The complaint alleges merely that CHO “receives funding from the state and federal government which is used to directly and indirectly to provide healthcare services.” This is not sufficient to establish government action and thus cannot sustain the claims of constitutional violations.

Because there is no state action as required in a claim of constitutional violations, these allegations are likely to fail.

A Deceased Person Is Not Disabled

The final two allegations in the complaint arise under federal statutes intended to protect disabled persons from discrimination. The Rehabilitation Act of 1973 provides that “no qualified individual with a disability in the United States shall be excluded from, denied the benefits of, or be subjected to discrimination under” any program or activity that receives federal funding or is conducted by any federal agency. A “qualified individual” includes “persons with a physical or mental impairment which substantially limits one or more major life activities.” Although CHO does allegedly receive federal funding, the claims based on McMath’s disability are unlikely to succeed.

Under California law, “an individual who has sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” In this case, Jahi McMath has been declared brain dead by two hospital physicians and three outside doctors. Thus, under California law (as well as the laws of the 49 other states), she is legally deceased and not a person within the scope of the Act.

Likewise, the ADA applies to disabled persons, where disability is defined as “a physical or mental impairment that substantially limits a major life activity.” Although it is the most substantial impairment of life, death cannot constitute disability for the purposes of the statute. Thus, it is likely that neither McMath nor her mother may be entitled to recover under this theory.


While the story of Jahi McMath is undeniably sad, it represents an often-irreconcilable schism between religious convictions and scientific fact. McMath’s family believes that they see signs of life when they touch her, and they are reportedly hoping for divine intervention to bring her back. Physicians describe that perception as merely wishful thinking by a grieving family. Although McMath’s family absolutely deserves answers and justice, this lawsuit in federal court will likely provide neither. At this point, the family needs time to heal and grieve, away from the public eye.

Ultimately, we must all understand and accept that with all of medicine’s advances and breakthroughs, it cannot (and likely will never be able to) “cure” death. Let this tragic case of Jahi McMath be instructive to all of us that no matter how young or old we are, it is important to discuss with our loved ones (and ideally, to put into writing) our intentions should we be unable to make decisions about our end-of-life care. Simply having the discussions can help us to better understand our own mortality and grow to accept that of those we love.

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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Ohio’s March Toward Marriage Equality Mon, 30 Dec 2013 05:01:54 +0000 Continue reading →]]> Gay Pride FlagOn December 23, Judge Timothy Black of the U.S. District Court for the District of Ohio issued a ruling striking down Ohio’s constitutional amendment and state statute purporting to define marriage in that state as exclusively between a man and a woman. Judge Black’s order consists of both a declaratory judgment—that the Ohio constitutional amendment and statute violate the federal Constitution—and a permanent injunction, which prohibits state officials from enforcing those provisions.

In this column I will discuss the facts of the case, explain the judge’s reasoning for his holding as to the due process argument, and discuss how the ruling affects gay men and lesbians in Ohio and potentially in other jurisdictions.

An Eleventh-Hour Marriage

As I discussed in prior column, plaintiffs James Obergefell and John Arthur were both residents of Cincinnati, ohio, and had been in a committed relationship together for over twenty years. In 2011, Arthur was diagnosed with amyotrophic lateral sclerosis (ALS or Lou Gehrig’s Disease), a terminal illness. In 2013, after the U.S. Supreme Court decided United States v. Windsor, which struck down Section 3 of the federal Defense of Marriage Act (DOMA), Arthur and Obergefell decided to get married in Maryland, where their same-sex union would be legally performed and recognized. Arthur’s illness was in its last stages, and, among other reasons, they wanted to ensure that Obergefell was listed on Arthur’s death certificate as the surviving spouse. They flew to Maryland in a medically equipped plane and were legally married on the tarmac there before flying back to Ohio later that same day. Although their marriage was recognized as valid in Maryland, Ohio law precluded its recognition in their home state.

Because Arthur’s death was imminent at the time they filed the lawsuit, the court heard arguments and issued a temporary injunction requiring that Obergefell be listed as the surviving spouse on Arthur’s death certificate, should he die before the case reached a final judgment. Indeed, Arthur died on October 22, and had it not been for the preliminary injunction (originally issued on July 22 and extended a few times), his death certificate would have listed his “marital status at the time of death” as “unmarried” despite his Maryland marriage to Obergefell.

The Temporary and Permanent Injunctions

To be entitled to a permanent injunction, a plaintiff must prove that he or she “suffered a constitutional violation and will suffer ‘continuing irreparable injury’” and that money damages do not adequately remedy the injury.

In contrast, a preliminary injunction requires a court to consider the following factors:

  1. Whether the moving party has shown a strong likelihood of success on the merits;
  2. Whether the moving party will suffer irreparable harm if the injunction is not issued;
  3. Whether the issuance of the injunction would cause substantial harm to others; and
  4. Whether the public interest would be served by issuing the injunction

When it ordered the preliminary injunction, the court found that the U.S. Supreme Court’s decision in United States v. Windsor was dispositive to the likelihood that the plaintiffs could succeed on the merits of their case, and the other factors also supported the issuance of a preliminary injunction.

Indeed, upon evaluation of the arguments on the merits, the court found that the two state provisions purporting to preclude recognition of same-sex marriages in that state were unconstitutional. The court first looked at the history of marriage laws in Ohio and nationwide, and found that Ohio had a strong history of recognizing marriages that were valid where performed, even if they would not have been valid had they been performed in Ohio. The court noted that the state’s prohibition on same-sex marriages was inconsistent with its history of recognizing out-of-state marriages generally.

Under the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution, no state may “deprive any person of life, liberty, or property, without due process of law.” Moreover, the court cited Loving v. Virginia for the proposition that “[t]he freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men” that is protected by the Due Process Clause. The court acknowledged that “most courts have not found that a right to same-sex marriage is implicated in the fundamental right to marry.”

However, the court distinguished the fundamental right to marry from “the right not to be deprived of one’s already-existing legal marriage and its attendant benefits and protections.” The court relied on U.S. Supreme Court precedents Roberts v. U.S. Jaycees and Lawrence v. Texas for the proposition that “existing marital, family, and intimate relationships are areas into which the government should generally not intrude without substantial justification.” Thus the right to remain married implicated in this case and constitutes a fundamental liberty interest, which may not be violated without due process of law.

Based on an assessment of the type of right implicated, the court concluded that the right to remain married was subject to intermediate scrutiny. Under that level of scrutiny, when “the government attempts to intrude upon the private lives of homosexuals,” then “the government must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.” After undertaking a probing analysis, the court found that Ohio’s law did not survive this level of scrutiny and was therefore unconstitutional.

The court also struck down the state laws as violating the Constitution’s Equal Protection Clause, but I will not discuss the court’s analysis on that point here. In essence, the court held that classifications based on sexual orientation (as Ohio’s laws were) were subject to heightened scrutiny and that the laws did not pass muster under that level of scrutiny, nor even under the lowest rational basis scrutiny. The court powerfully concluded that “[i]t is beyond debate that it is constitutionally prohibited to single out and disadvantage an unpopular group.”

Finally, the court considered whether a permanent injunction was the appropriate remedy for the injury, and it found that it was: “weighing all factors applicable to analyzing whether injunctive relief should issue, the Court finds that each factor supports the granting of a permanent injunction.”

The Effect of the Ruling

The most immediate effect of the ruling was to permit James Obergefell to be listed on John Arthur’s death certificate as the surviving spouse. The language of the injunction was admittedly narrow; it merely requires Ohio authorities to recognize same-sex marriages on death certificates. However, the declaratory judgment that the relevant Ohio laws violate the fundamental right to marriage recognition paves the way for subsequent litigation securing greater rights for lesbians and gay men to marry in that state.

This court’s decision was merely one of many victories for gay rights advocates this year. The nation took note when its highest court decided two cases—United States v. Windsor and Hollingsworth v. Perry—striking down DOMA Section 3 and California’s Proposition 8, respectively, on June 26. In a seeming domino effect after that, New Jersey, Hawaii, New Mexico, and Utah all took steps toward marriage equality as well.

It remains to be seen whether Windsor will be the key to marriage equality in every state, or whether other factors may also play a role. However, it is clear that both law and public opinion are turning, and it will be interesting to see what 2014 brings.

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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The Warrant Requirement for GPS Tracking Devices Mon, 04 Nov 2013 16:09:21 +0000 Continue reading →]]> GPS TrackingThe U.S. Court of Appeals for the Third Circuit recently held in United States v. Katzin that law enforcement officers must have a valid warrant before installing a Global Positioning System (GPS) device on a suspect’s vehicle. The opinion builds upon the U.S. Supreme Court’s recent decision in United States v. Jones, where the Court held that the installation of a GPS tracking device constitutes a search triggering Fourth Amendment protections. The three-judge panel in Katzin was unanimous as to the warrant requirement, but it split 2–1 on another related issue—whether police conduct in this particular instance was excusable under a “good faith exception.”

In this column, I will address only the warrant aspect of the decision. I will first briefly describe the facts of the case and explain the Third Circuit’s reasoning behind its decision to require law enforcement officers to get a valid warrant before installing a GPS tracking device on a suspect’s vehicle. I argue that the court’s decision appropriately reinvigorates the Fourth Amendment’s protection against unreasonable searches. In an era where continuous monitoring by law enforcement is possible with minimal resources and effort, it is imperative that we maintain an understanding of constitutional safeguards that stays current with available technology.

The Facts and Arguments of United States v. Katzin

In 2009 and 2010, a string of similarly conducted burglaries hit Rite Aid stores in Delaware, Maryland, and New Jersey. Local law enforcement officers, with the help of the FBI, came up with a suspect, Harry Katzin, who had repeatedly been seen at or near burglary sites, along with his van. The police could predict with certainty the location of Katzin’s vehicle, and after consulting with the U.S. Attorney’s office, but without obtaining a warrant, law enforcement officers installed a GPS tracking device on Katzin’s van. Several days later, information from the GPS device allowed police to connect the vehicle to a burglary that occurred shortly beforehand. State troopers stopped the van and found the burglarized merchandise inside. Katzin and his alleged accomplices were criminally charged, with much of the evidence against them coming from the seizure of the contents of the van.

The defendants sought to exclude from evidence at trial all of the merchandise found in in the vehicle, citing the Fourth Amendment of the U.S. Constitution. The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” except where there is a search warrant based on probable cause. Evidence gathered in violation of this Amendment is subject to the Exclusionary Rule, which provides that a criminal defendant may exclude from admission at trial any evidence obtained pursuant to an unlawful search.

For nearly half a century, courts have understood the right against unreasonable searches and seizures to stem from the reasonable expectation of privacy in the circumstances. The “vehicle exception”—the doctrine that law enforcement needs probable cause but not a warrant to search a vehicle for evidence of a crime—emerged from this understanding because one can reasonably expect to have less privacy in one’s vehicle than in one’s home (where the highest level of privacy is expected). Similarly, a person walking on the street has an even lower expectation of privacy and may lawfully be subjected to a “stop and frisk” upon an officer’s reasonable suspicion that the person was involved in the commission of a crime.

The defendants in Katzin relied on the U.S. Supreme Court’s decision in United States v. Jones to support its argument that the evidence obtained from the GPS-tracked van should be excluded. In that case, the Court ruled that the installation of a GPS device on a private person’s vehicle constitutes a “search” within the meaning of the Fourth Amendment. The Court left unanswered the question whether such a search would require a warrant, and it was that question the Katzin defendants brought before the court, arguing that a warrant was required. If the court agreed with their argument, then the evidence obtained as a result of that unlawful installation of the GPS device must be excluded at their trial.

Concluding That Warrantless GPS Searches Are Unreasonable

In deciding Katzin, the Third Circuit panel underwent an extensive analysis of whether a warrantless GPS search can ever be reasonable (and therefore abide by the Fourth Amendment). The court concluded that it cannot.

The court first considered valid, warrantless searches based on less than probable cause—namely, “reasonable suspicion.” Courts have recognized that in certain circumstances, a police officer does not need a warrant and probable cause to conduct a lawful search. Specifically, there are three instances in which an officer needs only a reasonable suspicion to conduct a warrantless search: “special needs” cases, cases involving lessened privacy interests, and circumstances outlined in the Supreme Court’s decision in Terry v. Ohio permitting a “stop and frisk.” In these cases, only “reasonable suspicion” is necessary for the search to be reasonable.

The court quickly discarded the notion that any of these three exceptions applied. The “special needs” case requires that the “primary purpose” of the search not be “to uncover evidence of ordinary criminal wrongdoing.” (the entire point of the GPS in Katzin was to detect criminal wrongdoing). The diminished privacy exception does not apply because Katzin was a private citizen entitled to full privacy under the Constitution at the time the GPS device was installed, and the search of a car still requires at least probable cause. Finally, the court found that the exception established in Terry v. Ohio was for a limited purpose (to see whether the officer was at risk of immediate harm) and limited in time (the duration of the frisk), and thus was distinguishable from the installation of a GPS device, which constitutes a search over a period of time.

Having concluded that a warrantless GPS search was never reasonable with anything less than probable cause, the court then turned to the question whether a warrantless GPS search even with probable cause was permissible.

The government argued that under the judicially recognized “automobile exception” a warrant was not needed to conduct a search of an automobile, and that the exception applied to GPS searches as well. However, the court rejected this argument, finding that the automobile exception allows only “warrantless searches of any part of a vehicle that may conceal evidence . . . where there is probable cause to believe that the vehicle contains evidence of a crime.” In Katzin, officers did not believe that the automobile presently contained evidence of a crime, only that its location might at some point lead to evidence of a crime. That, the Third Circuit held, is beyond the scope of the automobile exception and constitutes an unreasonable search in violation of the Fourth Amendment.

Protecting the Fourth Amendment From Erosion

The Third Circuit got it right. The Fourth Amendment cannot reasonably be understood to permit law enforcement officers to install GPS tracking devices without a warrant on vehicles of anyone merely suspected of a crime. The warrant requirement serves an invaluable purpose in safeguarding the American people from police overreach and tyranny. It requires a neutral magistrate to adjudicate whether there is probable cause for a search, rather than leaving that discretion in the hands of the government.

The drafters of the Constitution could not have envisioned the use of GPS tracking devices when writing that document; it is incumbent upon us to update our understanding of its protections. The Third Circuit correctly recognized that the Fourth Amendment does not permit law enforcement officers to leave behind an “ever-watchful electronic sentinel in order to collect future evidence” without a valid warrant. Any other holding would permit “the police to intrude indefinitely upon a target vehicle based solely on the prospect that it will, in the future, contain some contraband or be used during the commission of a crime.” That power of surveillance would eviscerate the Fourth Amendment, erode our core constitutional protections, and establish a dystopia not unlike those depicted in George Orwell’s 1984 and Steven Spielberg’s “Minority Report.”

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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Should the United Nations Be Liable for the Haiti Cholera Epidemic? Mon, 21 Oct 2013 04:01:11 +0000 Continue reading →]]> Scales of JusticeIn January 2010, a massive earthquake struck Haiti, killing over 200,000 people, displacing an additional 1.5 million, and causing significant damage to the country’s buildings and infrastructure. Moreover, several months after the earthquake there was a widespread outbreak of cholera, the first such outbreak in that country in modern history. Initial findings suggested that the epidemic was triggered by United Nations peacekeepers who arrived from Nepal around the time of the first reported cases. Cholera is endemic in Nepal, and improper sanitation practices by the U.N. camps where they were staying were exacerbated by the damage from the earthquake, leading to a situation highly likely to start the epidemic. Independent sources—including the Centers for Disease Control, the American Society for Microbiology, and Yale Law School and School of Public Health—corroborated that finding.

The U.N. initially denied causing the cholera outbreak and appointed an independent panel to investigate. The U.N. has maintained a continual presence in Haiti since 1994, and its subsidiary the United Nations Stabilization Mission in Haiti (MINUSTAH) had existed there since 2004. The appointed panel initially found the evidence inconclusive, but it has since confirmed that the U.N. soldiers from Nepal were most likely the source.

In 2011, Haitian civil rights groups filed a complaint with the U.N. seeking damages for allegedly causing the cholera epidemic. The international organization deferred responding at all for over 15 months, and when it did finally respond, it invoked its immunity from “public” claims under Section 29 of the Convention on the Privileges and Immunities of the United Nations, which was adopted by the General Assembly in 1946. That Section provides that the United Nations will address only “disputes arising out of contracts or other disputes of a private law character.”  The U.N. asserted that the cholera claims are public because of the political and policy issues they present, and thus that the claims are not entitled to consideration by the organization. There is no appeals process for that type of decision, so the outcome appeared bleak for the Haitian cholera victims.

Earlier this month, however, lawyers for Haitian cholera victims filed a class-action lawsuit against the United Nations in the U.S. District Court for the Southern District of New York. The lawsuit alleges not only that the U.N. was reckless in causing the cholera epidemic, but also that the international organization intentionally delayed investigations of the outbreak and “obscured discovery of the outbreak’s source.” It seeks compensation for an entire class comprised of victims of Haiti’s cholera epidemic.

In this column, I will first discuss the rationale behind the U.N.’s invocation of immunity against the claims. I will then weigh those considerations against the significant interest of the Haiti cholera victims to be adequately compensated for suffering, illness, and death. Because of the egregiousness of the peacekeepers’ conduct, I argue that the U.N. should be held accountable for the epidemic. However, because of the lack of basic infrastructure in Haiti, and in the interest of encouraging humanitarian work, I conclude that a declaratory judgment against the U.N. might best serve the needs of everyone involved.

Factors Weighing for the U.N.’s Immunity

At the time of this writing, the U.N. has not filed an answer to the complaint filed in federal court. However, Professor Kristen Boon described three factors that most likely led to the U.N.’s invocation of immunity after the Haitian victims first presented their claims directly to the organization:

  • First, the UN has taken the position that cholera was not conclusively introduced by the Nepali peacekeepers, and consequently, an open question remains as to ultimate responsibility.
  • Second, the financial implications for the UN are profound.  Not only will a settlement create a huge financial burden on the organization, but it might deter future peacekeeping efforts.
  • Finally, the case is precedent setting. It will unquestionably influence how mass claims against the UN are lodged and resolved in the future.

The first point is rendered moot in light of recent strong evidence that the Nepali peacekeepers did in fact cause the epidemic. The other two points still apply and are significant considerations.

In the United States, many jurisdictions have enacted “Good Samaritan laws,” which seek to protect from liability those who voluntarily stop to render aid to someone in need. Many of these statutes provide that a person who voluntarily renders aid is not liable for any injury that results from his or her negligent conduct or omission. However, a person whose conduct amounts to recklessness or “gross negligence” is often not subject to protection from liability under these statutes.

Although the alleged conduct by U.N. peacekeepers in Haiti is not subject to these state laws, the rationale behind finding immunity is consistent with the public policy of enacting Good Samaritan laws. If a person—or in this case, an international aid organization—may be financially liable for injury it inadvertently caused in the course of providing aid, then the risk of liability could potentially serve as a deterrent to providing aid in the first place.

The U.N. has already stated that it is committed to helping Haiti recover from both the earthquake and the cholera epidemic. Its strongest argument for immunity is that it would have more resources to allocate to helping the country if it does not have to deal with simultaneous litigation. Even a modest settlement or verdict against the organization could hinder its humanitarian efforts worldwide, including in Haiti. Indeed, when the victims petitioned the U.N. for compensation for the victims initially, they asked for $50,000 for each injured and $100,000 for each deceased. With over 650,000 infections and 8,000 deaths, that total would be over $800 million, or over 10 percent of the U.N.’s annual budget allocated for peacekeeping operations.

Haitian Cholera Victims Deserve Compensation

Perhaps the most fundamental tenet of injury law is that when one party causes injury to another party, the injured party may be entitled to compensation for his or her losses. Different jurisdictions recognize assorted exceptions to this general rule, but the principle holds true in the case of the cholera epidemic.

The U.N.’s strongest argument against liability was that of causation; at first, it was not completely clear whether the U.N. peacekeepers had actually caused the epidemic. However, once the U.N.’s own independent investigators, as well as those from other disinterested organizations, established causation with near certainty, that argument could no longer stand.

No one disputes that the people in Haiti are suffering greatly from a cholera epidemic. Often, natural disasters such as weather and illness cannot be attributed to a person or entity for the purpose of remuneration. But in this case, with causation all but proven, both morality and law would seem to require that the responsible party compensate the victims for their losses.

Weighing the Relative Interests

The facts alleged in the complaint support a conclusion that the behavior of the U.N. peacekeepers constituted more than mere negligence—recklessness or gross negligence. According to the complaint, the U.N. did not adequately screen or treat its workers from Nepal, where cholera is endemic, before sending them to Haiti. Coupled with a sanitary system in the U.N. encampment that allegedly failed to meet local standards, the peacekeepers were all but guaranteed to spread cholera in the country they were supposed to be aiding.

If these facts alleged in the complaint (and supported by some of the third-party investigators) are true, then the conduct of the U.N. surely constitutes reckless disregard for a high risk of creating a public health crisis. If the misconduct rises to this level, then even applying Good Samaritan principles would not immunize the U.N. for this level of culpability.

On the other hand, one might ask what the claimants could do with any damages they receive from a lawsuit. With a substantially deficient infrastructure upon which to rebuild, many of the families and individuals represented in the lawsuit do not have a way to utilize any compensation they might be awarded. The U.N. could point to this fact and argue that its own endeavors in the country are in the best position to help, regardless of whether it caused the epidemic in the first place.

Balancing the relative interests against each other, I believe it would be unjust not to hold the U.N. liable for its reckless conduct in Haiti (political and diplomatic considerations aside). To grant the U.N. immunity would effectively condone highly dangerous conduct simply because the international organization is simultaneously attempting to carry out humanitarian work. At the same time, however, I maintain that it is in the Haiti’s best interests to continue working with the U.N. and other aid organizations to rebuild the country. Their experience and support are more likely to result in lasting improvement than are mere financial awards for the victims of the epidemic.

A declaratory judgment against the U.N. for its misconduct would be the best solution to balance these objectives. It could provide a means for the U.N. to settle or resolve any claims while continuing to work with the country to rebuild. Although it would not provide the cholera victims with financial compensation, it would ultimately help the U.N. and other aid organizations provide longer-term solutions to all of the people of that country. Moreover, a declaratory judgment against the U.N. would serve as a clear warning to exercise care in carrying out its aid missions.

Although some might criticize this proposal as a mere slap on the wrist for the U.N., I believe it strikes the necessary balance between encouraging humanitarian aid and discouraging reckless conduct while delivering that aid.

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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When Can Administrative Claims Preclude Constitutional Claims? Tue, 08 Oct 2013 04:01:53 +0000 Madigan v. Levin, raises the question whether the Age Discrimination in Employment Act (ADEA) precludes age discrimination claims brought directly under the Equal Protection Clause. Kemp notes that the particular facts of the case and the tone of arguments at the Supreme Court suggest that the Court may not decide the case on the merits. However, he argues that the case does present important questions on the power of Congress to abrogate individuals’ right to sue for constitutional violations, and its duty to do so only when the statutory remedies are both adequate and broadly accessible. Continue reading →]]> Law ConceptYesterday, the U.S. Supreme Court heard the first arguments of the Term. One of the cases presented, Madigan v. Levin, addresses the remedies available to government employees who have suffered employment discrimination. Specifically, the parties in that case are asking the Court to decide whether the Age Discrimination in Employment Act (ADEA) precludes age discrimination claims that are brought directly under the Constitution’s Equal Protection Clause via 42 U.S.C. § 1983.

In this column, I will first describe the facts leading up to the case, as well as the legal framework for the analysis. I will then explain how the court below, the U.S. Court of Appeals for the Seventh Circuit, reached a decision contrary to those that were reached by other circuit courts that have addressed the issue. In light of the Supreme Court oral arguments yesterday, I argue that while this particular case does not present as pressing a question of law as the briefs had suggested, courts should still generally be wary of interpreting civil rights laws as precluding constitutional claims unless the laws provide adequate and broadly accessible remedies.

The Facts Underlying Madigan v. Levin

The plaintiff, Harvey Levin, worked as a senior assistant attorney general in Chicago until 2006, when he was terminated from his position after working there for almost six years. He alleged that he had received only positive evaluations during his tenure in the office, so it came as a surprise to him when his superiors cited “low productivity, excessive socializing, inferior litigation skills, and poor judgment” as reasons for his termination. The office replaced Levin—who was 61 at the time—with a female attorney in her thirties.

Levin then filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC) in accordance with necessary administrative procedures, and the Commission conducted its investigation and cleared him to sue his former employer in federal court.

In August 2007, Levin filed a lawsuit in federal court in Chicago. He named as defendants his former bosses, including Attorney General Lisa Madigan, both in their official capacities and in their individual capacities. He alleged that the defendants’ decision to terminate him unlawfully discriminated against him on the basis of his age and gender. He sought compensatory damages and punitive damages, as well as injunctive relief.

The Legal Bases for Levin’s Claims

Levin argued that his termination violated Title VII of the Civil Rights Act of 1964, the ADEA, and the Fourteenth Amendment of the U.S. Constitution.

Levin’s sex discrimination claim arises under Title VII, which prohibits employment discrimination on the basis of race, color, religion, sex and national origin. His age discrimination claim arises under the ADEA, which prohibits discrimination on the basis of an employee’s age. Levin argues that both discrimination claims also fall under the purview of the Equal Protection Clause of the Fourteenth Amendment, which requires that no state “deny to any person within its jurisdiction the equal protection of the laws.” (Private employers cannot violate a person’s Fourteenth Amendment rights, but the employer here is the State Attorney General’s Office.)

Although the U.S. Constitution does not itself create a right to sue for violations of its provisions, 42 U.S.C. § 1983 provides a means for individuals to enforce the provisions of the Fourteenth Amendment.

The District Court and Appellate Court Decisions

Across several rulings, the district court dismissed Levin’s claims under both the ADEA and Title VII because he did not constitute an “employee” within the meaning of those statutes (Levin’s position of Assistant Attorney General was an appointed position, which falls within an exemption to employee status under both statutes). However, the court held that Levin’s constitutional claims were sufficient to go to trial.

For a constitutional claim to survive a motion for summary judgment, “a plaintiff claiming a violation of § 1983 must produce evidence that the defendant caused or participated in [the] constitutional deprivation.” Further, if the alleged misconduct is not “clearly established” (by existing case law) to be unconstitutional, then the officials are entitled to qualified immunity, and the claim against them cannot proceed. In denying that portion of the motion for summary judgment, the district court found that the facts adequately supported Levin’s claim of a constitutional violation, and that age discrimination is clearly established as unconstitutional (in so holding, the court was disagreeing with and overturning an earlier ruling by another judge in the same proceeding).

The defendants appealed the denial of summary judgment as to these constitutional claims. On appeal, the Seventh Circuit panel affirmed the partial denial of summary judgment, finding additionally that the ADEA does not preclude constitutional claims of age bias.

The issue turns on legislative intent; if a court infers that Congress intended for a statutorily defined remedy to be the sole remedy for a specific type of injury—either because the statute states so explicitly, or by other means—then a plaintiff may not circumvent that statutory scheme for relief by suing directly under the Constitution. In this case, all other circuit courts that had considered whether the ADEA displaced constitutional claims had answered that question in the affirmative. The Seventh Circuit was the first to break ranks, undertaking a deeper analysis of congressional intent to reach the opposite conclusion.

Broader Considerations

Although the oral arguments suggest that the Supreme Court may dismiss the case without reaching the merits, due to technical procedural issues, the case presents an important issue for consideration.

In this particular case, it came up at argument that Levin might have had access to another avenue of relief that he did not pursue, and which did not come up at all in lower court proceedings—the Government Employee Rights Act of 1991. In light of the availability of this remedy, the statutory scheme for employment discrimination is adequate to justify the preclusion of constitutional claims in this context.

In another context—such as one involving a transgender plaintiff whose coverage under federal antidiscrimination statutes like Title VII—the adequacy of the statutory scheme is less clear. Although some courts have correctly held that Title VII prohibits discrimination because of transgender status (under its “because of . . . sex” language), that point is not settled law in every circuit. Thus, it is important in these cases for courts to permit the constitutional claim when the statutory scheme provides inadequate coverage or relief for actions that violate constitutional rights. The Eleventh Circuit correctly recognized this in Glenn v. Brumby. (I discussed that case in a prior column on Verdict.)

American jurisprudence has long recognized the principle that for every violation of a right, there must be a remedy. No law passed by Congress should abrogate a person’s right to sue for constitutional violations unless Congress has provided an adequate and accessible remedy as a replacement. Although this case seems to fall short of a viable challenge to Congress’s ability to abrogate constitutional claims of employment discrimination, it may serve as a reminder that Congress may not take lightly its power to strip us of our right to seek redress for constitutional violations.

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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Is Virginia the Next Major Same-Sex Marriage Battlefield? Tue, 01 Oct 2013 04:01:14 +0000 Continue reading →]]> Same-Sex Wedding TopperOn Monday, civil rights organizations Lambda Legal and the American Civil Liberties Union filed a motion for summary judgment in a Virginia federal court on behalf of a class of plaintiffs seeking state recognition of same-sex marriages in that state. The case, Harris et al. v. McDonnell, was filed in the U.S. District Court for the Western District of Virginia on behalf of all same-sex couples who wish to marry in Virginia, or who have married elsewhere and now seek the recognition of their marriages in Virginia.

Interestingly, another federal case in Virginia is seeking exactly the same change in the law. The second case, Bostic et al. v. Rainey, recently made headlines when attorneys David Boies and Ted Olson (the prominent attorneys who were on the same-sex marriage side in Hollingsworth v. Perry, the case challenging California’s Proposition 8 ban on same-sex marriage that made it to the Supreme Court last term) announced that they were joining that case as counsel.

In this column, I discuss the significance of these cases and why one or both of them could make it all the way to the U.S. Supreme Court. I also note the increasing prevalence of legal challenges to anti-same-sex-marriage laws throughout the country.

The Two Virginia Cases

In the case filed by Lambda Legal and the ACLU, the named plaintiffs include one couple who sought and were denied a marriage license, and another couple who were legally married in Washington, D.C. but whose marriage Virginia does not recognize. The complaint also defines the class of plaintiffs to the lawsuit as consisting of every Virginia resident who “either has been unable to marry his or her same-sex partner in Virginia because of the marriage ban or validly married a partner of the same sex in another jurisdiction but is treated as a legal stranger to his or her spouse under Virginia law.”

One criticism that came up in the aftermath of the Supreme Court’s decision earlier this year in Hollingsworth v. Perry was that the federal district judge who issued a statewide injunction exceeded his authority to render a judgment beyond the named plaintiffs of that case. Harris avoids that situation altogether by naming a whole class of plaintiffs. Although the criticism did not pan out in the Hollingsworth case, counsel in Harris likely wanted to leave no possibility that a technicality might render impotent an otherwise favorable judgment.

The plaintiffs in the Bostic case are similarly situated: one couple was denied a Virginia marriage license because they are a same-sex couple, and the other couple was legally married in California but denied recognition of their marriage in Virginia. Unlike in Harris, the complaint in Bostic does not include the class of all same-sex couples in Virginia. However, if the outcome in California is any indication, the lack of an identified class may not prove to be a problem should a judge rule in the plaintiffs’ favor.

Both cases I noted above cite the U.S. Supreme Court’s decision in United States v. Windsor from earlier this year. In Windsor, the Court struck down Section 3 of the Defense of Marriage Act (DOMA), which defined marriage for federal purposes as being between a man and a woman. The briefs cite Windsor for the proposition that a law violates equal protection principles if its “purpose and practical effect . . . [is] to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.”

Why Virginia?

To some, Virginia is an unlikely venue for same-sex marriage litigation, or at least not a state that is any more attractive than many other states in that respect. However, Ted Olson noted that Virginia is an excellent venue for the very reason that many people would think that it is not: namely, its rejection of same-sex marriage is so thorough that its discriminatory treatment of its residents is all the more evident.

Indeed, Virginia law is adamantly opposed to recognition of same-sex marriages. In 1975, Virginia adopted a statute providing that “a marriage between persons of the same sex is prohibited.” In 1997, the legislature reinforced this position by prohibiting recognition of same-sex marriages legally entered into elsewhere: “Any marriage entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created by such marriage shall be void and unenforceable.” The state then passed even more extensive legislation, banning civil unions and domestic partnerships as well as marriages. In 2005, moreover, the legislature amended the state constitution to prohibit same-sex marriages at a constitutional level—a redundant move that was more symbolic than anything.

In this context, Virginia leaves no doubt as to its position on same-sex marriage. And it is for this reason that these civil rights organizations have chosen the state as a venue for their challenges.

Incidentally (or perhaps, relatedly), Virginia’s discriminatory laws served as the basis for the U.S. Supreme Court’s landmark decision in Loving v. Virginia, in which the Court struck down all race-based restrictions on marriage in the United States. In Loving, the Court held that that Virginia’s anti-miscegenation statute violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

These are the same two constitutional provisions that the plaintiffs in these Virginia cases rely upon, in asking the courts to strike down the state’s prohibition on same-sex marriages.

The Race to the High Court

Since the U.S. Supreme Court’s decision in Windsor, numerous lawsuits have cropped up all over the country challenging state laws that define marriage in those states as between a man and a woman. Some advocates fear that many of these legal challenges lack the resources and support necessary to win an impactful decision that affects a large number of people. In the worst-case scenario, some fear that a poorly managed case could even lead to an unfavorable decision, substantially harming other cases that might have been more successful due to better lawyering, better facts, or both.

Another interpretation of this spate of lawsuits is that it reflects that people across the nation are increasingly coming to the understanding that all people deserve equal rights under the law—whether that equality pertains to the right to marry, to vote, or any other constitutionally protected right.

David S. Kemp is an attorney, writer, and editor at Justia. A graduate of U.C. Berkeley, School of Law (Boalt Hall), Kemp served as Senior Executive Editor of the California Law Review and worked as a summer intern with the Lambda Legal Defense and Education Fund, Inc.
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