The Political Process of Preemption

The Political Process of Preemption

Paul A. Diller, The Political Process of Preemption, 54 U. Rich. L. Rev. 343 (2020).

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Paul A. Diller *

Introduction

Preemption, particularly of the state-city variety, has become a hot topic. State legislatures in many states over the last decade have preempted a wide swath of areas in which cities and counties were previously free to govern. In addition to the sweeping nature and frequency of preemption, the increasingly aggressive methods of enforcing preemption have drawn notice. The threat of fiscal penalties, removal of local officials from office, and even criminal sanctions constitute what one scholar has dubbed the phenomenon of “hyper preemption.”[1]

There are several reasons why this new landscape of preemption is of concern. Advocates of local control lament the loss of cities’ ability to use their local expertise to solve local problems. Relatedly, fans of local innovation fear that aggressive preemption limits the ability of cities to try out new policy proposals that might work their way up the state or federal ladder. The specter of personal penalties for city councilors who support preempted ordinances may dissuade citizens from running for local elected office, a crucial training ground for state and federal positions and an intrinsically important component of our democratic system. Even if not punitive, sweeping substantive preemption may weaken cities so much that voters and potential elected officials have less interest in participating in city governance. Finally, due to the political valence of much of the recent preemption—by more conservative state legislatures preempting the policy priorities of populous, politically liberal cities—political progressives see preemption as an attack on their values and priorities.[2]

Because of the issue-based nature of preemption, it is tempting to approach the subject in a results-based manner. Political progressives, for instance, may oppose preemption of local firearm regulation, but cheer preemption of local ordinances that crack down on illegal immigration. Conversely, political conservatives bemoan preemption of local “right-to-work” ordinances, but support preemption of the minimum wage.[3] Courts and legal scholars have struggled for years to offer a neutral way out of this morass.

For decades some scholars and courts have argued that a neutral way of determining the legitimacy of statewide preemption is by focusing on whether the particular issue in play is “local” or not.[4] Many scholars and judges, however, have rightly criticized this approach as intellectually unsatisfying.[5] Another view, recently offered in a brilliant essay by Nestor Davidson, is that courts might find their way out of the results-based morass by homing in on whether the preemptive legislation furthers the “general welfare” of the state.[6] This approach is attractive, particularly with respect to deregulatory preemption.[7] Employing it may still, however, require courts to make policy-based determinations regarding whether a state or local choice furthers the general welfare.[8]

This Article suggests a different path out of the morass by inviting scrutiny of the political process of preemption. Focusing on state rather than federal preemption, this Article assumes—without endorsing—the primacy of the state over its political subdivisions, a view embraced by the Supreme Court in the seminal 1907 case of Hunter v. City of Pittsburgh and beyond.[9] While making this assumption, this Article nonetheless critically examines it by digging deeper into the roots of state sovereignty and the state’s claim to dominion over its subentities.

At the time of the Founding, states were seen as sovereign due to their representation of “the people.” Building off of this conception of state sovereignty, the Court in Hunter recognized plenary state power over cities—or local “agencies”—as the Court referred to them.[10] Fifty-seven years later, in Reynolds v. Sims, the Court recognized one-person, one-vote as a key component of representation, embracing the idea that the state legislature ought to be responsive to the policy preferences of a majority of the state’s voters.[11] After Reynolds, the Court continued to reaffirm Hunter’s notion of state primacy without explicitly re-examining the premises of this assumption. After Reynolds, however, state primacy and the majoritarianism of state government had become fused, and rightly so. Only a democratically legitimate state government—that is, one which purported to represent credibly a majority of the state’s population—could justifiably exercise its plenary powers over the democratic subunits within it.

Working from these premises, this Article argues that when state preemption is the product of a credibly majoritarian lawmaking process, it might be considered less objectionable, regardless of its political valence. A key component of democratic illegitimacy, this Article will argue, is intentional political gerrymandering. Such gerrymandering distorts the legislature’s composition and leads to legislative products that do not accurately reflect the views of the median voter statewide. When produced by other processes, such as direct democracy, preemption may reflect the majority’s will in some crude sense, but may raise other normative concerns.

Before proceeding, it is useful to clarify what this Article means by preemption. This Article uses the word broadly to include any override of pre-existing local power or prerogative by statute or constitutional amendment. Such preemption may impose a new regulatory regime from above, displacing the locality’s previously governing regime, or it may impose a regulatory regime when none such existed previously at the local level. As used here, preemption may also simply deprive the locality of the authority to implement a regulatory regime or fiscal choice, such as its preferred level of taxation, without providing any new regime or supplementary revenue in its place.[12] Almost all of the preemption discussed here is of the general type—i.e., not special legislation that formally applies only to one city or a handful of cities—but the framework of the analysis should apply similarly to special preemption.[13]

Part I of this Article examines the roots of the state’s role as sovereign, and how the democratic legitimacy of the state legislature eventually became linked to a notion of majoritarianism, as epitomized by Reynolds. Part II discusses how and why gerrymandering and political geography may cause a legislature to stray from majoritarianism. Part II examines this phenomenon in the context of state-local relations, in particular. Part II includes vignettes of some key states where gerrymandering has arguably led to unrepresentative preemption in approximately the last decade. Part III looks at how the initiative process differs from the legislative process in the context of preemption. Nothing is more seemingly majoritarian than the voters enacting a policy preference by a majority vote. Nonetheless, direct democracy raises distinct problems of democratic legitimacy, which Part III assesses in the context of state-local relations. Finally, Part IV looks at some other factors in prominent preemption instances of late, including legislative “horse trading” and punitive enforcement mechanisms, and asks what these dynamics reveal about the legitimacy of state overrides.

I. State as (Popular) Sovereign

In American constitutional theory, it was the states, rather than the federal government, that traditionally functioned as indestructible sovereigns. The states formed the Union, it was thought, and thus, they might also abolish it or at least voluntarily secede from it.[14] While the Civil War established the Union’s primacy as a sovereign when push came to shove, states retained their roles as residual sovereigns, endowed with attributes of sovereign-like immunity and, in contrast to the federal government, virtually unlimited default lawmaking authority.[15]

With respect to states’ lawmaking authority, after the Revolution, states were seen as having inherited the plenary powers enjoyed by the British Parliament.[16] Of course, at the time of the Revolution, Parliament still operated in the shadow of a monarch, and thus had to pay at least lip service to the idea that it had been invested with power by the head of state. This king or queen, in turn, had historically laid claim to divine right as the source of his or her authority to rule.[17] During a centuries-long process that accelerated during the English Civil War, the dominant narrative supporting the legitimacy of English government fitfully shifted from the monarch serving as God’s agent on earth to an elected Parliament that derived its power from “the people.”[18] In the new United States, in the absence of a monarch, state legislatures, and eventually the national government, wholly embraced the notion of “the people,” or “popular sovereignty,” as the source of their governing legitimacy.[19]

A. Popular Sovereignty

It was easy enough to declare that “the people” ruled in the new United States. It was more difficult to define exactly who “the people” were and how the new government represented them. “The people” who participated in what passed for democracy at the Founding were, of course, a very small subset of all of the human beings residing in the young nation. While franchise qualifications varied by state (and sometimes city), those entitled to participate in democracy were generally white, male, and in possession of a minimum amount of real or personal property.[20] This meant that approximately six percent of Americans could vote during George Washington’s presidency.[21]

Hence, the fiction of popular sovereignty at the beginning of the nation’s history was sustained by a very narrow view of who counted as “the people.” Alternatively, even if one viewed all persons, or at least all free persons (given the perception of enslaved persons as property), as constituting “the people,” the smaller subset was entitled to act on their behalf.

In addition to a narrow understanding of which persons were allowed to participate in democracy, states at the Founding had to devise a way for “the people” to be represented in an assembly, or legislature, imbued with the power to make law for all. Unsurprisingly, the colonists had looked to the system whence they came—the British Parliament—as a model for representation, although they did not hesitate to improve upon it.[22] In Britain, the well-established practice was to use geographical units—rather than population—as the primary basis for selecting representatives, even if this system, with its over-represented “rotten boroughs,” had devolved into a “travesty” of representation.[23] In the colonies, elections were held more frequently, and “the assignment of representation kept pace with movement into new areas much more closely than in England.”[24] After the Revolution, most states continued the practice of using geography as the basis for representation, affording towns or counties equal, or at least minimum, representation regardless of population in at least one house of the state legislature.[25]

The Levellers during the English Civil War were the first to suggest that representation be based on population rather than geographical unit.[26] The method chosen for allocating seats in the U.S. House of Representatives at the Constitutional Convention, of course, largely embraced this approach.[27] Over the course of the next century and a half, more states adopted population as the basis for allocating seats in their state legislative chambers.[28] By 1920, state constitutions required that seventy-five percent of all state legislative chambers be allocated on the basis of population.[29] The use of geography to allocate legislative seats remained more common for the upper houses in states.[30] Despite the increasing commitment on paper to allocating seats on the basis of population, many states did not comply with their own state constitutions.[31] In Alabama, for instance, the state legislature did not reapportion between the 1900 and 1960 censuses.[32] Hence, while the United States population had become much more urbanized by the mid-twentieth century, state legislatures often did not reflect these changing demographics.[33]

Urban-centered reform groups led a sustained, multifront effort to correct the imbalance between the country’s population and its elected representatives throughout the twentieth century.[34] Their efforts culminated in the landmark victories before the United States Supreme Court in Baker v. Carr (1962), which held that apportionment was not a political question,[35] and Reynolds v. Sims (1964), which held that the Equal Protection Clause of the Fourteenth Amendment required state legislatures to comport with one-person, one-vote.[36] Also in 1964, the Court delivered another victory to urban voters when it interpreted Article I, section 2, to require that all congressional districts within a state be equipopulous.[37] Previously, many states had urban Congressional districts that were significantly more populous than those in rural areas.

While Reynolds settled on equal population as the appropriate method for electing state legislatures, it was, in retrospect, surprisingly vague about exactly which population mattered for these purposes. From the beginning of the Republic, states had adopted different approaches to the question of who the “people” were for the purposes of apportionment. Consistent with their sometimes narrow views of “the people,” several states in the early nineteenth century apportioned on the basis of “free white males” or “free white males over 21.”[38] A handful of states used taxes paid, rather than any subset of people, as the metric for apportioning seats.[39] During Reconstruction, many state constitutions used “qualified voters” as a basis for apportioning, but by the end of the nineteenth century, most states simply used total population for this purpose.[40]

Of course, while many states in the late nineteenth century expanded the basis for apportionment to include the entire population, they were at the same time excluding large numbers of persons from voting, such as blacks (particularly in the South) and women. As the franchise gradually extended to these previously excluded groups, such as women with the ratification of the Nineteenth Amendment in 1920,[41] and blacks in the South with the passage of the Voting Rights Act in 1965,[42] total population became a somewhat more accurate reflection of the population that could vote for a representative. To be sure, even now, there are many in the total population who are excluded from voting, such as minors, noncitizens, and certain convicted criminals in some states. Nonetheless, all states currently use total population to allocate seats, although there is some variation on the margins with respect to prisoners and temporary residents like nonresident military personnel and college students.[43]

In 2016, the Supreme Court rebuffed an attempt by litigants to force a state to use citizens-of-voting-age-population (“CVAP”), rather than total population, as the metric for apportionment, holding that this was not required by Reynolds.[44] The Court did not, however, require states to use total population as the metric for apportionment, thus leaving at least the theoretical door open for a state to use CVAP as the basis for apportionment. Legislators in several states, anticipating that the 2020 census might include a citizenship question, proposed that CVAP or something similar be used to apportion state legislative and Congressional seats after the census.[45] After an unfavorable Supreme Court decision,[46] President Donald Trump abandoned his earlier efforts to direct the Census Bureau to include a citizenship question on the 2020 census.[47]  Not completely deterred, however, Trump asked the Bureau to collect citizenship data from other sources in other ways so that interested states might use it for post-2020 redistricting.[48]

B. State as Sovereign over Localities

On a different doctrinal front, the state’s primacy over local governments would be solidified between the Founding and the early twentieth century. The rise of Dillon’s Rule and the Supreme Court’s embrace of the state’s hegemonic control over local governments in Hunter largely snuffed out the views of some prominent jurists, such as Judge Thomas Cooley, who had argued that there were constitutional limits on the state’s primacy over its cities.[49] Per Hunter, a state enjoys wide discretion to reorganize its local governments as it sees fit, whether consolidating them, disincorporating them, or redrawing their boundaries.[50] A state may even abolish local government entirely if it so chooses.[51]

After Reynolds v. Sims, state sovereignty over local governments, per Hunter, and popular sovereignty could be merged conceptually. Indeed, in rejecting Alabama’s and other states’ use of political subdivisions as the basis for representation, as opposed to equal population, Reynolds cited Hunter for the proposition that local entities are mere agents of the state.[52] Hence, unlike the sovereign states in our federal order, local governments did not possess sovereignty and thus did not need representation in their own capacity at the state level.[53] The flip side of this articulation is that the state’s supremacy is legitimate because its government is representative of a statewide majority. The state’s responsibility, therefore, for ruling its localities hinges on a credible claim to representing a majority of the state’s voters.

As the Supreme Court recognized in Avery v. Midland County, in 1968, state legislatures “exercise extensive power over their constituents and over the various units of local government.”[54] Although Avery recognized that there was a sphere of authority in which local governments primarily operated,[55] an implicit premise of the legitimacy of state legislatures’ power over their subdivisions was compliance with one-person, one-vote and the majoritarianism envisioned by Reynolds. Indeed, the dissenters in many of the cases that built upon Reynolds by extending one-person, one-vote to elections for local bodies like county commissions and community college boards invoked one-person, one-vote at the state level as a justification for state-sanctioned deviations from one-person, one-vote locally.[56] Later, in the key one-person, one-vote case of Ball v. James in 1981, Justice Powell provided the crucial fifth vote to uphold the constitutionality of the acreage-based voting scheme for the Phoenix-area’s Salt River District. He based his concurrence on his “expect[ation] that a legislature elected on the rule of one person, one vote will be vigilant to prevent undue concentration of power in the hands of undemocratic bodies,” and thus could be trusted to oversee the district.[57]

Of course, the proposition that majoritarianism legitimizes control of subentities is contingent upon the will of the majority being in some way discernible, itself a contested proposition among political scientists.[58] Working from the general assumption that a majoritarian will is knowable, Hunter allows the majority of the larger entity to trump the majority of the smaller entity. Through their state constitutions, some states have chosen to limit the reach of the state’s “Hunter power” by cordoning off certain areas that the state may not preempt, or imposing procedural restrictions on the state’s ability to control its local governments.[59] Many states, however, have no such constraints, and even in those that do, the legislature may still preempt local governments with respect to the vast majority of potential legislative subject matters.[60]

The Reynolds Court anticipated that by reapportioning seats from sparsely populated rural areas to more populous urban areas, the majority could speak more clearly.[61] Prior to Reynolds, at least in many states, rural voters exercised an outsized voice due to states’ allocation of legislative seats on the basis of local government units, or because state legislatures did not fulfill their responsibilities under their state constitutions to reapportion on the basis of population changes. There is limited evidence that Reynolds’s reallocation of political power succeeded in redistributing state resources from the formerly overrepresented areas to those previously underrepresented.[62] As discussed next, however, the Reynolds Court woefully underestimated the extent to which the process of districting itself could muzzle the voice of the “majority” that Reynolds sought to reveal.

II. How the Reynolds “Majority” Became Muzzled

An extensive political science literature has demonstrated that a winner-take-all, first-past-the-post system of district elections, like that used to elect the vast majority of state legislatures, can lead to a very different legislative composition from that which other systems—like proportional representation from a statewide vote—might produce. Jonathan Rodden, in particular, has ably demonstrated that first-past-the-post systems work to the detriment of urban areas due to the high concentration of left-leaning voters in densely populated urban areas.[63] This geospatial sorting leads to left-leaning parties “wasting” proportionally more votes by winning urban districts overwhelmingly. Right-leaning parties, by contrast, waste proportionally fewer votes by winning mostly exurban and rural seats by smaller, but still comfortable, majorities. The result is quite different from what a statewide, proportional allocation of seats would look like.

At the time of Reynolds, this phenomenon had not yet fully developed for a few reasons. First, the two major political parties were far less ideologically coherent and geographically polarized than they are today.[64] Candidates for state legislature or Congress could disassociate themselves from their parties’ national platforms and presidential candidates, while still succeeding electorally.[65] Hence, in the South it was common to find conservative Democrats representing rural areas, while at the same time the Democratic party predominated in northern liberal cities.[66] Similarly, there was a noticeable, even if numerically small, contingent of liberal or “Rockefeller Republicans” representing urban and suburban areas.[67] Before he was mayor of New York City, John Lindsay, for instance, was a Republican Congressman from the Upper East Side’s “Silk Stocking District” and had one of the more liberal voting records in Congress.[68] Even within states, ideological diversity was more common within parties; hence, one-party control of a state, such as that enjoyed by Democrats in the “Solid South,” did not necessarily mean ideological uniformity.[69]

Because of the two major parties’ internal ideological heterogeneity, Reynolds’s mandate of equal representation did not have a clear partisan or ideological impact. By the early 2000s, by contrast, the two most prominent political parties had become far more ideologically coherent.[70] In most states, Democratic candidates are now more uniformly “liberal” or “progressive,” a label that implies certain views on a number of issues such as abortion, firearm safety, environmental protection, consumer protection, and supporting the social safety net more than the opposition party.[71] Similarly, in most states, Republican candidates are now more uniformly “conservative,” a label that implies certain views like support for market-based policies (in some realms), skepticism toward environmental and firearm regulation, relative coolness toward social safety net programs, and, more recently, opposition to immigration.[72]

At the same time, the political preferences of the American public now line up more with geography than ever before. Using presidential preferences as the metric, the 2016 election revealed an incredibly divided nation, with most urban areas strongly preferring the Democratic candidate, Hillary Clinton, most rural areas strongly preferring the Republican candidate, Donald Trump, and suburban areas in the middle.[73]

An electorate that is divided geographically makes no difference on its own in a statewide vote. It is the process of districting that translates these preferences into political power in a particular way. Single-seat, first-past-the-post, compact, contiguous districting almost always leads to a legislature that skews toward the preferences of rural and exurban voters, and this is without any intentional gerrymandering.[74] When intentional gerrymandering is added to the mix, the process cuts even more against the interests of urban residents if the intentional gerrymandering promotes the party that represents the views most associated with exurban and rural voters.[75]

There is strong evidence that this dynamic occurred after 2010 in several key states. The plaintiffs in Gill v. Whitford, a lawsuit alleging intentional gerrymandering of the Wisconsin state legislature, developed a detailed record of partisan gerrymandering after the 2010 wave elections.[76] In Gill, the plaintiffs challenged Wisconsin’s 2011 law, passed by a Republican legislature and signed by a Republican governor, that they alleged intentionally gerrymandered districts so as to ensure a Republican legislative majority for at least a decade, regardless of the statewide cumulative vote.[77] The Supreme Court in Gill ducked the merits of the plaintiffs’ First and Fourteenth Amendment claims, remanding to the trial court for further inquiry into standing.[78] Just one year later, in Rucho v. Common Cause, the Court snuffed out any hope of successfully challenging political gerrymandering under the First or Fourteenth Amendments, ruling five to four that such claims are always nonjusticiable.[79] Nonetheless, while the legal theory may not have been successful, the record and methodology established by the Gill plaintiffs remains very useful for assessing where gerrymandering may have occurred and to what degree.

By way of background, the Gill plaintiffs proposed a three-part test for determining whether intentional gerrymandering had occurred: (1) that a district plan was enacted with partisan intent; (2) that the effect of the plan was to create a large and durable partisan advantage; and (3) that if both of the first two factors are met, defendants must show that the partisan tilt was unavoidable due to the state’s political geography and legitimate districting objectives.[80]

In order to demonstrate the second factor, the Gill plaintiffs relied on a metric known as the “efficiency gap” (“EG”), which is a way of measuring the proportion of “wasted votes” each party experiences in a district-based election.[81] A higher ratio of wasted votes demonstrates that the party has suffered more severely from the legislative districting map. Plaintiffs’ experts extensively analyzed lower-level state legislative elections going back thirty years.[82] This Article will focus on the results from after the 2000 and 2010 redistricting processes, an era of increasing polarization of party politics.[83] While the Gill plaintiffs’ analysis extended only to 2014, the Associated Press (“AP”) analyzed the 2016 elections using the Gill plaintiffs’ same method, and those results are helpful as well.[84] I am not aware of a systematic analysis of EGs from the 2018 state legislative elections available at the time of this Article’s editing, but this Article will incorporate available anecdotal evidence from the 2018 elections. The evidence suggests that many states—especially populous states containing large cities—were gerrymandered in a pro-Republican direction after 2000 and 2010. Later, this Part will analyze five states that exemplify this phenomenon.

A state legislature that veers away from the views of the statewide voters imposes a variety of harms on the population. Such a legislature is likely to pursue policies that do not represent what the voters want. This can be an affirmative harm, in the sense of passing legislation that voters do not support, as well as negative harm: not passing legislation that the voters want.

One might suspect that the governor’s role in the lawmaking process would mitigate the harm that a gerrymandered legislature can impose. Almost every state, after all, elects its governor in a straight-up statewide vote.[85] Particularly where the governor wins a majority or a clear plurality, he or she might be said to have majoritarian bona fides. Governors serve as crucial “veto gates” in the legislative process.[86] Hence, a governor can serve as a majoritarian check on a legislature that strays from popular views.[87]

While there is reason to expect that a governor may serve as a majoritarian check, there is also reason for skepticism. First, with respect to the negative harm imposed by a nonrepresentative legislature, the governor can do little to correct because he or she cannot pass laws on his or her own. A governor may influence the state’s administrative agencies and push them to adopt his or her affirmative agenda, but this is not the same as legislating, and the extent of a governor’s control over the administrative apparatus varies widely by state.[88]

A governor usually has some capacity to block a legislature’s affirmative agenda, but even here the governor’s power will not be absolute. As a repeat player with the legislature, the governor will have incentives to compromise and occasionally allow the legislative majority’s priorities to go through. Even when a governor wields his or her veto pen, the legislature may be so gerrymandered that a veto override is more possible than it would be with more neutrally drawn legislative districts. Further, unlike the federal government, which requires a two-thirds majority to override a presidential veto, several states allow the legislature to override gubernatorial vetoes with bare majorities or with only a three-fifths majority.[89] In addition, while sometimes representative of a majority, governors do not necessarily represent the “median voter,” but rather the triumphant support coalition from the particular election in which they won.[90] Finally, as the recent events in North Carolina and Wisconsin vividly demonstrate, a legislature—even if gerrymandered—can “kneecap” a newly elected governor by passing legislation before he or she takes office to limit his or her powers going forward.[91]

A. Effect of Gerrymandering on Local Governments

If an unrepresentative state legislature only affected state policy, that would be problematic enough. But, as noted above, states retain wide authority to restructure the powers that their local governments possess.[92] Most states have used this power sometime in the twentieth century to create, either by constitution or statute, a system of “home rule” whereby cities—and often counties—could exercise broad policymaking authority in the first instance, subject only to overrule by the state.[93] Most states have retained these systems in theory, but in practice, a raft of preemption and other restrictions on local authority have greatly eroded home rule.[94] Hence, an unrepresentative state legislature may not only decline to pass Proposal X, it may also prohibit any locality in its midst from passing Proposal X.

Such a limitation would have more legitimacy if a majority of the state’s voters credibly opposed the adoption of Proposal X by any level of government. Because most Americans have a healthy respect for local autonomy, it can be safely assumed that the percentage of voters who oppose the adoption of a particular policy by any level of government is smaller than that which opposes the adoption of a policy by the entire state.[95] In many instances, this percentage will be a distinct minority. Nonetheless, a legislature that does not accurately reflect public sentiment is likely to enact a policy that veers from the views of statewide voters.

Gerrymandering can exacerbate this dynamic by leading to a legislature that over-represents the views of a particular slice of the electorate. In many states in the last decade, this has led to an anti-urbanist majority that frequently preempts the enacted ordinances or potential policy priorities of the state’s largest cities.[96] Under Hunter, these acts of the state are perfectly constitutional.[97] When read in light of Reynolds’s embrace of majoritarianism, however, these acts—insofar as the legislature may not accurately reflect the views of the state’s majority due to gerrymandering—are democratically suspect.

Legislative positions on issues veer from the views of voters statewide for a number of reasons besides districting, of course. The effectiveness of interest-group lobbying, for instance, as well as the impact of campaign contributions from interest groups, can play a prominent role.[98] Needless to say, with respect to the contours of local power, these factors play a major role. Recent evidence demonstrates that well-funded organizations, like the American Legislative Exchange Council (“ALEC”), have succeeded at convincing state legislatures to pass a wide variety of preemption legislation aimed at reducing local regulatory authority.[99] This dynamic has recently been more prevalent in states with Republican majorities, although not always.[100] In states with Democratic majorities, interest groups like public-sector unions often wield significant influence and are able to push through legislation that applies across-the-board to local governments.[101]

A detailed analysis of campaign finance’s influence on the relative success of interest groups at different levels of government is outside the confines of this Article. Gerrymandering, however, can exacerbate the influence of money on the political process by leading to a legislature that is already predisposed, even in the absence of campaign money’s potentially distorting effects, to veer away from the views of the majority.[102] Hence, gerrymandered state legislatures are particularly susceptible to attacking urban power and policy priorities. The following instances of preemption from legislatures with strong indicia of gerrymandering are illustrative.

B. State Vignettes

The states highlighted here are those with high efficiency gaps (at least more than 10% in absolute value) in their state houses since 2012 or 2014, as calculated by the plaintiffs’ lead expert in Gill v. Whitford, Dr. Simon Jackman. As articulated by the trial court in Gill, the EG is an objective measurement of the extent to which each of the two major political parties “waste” votes in legislative elections.[103] The EG thus “measures the magnitude of a [districting] plan’s deviation from the [normal] relationship . . . between [statewide] votes and [total] seats.”[104] The Gill plaintiffs proposed 7% as a legally significant threshold for an EG, in part because based on their expert’s testimony, an EG of 7% or more indicates that the districting plan will have tremendous staying power during the decennial period.[105] As made clear by the trial court, a high EG alone does not prove intentional partisan gerrymandering; nonetheless, it may serve as corroborative evidence of an aggressive and effective partisan gerrymander.[106]

In addition to EGs above 10%, this Part focuses on states that also demonstrated other indicia of partisan gerrymandering post-2010, such as a legislative-approved districting map enacted on a largely partisan basis or court decisions finding some partisan gerrymandering in the state districting process. In addition to Wisconsin, these states are (in alphabetical order) Florida, Michigan, North Carolina, and Ohio. Each demonstrates a recent record of aggressively attacking or preempting local authority.[107]

1. Florida

Presidential elections in Florida are famously won by razor-thin margins.[108] Since 2000, a Democratic presidential candidate has won the state twice, while a Republican candidate has won three times.[109] The average margin of victory in the five races is 1.47%.[110] In other statewide races, Florida shows evidence of being a state evenly split between Democrats and Republicans. The last three gubernatorial elections have been extremely close, with Republicans winning by 0.4% in 2018, 1.07% in 2014, and 1.15% in 2010.[111] The 2018 U.S. Senate election was even tighter than any of the last three gubernatorial races, with former Governor Rick Scott defeating incumbent Bill Nelson by 50.05 to 49.93%, or by about 10,000 votes out of more than 8,000,000 cast.[112]

Despite this apparent parity in statewide elections, the Republican party has had a majority in the Florida state legislature since the late 1990s.[113] In recent years, the majority has been utterly dominant, with Republicans enjoying, for instance, an 82-37 seat advantage in the state house and a 26-14 margin in the state senate after the November 2014 elections.[114] There is evidence that Republicans used their control of all three branches of government after both the 2000 and 2010 censuses to ensure that the state legislature (as well as the state’s U.S. House delegation) would become and remain disproportionately Republican. Reviewing the post-2000 state legislative and Congressional districting plans, a federal court observed that “[t]he Republican-controlled legislature intended to maximize the number of Republican . . . legislative seats through the redistricting process, and used its majority power to” effectuate this intent.[115] The Jackman Report showed Florida’s state house to have some of the highest pro-Republican EGs in the country in the 2012 and 2014 elections, with each greater than 10%.[116] The AP report from 2016 shows that in those elections, the Florida state house seat share was expected to be 56.8% Republican under a neutral districting plan, but was in fact 65.8%, for a still-high EG of 9%, one of the highest in the nation that year.[117]

Hence, there is good reason to believe that despite Florida’s politically split electorate, intentional political gerrymandering has played a big role in locking in a Republican majority in the state legislature. This majority, which disproportionately represents exurban and rural areas of the state, aggressively contravened the policy preferences of many—perhaps even a majority—of the state’s voters.[118] For instance, despite President Barack Obama winning the state in 2012 in a campaign largely focused on the merits of his signature domestic achievement, the Affordable Care Act (“ACA”),[119] the Florida legislature rejected attempts to expand Medicaid under the ACA.[120]

With respect to local government in particular, the state legislature has in recent years targeted important subject matters for sweeping preemption. In 2013, the state legislature preempted any city or county in the state from regulating private employers’ workplace benefits and strengthened the state’s ban, initially enacted in 2003, on local minimum wage ordinances.[121] Florida’s intermediate appellate court held that this preemption law prevented Miami Beach from raising its local minimum wage.[122] As further evidence of the legislature’s skew from voters’ views, the voters in 2004 passed a statewide initiative that might be read to preserve the authority of local governments to enact higher minimum wages,[123] an argument rejected by the court that invalidated Miami Beach’s ordinance.[124]

Similarly, in 2016 the legislature preempted localities from regulating polystyrene containers and plastic bags.[125] Some cities have been able to enforce their bans thus far because either the legislature grandfathered them in or because the Florida courts deemed them protected by the state constitution.[126] For most cities in the state, however, the ban will stymie policy experimentation with respect to protecting the environment. In addition, a 2011 law imposes penalties on any locality or local official that attempts to regulate firearms beyond state law.[127] Litigants have attempted to use this law to punish local officials of cities for not affirmatively removing firearms ordinances enacted decades ago from the current city code, even if they went unenforced.[128] Finally, the state legislature recently passed, and the governor signed, an anti-“sanctuary city” law that requires all local jurisdictions to have their police cooperate with federal immigration enforcement.[129] At least one self-proclaimed sanctuary city, South Miami, has sued to block enforcement.[130]

In 2018, despite the extremely close statewide elections,[131] Republicans maintained their utter dominance in the state legislature, with a 73-47 advantage in the house, representing 61% of the seats.[132] From the high EGs demonstrated in earlier years in the decade, these lopsided majorities in the state house likely result to some extent from gerrymandering.[133] The state senate, by contrast, has seen increased parity since a state court ordered the districts redrawn in advance of the 2016 elections.[134] As of September 2019, there are twenty-three Republican senators (as opposed to seventeen Democrats) for 57.5% of the seats.[135] Unlike in many other states, Florida’s forty senate and 120 house districts are drawn independently of each other—i.e., it is not the case that each senate district contains three whole house districts within it.[136]

In sum, the residents of a “purple” state like Florida that might prefer to turn to their local government to enact certain policies have found themselves blocked from doing so due to a political majority in the state legislature that is likely attributable in part to intentional political gerrymandering.

2. Michigan

As demonstrated by the November 2016 election, Michigan is a “swing state.” Donald Trump won the state by a mere 0.22%.[137] The state was reliably Democratic in the six prior presidential elections, although often targeted by Republicans for contention.[138] The state has had two Democratic senators since 2006, while Democrats and Republicans have traded occupancy of the governor’s office in the last two decades.[139]

Despite this seeming partisan parity at the statewide level, Republicans have utterly dominated the Michigan state legislature since the 2010 census, despite losing the statewide popular vote for candidates multiple times. In 2012, for instance, Democratic state house candidates won by 53% to 46% statewide, yet remarkably Republicans held on to a 59-51 majority.[140] Similarly, in 2014, Democratic state house candidates won statewide by a margin of 51% to 49%, yet lost three seats for a 63-47 Republican advantage.[141] Indeed, the Jackman Report estimates the EG for the Michigan state house to be greater than 10% in both 2012 and 2014, among the highest in the nation.[142] In 2016, Democrats and Republicans essentially tied statewide in the house, yet Republicans maintained their sixteen-seat edge.[143] According to the AP, the EG in the Michigan state house in 2016 was the second highest in the nation, resulting in more than eleven excess seats for House Republicans.[144] Most recently, in 2018, Democratic candidates won the state house vote total by 52% to 48%, but Republicans maintained a 58-52 seat edge.[145] Similarly in the state senate, Democrats, in 2018, won 51% of the vote as compared to Republicans’ 49%, yet lost the seat total by a margin of 22-16.[146]

As demonstrated by the Jackman Report, high pro-Republican EGs date back to the 2000s.[147] This is not surprising, given that after both the 2000 and 2010 censuses, the Republican-controlled Michigan legislature adopted partisan districting plans with the approval of Republican governors.[148]

The skewing of the Michigan legislature away from statewide voter preferences has resulted in legislation that deprives local governments of significant authority. Most notably, in 2012, with Detroit’s fiscal crisis in the background, the state legislature enacted an emergency manager law that stripped elected city councils and mayors of their powers despite a statewide initiative passed a month earlier that sought to rescind that law.[149] In other words, despite the Michigan voters’ clear statewide preference for protecting local democracy, the legislature reached a very different conclusion. In addition to engendering bitterness among some Detroit residents over their city being steered into bankruptcy by a state-appointed functionary, the reinstituted emergency manager law may also have played a role in causing the Flint lead-poisoning water crisis as Flint too was placed under state-imposed emergency management.[150]

In the last few years, the Michigan legislature has also enacted aggressive deregulatory preemption. In 2015, the legislature enacted the so-called “Death Star” bill preventing cities and counties from regulating any aspect of the employment relationship, including minimum wage, leave, and benefits.[151] In 2016, the state legislature enacted a ban on plastic bag bans,[152] after the commissioners of Washtenaw County, which includes the city of Ann Arbor, voted in favor of an ordinance that would impose a ten-cent fee on paper and plastic bags.[153] The new state law prevented the proposed local ordinance from taking effect.[154]

Michigan, therefore, is a clear example of a state whose legislature does not accurately reflect the views of its voters statewide, and intentional partisan gerrymandering appears to be a major culprit.

3. North Carolina

Perhaps in no state were the effects of gerrymandering as devastating to local governments—and, at least for a short while, the economy of the entire state—than in North Carolina. North Carolina was traditionally a politically moderate state. While it often voted Republican in presidential elections, it had a tradition of “moderate-to-progressive state government” and electing senators and governors from both major political parties.[155] In 2008, North Carolina became a true “swing state” in presidential elections by voting for the Democratic candidate—Barack Obama—for the first time since 1976.[156] In the two subsequent elections, 2012 and 2016, the state voted for the Republican presidential candidate by an average margin of 2.85%.[157]

After a Republican sweep of both houses of the legislature and the governor’s office in 2010, however, the state legislative maps were drawn in an entirely partisan fashion. Indeed, the vote in favor of the 2011 redistricting plan in the state house was 66-53, with all but two Republicans voting yes and all Democrats present (one was absent) voting no.[158] As a result of this apparent intentional gerrymander, the North Carolina legislature took on a profile that skewed sharply away from the state’s traditional approach to governance. As the Jackman Report demonstrates, the North Carolina state house’s EGs in 2012 and 2014 were among the highest in the nation in absolute value, with each greater than 10%.[159] The AP’s analysis of the 2016 state house elections found a slightly lower, but still significant, EG of 5.51%, resulting in an estimated additional 6.6 Republican seats.[160]

In 2016, a federal district court found in Covington v. North Carolina that the state legislature’s 2011 districting plan violated the Equal Protection Clause by engaging in undue racial gerrymandering.[161] After a tortuous litigation history, the Supreme Court affirmed the redrawing of several state house and senate districts before the 2018 elections.[162] With these new district maps in effect for the November 2018 elections, Democrats reduced the Republican majority in the state senate from 34-15 to 29-21,[163] and in the house from 75-45 to 65-55.[164] Democrats’ gains in 2018 were significant because they denied Republicans the three-fifths supermajority necessary to override gubernatorial vetoes.[165]

While there is not yet an EG analysis available regarding the 2018 North Carolina state legislative elections, preliminary tallies show a continued advantage for Republicans at converting votes into seats, despite the redrawing of some districts after Covington. Democrats won slight majorities of the statewide vote for candidates of both chambers, yet ended up with a minority in each.[166] Covington, of course, addressed only racial gerrymandering and not political gerrymandering.

The apparent gerrymandering of the North Carolina General Assembly has caused the legislature’s majority to skew away from the preferences of the state’s urban voters. Hence, the legislature has been aggressive since 2012 in preempting the priorities of urban centers within the state. North Carolina’s cities derive their powers from statute rather than from the state constitution and are thus particularly susceptible to being overridden by the state legislature.[167]

In one of the most nationally prominent instances of preemption in recent years, the legislature in 2016 preempted Charlotte’s ordinance that sought to extend the antidiscrimination protections of local law to gay, lesbian, and transgender persons.[168] The state law, popularly known as House Bill 2 (“HB2”) or “the bathroom bill,” because its supporters argued that it would keep men out of women’s bathrooms,[169] spurred a national backlash leading numerous companies, sports organizations, and high-profile entertainers to boycott the state.[170] In addition to preempting local antidiscrimination laws, HB2 preempted the ability of local governments to enact higher minimum wage ordinances, regulate leave or benefits, or require that city contractors hire local employees.[171] The national outcry over HB2 ultimately forced the legislature to pass a partial repeal.[172] The repeal, however, prohibited any political subdivision from regulating private employment practices or public accommodations until 2020.[173]

Moreover, to ensure that they maintained their grip on power, the Republican legislative majority stripped powers from the governor’s office after the Democratic candidate, Roy Cooper, won the November 2016 election.[174] In 2018, the Republican majority in the legislature referred constitutional changes to the voters that would have further reduced the governor’s powers,[175] but voters rejected these proposals statewide.[176]

4. Ohio

Ohio is a politically competitive state, commonly understood as the nation’s most reliable bellwether in presidential elections.[177] While 2016 had a relative wide margin for the winning candidate, Donald Trump—51.69% to 43.56%—the average margin of victory over the course of the four prior presidential races is 3.29%.[178] Since 1992, moreover, Democratic presidential candidates have won the state four times, while Republican candidates have won the state three times.[179] Other statewide races likewise reflect Ohio’s moderation. Republican John Kasich won the governorship by only 2% in 2010,[180] his Republican successor Mike DeWine won by less than 4% in 2018,[181] and the state’s two U.S. Senate seats are split between a Democrat and Republican.[182]

Despite this clear evidence of balanced partisan competitiveness in statewide elections, the Republican Party has dominated the Ohio General Assembly for decades. The state senate has been controlled by Republicans in an unbroken streak since 1992, with increasing margins that are currently peaking at twenty-four Republicans to nine Democrats.[183] In the state house, since 1994 the Democratic Party has only had a majority in one session—2008 to 2010—and the current partisan divide is a 61-38 Republican majority, down from a 66-32 majority from before the 2018 elections.[184]

The Jackman Report showed that Ohio’s state house was among the top ten states in pro-Republican EG in both the 2012 and 2014 elections.[185] Similarly, the AP’s study of the 2016 state house elections ranked Ohio’s EG among the top ten nationally, and the eighth highest among those that favor Republicans, resulting in an excess of over five state house seats for Republicans.[186] In 2018, Republicans won 52% of the cumulative vote for the state house, but 63% of the seats; they won just 48% of the statewide vote for the seventeen senate contests on the ballot, but won 65% of the seats.[187]

The evidence strongly suggests that intentional political gerrymandering has played a significant role in supporting the continuing Republican majority in the Ohio General Assembly. This majority, which as in many similar states has disproportionately represented exurban and rural areas in the state,[188] has aggressively contravened the policy preferences of the state’s voters living in the state’s larger cities.

With respect to local government in particular, the state legislature has targeted important subject matters for sweeping preemption. In 2002, the General Assembly preempted home-rule authority for cities to respond to serious local problems involving predatory lending.[189] In 2006, the General Assembly preempted local authority over residency for city employees[190] and removed longstanding home-rule authority to regulate gun safety.[191] The General Assembly has likewise preempted the ability of cities to enact local-hire laws.[192] The General Assembly has also limited the ability of cities to use red-light and speed cameras.[193]

In sum, residents of a quintessentially “purple” state like Ohio who prefer their local governments to enact policies that match their “small-d” democratic preferences find themselves repeatedly blocked by an entrenched political alignment in the state legislature that may well have been attributable to intentional political gerrymandering.

5. Wisconsin

The district court in Whitford v. Gill examined Wisconsin’s record of gerrymandering after 2010 in detail.[194] After concluding that the legislature’s 2011 redistricting law, Act 43, was infused with clear partisan intent,[195] the court analyzed the effectiveness of the effort to ensure Republican dominance of the legislature through districting:

In 2012, the Democrats garnered 51.4% of the [cumulative state assembly] vote, but secured only 39 seats in the Assembly—or 39.3% of the seats. In 2014, the Democrats garnered 48% of the vote and won only 36 seats—or 36.4% of the seats.[196]

The district court in Gill noted that as calculated by a plaintiff’s expert, the pro-Republican EGs for 2012 and 2014 were 13% and 10%, respectively.[197] Stated differently,

[T]he Republican Party in 2012 won about 13 Assembly seats in excess of what a party would be expected to win with 49% of the statewide vote [under a more neutral districting plan], and in 2014 it won about 10 more Assembly seats than would be expected with 52% of the vote.[198]

Later elections provide further evidence of Act 43’s effectiveness at ensuring a Republican seat majority regardless of popular sentiment. The EG for the 2016 assembly races was just under 10%, the third highest in the nation that year, which likely translated into nine or ten excess Republican seats in the Wisconsin House.[199] The EG for 2018 was a whopping 15%; as a result, despite Democrats receiving 54% of the total votes cast for Assembly candidates in 2018, Republicans maintained a 63-99 majority.[200] This occurred in a year in which Democratic candidates won all four statewide offices on the ballot.[201] A minority, therefore, has successfully entrenched itself in the legislature in Wisconsin. Because this legislative minority draws disproportionate strength from smaller towns and rural areas, it has used its power to target policies preferred by the residents of the state’s large, Democratic-leaning cities like Milwaukee and Madison.[202]

Since 2012, the state legislature has attempted to erode local policymaking authority through aggressive preemption. A list of subject matters preempted by the state legislature since 2012 include:

* nutrition and food policy;[203]

* issuance of photo identification cards by local governments, particularly to prohibit their use in voting;[204] and

* municipal employee residency requirements.[205]

To be sure, other key preemptive laws in Wisconsin were passed before the apparent gerrymandering took effect, such as a state law in 2005 preempting local minimum wages,[206] and a 2011 law preempting local paid sick leave ordinances.[207] The inability to reverse these laws, however, may also be partly attributable to gerrymandering.[208]

C. Wrap-up

The five states discussed above are not the only ones whose state legislatures have demonstrated indicia of intentional political gerrymandering in recent years. They are simply those with the clearest and most egregious records in that regard. Other states with notable pro-Republican gerrymandering within the last decade include Indiana, Virginia, and New York.[209] In Indiana, Republicans controlled the legislative districting process completely after 2010.[210] In Virginia, the districting processes were more bipartisan, but still led to pro-Republican results until 2019,[211] when Democrats flipped both houses of the state legislature under redrawn districts that neutralized the prior Republican advantage.[212] In New York, there was a tradition of each house deferring to the others’ drawing of its own districts, thus allowing the Republicans to gerrymander the senate and control it until 2018.[213] States with indicia of pro-Democratic gerrymandering after 2010 include Colorado, Maryland, Nevada, and Rhode Island.[214] Of these four, Rhode Island’s record is the most glaring.[215]

If gerrymandering leads to preemption, as this Part has suggested, then perhaps the solution to such preemption is to focus on the districting process rather than on strengthening home-rule protections for local governments, as some might suggest. This is a reasonable conclusion to draw from the discussion, and this Article’s goal is not to argue for a particular doctrinal solution to the problem of democratically suspect preemption.

Nonetheless, for those who are concerned with democratically suspect preemption, there are reasons why districting reform itself may not solve the problem, or may lack strength as a tool. First, while districting can create more democratically legitimate state legislatures going forward, it is difficult for future legislatures to undo all the preemption of years past. Legislation can be “sticky,” as groups with a vested interest in preemption can be expected to mobilize to block a repeal.[216] Second, with respect to litigation, while most states have some sort of home-rule provision that might protect local democracy, the textual “hook” for challenging gerrymandering in state constitutions is often less clear.[217]  In a few states, however—namely, Florida, North Carolina, and Pennsylvania—litigants have successfully challenged political gerrymandering under the states’ constitutions.[218]

Regardless of what the best solution is, the problem is pellucid: gerrymandered legislatures lead to legislation that does not accurately represent public views. Moreover, in recent decades, when intentional partisan gerrymandering favors Republicans, it exacerbates the pre-existing anti-urban bias inherent in first-past-the-post, single-member districts. While the disconnect between voter views and the views of their legislative representatives that results from intentional and unintentional gerrymandering is a significant, first-order democratic harm, the second-order harm imposed by preemption is also significant. In other words, if the majoritarian legitimacy that the Supreme Court sought to imbue in legislatures through Reynolds is lacking, the state’s claim to the awesome Hunter power—particularly when used to deprive local governments of pre-existing powers—is more democratically suspect.

III. Direct Democracy as Unfiltered Voice of the “Majority?”

A potential antidote to an unrepresentative legislature is the initiative process, or direct democracy. In states that have it—approximately twenty[219]—voters can by plebiscite correct state legislation that deprives local governments of power. As noted previously, in Michigan, voters passed a referendum to restore local control of city governments after the state instituted an aggressive emergency manager program after the Great Recession.[220] The legislature, however, reversed this decision by legislation in the next session.[221]

The possibility of direct democracy serving as an unfiltered voice of the people has been appealing since the process emerged in the late 1800s.[222] The stated hope of its early Progressive supporters was that it would allow “the people” to circumvent a legislature beholden to special interest groups.[223] On issues like medical or recreational marijuana, a higher minimum wage, and stricter gun control laws, proponents have frequently bypassed legislative gridlock to change the law by direct vote.[224]

On the other hand, one must not be too glib in describing the benefits of direct democracy. There is an entire literature devoted to its shortcomings.[225] Oregon Supreme Court Justice Hans Linde famously argued that the initiative process, when it targeted distinct minorities, such as gays and lesbians, might violate the “Guarantee Clause” of the federal Constitution.[226] In the racial context, scholars and advocates have argued that the initiative is a blunt tool of majority oppression.[227] Sensitive to these concerns, the Supreme Court in the early 1980s articulated in the direct democracy context a “political process doctrine” of the Fourteenth Amendment’s Equal Protection Clause, whereby state decisions that systematically weaken the power of racial minorities may be invalidated.[228] Moreover, in the fiscal realm, critics have blamed direct democracy for hamstringing the functioning of state and local governments after voters in several states adopted constitutional supermajority requirements for, and other restrictions on, revenue-raising.[229]

Nonetheless, direct democracy at least appears to be the voice of the people and, unlike a gerrymandered state legislature, it strictly comports with the principle of one-person, one-vote. It is useful, therefore, to assess preemption and other attacks on local authority that may result from the initiative process through the lens of some of the primary critiques of direct democracy. In addition to those mentioned above, other critiques of direct democracy include:

*  It does not lead to outcomes more closely aligned with public sentiment.

*  It leaves questions to citizens who are not able to make good decisions.

*  It amplifies the power of interest groups.

*  It is, ironically, less democratic than representative government.

This Part will elaborate on these major critiques of direct democracy. It will then analyze these critiques as they apply to some specific instances of direct democratic preemption, or resistance to preemption, of recent note. These include minimum wage, voting to protect local democracy in Michigan, and the sanctuary state policy in Oregon. Without offering any firm conclusions, this Part suggests that direct democracy complicates the preemption analysis. Depending on which critiques of direct democracy are of most concern, preemption via plebiscite may be more or less troublesome than its legislative counterpart.

A. Oppression of Minorities

Because it relies on a raw majority vote, direct democracy has long been criticized for being a means for the majority to run roughshod over minorities, whether racial, ethnic, sexual, or other. Indeed, various initiatives have been seen as examples of this type, leading to high-profile litigation before the United States Supreme Court. Prominent examples include Washington’s Initiative 350, passed in 1978 to invalidate Seattle’s school busing plan, and overturned by the Court in Washington v. Seattle School District No. 1, in 1982,[230] and Colorado’s Amendment 2, which invalidated three cities’ ordinances that established sexual orientation as a basis for illegal discrimination.[231] The Court rejected Amendment 2 in Romer v. Evans.[232]

Most of the academic commentary has classified Seattle School District No. 1 and Romer as civil rights cases, but as Judge David Barron noted, they are also cases about protecting local democracy.[233] Interestingly, Seattle School District No. 1 and Romer are not about protecting local “minority-majority” populations.[234] Rather, they are about protecting localities with visions regarding integration and the treatment of minorities that differed from those of voters statewide.

In Seattle School District No. 1, a school board representing a majority-white community[235] adopted a “voluntary” school integration plan.[236] Through Initiative 350, Washington’s voters, also majority white, preempted this local prerogative.[237] The Supreme Court invalidated the initiative under the Equal Protection Clause of the Fourteenth Amendment. In striking down the initiative, the Court noted that the initiative “remove[d] the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests.”[238] Had the Seattle School Board repealed the busing policy itself, that may have been perfectly constitutional.[239] The constitutional problem with Initiative 350, according to the Court, was that it “lodg[ed] decisionmaking authority over the question at a new and remote level of government.”[240]

In Romer, three Colorado cities—Aspen, Boulder, and Denver—adopted antidiscrimination ordinances that included sexual orientation as a protected class.[241] By constitutional initiative, the state’s voters overruled these cities’ ordinances.[242] While Aspen, Boulder, and Denver may have had higher gay populations than the rest of Colorado, they were nonetheless presumably majority-heterosexual cities, just like the state as a whole. As is often the dynamic, voters in politically liberal big cities or college or resort towns took a more progressive view toward homosexuality than voters statewide.[243] The Supreme Court invalidated Colorado’s Amendment 2, again under the Equal Protection Clause. The Court applied something akin to rational basis review, holding that Amendment 2 was motivated by “a bare . . . desire to harm a politically unpopular group” and that this desire could not “constitute a legitimate governmental interest.”[244]

Although formally an Equal Protection case, Judge Barron argues that Romer also stands for the proposition that “localism” can advance “positive constitutionalism” when “diverse communities . . . unite to promote constitutional values that their states have ignored.”[245] Romer may also demonstrate the Court’s discomfort with the initiative process as the means of displacing a locality’s ability to promote equality. In this sense, Romer brings to mind Justice Linde’s argument as to why the initiative process is potentially antirepublican.[246]

The Court’s rationale in Seattle School District No. 1 has become known as the “political process doctrine”—i.e., state actions that restructure the political process to the detriment of minority voters are suspect under the Fourteenth Amendment’s Equal Protection Clause. Although the Court would later cast doubt on this doctrine in Schuette v. BAMN, it remains a theoretically viable doctrine.[247] It should be noted that the Court has only invoked the doctrine in the racial context; Romer, although concerned with (sexual-orientation) minorities, did not explicitly rely on the “political process” doctrine. Hence, preemption by initiative may trigger federal constitutional concerns, particularly when it strips local governments of power to act in areas where they may promote a vision of “positive constitutionalism,” as Barron notes.[248]

Other instances of preemption arguably bolster minority rights. For instance, in several “sanctuary” states, state law prohibits state and local government officials from cooperating with federal authorities to remove persons lacking lawful immigration status.[249] Oregon is such a state, with the legislature having passed a sanctuary statute in 1987.[250] In 2018, opponents of the policy put an initiative on the ballot to repeal the state law.[251] Civil rights, Hispanic advocacy, and most progressive groups ardently opposed the initiative.[252] The initiative would have restored local control over immigration, but in a way that could be seen as limiting civil rights as well as curbing “positive constitutionalism,” broadly defined.[253]

Insofar as one might view the sanctuary state repeal as anti-Latinx, Oregon’s experience demonstrates that preemption by initiative need not always harm minorities. Indeed, an overwhelmingly white state, by a vote of 63% to 37%,[254] supported a policy that likely had no direct effect on the vast majority of residents, who are either citizens or white, and therefore unlikely to experience the racial profiling that some thought might result from a repeal.[255] A breakdown of support for the measure demonstrates that it was largely the urban, more densely populated, and, in some cases, more ethnically diverse counties that opposed a repeal.[256] The more rural counties, some of which were less Hispanic than the rest of the state, but some of which were more so, generally supported the repeal.[257]

From these examples, therefore, one can observe that preemption by initiative has a mixed track record from the perspective of minority oppression. It has been used to limit local expansion of civil rights, but recently it has also been used to retain statewide protections for vulnerable groups, as in Oregon.

B. Unrepresentative of Desired Public Opinion

A second critique of the initiative is at first blush ironic: it is less democratic than representative lawmaking. While a direct up-or-down vote might seem like the best possible gauge of the public’s views, some commentators have argued that the situation is not as simple as it seems. This critique can be roughly divided into two subcamps. First, some scholars—notably, Sherman Clark—have argued that the crude, binary nature of the initiative process deprives voters of the ability to express their priorities among issues.[258] People feel as if they have significant input, but in fact the inability to express preferences among issues limits people’s effective use of political power.[259] Relatedly, Ethan Lieb has documented how direct democracy’s reliance on “naked” preferences “is potentially troublesome because it makes little effort to educate citizens on the issues upon which they are voting and gives them no well-suited forum to deliberate about those issues.”[260]

To be sure, in states that have the initiative process, votes thereunder do not take place in a vacuum. Civic organizations and others often host forums for advocates and opponents to debate proposed initiatives. Newspapers publish columns and letters to the editor on the subjects. Moreover, some states mandate more deliberation before initiatives go on the ballot, such as by requiring a citizen commission to review proposed ballot measures.[261] But for Clark and Lieb, these opportunities pale in comparison to the normal give-and-take over a legislative proposal.[262] Hence, even when voters vote for something they think they support, they may end up dissatisfied with the result because their preferences were formed through a defective process.

A related critique of direct democracy focuses on the demographics of voters who participate in direct democracy. David Magleby has demonstrated that lower-income and less-educated voters, while already less likely to vote overall, are more likely to skip voting on ballot questions.[263] Even on issues of direct relevance, Magleby notes that low-income voters report leaving their ballot blank because the measure in question is “too long and hard to understand.”[264] Hence, direct democracy may exacerbate an already-existing bias in our political system toward representing the views of wealthier and more highly educated voters.[265]

The net result of these critiques is that while the outcome of a ballot initiative may reflect voter preferences in some barebones form, this is not the sort of preference our political system should privilege. In other words, because the process is flawed, it is possible that voter initiatives will produce outcomes that are out of step either with naked public opinion (due to demographic skew of voters) or with the more informed, deliberate public opinion preferred on normative grounds.

With respect to preemption, these critiques of direct democracy are most applicable in the context of a successful initiative that imposes preemption, rather than one that rejects preemption. A particularly good example of such an initiative would be California’s famous, or notorious, Proposition 13 (“Prop 13”).[266] Adopted in 1978, this constitutional amendment made it much more difficult for the state as a whole to raise taxes.[267] It also significantly capped the ability of local governments to raise taxes.[268] Prop 13, therefore, amounted to an extremely strong dose of fiscal preemption, severely limiting the ability of cities and counties to decide for themselves what level of taxation and services they would prefer.[269]

Prop 13 and other examples like it might be seen as paradigmatic examples of what the Clark critique illustrates. Everyone wants lower taxes if at no cost, but many do not want to make the tradeoff for lower services. When phrased as an up-or-down ballot initiative, however, voters are not asked to weigh the potential service cuts when voting. Hence, because there is no give-and-take with other governmental priorities, the tax cut wins out and services are cut later as an unforeseen consequence. Indeed, surveys after Prop 13’s passage indicated that voters inaccurately thought they could “benefit from its cut in property taxes without a significant reduction in the level of government services.”[270]

If these unintended consequences happened just at the state level, that would be problematic enough, but measures like Prop 13 also preempt local control. The preemptive aspect of the initiative, however, may not be front-and-center to the voting public. Rather, the public is more likely to perceive that the initiative is about taxes generally, not realizing that local control is also very much on the ballot. Of course, opponents of Prop 13—and other measures like it—were free to make the argument that the initiative would preempt local control. Amidst the cacophony of voices arguing in favor or against the initiative, however, the distinct angle of local control may attract little attention. Indeed, the campaign against Prop 13 focused on a reduction in government services generally without emphasizing the local angle.[271] One technique that might help would be a prominently placed special statement in the voters’ pamphlet statement—or perhaps even on the ballot—describing the initiative’s expected impact on local authority. To varying degrees, some states have used a similar technique with respect to the fiscal impact of ballot measures.[272]

Just as preemption may be underestimated by voters when passing an initiative imposing a new statewide policy, voters may also not fully consider the implications for local authority of repealing a state law. Oregon’s recent experience with Measure 105, as discussed above, is illustrative.[273] The text of the ballot measure and arguments in support were clear that it would repeal a statewide preemptive law.[274] If that had happened, it is likely that the jurisdictions representing a substantial percentage—or perhaps a solid majority—of the state’s population would have continued to prohibit their law enforcement officials from enforcing federal immigration law. Indeed, Multnomah County, with over 800,000 people and almost twenty percent of the state’s population in 2016, passed a sanctuary resolution that endorsed the county sheriff’s continued compliance with Oregon’s sanctuary law.[275] Although not self-executing if the state statute had been repealed, the resolution indicated the county’s commitment to protecting immigrants from federal enforcement. Other populous counties, like Clackamas, stopped short of adopting sanctuary policies knowing that they were unnecessary given the state law on the books; Clackamas, however, passed a different resolution that signaled its openness to protecting immigrants regardless of legal status.[276] The message opposing Measure 105, of course, did not stress the probability that repeal of the state statute might still effectively leave much protection in place for undocumented immigrants. Rather, the successful opposition to measure 105 focused on the either-or proposition of enforcing federal immigration law in Oregon or not.[277]

For those concerned with local control qua local control, the resounding defeat of Measure 105 was a significant loss. Repealing the sanctuary law would have forced elected community leaders at the local level to decide for themselves whether to enforce federal immigration law. To be sure, many of these officials took public stands on the statewide measure, so the process of debating Measure 105 helped reveal their preferences on the larger issue of immigration.[278]

On the other hand, for those who generally value local control yet voted against Measure 105, a clearer explanation of the preemptive effects of retaining the current “sanctuary law” may not have made a difference. All advocates of local control prefer some statewide “floors” below which local authority may not dip. Such floors include basic statewide health and safety standards, minimum wages, and antidiscrimination laws. The opponents of Measure 105, therefore, may have viewed freedom from state and local immigration enforcement as the kind of vital civil right that ought to be provided at a “floor” level throughout the state, regardless of the effect on local choice.[279]

C. Amplification of the Power of Interest Groups and the Wealthy

A third oft-cited critique of direct democracy is that it amplifies the power of interest groups, particularly through their expenditure of money to get initiatives on the ballot and/or to promote them or defeat them.[280] Interest groups, of course, are powerful at all levels of government and in all spheres, from city councils to administrative agencies to Congress. They derive their power in large part from their roles in the interrelated processes of endorsing and funding candidates in elections, motivating voters, and then lobbying candidates once in office to pass their preferred legislation or to oppose their disfavored legislation. With respect to ballot initiatives, those two activities are compressed into a single election that determines the state’s policy position on an issue. The relationships that are so important to lobbying are much less relevant in the context of direct democracy since those in favor or against are speaking directly to the voters rather than attempting to woo a relatively small group of legislators.[281]

Hence, for those promoting an initiative (assuming it was not referred by the legislature), there are the “up-front costs” of getting an initiative on the ballot, which would require more traditional legislative lobbying. These costs potentially include hiring attorneys to draft the proposed language, gathering the requisite number of signatures, and then again hiring attorneys to litigate the final ballot language if the state authorities—department of justice, secretary of state, or the courts—issue a ballot title that proponents find unfavorable, or perhaps even refuse to certify the ballot measure at all.[282] Beyond the up-front costs, there are the potentially huge sums of money to advocate for an initiative’s passage or defeat. The most expensive campaigns include significant television advertising campaigns and cost in the tens of millions.[283] In addition, an effective “ground game” to get out the vote requires significant expenditures.

David Damore and Stephen Nicholson note that the ballot initiatives most likely to mobilize voters are those that “tap into deep divisions in contemporary American politics, such as social issues and tax increases.”[284] More technical or esoteric statutory or constitutional “fixes” referred by the legislature are less likely to excite the general public and inspire a well-funded campaign. For the issues that do arouse voters and attract interest-group spending, it is widely accepted that it is more difficult to buy a “yes” on an initiative from voters than it is to buy a “no.”[285] Elisabeth Gerber has demonstrated that well-funded interest groups, in particular, are adept at blocking ballot initiatives, but less successful in pushing initiatives that they promote.[286] Hence, to the extent that we are concerned with interest group strength, it will be more pronounced when there is an imbalance, with more well-funded interest groups lined up on the “no” side of an initiative. As demonstrated in the table below, with respect to preemption this dynamic will be particularly acute when an initiative seeks to restore local power that was previously preempted, whether by initiative or ordinary legislation.

 

Ballot Measure Campaign In Favor Against
Preempt More Difficult Easier
Restore Local Control Most Difficult Easiest

 

The recent effort in California to repeal the statewide preemption of rent control is a case in point. The state legislature put significant restrictions on cities’ authority to enact rent control in 1995 through the Costa-Hawkins Rental Housing Act.[287] The 2018 voter-initiated Proposition 10 (“Prop 10”) sought to repeal the prior preemption.[288] The opposition to Prop 10 received much stronger financial support, particularly from the real estate industry, outraising the proponents by a margin of three-to-one and spending $76 million.[289] A well-funded interest group, therefore, was well-positioned to buy a “no” with respect to Prop 10, which the voters defeated by an almost 60% to 40% margin.[290]

One reason to suspect that money plays a greater role in the initiative process than it does in the legislative process is that there are fewer limitations on contributions than there are with respect to legislative or executive candidates. Hence, while in many states a political action committee or wealthy individual might be limited to a few thousand dollars per candidate, in the same states there may be no limit on contributions to a ballot initiative campaign.[291]

To the extent that this critique is concerned with money’s influence on the plebiscite, it is worth distinguishing among interest groups and wealthy individuals promoting their own views. The phrase “interest groups” describes, at a general level, a “voluntary association[] independent of the political system that attempts to influence the government.”[292] Interest groups include groups from the for-profit sector, like the Chemical Manufacturer’s Association or the Mortgage Bankers Association.[293] They also include nonprofit or governmental entities like the National Association of Counties or the National Association of Independent Colleges and Universities, as well as labor unions.[294] They also include ideologically motivated groups, sometimes referred to as “advocacy groups,” such as NARAL Pro-Choice America or the National Rifle Association, that promote a consistent position on a particular issue or set of issues.[295]

Wealthy individuals unaffiliated with any particular interest group may contribute to campaigns and organizations because of their own personal views on important issues. Their power may be relatively magnified in the initiative context because money is less regulated, and the organizational strength that interest groups have may be comparatively more valuable in processes—such as contribution-limited elections and lobbying—in which manpower and voter communication matter more. Of course, wealthy individuals may also form or fund more traditional advocacy organizations when they find a cause of particular concern.

With respect to preemption by initiative, with the exception of organizations of cities, counties, or special districts, there are not currently any interest groups that care about local power per se. Hence, almost any interest group can be expected to support legislation that preempts local control if it furthers their substantive agenda. It is always possible that a “white knight” billionaire might care particularly about local control, but to date no such savior of local democracy has emerged.

Where an initiative promotes an interest group’s agenda at the expense of local control, therefore, we should be particularly skeptical of the extent to which it accurately represents voters’ views when the proponents are especially well-funded. The recent attempts in Washington and Oregon to ban soda taxes are a case in point. The motivation for the proposals was primarily to blunt the adoption of soda taxes at the local level as a small but increasing number of cities have begun adopting them.[296] The City of Seattle adopted a soda tax in 2017.[297] In Oregon, no jurisdiction had yet adopted a soda tax, but it was being considered in Multnomah County, the state’s most populous county and home to its largest city, Portland.[298]

The Washington measure was a statutory initiative (Washington has no constitutional initiative)[299] and it exempted any pre-existing soda taxes, which had the effect of preserving Seattle’s tax.[300] The measure passed by a margin of 56% to 44%, with proponents of the measure—largely the soda industry—outspending opponents by a factor of 178 to 1![301] With Coca-Cola alone contributing over $10 million, the pro-soda forces raised and spent over $20 million.[302] A handful of public-interest oriented groups barely mustered over $100,000 in opposition.[303] Hence, while it may be more difficult to buy a yes than a no, such a disadvantage may be overcome with lopsided financing.

Oregon’s Measure 103, in contrast to Washington’s, was a constitutional initiative.[304] It failed 57% to 43%.[305] Proponents spent about $8 million while opponents spent about $11 million.[306] Hence, in Oregon, the financial backing for each side was much more balanced than in Washington, and even favored the opposition, which may well have affected the outcome.[307] Coca-Cola and Pepsico did not spend anywhere near the amount of money in Oregon that they spent in Washington. This disparity may have been due to a handful of factors. First, the existence of at least one soda tax in Washington, as opposed to none yet in Oregon, may have heightened the urgency supporters of a Washington ban felt for their cause. Second, Oregon’s Measure 103 supporters may have misfired by seeking a constitutional, as opposed to statutory, change, which made it easier for opponents to paint the measure as a straitjacket.[308] Third, a variety of progressive groups organized around opposing Measure 103, whereas in Washington the “no” coalition was much weaker.[309] Finally, once polling started indicating that Washington’s measure had a better chance of passage, it likely attracted comparatively more money as election day approached.

For those concerned with local democracy, in particular, the anti-Measure 103 message in Oregon seemed to resonate. Local editorials picked up on the theme.[310] The mass-produced signs by progressive groups labeled it as “anti-democracy.”[311] If supported by enough money and organizational clout and connected to other important messages, then, a message partly rooted in protecting local democracy may help defeat initiatives that erode it.[312] Campaigns opposing threats to local control will likely stand a better chance than those measures that seek to restore local control, particularly when the latter, as in the case of California’s Prop 10, are up against a well-funded opposition.

In conclusion, the initiative process is a mixed bag with respect to local democracy. It has frequently subverted local democracy, and in ways that have undermined minority rights, but it has also been used to protect minority rights throughout the state. Moreover, anecdotal examples from Michigan and Oregon demonstrate that the issue of local control can resonate with voters in initiative campaigns, particularly if supported by an energetic campaign and linked to other important substantive political messages.

IV. Other Criteria: Horse Trading and Punitive Preemption

Finally, other criteria that are potentially relevant to judging the normative merits of the process leading to preemption are the presence of “horse trading” as well as whether the final preemptive product contains a punitive element.

A. Horse Trading

With respect to horse trading, the interest groups pushing for policy change at the local level may be willing to sacrifice local autonomy in a particular sphere in exchange for a state standard that is higher than the pre-existing floor but lower than what they were capable of achieving from the most-friendly city council. Consider the trajectory of earned sick leave in Oregon. Proponents were successful in persuading the Portland and Eugene city councils to adopt a paid sick leave policy when the state had none.[313] This success placed the issue on the state legislative agenda, as business groups understandably became concerned about a patchwork of local approaches and were willing to compromise on a statewide uniform measure.[314] Ultimately, the state legislature adopted a statewide standard for paid sick leave that was not as generous as Portland’s and that preempted cities around the state from implementing their own Portland-like measures.[315] Nonetheless, by adopting at least some paid sick leave policy statewide, the measure was widely supported by the progressive groups that initially promoted the policy at the local level.

As the Oregon paid-sick-leave example—and many others like it—show, when preemption results from a legislative bargain, it may represent the voluntary relinquishment of local power by interest groups and their local elected allies in order to advance a policy statewide. As such, democratic legitimacy concerns about preemption in such instances are less acute, particularly when the interest groups relinquishing control and their city allies proceed from a stance of credible bargaining power.[316]

To be sure, there were “losers” in Oregon’s sick-leave tradeoff. Several cities and counties were forced to comply with paid sick leave when they had no inclination to adopt such a policy on their own.[317] Insofar as one might have been concerned with the loss of the ability to innovate in a pro-sick-leave direction, however, the sacrifice of cities’ ability to further innovate in that regard appears to have been a well-informed bargain by proponents of the policy. Advocates must be careful about sacrificing the ability to innovate, however, given that the demands for policy change can be unpredictable.

B. Punitive Preemption

What to do about punitive preemption? The landscape of preemption has changed dramatically in the last decade.[318] The concern is no longer simply depriving a local government of a power previously exercised by it, but rather the threat of imposing penalties upon local governments and officials for pursuing policies deemed antithetical to state law. Should we be less concerned about punitive preemption if it results from a majoritarian legislature or voter-enacted initiative as opposed to a gerrymandered legislature, for instance? I would argue yes, but we should still be concerned, and perhaps very much so.

The use of state government to punish local governments or officials raises concerns distinct from the majoritarian concerns discussed above. The product of the legislature may be majoritarian, but it is undeniably ugly. These concerns, therefore, are akin to the “old-fashioned” concerns about majorities picking on minorities.[319] Here, the minorities may not necessarily be of the traditional protected classes (although in some cases they may be), but rather of a geopolitical stripe. Hence, punitive preemptive acts may raise the kinds of concerns that sound in First Amendment, Equal Protection, and state special legislation frameworks.[320]

What is potentially different is that some of the punitive preemption may not plausibly represent a majority; rather, it results from the actions of minorities that have locked themselves into power through gerrymandering. This makes punitive preemption even more concerning from a democratic perspective than it would be otherwise and should add to the concern currently growing among courts, commentators, and citizens regarding this trend.

Conclusion

While preemption is bad from the perspective of local governance, not all preemption is created equal. Some instances of preemption are more democratically legitimate than others. Assuming that one accepts the concerns articulated herein as legitimate, a variety of potential solutions—some new, some old; some radical, some minor—to democratically suspect preemption are available. If a gerrymandered state legislature is the predominant concern, this can be tackled directly through districting reform. Indeed, there is significant momentum in that direction of late, with many states’ voters adopting districting reform by ballot.[321] In many other states, however, the chances for districting reform will be slim where an entrenched minority (or majority) controls the legislature and there is no direct democracy available to circumvent it. With the Supreme Court having ruled the question of political gerrymandering nonjusticiable, state constitutional attacks will be the only path available for litigation in these states.[322] When some of these attempts inevitably fail, calling a state constitutional convention would seem to be the only other, if unlikely, path out of the morass.

As noted previously, districting reform by itself will not be a panacea, whether because demographic trends make “unintentional gerrymandering” a powerful force or because old preemption lives on from before such reforms were adopted. In these instances, advocates for local control would likely do better by appealing to traditional “home-rule” arguments regarding local control, where available. With respect to preemption imposed by initiative, potential solutions include many of those previously proposed to the initiative process, such as eliminating it entirely, tempering it through campaign donation limits (currently not permitted by Supreme Court doctrine),[323] limiting the subject matters to which it applies,[324] and improving voter education. With respect to the latter, a special emphasis on educating voters about the effects of an initiative on local power would be useful. With respect to repealing pre-existing preemption, however, the benefits of such a move are likely to be limited, particularly when opponents—already in a better position on the “no” side—have the financial advantage.

In sum, the Hunter power that the Supreme Court has recognized that states possess over their localities is an awesome one, tempered only by self-imposed state constitutional restraints and some key constitutional norms like Equal Protection under the Fourteenth Amendment. To be worthy of exercising this power, state governments must represent the majority of the state’s voters in a credible way. While Reynolds was a key step toward ensuring this, it has proved woefully insufficient. Further reform is necessary. In the absence of such reform, many states will continue to run roughshod over their cities and counties in a way that harms local democracy and undermines the promise of home rule to ameliorate shortcomings in democracy at the state and federal levels.[325]


*   Professor of Law, Willamette University College of Law, Salem, Oregon. J.D., University of Michigan. B.S., B.A.S., University of Pennsylvania. The author thanks Jessica Bulman-Pozen, Nestor Davidson, Christopher Elmendorf, Richard Schragger, Ken Stahl, and many others for insightful comments on earlier drafts. The author also thanks Mary Rumsey, Research Librarian at Willamette, and Mick Harris, law student, for outstanding research assistance.

        [1].    Erin Adele Scharff, Hyper Preemption: A Re-ordering of the State-Local Relationship?, 106 Geo. L.J. 1469 (2018). Another commentator has called this phenomenon “super preemption,” Bradley Pough, Understanding the Rise of Super Preemption in State Legislatures, 34 J.L. & Pol. 67 (2018), while Professor Richard Briffault calls it the “new preemption.” Richard Briffault, The Challenge of the New Preemption, 70 Stan. L. Rev. 1995 (2018). For more on the phenomenon, irrespective of nomenclature, see Richard Briffault et al., Am. Const. Soc’y, The Troubling Turn in State Preemption: The Assault on Progressive Cities and How Cities Can Respond (2017) [hereinafter ACS Issue Brief],  https://www.acslaw.org/wp-content/uploads/2017/09/ACS_Issue_Brief_-_Preemption_0.pdf [https://perma.cc/LCA2-PY3V]; Richard C. Schragger, The Attack on American Cities, 96 Tex. L. Rev. 1163 (2018).

        [2].    See ACS Issue Brief, supra note 1, at 2.

        [3].    See Ariana R. Levinson et al., Federal Preemption of Local Right-to-Work Ordinances, 54 Harv. J. on Legis. 457, 459–60, 491 (2017) (discussing advocacy by “conservative interest groups” for local right-to-work ordinances).

        [4].    See, e.g., Lynn A. Baker & Daniel B. Rodriguez, Constitutional Home Rule and Judicial Scrutiny, 86 Denv. U. L. Rev. 1337, 1370–72 (2009) (endorsing judicial “attempts to police the boundaries between cities and states” as “important”).

        [5].    Justice Hans Linde’s condemnation of the state/local division as a member of the Oregon Supreme Court was particularly sharp:

Nor is it generally useful to define a “subject” of legislation and assign it to one or the other level of government. . . . A search for a predominant state or local interest in the “subject matter” of legislation can only substitute for the political process . . . the court’s own political judgment whether the state or the local policy should prevail.

City of La Grande v. Pub. Emps. Ret. Bd., 576 P.2d 1204, 1213–14 (Or.), aff’d on reh’g, 586 P.2d 765 (Or. 1978).

        [6].    Nestor M. Davidson, The Dilemma of Localism in an Era of Polarization, 128 Yale L.J. 954, 990 (2019).

        [7].    By “deregulatory preemption,” I mean the increasingly common move by state legislatures to repeal city authority over a broad subject area without enacting any statewide regulatory regime in that area. Schragger, supra note 1, at 1182 (attributing this phrase to Professor Richard Briffault).

        [8].    For guidance in that inquiry, Davidson suggests looking to the individual-rights provisions of a state’s constitution, which “can provide insight into the normative commitments of a given state.” Davidson, supra note 6, at 987.

        [9].    207 U.S. 161, 178–79 (1907).

      [10].    Id. at 178; see also Aaron Saiger, Local Government as a Choice of Agency Form, 77 Ohio St. L.J. 423 (2016).

      [11].    377 U.S. 533, 565 (1964) (“[I]n a society ostensibly grounded on representative government, it would seem reasonable that a majority of the people of a State could elect a majority of that State’s legislators.”).

      [12].    See supra note 7 and accompanying text (discussing “deregulatory preemption”).

      [13].    For more on special legislation and how state constitutions deal with that species, see Justin R. Long, State Constitutional Prohibitions on Special Laws, 60 Clev. St. L. Rev. 719 (2012), and Anthony Schutz, State Constitutional Restrictions on Special Legislation as Structural Restraints, 40 J. Legis. 39 (2014).

      [14].    Louise Weinberg, Fear and Federalism, 23 Ohio N.U. L. Rev. 1295, 1304–05 (1997) (noting that under the “compact theory” of state sovereignty, “the states preceded the Union, delegated only a portion of their preexisting powers to the Union, and reserved the rest exclusively”). The Supreme Court rejected this view in Texas v. White, in which it held that Texas could not unilaterally secede from the Union and acts undertaken by Texas in a state of rebellion were nullities. 74 U.S. (7 Wall.) 700–26 (1869).

      [15].    See Franchise Tax Bd. v. Hyatt, 139 S. Ct. 1485, 1493 (2019) (discussing sovereign status of states after Independence); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 535–36 (2012) (contrasting state governments, which need no express authorization to exercise a particular power, with the more limited powers of the federal government); Alden v. Maine, 527 U.S. 706, 713 (1999) (“States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today . . . .”).

      [16].    W.F. Dodd, The Function of a State Constitution, 30 Pol. Sci. Q. 201, 201, 205 (1915) (“[S]tate legislatures inherited the powers of the British parliament and possess such powers in full unless denied.”).

      [17].    See Edmund S. Morgan, Inventing the People 18 (1988) (“In England in the first half of the seventeenth century the doctrine of the divine right of kings . . . reached a culmination.”).

      [18].    Id. at 56 (“A new ideology, a new rationale, a new set of fictions was necessary to justify a government [in 1640s England] in which the authority of kings stood below that of the people or their representatives.”).

      [19].    Id. at 239–87.

      [20].    Donald Ratcliffe, The Right To Vote and the Rise of Democracy, 1787–1828, 33 J. Early Republic 219, 223–30 (2013) (discussing the voting qualifications of the various states after the Revolution). The rules within states were often dizzyingly complicated and subject to change. In Massachusetts, for instance, all free white males over twenty-one could vote in a 1776 election to draft the new state’s inaugural constitution. Chilton Williamson, American Suffrage: From Property to Democracy, 1760–1860, at 101 (1960). The 1780 constitution that was ultimately adopted established a sixty-pound property qualification for all state elections. Id. at 102. An act of 1782 established a separate standard for town elections: real property ownership, payment of a poll tax, or payment of a tax equal to two-thirds of a poll tax. Id. at 103–04.

      [21].    Jill Lepore, Rock, Paper, Scissors: How We Used To Vote, New Yorker (Oct. 6, 2008), https://www.newyorker.com/magazine/2008/10/13/rock-paper-scissors [https://perm a.cc/8EVN-DWVA]. But see Ratcliffe, supra note 20, at 229–30 (arguing that the percentage may have been higher). Since franchise requirements varied even within states based on the specific type of election, it is difficult to come up with a precise figure.

      [22].    Morgan, supra note 17, at 146–47.

      [23].    Id. at 145–46.

      [24].    Id. at 146.

      [25].    Robert G. Dixon, Jr., Democratic Represenation: Restatement in Law and Politics 60–61 (1968); Douglas Keith & Eric Petry, Brennan Ctr. for Justice, Apportionment of State Legislatures, 1776–1920, at 3 (2015), https://www.brennancen ter.org/our-work/research-reports/apportionment-state-legislatures-1776-1920 (“For the first three decades after 1776, a majority of state constitutions adopted apportioned legislative districts using geography as a basis . . . .”) [https://perma.cc/M275-FLY3].

      [26].    Morgan, supra note 17, at 68.

      [27].    U.S. Const. art. I, § 2, cl. 3 (“Representatives . . . shall be apportioned among the several States . . . according to their respective Numbers . . . .”).

      [28].    See Keith & Petry, supra note 25, at 3–4.

      [29].    Id. at 4.

      [30].    Id. at 1.

      [31].    Stephen Ansolabehere & Samuel Issacharoff, The Story of Baker v. Carr, in Constitutional Law Stories 247, 298–99 (Michael C. Dorf ed., 2004) (noting that rural state legislators in many states resisted reapportionment, “decade after decade defying the mandate of their state constitution”).

      [32].    Reynolds v. Sims, 377 U.S. 533, 545–46 (1964). Tennessee, whose apportionment system was challenged in Baker v. Carr, had similarly failed to reapportion after 1900. 369 U.S. 186, 192–93 (1962).

      [33].    See, e.g., Ansolabehere & Issacharoff, supra note 31, at 298 (“As urban areas grew, the malapportionment of representatives increased.”); John P. White & Norman C. Thomas, Urban and Rural Representation and State Legislative Apportionment, 17 W. Pol. Q. 724, 729–30 (1964) (measuring the widespread overrepresentation of rural populations in state legislatures in the early 1960s).

      [34].    Ward E.Y. Elliott, The Rise of Guardian Democracy 13–16 (1974) (“[U]rban political lobbies, such as the National Municipal League and the United States Council of Mayors” were the main backers of reapportionment before 1954; after 1954 they were joined by “a succession of skilled professional scholars and consultants, backed by the most prestigious foundations and institutions.”).

      [35].    369 U.S. 186, 209 (1962).

      [36].    377 U.S. 533, 568 (1964).

      [37].    Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964).

      [38].    Keith & Petry, supra note 25, at 8.

      [39].    Id. at 6 (discussing this practice in Massachusetts, New Hampshire, and North Carolina).

      [40].    Id. at 4–5.

      [41].    U.S. Const. amend. XIX.

      [42].    Pub. L. No. 89-110, 79 Stat. 437 (1965) (codified as amended at 52 U.S.C. §§ 10101, 10301, 10701). The Fifteenth Amendment to the Constitution, passed after the Civil War in 1870, attempted to prohibit the denial or abridgement of the right to vote “on account of race, color, or previous condition of servitude.” U.S. Const. amend. XV. After Reconstruction, however, states in the South—and elsewhere—routinely flouted the Amendment, which was only weakly enforced by the federal government and courts for years. See Chandler Davidson, The Voting Rights Act: A Brief History, in Controversies in Minority Voting: The Voting Rights Act in Perspective (Bernard Grofman & Chandler Davidson eds., 1992).

      [43].    Keith & Petry, supra note 25, at 6–7.

      [44].    Evenwel v. Abbott, 136 S. Ct. 1120, 1123 (2016).

      [45].    Michael Wines, How the Supreme Court’s Decision on the Census Could Alter American Politics, N.Y. Times (Apr. 23, 2019), https://www.nytimes.com/2019/04/23/us/noncitiz ens-census-political-maps.html (discussing efforts in Arizona, Missouri, Nebraska, and Texas) [https://perma.cc/SC4Q-BLL8].

      [46].    Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2576 (2019) (upholding the district court’s remanding of the citizenship-data-collection rule to the Commerce Department, in which the Census Bureau is housed, for further explanation of the agency action).

      [47].    See Exec. Order No. 13,880, § 1, 84 Fed. Reg. 33,821 (July 11, 2019) (recognizing that there was “no practical mechanism for including the [citizenship] question on the 2020 decennial census”).

      [48].    Id. at 33,821, 33,823 (“Nevertheless, we shall ensure that accurate citizenship data is compiled in connection with the census by other means. . . . [I]t may be open to States to design State and local legislative districts based on the population of voter-eligible citizens.”).

      [49].    E.g., People ex rel. Le Roy v. Hurlbut, 24 Mich. 44, 108 (1871) (Cooley, J., concurring) (“[L]ocal government is matter of absolute right; and the state cannot take it away.”); Amasa M. Eaton, The Right to Local Self-Government, 13 Harv. L. Rev. 441, 447 (1900) (arguing that because towns’ lawmaking powers chronologically preceded the colonies’ (later states’) in New England, New York, and some other states, it can’t be said that state constitutions vested all legislative power in state legislatures without reserving towns’ powers over “local affairs”).

      [50].    Hunter v. Pittsburgh, 207 U.S. 161, 178 (1907) (“The number, nature and duration of the powers conferred upon [municipal] corporations and the territory over which they shall be exercised rests in the absolute discretion of the State.”); see also Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71 (1978) (noting “the extraordinarily wide latitude that States have in creating various types of political subdivisions and conferring authority upon them”).

      [51].    The Court has recognized some limits on the breadth of the state’s power over its subentities. For instance, the Court has held that it is unconstitutional for a state legislature to redraw a city’s boundaries for racially discriminatory reasons. See Gomillion v. Lightfoot, 364 U.S. 339 (1960) (invalidating Alabama law that redrew the boundaries of Tuskegee so as to remove the vast majority of black residents from the city).

      [52].    Reynolds v. Sims, 377 U.S. 533, 575 (1964).

      [53].    Id.

      [54].    390 U.S. 474, 481 (1968).

      [55].    Id. (“[T]he States universally leave much policy and decisionmaking to their governmental subdivisions.”).

      [56].    E.g., Hadley v. Junior Coll. Dist., 397 U.S. 50, 66 (1970) (Harlan, J., dissenting) (“[T]here is a much smaller danger of abuse through malapportionment in the case of local units because there exist avenues of political redress that are not similarly available to correct malapportionment of state legislatures.”); Avery, 390 U.S. at 489 (Harlan, J., dissenting) (“Local governments are creatures of the States,  and  they  may  be  reformed . . . by the state legislatures, which are now required to be apportioned according to Reynolds . . . .”).

      [57].    Ball v. James, 451 U.S. 355, 373 (1981) (Powell, J., concurring).

      [58].    E.g., Jon Elster, Nuts and Bolts for the Social Sciences 155 (1989) (“[T]he notion of a popular will is incoherent, or . . . the popular will is itself incoherent, whichever you prefer.”).

      [59].    Baker & Rodriguez, supra note 4, at 1343, app. at 1374–1424.

      [60].    See Paul Diller, Intrastate Preemption, 87 B.U. L. Rev. 1113, 1126–27 (2007) (noting the wide berth state legislatures have to preempt in most states).

      [61].    Reynolds v. Sims, 377 U.S. 533, 565 (1964) (“Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature.”).

      [62].    Stephen Ansolabehere & James M. Snyder, Jr., The End of Inequality: One Person, One Vote and the Transformation of American Politics 199 (2008) (observing that urban, previously underrepresented Florida counties saw a marked increase in their share of state funding between 1960 and 1980). But see Roy A. Schotland, Commentary, The Limits of Being “Present at the Creation,” 80 N.C. L. Rev. 1505, 1505 (2002) (quoting California lawmaker Jesse Unruh as asserting that cities fared better before one-person, one-vote because they could “work things out with the agricultural areas,” whereas after one-person, one-vote, suburbs favoring low taxes were empowered).

      [63].    See generally Jonathan A. Rodden, Why Cities Lose (2019).

      [64].    Id. at 88 (noting that the two major political parties “went from having incoherent or indistinguishable platforms on social issues to taking clear and divergent positions on these salient issues”); see also Daniel J. Hopkins, The Increasingly United States (2018) (arguing that state and local politics have become markedly more nationalized since the 1960s).

      [65].    Rodden, supra note 63, at 7 (“For several decades, self-styled Democratic candidates were able to distance themselves from their party’s presidential candidates and win in Republican-leaning districts.”).

      [66].    Id. at 8 (“[T]he transformation of the Democrats into a truly urban party was delayed by their long-lasting coalition with rural Southern segregationists, which began to fray during the civil rights era and was only fully severed in the 1990s.”); see also Eric Schickler, Disjointed Pluralism: Institutional Innovation and Development of the U.S. Congress 163–74 (2001) (highlighting the influence of conservative Southern Democrats on Congressional decision making, particularly through the House Rules Committee).

      [67].    So named for their association with the moderate views of former New York governor and later vice president Nelson Rockefeller. See generally Richard Norton Smith, On His Own Terms: A Life of Nelson Rockefeller (2014). The decline of urban liberal Republicans began in the 1930s and continued through the 1960s. See Thomas K. Ogorzalek, The Cities on the Hill: How Urban Institutions Transform National Politics 209, 214 fig.6.4 (2018).

      [68].    See Vincent J. Cannato, The Ungovernable City: John Lindsay and His Struggle to Save New York 7–18 (2001). Lindsay’s district also included Lower East Side tenements and parts of (then-)bohemian Greenwich Village. Id. at 5–6.

      [69].    Cf. Seth J. Hill & Chris Tausanovitch, Southern Realignment, Party Sorting, and the Polarization of the American Primary Electorates, 1958–2012, 176 Pub. Choice 107, 115 (2018) (“In the 1950s, the [political ideology of the] median Democratic primary voter was indistinguishable from the median voter in the public as a whole . . . .”).

      [70].    See Jessica Bulman-Pozen, Partisan Federalism, 127 Harv. L. Rev. 1077, 1086–87 & nn.24–30 (2014) (arguing that today’s state and national parties are more partisan and ideologically cohesive than they were decades earlier and citing numerous sources to support that point).

      [71].    Keith T. Poole & Howard Rosenthal, Ideology & Congress 318 (2007) (“The collapse of the old southern Democratic Party has produced . . . two sharply distinct political parties,” reflecting a “degree of polarization in Congress . . . approaching levels not seen since the 1890s”).

      [72].    See Cliff Schecter, Extremely Motivated: The Republican Party’s March to the Right, 29 Fordham Urb. L.J. 1663 (2002). On immigration, see Don Gonyea, The GOP’s Evolution on Immigration, NPR Politics (Jan. 25, 2018), https://www.npr.org/2018/01/25/580222116/ the-gops-evolution-on-immigration [https://perma.cc/AZ5A-ZF9Q].

      [73].    See Lazaro Gamio, Urban and Rural America Are Becoming Increasingly Polarized, Wash. Post (Nov. 17, 2016), https://www.washingtonpost.com/graphics/politics/2016-elect ion/urban-rural-vote-swing/ [https://perma.cc/6YX3-CFDG].

      [74].    Jowei Chen & Jonathan Rodden, Unintentional Gerrymandering: Political Geography and Electoral Bias in Legislatures, 8 Q.J. Pol. Sci. 239, 241, 264 (2013).

      [75].    See David Daley, Ratf**ked: The True Story Behind the Secret Plan To Steal America’s Democracy (2016) (detailing intentional gerrymandering, particularly by Republicans, after 2010); Jowei Chen, The Impact of Political Geography on Wisconsin Redistricting: An Analysis of Wisconsin’s Act 43 Assembly Districting Plan, 16 Election L.J. 1, 10 (2017) (concluding that the allegedly intentionally gerrymandered Wisconsin state assembly district map “created an extremely biased Assembly plan” that favored Republicans far more than 200 other simulated maps drawn using more neutral districting criteria).

      [76].    138 S. Ct. 1916, 1923 (2018). For easy access to the litigation documents in Gill, see Gill v. Whitford, Documents, Campaign Legal Ctr., https://campaignlegal.org/cases-actio ns/gill-v-whitford [https://perma.cc/W2GU-KU3S]. The case was originally denominated Whitford v. Nichol, so plaintiffs’ expert reports are listed as “Nichol Expert Reports.”

      [77].    Gill, 138 S. Ct. at 1923–24.

      [78].    Id. at 1933–34 (concluding that the plaintiffs had “fail[ed] to demonstrate Article III standing”).

      [79].    139 S. Ct. 2484, 2506–07 (2019).

      [80].    Plaintiffs’ Opposition to Defendant’s Motion for Summary Judgment at 1, Whitford v. Nichol, 180 F. Supp. 3d 583 (W.D. Wisc. 2016) (No. 15-cv-421-bbc).

      [81].    See id. at 36–40 (discussing the “efficiency gap”); see also Eric McGhee, Measuring Partisan Bias in Single-Member District Electoral Systems, 39 Legis. Stud. Q. 55 (2014); Nicholas O. Stephanopoulos & Eric M. McGhee, Partisan Gerrymandering and the Efficiency Gap, 82 U. Chi. L. Rev. 831, 831 (2015).

      [82].    See Expert Report of Siman Jackman, Assessing the Current Wisconsin State Legislative Redistricting Plan at 19–36, Whitford, 180 F. Supp. 3d 583 (No. 15-cv-421-bbc) [hereinafter Jackman Report], https://campaignlegal.org/sites/default/files/Jackman-WHIT FORD%20V.%20NICHOL-Report_0.pdf (analyzing the efficiency gap in state legislative elections from 1972 to 2014) [https://perma.cc/GV4P-RYF5].

      [83].    See supra text accompanying notes 70–72.

      [84].    David A. Leib, Analysis Indicates Partisan Gerrymandering Has Benefited GOP, AP (June 25, 2017), https://www.apnews.com/fa6478e10cda4e9cbd75380e705bd380 [https://per ma.cc/2Q86-KY8R]; see also AP, Measuring the Effects of Gerrymandering, [hereinafter AP 2016 Chart] https://interactives.ap.org/redistricting-gap/ (chart of efficiency gap in 2016 state house races) [https://perma.cc/U95L-KPYB].

      [85].    The only (partial) exceptions are Mississippi and Vermont. Mississippi uses an “electoral” system similar to that used to elect the President, with state house districts serving the role of states in the federal system. Miss. Const. art. V, § 140. When no candidate receives both an electoral and popular majority, the house of representatives picks the governor by viva voce vote. Id. § 141. In Vermont, members of the legislature from both houses, voting jointly, select the governor by secret ballot when no candidate receives an outright majority. Vt. Const. ch. II, § 47; see also D. Gregory Sanford & Paul Gillies, And if There Be No Choice Made: A Meditation on Section 47 of the Vermont Constitution, 27 Vt. L. Rev. 783, 783 (2003).

      [86].    Cf. McNollgast, Positive Canons: The Role of Legislative Bargains in Statutory Interpretation, 80 Geo. L.J. 705, 720 (1992) (using this term to describe kill points for legislation).

      [87].    To be sure, in some instances there are governors elected with relatively small pluralities, such as when there is a third-party candidate that attracts a significant portion of the vote. See Jack Santucci, Maine Ranked-Choice Voting as a Source of Electoral-System Change, 54 Representation 297, 297–98 (2018) (discussing “widespread dissatisfaction” with Maine’s two-term governor, Paul LePage, who won 38% in his first winning race (2010) and 48% in his second winning race (2014)).

      [88].    See generally Miriam Seifter, Gubernatorial Administration, 131 Harv. L. Rev. 483 (2017).

      [89].    See Nat’l Conference of State Legislatures, Inside the Legislative Process, tbl.98-6.22, (2008 rev., 2009), https://www.ncsl.org/documents/legismgt/ILP/98Tab6Pt3.pdf (listing five states as requiring mere majorities to override vetoes of at least some bills and seven that require three-fifths majorities to override vetoes) [https://perma.cc/3R9T-HPLS].

      [90].    Cf. Keith T. Poole & Howard Rosenthal, The Polarization of American Politics, 46 J. Pol. 1061, 1064–66, 1071–72 (1984) (noting that U.S. senators from the same state but from different parties have highly dissimilar voting records, suggesting that each party represents an extreme support coalition in the state).

      [91].    See infra Sections II.B.3, II.B.5.

      [92].    See supra note 47 and accompanying text.

      [93].    Diller, supra note 60, at 1124–27 (describing the emergence of municipal home rule among the states).

      [94].    See sources cited supra note 1.

      [95].    Cf. Justin McCarthy, Americans Still More Trusting of Local than State Government, Gallup.com (Oct. 8, 2018), https://news.gallup.com/poll/243563/americans-trusting-local-state-government.aspx (explaining that 72% of U.S. adults trust their local government “a great deal” or “fair amount” while only 63% of U.S. adults “say the same about their state government”) [https://perma.cc/J58K-K4AQ].

      [96].    See, e.g., Schragger, supra note 1, at 1166–67.

      [97].    See infra Section II.B.

      [98].    There is, of course, a substantial volume of literature on the role interest groups and campaign finance play in the political process. For some of the classics on interest groups, see Mancur Olson, Jr., The Logic of Collective Action: Public Goods and the Theory of Groups (1965), and Russell Hardin, Collective Action (1982). On campaign finance, see Gene M. Grossman & Elhanan Helpman, Special Interest Politics (2001), and Lynda W. Powell, The Influence of Campaign Contributions in State Legislatures (2012).

      [99].    See Alexander Hertel-Fernandez, State Capture 238–41 (2019) (discussing ALEC’s strategy of seeking state legislative preemption of local minimum wage and paid sick-leave ordinances); Schragger, supra note 1, at 1170 (describing ALEC’s role in lobbying for preemption in state legislatures).

    [100].    Rhode Island’s Democratic-dominated legislature, for instance, preempted local minimum wage authority in 2014, 2014 R.I. Pub. Laws, ch. 145, art. 11, § 4 (codified at R.I. Gen. Laws § 28-12-25), stifling Providence’s effort to raise the minimum wage for certain workers.  Sam Adler-Bell, Why Are Rhode Island Democrats Blocking Minimum-Wage Increases?, Nation (June 11, 2014), https://www.thenation.com/article/why-are-rhode-island-democrats-blocking-minimum-wage-increases/ (noting that Providence was on the verge of passing a $15/hour minimum wage law for employees of large hotels) [https://perma.cc/ 46GG-7XUS].

    [101].    See Diller, supra note 60, at 1136 (describing public-sector unions’ push for preemption in certain areas). Public-sector unions’ political power, of course, may now be reduced after the Supreme Court’s decision limiting “fair share” or “compulsory” union dues in Janus v. AFSCME Council 31, 138 S. Ct. 2448, 2464, 2487 (2018).

    [102].    See Daley, supra note 75, at 4–6 (explaining the millions of dollars invested in 2010 campaigns by large American corporations and interest groups in the hopes of influencing the drawing of district maps afterwards).

    [103].    Whitford v. Gill, 218 F. Supp. 3d 837, 903–04 (W.D. Wis. 2016), rev’d, 138 S. Ct. 1916, 1923–24 (2018).

    [104].    Id. at 907.

    [105].    Id. at 860–61.

    [106].    Id. at 910.

    [107].    These examples closely track those that were highlighted in an amicus brief co-authored by myself that was submitted to the Supreme Court in Gill v. Whitford. Brief of International Municipal Lawyers Association et al., as Amici Curiae Supporting Appellees at 16, 20, Gill v. Whitford, 138 S. Ct. 1916 (2018) (No. 16-1161). Those examples did not include 2018 data and some additional information offered here.

    [108].    See, e.g., Bush v. Gore, 531 U.S. 98 (2000).

    [109].    See United States Presidential Election Results, David Leip’s Atlas U.S. Presidential Elections, [hereinafter Leip], http://uselectionatlas.org/ (click to presidential election results in 2000, 2004, 2008, 2012, and 2016, and hover over Florida for each)  [https://perma.cc/BF8D-GMWS].

    [110].    Id. (click to Florida gubernatorial election results for 2018, 2014, and 2010).

    [111].    Rhodes Cook, America Votes 31: Election Returns by State 2013–2014, at 81 (2015); Florida Gubernatorial and Lieutenant Gubernatorial Election, 2018,  Ballotpedia, https://ballotpedia.org/Florida_gubernatorial_and_lieutenant_gubernatorial_election,_ 2018 [https://perma.cc/N2VZ-AHHZ].

    [112].    Leip, supra note 109 (click to Florida Senate election results for 2018).

    [113].    See Florida State Legislature, Ballotpedia, https://ballotpedia.org/Florida_State_ Legislature [https://perma.cc/M9UG-KUSF].

    [114].    Florida House of Representatives Elections, 2014, Ballotpedia, https://ballotped ia.org/Florida_House_of_Representatives_elections,_2014 [https://perma.cc/RPR4-NUFS]; Florida State Senate Elections, 2014, Ballotpedia, https://ballotpedia.org/Florida_State_ Senate_elections,_2014 [https://perma.cc/X97C-LJU5].

    [115].    Martinez v. Bush, 234 F. Supp. 2d 1275, 1296 (S.D. Fla. 2002).

    [116].    Jackman Report, supra note 82, at 73 fig.36.

    [117].    AP 2016 Chart, supra note 84.

    [118].    Cf. Chen & Rodden, supra note 74, at 244 (noting that “Democrats in Florida [are] highly concentrated in downtown Miami” and several other large cities, while suburbs and rural areas “are generally Republican”). It should be noted that the Miami metropolitan area’s sizable Cuban-American population has traditionally voted Republican and, hence, many Republican state legislators have hailed from the Miami area with strong Cuban-American support. See, e.g., The Cuban Vote in Florida, NPR: Weekend Edition Sunday  (Nov. 11, 2018), https://www.npr.org/2018/11/11/666646389/the-cuban-vote-in-florida [https://perma.cc/K5HW-DNBB].

    [119].    See Cook, supra note 111, at 80.

    [120].    See Russell Berman, Florida Struggles To Pay the Tab for Rejecting Obamacare, Atlantic (May 8, 2015), https://www.theatlantic.com/politics/archive/2015/05/florida-strug gles-to-pay-the-tab-for-rejecting-obamacare/392678/ (discussing the Florida house’s resistance to Medicaid expansion despite state senate and sometimes gubernatorial support for the proposal) [https://perma.cc/5Q7Z-9QNS].

    [121].    Act of June 14, 2013, ch. 2013-200, sec. 1, 2013 Fla. Laws 2508 (codified as amended at Fla. Stat. § 218.077).

    [122].    City of Miami Beach v. Fla. Retail Fed’n, Inc., 233 So. 3d 1236, 1240 (Fla. Dist. Ct. App. 2017).

    [123].    Fla. Min. Wage Amendment, Amendment 5 (2004) (codified at Fla. Const. art. X, § 23).

    [124].    City of Miami Beach, 233 So. 3d at 1238.

    [125].    Act of March 16, 2016, ch. 2016-61, sec. 7, 2016 Fla. Laws 519, 525 (codified at Fla. Stat. § 500.90).

    [126].    Fla. Stat. § 500.90 (exempting “local ordinances or provisions thereof enacted before January 1, 2016”); Fla. Retail Fed’n, Inc. v. City of Coral Gables, No. 2016-018370-CA-01, slip op. at 6–10 (Fla. Cir. Ct. Mar. 9, 2017) (invalidating state preemption as to cities within Miami-Dade County, which enjoy constitutional home-rule immunity to special legislation), rev’d, No. 3D17-562, 2019 Fla. App. LEXIS 12501, at *2 (Fla. Dist. Ct. App. Aug. 14, 2019).

    [127].    Act of June 2, 2011, ch. 2011-109, sec. 1, 2011 Fla. Laws 1767, 1768‒70 (codified as amended at Fla. Stat. § 790.33).

    [128].    E.g., Fla. Carry, Inc. v. City of Tallahassee, 212 So. 3d 452, 455–56 (Fla. Dist. Ct. App. 2017). In a recent decision, a Florida circuit court invalidated these penalty provisions using a variety of theories, including separation of powers. City of Weston v. DeSantis, No. 2018 CA 0699 (Fla. Cir. Ct., July 26, 2019).

    [129].    S.B. 168, 2019 Leg. Sess. (Fla. 2019) (to be codified at Fla. Stat. §§ 908.101–.109).

    [130].    Julia Ingram, South Miami Sues To Block Sanctuary City Ban, Says It Will Divide Police and Residents, Miami Herald (July 16, 2019), https://www.miamiherald.com/news/ local/immigration/article232713882.html (noting that South Miami was the only municipality to sue Florida over the law) [https://perma.cc/5CLD-BJBU].

    [131].    See supra notes 103 and 104 and accompanying text.

    [132].    Florida House of Representatives Elections, 2018, Ballotpedia, https://ballotped ia.org/Florida_House_of_Representatives_elections,_2018 [https://perma.cc/U65X-JKRL].

    [133].    Florida redrew its state senate maps in 2015 after they were challenged as improperly gerrymandered under the Fair Districts Amendment to the state constitution, passed by the voters in 2010. In re Senate Joint Research on Legislative Apportionment 1176, 83 So. 3d 597, 598 (Fla. 2012). The new senate map, which was ultimately ordered by a court as a settlement to subsequent litigation, took effect before the 2016 elections. See League of Women Voters v. Detzner, 179 So. 3d 258, 260 (Fla. 2015). No one has challenged the Florida state house maps. Under the Fair Districts Amendment, district lines are only struck down if someone brings a lawsuit challenging them and can prove political intent in drawing them. See Fla. Const. art. III, § 21 (“No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent . . . .”).

    [134].    Detzner, 179 So. 3d at 260.

    [135].    Florida State Legislature, Ballotpedia, https://ballotpedia.org/Florida_State_ Leg islature [https://perma.cc/8A7K-6YWX].

    [136].    Id.

    [137].    Leip, supra note 109 (click to 2016 presidential election results and hover over Michigan).

    [138].    Lauren Gibbons, How Michigan’s Presidential Election Map Has Changed Since the 1980s, MLive.com (Oct. 27, 2016), http://www.mlive.com/news/index.ssf/2016/10/five_take aways_from_three_deca.html [https://perma.cc/NB8G-X649].

    [139].    Cook, supra note 111, at 188; David Eggert, Democrat Whitmer Wins Michigan Governor Race, Beats Schuette, AP News (Nov. 7, 2018), https://apnews.com/fd786b6f38 fa4319b6f6ccd63243b9d5 [https://perma.cc/ZFL9-G2Q6]; Michigan, States in the Senate, http://www.senate.gov/states/MI/intro.htm [https://perma.cc/U63G-8NAB].

    [140].    Michigan House of Representatives Elections, 2012, Ballotpedia, https://ballotped ia.org/Michigan_House_of_Representatives_elections,_2012 [https://perma.cc/QW6L-Y K8L].

    [141].    Michigan House of Representatives Elections, 2014, Ballotpedia, https://ballotped ia.org/Michigan_House_of_Representatives_elections,_2014 [https://perma.cc/MBB3-F 3YY].

    [142].    Jackman Report, supra note 82, at 73 fig.36.

    [143].    David A. Leib, AP Analysis Indicates Partisan Gerrymandering Has Benefited GOP, AP News (June 25, 2017), https://www.apnews.com/fa6478e10cda4e9cbd75380e705bd380 (“Last fall, voters statewide split their ballots essentially 50-50 . . . [y]et Republicans won 57 percent of the [state] House seats, claiming 63 seats to the Democrats’ 47.”) [https: //perma.cc/X2JF-UXWB].

    [144].    AP 2016 Chart, supra note 84.

    [145].    Jordan Newton, A Midterm Retrospective: The 2018 Election and Gerrymandering, Citizens Res. Council Mich. (Nov. 15, 2018), https://crcmich.org/a-midterm-retrospective-the-2018-election-and-gerrymandering/ [https://perma.cc/H8S2-11ZF].

    [146].    Id.

    [147].    Jackman Report, supra note 82, at 71–73.

    [148].    Michigan, All About Redistricting, http://redistricting.lls.edu/states-MI.php [https://perma.cc/WXN4-5924].

    [149].    Local Financial Stability and Choice Act, No. 436, 2012 Mich. Pub. Acts 1887 (codified at Mich. Comp. Laws §§ 141.1541–.1575); Local Government and School District Fiscal Accountability Act, No. 4, 2011 Mich. Pub. Acts 14 (rejected via referendum as Proposal 1 in 2012); see also In re City of Detroit, 504 B.R. 97, 121–22 (Bankr. E.D. Mich. 2013) (reviewing history of the emergency manager law used to steer Detroit into bankruptcy).

    [150].    Paul Egan, Is Emergency Manager Law to Blame for Flint Water Crisis?, Detroit Free Press (Oct. 24, 2015), http://www.freep.com/story/news/politics/2015/10/24/emergen cy-manager-law-blame-flint-water-crisis/74048854/ (last updated Oct. 25, 2015) [https:// perma.cc/T6F7-AHEH].

    [151].    Local Government Labor Regulatory Agency Act, No. 105, 2015 Mich. Pub. Acts 653 (codified at Mich. Comp. Laws §§ 123.1381–.1396); see also Emily Lawler, Gov. Rick Snyder Signs ‘Death Star’ Bill Prohibiting Local Wage, Benefits Ordinances, MLive.com (June 30, 2015), http://www.mlive.com/lansing-news/index.ssf/2015/06/gov_rick_snyder_signs_death _st.html) (last updated Jan. 20, 2019) [https://perma.cc/CX4R-XZ3T].

    [152].    Act of Dec. 28, 2016, No. 389, 2016 Mich. Pub. Acts 1779 (codified at Mich. Comp. Laws §§ 445.591–.593).

    [153].    See Washtenaw County, Mich., Carryout Bag Ordinance, https://localannarbor. files.wordpress.com/2017/01/proposed-carryout-bag-ordinance_washtenaw-county.pdf [https://perma.cc/SUF8-JF7E].

    [154].    See Emily Lawler, Ban on Local Plastic Bag Bans Now Michigan Law, Mlive.com (Dec. 19, 2016), https://www.mlive.com/news/index.ssf/2016/12/ban_on_local_plastic_bag_ bans.html (last updated Jan. 19, 2019) [https://perma.cc/RFS5-FU86].

    [155].    Chris Kardish, How North Carolina Turned So Red So Fast, Governing (July 2014), http://www.governing.com/topics/politics/gov-north-carolina-southern-progressivis m.html [https://perma.cc/S65N-EQ6N].

    [156].    Cook, supra note 111, at 267.

    [157].    Leip, supra note 109 (click to 2012 and 2016 presidential election results and hover over North Carolina).

    [158].    See H.B. 937, 2011 Gen. Assemb., Reg. Sess. (N.C. 2011); House Roll Call Vote Transcript for Roll Call #1287, North Carolina General Assembly, https://www.ncleg. gov/Legislation/Votes/RollCallVoteTranscript/2011/H/1287 [https://perma.cc/ACD4-9W7N].

    [159].    Jackman Report, supra note 82, at 73 fig.36.

    [160].    AP 2016 Chart, supra note 84.

    [161].    316 F.R.D. 117, 117 (M.D.N.C. 2016).

    [162].    North Carolina v. Covington, 138 S. Ct. 2548, 2550–54 (2018).

    [163].    North Carolina State Senate Elections, 2018, Ballotpedia, https://ballotpedia. org/North_Carolina_State_Senate_elections,_2018 [https://perma.cc/683L-D8DV].

    [164].    North Carolina House of Representatives Elections, 2018, Ballotpedia, https://ball otpedia.org/North_Carolina_House_of_Representatives_elections,_2018 [https://perma.cc/ WZU9-X7Q8].

    [165].    N.C. Const. art. II, § 22.

    [166].    Jason DeBruyn, Dems Win More Votes; Reps Win More Seats, wunc.org (Nov. 9, 2018), http://www.wunc.org/post/dems-win-more-votes-reps-win-more-seats (showing that despite winning 49% of the total statewide vote for senate compared to Democrats’ 51%, Republicans would control 55% of the seats; for the house, Republicans won 49.6% of the vote to Democrats’ 50.4%, but would control 58% of the seats) [https://perma.cc/83VX-ECW4].

    [167].    See Frayda S. Bluestein, Do North Carolina Local Governments Need Home Rule?, 84 N.C. L. Rev. 1983, 1985 (2006) (“North Carolina local government powers are established through specific statutory delegations . . . .”); see also Baker & Rodriguez, supra note 4, at 1338 & n.10 (describing North Carolina as having “no [constitutional] home rule at all”).

    [168].    Charlotte, N.C., Code of Ordinances §§ 12-56 to 12-58 (2016) (noting that it was preempted by state law and invalidated by Act of Mar. 23, 2016, S.L. 2016-3, 2016 N.C. Sess. Laws 12).

    [169].    Editorial, North Carolina’s Bigoted Bathroom Law, N.Y. Times, Mar. 25, 2016, at A24.

    [170].    See  Ryan  Bort,  A  Comprehensive  Timeline  of  Public  Figures  Boycotting  North Carolina over the HB2 ‘Bathroom Bill’, Newsweek (Sept. 14, 2016, 5:06 PM), http://www. newsweek.com/north-carolina-hb2-bathroom-bill-timeline-498052 [https://perma.cc/S5U9-QHYY].

    [171].    S.L. 2016-3, sec. 2.1, 2016 N.C. Sess. Laws at 14 (codified at N.C. Gen. Stat. § 95-25.1).

    [172].    Act of Mar. 30, 2017, S.L. 2017-4, sec. 1, 2017 N.C. Sess. Laws 81 (codified as amended at N.C. Gen. Stat. § 143-760). Unsatisfied with the partial repeal, transgender advocates continued their lawsuit over HB2. Recently, Governor Roy Cooper agreed with civil rights groups on a settlement that would allow individuals to use the bathroom consistent with their gender identity. Dan Levin, North Carolina Reaches Settlement on ‘Bathroom Bill, N.Y. Times (July 23, 2019), https://www.nytimes.com/2019/07/23/us/north-carol ina-transgender-bathrooms.html [https://perma.cc/83YM-W96E].

    [173].    S.L. 2017-4, 2017 N.C. Sess. Laws 81 (codified as amended at N.C. Gen. Stat. § 143-760).

    [174].    Kevin Robillard, North Carolina Governor Signs Laws Restricting Successor’s Power, Politico (Dec. 16, 2016, 3:41 PM), http://www.politico.com/story/2016/12/patmcrory-law-restrict-roy-cooper-power-232758 (discussing legislation that: “reduce[d] the number of positions the governor can hire and fire at will from 1,500 to 300, strip[ped] the governor’s party of the power to control the state board of elections, require[d] legislative approval of gubernatorial cabinet appointments, and move[d] the power to appoint trustees for the University of North Carolina to the legislature”) [https://perma.cc/E7HF-NR9Z].

    [175].    Wendy R. Weiser & Daniel I. Weiner, Brennan Ctr. for Justice, North Carolina Legislature’s Power Grab Disregards Basic Principles of Democracy (Aug. 14, 2018), https: //www.brennancenter.org/blog/north-carolina-legislatures-power-grab-disregards-basic-pri nciples (discussing proposed initiatives that would limit the governor’s powers over the state’s ethics and elections board and over judicial appointments) [https://perma.cc/2H49-FMJZ]. In the process of proposing these initiatives, the legislature also stripped the power of the pre-existing Constitutional Amendments Publication Commission to draft ballot title language. Id.

    [176].    North Carolina 2018 Ballot Measures, Ballotpedia, https://ballotpedia.org/North _Carolina_2018_ballot_measures (showing the defeats of the Legislative Appointments to Elections Board and Commissions and the Judicial Selection for Midterm Vacancies Amendments) [https://perma.cc/H9JC-4K2H].

    [177].    See generally Kyle Kondik, The Bellwether—Why Ohio Picks The President (2016).

    [178].    Leip, supra note 109 (click to 2000, 2004, 2008, and 2012 presidential election results and hover over Ohio for each).

    [179].    Id.

    [180].    Governor Kasich was a popular governor and was re-elected in 2014 by a margin of 63.6% to 33%. Cook, supra note 111, at 281.

    [181].    Leip, supra note 109 (click on 2018 Ohio governor’s race).

    [182].    Ohio, States in the Senate, http://www.senate.gov/states/OH/intro.htm [https: //perma.cc/8PMK-MV2S].

    [183].    Ohio State Senate, Ballotpedia, https://ballotpedia.org/Ohio_State_Senate [https: //perma.cc/S9BS-CHWJ].

    [184].    Ohio House of Representatives, Ballotpedia, https://ballotpedia.org/Ohio_House_ of_Representatives [https://perma.cc/P3WL-NL2D].

    [185].    Jackman Report, supra note 82, at 69, 71, 73 fig.36.

    [186].    AP 2016 Chart, supra note 84.

    [187].    Rich Exner, Ohio Democrats Nearly Match Republicans in Statehouse Votes, but Will Remain Deep in the Minority; What’s Ahead for Gerrymandering, cleveland.com (Nov. 30, 2018), https://www.cleveland.com/news/erry-2018/11/0f32e762411182/ohio-demo crats-outpolled-repub.html [https://perma.cc/F444-56VU].

    [188].    See David Stebenne, Re-mapping American Politics: The Redistricting Revolution Fifty Years Later, 5 Origins (Feb. 2012), http://origins.osu.edu/article/re-mapping-ameri can-politics-redistricting-revolution-fifty-years-later (discussing the geography of gerrymandering in Ohio after the 2010 census) [https://perma.cc/G72L-UATC]; see also id. (“What the Republicans tried to do is to create the maximum number of safe Republican seats in the . . . Ohio General Assembly, and a minimum number of truly competitive seats . . . [by] break[ing] up major metropolitan areas (where the Democrats are usually strongest) and combin[ing] pieces of them with exurban, small town and rural areas (where the Republicans are strongest).”).

    [189].    Act of Feb. 22, 2002, No. 386, 2002 Ohio Laws 6938 (codified at Ohio Rev. Code Ann. §§ 1.63, 1349.25–.37).

    [190].    Act of Jan. 30, 2006, No. 82, 2006 Ohio Laws 802 (codified at Ohio Rev. Code Ann. § 9.481), sustained by City of Lima v. State, 909 N.E.2d 616, 618 (Ohio 2009) (rejecting municipal home-rule challenge to state preemption of local residency ordinances).

    [191].    Act of Dec. 13, 2006, No. 347, 2006 Ohio Laws 8138 (codified at Ohio Rev. Code Ann. § 9.68).

    [192].    Act of June 1, 2016, No. 180, 2016 Ohio Laws (codified at Ohio Rev. Code Ann. § 9.75), upheld by City of Cleveland v. State, 2019-ohio-3820 (Ohio Sept. 24, 2019).

    [193].    See Act of Dec. 22, 2014, No. 342, 2014 Ohio Laws (codified at Ohio Rev. Code Ann. §§ 4511, 1901, 1907); see also City of Dayton v. State, 87 N.E.3d 176 (Ohio 2017) (holding that the provisions of the state law that sought to regulate local government use and enforcement of red-light and speed cameras violated the home-rule provision of the Ohio Constitution).

    [194].    See Whitford v. Gill, 218 F. Supp. 3d 837, 902‒10 (W.D. Wis. 2016), vacated, 138 S. Ct. 1916, 1923‒24 (2018).

    [195].    Whitford, 218 F. Supp. 3d at 846–53 (recounting history of Act 43); id. at 896 (“[T]he evidence establishes that one of the purposes of Act 43 was to secure Republican control of the Assembly under any likely future electoral scenario for the remainder of the decade, in other words to entrench the Republican Party in power.”).

    [196].    Id. at 902.

    [197].    Id. at 905 (citing Jackman Report, supra note 82).

    [198].    Id. at 906.  In the Wisconsin assembly, unlike in other states, the EG percentage almost exactly translates into the extra seats won by the party favored by the districting plan in question; this is because the assembly has 99 seats, or almost 100.

    [199].    AP 2016 Chart, supra note 84.

    [200].    David A. Lieb, Election Shows How Gerrymandering Is Difficult to Overcome, U.S. News (Nov. 17, 2018, 3:59 PM), https://www.usnews.com/news/politics/articles/2018-11-17/ midterm-elections-reveal-effects-of-gerrymandered-districts [https://perma.cc/2QPK-A5 FV].

    [201].    These offices were governor (elected in conjunction with lieutenant governor), attorney general, secretary of state, and treasurer. See Canvass Results for 2018 General Election, Wis. Elections Commission, https://elections.wi.gov/sites/electionsuat.wi.gov/files /Summary%20Results-2018%20Gen%20Election_0.pdf [https://perma.cc/BD34-3W57].

    [202].    See Craig Gilbert, The Red & the Blue: Political Polarization Through the Prism of Metropolitan Milwaukee, Marq. Law., Fall 2014, at 8, 10–11, 14 (demonstrating that the city of Milwaukee leans strongly Democratic while its surrounding suburbs lean strongly Republican); Kazimierz J. Zaniewski & James R. Simmons, Divided Wisconsin: Partisan Spatial Electoral Realignment, 13 Geography Teacher 128, 132 (2016) (noting that Democrats “domina[te] centers in Milwaukee, Madison (and its suburbs), and the state’s medium-sized cities” while Republican majorities have grown in “suburbs, exurbs, small towns, and rural areas”).

    [203].    See Act of June 30, 2013, ch. 20, sec. 1269m, 2013 Wis. Sess. Laws 85, 449 (codified at Wis. Stat. § 66.0418).

    [204].    See Act of April 25, 2016, ch. 374, 2015 Wis. Sess. Laws 1544, 1544‒45 (codified at Wis. Stat. § 66.0438).

    [205].    See ch. 20, sec. 1270, 2013 Wis. Sess. Laws at 449 (codified at Wis. Stat. § 66.0502) (constitutionality upheld in Black v. City of Milwaukee, 882 N.W.2d 333, 338 (Wis. 2016)).

    [206].    Act of June 1, 2005, ch. 12, sec. 1, 2005 Wis. Sess. Laws 23, 24 (codified at Wis. Stat. § 104.001).

    [207].    Act of May 5, 2011, ch. 16, sec. 3, 2011 Wis. Sess. Laws 76, 76–77 (codified at Wis. Stat. § 103.10).

    [208].    Cf. Whitford v. Gill, 218 F. Supp. 3d 837, 901 n.266 (W.D. Wis. 2016) (Act 43’s gerrymandering deprives Democrats of “the opportunity to pass an agenda consistent with their policy objectives”), vacated, 138 S. Ct. 1916 (2018).

    [209].    See Jackman Report, supra note 82, at 73 fig.36; see also AP 2016 chart, supra note 84 (showing that in 2016, Republicans won more seats in the Indiana state house than they would have under more neutral maps).

    [210].    Redistricting in Indiana After the 2010 Census, Ballotpedia, https://ballotpedia. org/Redistricting_in_Indiana_after_the_2010_census [https://perma.cc/3W6N-5UDZ].

    [211].    See Virginia, All About Redistricting,  http://redistricting.lls.edu/states-VA.php (noting that the state senate had a small Democratic majority in 2011 when state district lines were redrawn, while Republicans controlled the lower house and the governor’s office) [https://perma.cc/XZ3Y-VTMX]. For more on the effectiveness of Virginia’s gerrymander, even during the initial pro-Democratic “wave” of 2017, see Nicholas Stephanopoulos, Opinion, What Virginia Tells Us, and Doesn’t Tell Us, About Gerrymandering, L.A. Times (Nov. 10, 2017), https://www.latimes.com/opinion/op-ed/la-oe-stephanopoulos-gerrymander-wav es-virginia-20171110-story.html [https://perma.cc/N673-8XLV].

    [212].    Mark Joseph Stern, Virginia Democrats’ Victory Proves that Gerrymandering Matters, Slate.com (Nov. 6, 2019), https://slate.com/news-and-politics/2019/11/virginia-democ rats-victory-after-killing-racial-gerrymander.html (asserting that Democrats won more seats in 2019 than in 2017 in part because the prior districting plan was invalidated in the year between as an unconstitutional racial gerrymander) [https://perma.cc/JZ56-QRCH]; see Bethune-Hill v. Va. State Bd. of Elections, 326 F. Supp.2d 128 (E.D. Va. 2018), aff’d, 139 S. Ct. 1945 (2019).

    [213].    New York, All About Redistricting, http://redistricting.lls.edu/states-NY.php (noting that the state senate had a slight Republican majority in 2011 when state districts were redrawn, while Democrats controlled the lower house and the governor’s office) [https://perma.cc/YQ5Q-S78M]; see also Editorial, Gerrymandering Failed for GOP in State Senate Loss, Buff. News (Nov. 12, 2018), https://buffalonews.com/2018/11/12/editorial-gerr ymandered-corruption [https://perma.cc/NQF7-MLZ7]; Joshua Simmons, Partisan Gerrymandering in New York, Bencen Blog (Dec. 1, 2017), https://hawksites.newpaltz.edu/curr ents/2017/12/01/partisan-gerrymandering-in-new-york (“[T]here is an agreement between the Republican-led State Senate and the Democratic-led Assembly that each house majority does their own redistricting and signs off on the other.”) [https://perma.cc/E62P-67WB]. In 2018, “[c]hanging demographics and the state’s leftward tilt finally overcame” Republicans’ senate gerrymandering, which had been buttressed by alliances with small groups of “breakaway” Democrats, and Democrats won outright control of the chamber. Gerrymandering Failed for GOP in State Senate Loss, supra; see also Simmons, supra.

    [214].    See Jackman Report, supra note 82, at 73 fig.36; AP 2016 Chart, supra note 84.

    [215].    See Jackman Report, supra note 82, at 73 fig.36; Indeed, Rhode Island’s pro-Demo- cratic EG was 11% in 2012, the fourth highest in the country. Bill Corriher & Liz Kennedy, Distorted Districts, Distorted Laws, Ctr. for Am. Progress (Sept. 19, 2017), https://www. americanprogress.org/issues/democracy/reports/2017/09/19/439164/distorted-districts-disto orted-laws/ [https://perma.cc/T3P8-CBJ3]. In 2016, however, its pro-Democratic EG was much lower, a mere 2.25%. AP 2016 Chart, supra note 84.

    [216].    See Diller, supra note 60, at 1113, 1148 (2007) (“Legislative inertia is a strong force . . . .”)

    [217].    See Christopher S. Elmendorf, From Educational Adequacy to Representational Adequacy: A New Template for Legal Attacks on Partisan Gerrymanders, 59 Wm. & Mary L. Rev. 1601, 1623–27 (2018) (discussing the possibility of using existing state constitutional text as the basis for partisan gerrymandering claims).

    [218].    In Florida, as noted above, the courts intervened because the voters inserted a clear textual hook requiring nonpolitical districting into the state constitution in 2010.  See supra note 133. The Supreme Court of Pennsylvania and a North Carolina state trial court have recently relied on older, vaguer state constitutional provisions to invalidate partisan gerrymandering.  See League of Women Voters v. Commonwealth, 178 A.3d 737, 802–04 (Pa. 2018) (holding that politically gerrymandered Congressional districts violated the state constitution’s “Free and Equal Elections” clause, Pa. Const. art. I, § 5, the language of which dates back to 1776); Common Cause v. Lewis, No. 18CVS014001, 2019 N.C. Super LEXIS 56, *11 (N.C. Super. Ct. Sept. 3, 2019) (holding that politically drawn state legislative districts violated the state constitution’s “Equal Protection” and “Free Elections” clauses); see also James A. Gardner, Foreword: Representation Without Party: Lessons from State Constitutional Law, 37 Rutgers L.J. 881, 969–70 & n.219 (2006) (discussing the potential role that “free and equal” elections, and equal protection, and other clauses in state constitutions might play in constraining gerrymandering).

    [219].    See Initiative and Referendum States, Nat’l Conf. St. Legislatures, http://www. ncsl.org/research/elections-and-campaigns/chart-of-the-initiative-states.aspx [https://perm a.cc/L88M-V6CF].

    [220].    See supra note 149 and accompanying text.

    [221].    See id.

    [222].    Thomas E. Cronin, Direct Democracy: The Politics of Initiative, Referendum, and Recall 50–51 (2001).

    [223].    Julian N. Eule, Judicial Review of Direct Democracy, 99 Yale L.J. 1503, 1512–13 (1990) (describing the “conventional history” of direct democracy).

    [224].    Kathleen Ferraiolo, State Policy Activism via Direct Democracy in Response to Federal Partisan Polarization, 47 Publius: J. Federalism 378, 378 (2017) (noting that “supporters of marijuana legalization and minimum wage increases have relied on initiatives to compensate for lags in legislatures’ responses to evolving public support for these positions”); id. at 384 (“In the wake of congressional inaction, gun-control groups . . . have turned to state initiative processes on various occasions in the 2010s to enact their favored policies.”).

    [225].    Indeed, on just the shortcomings of the Progressive movement’s creation of direct democracy, see Eule, supra note 223, at 1512 n.38.

    [226].    Hans A. Linde, When Initiative Lawmaking Is Not “Republican Government”: The Campaign Against Homosexuality, 72 Or. L. Rev. 19, 40–41 (1993).

    [227].    E.g., Derrick A. Bell, The Referendum: Democracy’s Barrier to Racial Equality, 54 Wash. L. Rev. 1, 1–7 (1978).

    [228].    See Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 470 (1982). But see Schuette v. BAMN, 572 U.S. 291, 322 (2014) (Scalia, J., concurring) (arguing that the “political-process doctrine” from Seattle Sch. Dist. No. 1 should be overruled).

It bears noting that the Court’s jurisprudence does not expressly state that the political process doctrine applies only in the context of direct democracy. Indeed, a recent case has sought to press the doctrine in the context of a majority-white state legislature in Alabama overriding the preferences of a majority-black city (Birmingham) with respect to minimum wage. Lewis v. Governor of Ala., 896 F.3d 1282, 1298 (11th Cir. 2018) (“The plaintiffs allege that the [state law] affects their ability to participate in the political process because it now occupies a field in which a majority-black [local] legislature previously enacted laws that they support.”), reh’g en banc granted, 914 F.3d 1291 (11th Cir. 2019).

It is also worth noting that the case most heavily relied on by the Court in Seattle School District No. 1 was Hunter v. Erickson, 393 U.S. 385 (1969), in which the Court held that an Akron, Ohio, city charter amendment, approved by voter initiative, that made it more difficult for the city council to enact local fair housing laws violated the Equal Protection Clause.  See 458 U.S. at 467–68 (discussing Erickson). As Erickson and Lewis demonstrate, therefore, the “political process doctrine” may apply at different levels: state voters overruling local law, state legislature overruling local law, and local voters constraining local lawmaking. See also Reitman v. Mulkey, 387 U.S. 369 (1967) (holding that voter initiative that amended constitution to prohibit laws against housing discrimination violated federal Equal Protection clause).

    [229].    See Daniel B. Rodriguez, State Constitutional Failure, 2011 U. Ill. L. Rev. 1243, 1268–73 (discussing the problems posed by voter-enacted tax and expenditure limitations in states).

    [230].    458 U.S. 457 (1982).

    [231].    Colo. Const. art. II, § 30b (“No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation”).

    [232].    517 U.S. 620, 647 (1996).

    [233].    See generally David J. Barron, The Promise of Cooley’s City: Traces of Local Constitutionalism, 147 U. Pa. L. Rev. 487 (1999).

    [234].    Contra Lewis v. Governor of Ala., 896 F.3d 1282, 1298 (11th Cir. 2018) (majority-black Birmingham suing over majority-white Alabama state legislature’s preemption), reh’g en banc granted, 914 F.3d 1291 (11th Cir. 2019); cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 495 (1989) (reviewing affirmative action plan of city with fifty percent black population and a majority-black city council).

    [235].    Campbell Gibson & Kay Jung, Historical Census Statistics on Population Totals by Race, 1790 to 1990, and by Hispanic Origin, 1970 to 1990, for Large Cities and Other Urban Places in the United States, tbl.48 (U.S. Census Bureau, Population Div., Working Paper No. 76, 2005) (indicating that Seattle’s population in 1970 was 87.4% white and 7.1% black).

    [236].    By “voluntary,” I mean an integration plan that was not imposed by a court in response to a desegregation lawsuit. See Paul Diller, Note, Integration Without Classification: Moving Toward Race-Neutrality in the Pursuit of Public Elementary and Secondary School Diversity, 99 Mich. L. Rev. 1999, 2000 n.4 (2001). While the Seattle plan at issue in Seattle School District No. 1 was not court-ordered, it was perhaps less than fully “voluntary” insofar as the school board adopted it in response to threats of segregation lawsuits by the local ACLU and NAACP chapters. Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 460 n.2 (1982) (“Several community organizations threatened legal action if the District did not initiate a more effective integration effort . . . .”).

    [237].    As of 1970, Washington was “overwhelmingly white,” with whites constituting 95.4% of the state’s population, and blacks 2.1% of total population. See John Caldbick, 1970 Census, HistoryLink.org (May 18, 2010), https://historylink.org/File/9426 [https://perm a.cc/L2H2-Y9ZW].

    [238].    Seattle Sch. Dist. No. 1, 458 U.S. at 474; see also id. at 470 (“[T]he political majority may generally restructure the political process to place obstacles in the path of everyone seeking to secure the benefits of governmental action. But a different analysis is required when the State allocates governmental power nonneutrally, by explicitly using the racial nature of a decision to determine the decisionmaking process.”).

    [239].    Possibly. As noted above, the district had adopted the integration plan under threat of federal constitutional lawsuits by civil rights groups. See supra note 236.

    [240].    Seattle Sch. Dist. No. 1, 458 U.S. at 483.

    [241].    Romer v. Evans, 517 U.S. 620, 623–24 (1996) (citing each city’s ordinance).

    [242].    Id.

    [243].    Rodden, supra note 63, at 86–88 (describing the increasingly liberal social views of big cities as compared to rural areas).

    [244].    Romer, 517 U.S. at 634–35.

    [245].    Barron, supra note 233, at 594.

    [246].    See Linde, supra note 226, at 44.

    [247].    See Schuette v. BAMN, 572 U.S. 291, 318 (2014) (declining to overrule the political process doctrine, but not invoking it as requested by the plaintiffs).

    [248].    See Barron, supra note 233 and accompanying text.

    [249].    According to the Center for Immigration Studies, a nonprofit that is considered skeptical of heightened immigration, there are nine sanctuary states: California, Colorado, Connecticut, Illinois, Massachusetts, New Jersey, New Mexico, Oregon, and Vermont. Brian Griffith & Jessica M. Vaughn, Maps: Sanctuary Cities, Counties, and States, Ctr. for Immigr. Stud. (Apr. 16, 2019), https://cis.org/Map-Sanctuary-Cities-Counties-and-States (last updated Mar. 7, 2019) [https://perma.cc/MC6Y-B6KR].

    [250].    See Act of July 7, 1987, ch. 467, § 1, 1987 Or. Laws 914, (codified at Or. Rev. Stat. § 181A.820) (“No law enforcement agency of the State of Oregon or of any political subdivision of the state shall use agency moneys, equipment or personnel for the purpose of detecting or apprehending persons whose only violation of law is that they are persons of foreign citizenship present in the United States in violation of federal immigration laws.”).

    [251].    See Oregon Measure 105, Repeal Sanctuary State Law Initiative (2018), Ballotpedia [hereinafter Measure 105], https://ballotpedia.org/Oregon_Measure_105,_Rep eal_Sanctuary_State_Law_Initiative_(2018) [https://perma.cc/DEE4-EXAA].

    [252].    See id.

    [253].    For more on the details of “positive constitutionalism,” see Barron, supra note 233, at 493 n.15.

    [254].    Measure 105, supra note 251.

    [255].    According to 2018 Census estimates, Oregon was 75.3% non-Hispanic white and 13.3% Hispanic. Quick Facts: Oregon, U.S. Census Bureau (July 1, 2018), http://census. gov/quickfacts/OR [https://perma.cc/G4BB-BLPD].

    [256].    See 2018 General Election Ballot Measures, Oregonlive.com, https://gov.oregon live.com/election/2018/general/measures/ (displaying county-by-county vote for Measure 105) [https://perma.cc/UB24-BTL8].

    [257].    Compare id., with Portland State Univ., Census Data for Oregon, Percent Latino Population 2010, https://www.pdx.edu/sites/www.pdx.edu.prc/files/FULL_SIZE_LATINO_ BY_CO.jpg [https://perma.cc/AT4N-P8YD].

    [258].    See Sherman J. Clark, A Populist Critique of Direct Democracy, 112 Harv. L. Rev. 434, 469 (1998).

    [259].    See id. at 434.

    [260].    Ethan J. Leib, Can Direct Democracy Be Made Deliberative?, 54 Buff. L. Rev. 903, 911 (2006).

    [261].    See, e.g., Or. Rev. Stat. § 250.137 (establishing the “Citizens’ Initiative Review Commission” that can issue statements in favor or against ballot measures); see also John Gastil et al., Assessing the Electoral Impact of the 2010 Oregon Citizens’ Initiative Review, 46 Am. Pol. Res. 534, 554 (2018) (finding evidence suggesting that the citizens’ review process increased reflection and internal deliberation by voters); Ari J. Wubbold, Evaluating the Impact of Oregon’s Citizen Initiative Review (CIR) on Voter Decisions 4‒5, 75‒78, 80 (March 16, 2018) (unpublished M.A. thesis, Portland State University) (on file with the Portland State University Library), https://pdxscholar.library.pdx.edu/open_access_etds/4349 [https://perma.cc/Z8TN-YQUV].

    [262].    See Clark, supra note 258, at 434; Leib, supra note 260, at 903, 911; cf. Linde, supra note 226, at 34 (“Lawmaking by popular vote on an initiated proposal or course bypasses the committee study, hearings, amendments, and compromises of legislative deliberation . . . .”).

    [263].    David Magleby, Direct Legislation: Voting on Ballot Propositions in the United States 104–05 & tbl.6.1 (1984). For a more recent observation of a similar phenomenon, see Kerri Milita, Beyond Roll-Off: Individual-Level Abstention on Ballot Measure, 27 J. Elections Pub. Opinion & Parties 448, 463 (2017) (“[I]ndividuals most likely to abstain” on ballot measures have traits associated with “marginal voters—the young, the poor, and the non-white.”).

    [264].    Magleby, supra note 263, at 117.

    [265].    See, e.g., Benjamin I. Page et al., Democracy and the Policy Preferences of Wealthy Americans, 11 Persp. on Pol. 51, 51 (2013) (reporting that wealthy Americans are “much more conservative than the American public as a whole with respect to important policies concerning taxation, economic regulation, and especially social welfare programs,” and suggesting “that these distinctive policy preferences may help account for why certain public policies in the United States appear to deviate from what the majority of U.S. citizens wants the government to do”).

[266].    Property Tax Limitation, California Proposition 13 (1978) (codified at Cal. Const. art. XIII (A)).

    [267].    Id. (requiring two-thirds majority in both legislative houses for any tax increases).

    [268].    See Cal. Const., art. XIII A, §§ 1(a), 2(a)–(b) (restricting ad valorem property taxes to one percent of a property’s full cash value, and not allowing increases in valuation more than two percent, except upon transfer of ownership); see also Nordlinger v. Hahn, 505 U.S. 1, 28–30 (1992) (Stevens, J., dissenting) (discussing the inequities in property taxation imposed by Prop 13).

    [269].    See generally Erin Adele Scharff, Powerful Cities? Limits on Municipal Taxing Authority and What To Do About Them, 91 N.Y.U. L. Rev. 292 (2016).

    [270].    State & Local Tax Revolt: New Directions for the ‘80s, at 80 (Dean Tipps & Lee Webb eds., 1980).

    [271].    Id. at 78–79.

    [272].    Nat’l Conference of State Legislatures, Preparation of Fiscal Analysis (Apr. 2002), http://www.ncsl.org/research/elections-and-campaigns/fiscal-impact-statements.as px (discussing the important educational role that “fiscal impact statements” play in the thirteen states that have some version of the requirement for ballot measures) [https: //perma.cc/PG5A-C3AB].

    [273].    For more on this measure, see supra notes 249–52 and accompanying text.

    [274].    Or. Sec’y of State, Oregon Measure No. 105, in Voter’s Pamphlet: Or. Gen. Election, Nov. 6, 2018 at 111, 112–13, http://oregonvotes.gov/voters-guide/pdf/book13.pdf [https://perma.cc/Y5KA-7ZX8].

    [275].    Multnomah Cty. Bd. of Comm’rs, Res. 2016-132 (Or. 2016), https://multco.us/ file/58697/download [https://perma.cc/N4RA-KCFU]; see QuickFacts: Multnomah County, Oregon, U.S. Census Bureau (July 1, 2018), https://www.census.gov/quickfacts/multno mahcountyoregon [https://perma.cc/PC6X-5CEW]; QuickFacts: Oregon, U.S. Census Bureau (July 1, 2018), https://www.census.gov/quickfacts/OR [https://perma.cc/G4BB-BL PD].

    [276].    Peter Wong, Clackamas County Reaffirms Support of Diversity, Hands-Off Immigration Actions, Portland Trib. (June 8, 2017), https://pamplinmedia.com/pt/9-news/362 671-242830-clackamas-county-reaffirms-support-of-diversity-hands-off-immigration-act ions [https://perma.cc/K8EQ-METE].

    [277].    See, e.g., Susan Kass, Opinion, Passing Measure 105 Would Send a Chilling Message to Children, Oregonlive.com (Oct. 7, 2018), https://www.oregonlive.com/opinion/20 18/10/opinion_passing_measure_105_wo.html [https://perma.cc/379E-9FUV].

    [278].    See, e.g., Town Hall on Measure 105: Should Oregon Repeal Its Status as a Sanctuary State?, KATU News (Oct. 15, 2018), https://katu.com/news/politics/town-hall-on-meas ure-105-should-oregon-repeal-its-status-as-a-sanctuary-state [https://perma.cc/T9PF-HH PZ]; Richard F. LaMountain & John Ratliff, Opinion, Two Takes on Ballot Measure 105, Oregonian, https://www.oregonlive.com/opinion/2018/11/opinion_two_takes_on_ballot_me .html (last updated Jan. 29, 2019) [https://perma.cc/P7VF-UT7M]; Henry Houston, Eugene City Council Announces Opposition to Measure 105, Eugene Wkly. (Oct. 29, 2018) http:// www.eugeneweekly.com/2018/10/29/eugene-city-council-announces-opposition-to-measure- -105/ [https://perma.cc/A3CV-2B55].

    [279].    Cf. Davidson, supra note 6, at 993 n.144 (noting the role, in the context of constitutional rights, for “higher-level governments to set a floor, above which local governments can craft policy”).

    [280].    See generally Elisabeth R. Gerber, The Populist Paradox: Interest Groups Influence and the Promise of Direct Democracy 4–5 (1999) (recounting “interest groups,” criticism of direct democracy); see also David S. Broder, Democracy Derailed: Initiative Campaigns and the Power of Money (2000).

    [281].    To be sure, there may be some “traditional” lobbying of elected officials to get them to endorse a particular side in an initiative fight. See Arthur Lupia & John G. Matsusaka, Direct Democracy: New Approaches to Old Questions, 7 Ann. Rev. Pol. Sci. 463, 471–72 (2004) (“Convincing voters that an initiative represents an improvement over the known status quo . . . requires more than money. . . . [i]t also requires the endorsements of well-known public figures and evidence of broad grass-roots support.” (citations omitted)).

    [282].    Id. at 471 (“A fact beyond dispute is that qualifying a measure for the ballot can be expensive.”); e.g., Rob Davis, Ballot Initiative To Tighten Oregon Forestry Law Gets Rejected. Advocates Blame Timber Money., OregonLive (Oct. 4, 2019), https://www.oregonlive.com/ environment/2019/10/ballot-initiative-to-tighten-oregon-forestry-laws-gets-rejected-advoca tes-blame-timber-money.html (discussing example of the Oregon Secretary of State’s office refusing to certify ballot measures because it believed they violated the state constitution’s “single-subject” requirement) [https://perma.cc/EV9U-786F].

    [283].    In 2018 in California, for instance, the opposition to an initiative that would have limited profits of dialysis centers spent $111 million to defeat it. See Laurel Rosenhall, Record Spending as Huge Money Flows into Industry Fights on the California Ballot, KQED News (Nov. 4, 2018), https://www.kqed.org/news/11703580/record-spending-as-huge-money -flows-into-industry-fights-on-the-california-ballot [https://perma.cc/R4KM-8NNA].

    [284].    David F. Damore & Stephen P. Nicholson, Mobilizing Interests: Group Participation and Competition in Direct Democracy Elections, 36 Pol. Behav. 535, 549 (2014).

    [285].    Leib, supra note 260, at 907.

    [286].    Gerber, supra note 280, at 119 (concluding that “economic groups find it very difficult to pass new initiatives”); id. at 138–39 (“Economic interest groups devote a much greater share of their financial resources to campaigns to oppose initiatives than to campaigns to support initiatives, and the measures they oppose fail at a high rate.”).

    [287].    Act of Aug. 3, 1995, ch. 331, 1995 Cal. Stat. 1819, 1820 (codified at Cal. Civ. Code §§ 1954.50–.535).

    [288].    California Proposition 10, Local Rent Control Initiative (2018), Ballotpedia, https://ballotpedia.org/California_Proposition_10,_Local_Rent_Control_Initiative_(2018) [https://perma.cc/M8DF-NRMT].

    [289].    Id.

    [290].    Id.

    [291].    Indeed, the Supreme Court has struck down attempts to limit individual and corporate contributions to ballot initiative campaigns. See Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 300 (1981) (striking down California law that set limits on contributions to initiative campaigns); First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 776 (1978) (holding that corporations have a First Amendment right to contribute to ballot initiative campaigns). Contribution limits to individual candidate campaign accounts, by contrast, remain on the books in many states, even if the Supreme Court has overall grown more hostile to campaign finance regulation. See State Limits on Contributions to Candidates, 2017–18 Election Cycle, Nat’l Conf. St. Legislature, (June 27, 2017), http://www. ncsl.org/Portals/1/Documents/Elections/Contribution_Limits_to_Candidates_2017-2018_ 16465.pdf (showing that thirty-nine of fifty states limit individual contributions to candidates’ campaigns, and forty-five limit or prohibit corporate contributions to candidates’ campaigns) [https://perma.cc/A3ST-XHGJ].

    [292].    Kenneth T. Andrews & Bob Edwards, Advocacy Organizations in the U.S. Political Process, 30 Ann. Rev. Soc. 479, 481 (2004) (discussing definitions of “interest groups”).

    [293].    Id.

    [294].    Id.

    [295].    Kenneth Andrews and Bob Edwards define “advocacy organizations” as those that “make public interest claims either promoting or resisting social change that, if implemented, would conflict with the social, cultural, political, or economic interests or values of other constituencies and groups.” Id.; see also Matt Grossmann, The Not-So-Special Interests 24 (2012) (discussing “advocacy organizations”).

    [296].    See Alexandra Sifferlin, Soda Taxes Prompt High Fives from Health Advocates, Time.com (Nov. 11, 2016), https://time.com/4567888/soda-taxes-pass/ (reviewing the soda taxes passed by four cities and one county in November 2016) [https://perma.cc/Z5HC-PCCU].

    [297].    See Seattle, Wash., Ordinance No. 125324 (codified at scattered sections of Seattle Mun. Code 5.30, 5.53, 5.55).

    [298].    See Notice of Multnomah County Initiative Ballot Title & Explanatory Statement, MultCoInit-04, Multnomah County (2017), https://multco.us/elections/notice-multnom ah-co-initiative-ballot-title-explanatory-statement-multcoinit-04 [https://perma.cc/2TLN-U4PT]; see also Nigel Jaquiss, Backers of Multnomah County Soda Tax Delay Again, Will Not Pursue November Ballot Spot, Williametteweek.com (Feb. 23, 2018), https://www. wweek.com/news/2018/02/23/backers-of-multnomah-county-soda-tax-delay-again-will-not-pursue-november-ballot-spot/ [https://perma.cc/E7YR-ELD3].

    [299].    See Initiative and Referendum States, supra note 219.

    [300].    See Initiative Measure No. 1634 (2018), Wash. Secretary St., https://www.sos. wa.gov/_assets/elections/initiatives/finaltext_1513.pdf [https://perma.cc/ACC7-MR5B].

    [301].    See Washington Initiative 1634, Prohibit Local Taxes on Groceries, Ballotpedia, https://ballotpedia.org/Washington_Initiative_1634,_Prohibit_Local_Taxes_on_Groceries_ Measure_(2018) [https://perma.cc/L4UT-FPTW]; Yes! to Affordable Groceries, Pub. Disclosure Commission, https://www.pdc.wa.gov/browse/campaign-explorer/committee? filer_id=YESTA%20%20015&election_year=2018 [https://perma.cc/6XUX-DK4Y].

    [302].    See Yes! to Affordable Groceries, supra note 301.

    [303].    See Washington Initiative 1634, Prohibit Local Taxes on Groceries, supra note 301.

    [304].    See Initiative, Referendum, and Referral Search, Initiative Number 37, Or. Secretary St., http://egov.sos.state.or.us/elec/web_irr_search.record_detail?p_reference= 20180037..LSCYY.Y [https://perma.cc/B9EW-RFCA].

    [305].    See November 6, 2018, General Election Abstract of Votes, Or. Secretary St., https://sos.oregon.gov/elections/Documents/results/november-2018-official-results.pdf [https://perma.cc//C93A-J7BP].

    [306].    Oregon Measure 103, Ban Tax on Groceries Initiative (2018), Ballotpedia, https: //ballotpedia.org/Oregon_Measure_103,_Ban_Tax_on_Groceries_Initiative_(2018), [https:// perma.cc/549G-TDLX].

    [307].    See supra note 285 and accompanying text (discussing how it is easier to buy a “no” than a “yes”).

    [308].    See Online Voters’ Pamphlet, 2018 General Election, Or. Secretary St., http://oreg onvotes.gov/voters-guide/english/votersguide.html#Text%20of%20Measure [https://perma. cc/22GW-VMUP].

    [309].    See Hillary Borrud, Labor Groups Link Kate Brown’s Re-election, Initiatives’ Defeat, OregonLive.com (Nov. 4, 2018), https://www.oregonlive.com/politics/2018/11/labor_grou ps_link_kate_browns.html (discussing the broad, union-funded coalition that worked to defeat Measure 103, among its many causes in the 2018 election cycle) [https://perma.cc/M954-GY8M].

    [310].    Editorial Endorsement: Vote “No” on Measure 103’s Grocery-Tax Ban, OregonLive.com (Sept. 30, 2018), https://www.oregonlive.com/opinion/2018/09/editorial_ endorsement_vote_no.html (objecting that Measure 103 “would bar local communities from enacting a targeted food or beverage tax of their own, even if their community members enthusiastically support one”) [https://perma.cc/45MK-GN3K].

    [311].    Sign on file with author.

    [312].    Disappointingly, for those who advocate local fiscal control, despite the successful effort to fend off Measure 103 in the November 2018 election, the legislature then imposed the same sort of preemption during its 2019 legislative session. Act effective Sept. 29, 2019, ch. 579, § 67, 2019 Or. Laws (“A city, county, district or other political subdivision or municipal corporation of this state may not impose, by ordinance or other law, a tax upon commercial activity or upon receipts from grocery sales.”).

[313].    See Paid Sick Time Laws, Overview of Paid Sick Time Laws in the United States: Oregon, Better Balance, https://www.abetterbalance.org/paid-sick-time-laws/oregon (last updated May 20, 2019) [https://perma.cc/3FQG-XCJE].

    [314].    See Diller, supra note 60, at 1129 (discussing this dynamic).

[315].    See id. In apparent deference to Portland’s ordinance, the legislature allowed the city’s more generous threshold for employees (six, as opposed to the state law’s ten) to apply to businesses with a presence in Portland. Id.

[316].    The converse might occur when cities or their allies seek to repeal pre-existing blanket preemption, and, therefore, must make significant sacrifices to their own autonomy going forward just to regain some of it. Oregon’s law allowing for inclusionary zoning, passed in 2016, is a good example in this regard. See Jeff Mapes, Oregon Legislators Reach Deal on Affordable Housing Legislation, OPB (Feb. 23, 2016, 3:38 PM), https://www.opb.org/news/ article/oregon-legislators-reach-deal-on-affordable-housing-legislation (last updated Feb. 24, 2016, 2:30 PM) (noting that “[t]he ban preventing local governments from using inclusionary zoning was approved by the 1999 Legislature at the behest of the Oregon Home Builders Association,” but that “the home builders and other development groups agreed to [lift the ban] after they won concessions limiting how local governments can use inclusionary zoning”) [https://perma.cc/39UJ-BJHK].

[317].    Indeed, some of these counties successfully challenged the paid-sick-leave law as applied to them as an unconstitutional unfunded mandate. Linn Cty. v. Brown, 443 P.3d 700, 702 (Or. Ct. App. 2019).

[318].    Briffault et al., supra note 1, at 1997; Scharff, supra note 1, at 1472.

[319].    See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (suggesting “more searching judicial inquiry” when legislation is motivated by “prejudice against discrete and insular minorities”).

[320].    City of El Cenizo v. Texas, 264 F. Supp. 3d 744, 809, 812 (W.D. Tex. 2017) (enjoining on First Amendment grounds the section of Texas’s anti-sanctuary-city law providing for removal from office of local officials who “endorse” sanctuary policies), aff’d in part, vacated in part, 890 F.3d 164, 192 (5th Cir. 2018); Briffault et al., supra note 1, at 2010–11.

[321].    In the November 2018 elections alone, five states’ voters—Colorado, Michigan, Missouri, Ohio, and Utah—passed ballot measures to establish more neutral methods for legislative districting. Robert Barnes, Supreme Court Again Considers Partisan Gerrymandering, but Voters Are Not Waiting, Wash. Post (Mar. 24, 2019), https://www.washington post.com/politics/courts_law/supreme-court-again-considers-partisan-gerrymandering-but-voters-are-not-waiting/2019/03/23/af37a7b6-4bfc-11e9-9663-00ac73f49662_story.html [https://perma.cc/EWS3-73T5].

[322].    Rucho v. Common Cause, 139 S. Ct. 2484, 2495–96, 2507 (2019). On recently successful state constitutional attacks on political gerrymandering, see supra note 218.

[323].    See supra note 291.

    [324].    E.g., Ill. Const. art. XIV, § 3 (limiting voter initiatives to “structural and procedural subjects”).

[325].    See Paul A. Diller, Reorienting Home Rule: Part 2—Remedying the Urban Disadvantage Through Federalism and Localism, 77 La. L. Rev. 1045, 1077–95 (2017) (arguing that home rule can serve as a remedy for the disadvantages urban areas suffer in the state political process).

Ethical Blind Spots in Adoption Lawyering

Ethical Blind Spots in Adoption Lawyering

Malinda L. Seymore, Ethical Blind Spots in Adoption Lawyering, 54 U. Rich. L. Rev. 527 (2020).

Click here to download PDF.


Malinda L. Seymore,*

Introduction

When Sherrie Smith approached her lawyer, Robert Stubblefield, desiring to place her then-unborn child for adoption, he agreed to help her find adoptive parents for the child. He found them in his own home—he and his wife, without telling the mother until after she signed an irrevocable consent, adopted the child.[1] If Stubblefield had tried to buy her house under those circumstances, it would have been a clear violation of the Model Rules of Professional Conduct (the “Model Rules”)—when it comes to business transactions with clients, the Model Rules recognize that a lawyer’s legal training, together with the trusting relationship between the lawyer and potentially less powerful client, “create the possibility of overreaching.”[2] A lawyer cannot enter into business transactions with a client unless the terms are fair and reasonable to the client and disclosed in a writing transmitting those terms in a manner that can be understood by the client.[3] The client must also be advised in writing that they should seek the advice of independent legal counsel and be given a reasonable opportunity to do so.[4] Finally, the client must give informed consent in a writing signed by the client that outlines the transaction terms and the role of the lawyer in the transaction.[5] Stubblefield took none of these steps necessary to protect a client from an overreaching attorney in a business transaction when adopting his client’s child without her knowledge.[6] If he had been buying his client’s business or house rather than adopting her child, his course of conduct would have clearly run afoul of the Model Rules.[7]

But perhaps it is wrong to compare an adoption process to a business transaction, though adoption is clearly a business in addition to a child welfare institution.[8] Language of “gift” abounds in adoption;[9] perhaps the transaction between Sherrie and Stubblefield was a gift. But lawyers are also prohibited from soliciting substantial gifts from clients,[10] out of the same concerns for undue influence that arise in business transactions.[11] Even without the special rules regarding gifts and business transactions, Stubblefield was operating in his own self-interest—his desire to adopt the child—rather than out of undivided loyalty to his client. That, too, is a violation of the general conflict of interest rules regulating attorney behavior.[12]

How did Stubblefield miss these red flags signaling unethical behavior? Perhaps it is simply that the Model Rules fail to give sufficient guidance in specific areas.[13] Perhaps the answer lies in the field of behavioral ethics, in “all too human modes of thinking.”[14] Behavioral legal ethics posits that psychological factors blind lawyers to their own unethical conduct.[15] Psychological factors may also blind lawyers to the ethical missteps of others as well,[16] which may explain why the Stubblefield court had a great deal of difficulty imposing discipline on Stubblefield for adopting his client’s child and settled for merely proscribing such conduct in the future.[17]

For adoption lawyers, ethical blind spots may arise because of their views of the righteousness of adoption work:

It is also too easy for attorneys to become caught up in the view that family formation work always exemplifies goodness and morality, possibly causing them to disregard the interests of the other parent as the lawyer marches toward the goal of creating a new and legally recognized parent/child relationship.[18]

Even without a personal desire to adopt the client’s child, the attorney’s view of the inherent rightness of adoption may lead to unconscious bias. Lawyers often view adoption as “happy law,”[19] ignoring the fact that adoption always starts with loss.[20]

This Article discusses ethical issues relevant to adoption attorneys, as well as the lessons from behavioral ethics that inform the ethical blind spots common in the practice. The Model Rules for attorneys address a number of areas relevant to the complexities of adoption practice. Rules relating to competency and confidentiality, conflicts of interest and dual representation, and the lawyer’s roles as counselor as well as advocate are particularly germane. Although much has been written about the dual representation issue in adoption, other issues of professional responsibility in adoption cases have not been as carefully explored. This Article seeks to remedy that. Since legal ethics can be both descriptive and normative, this Article addresses both what the ethical requirements of professional responsibility are and what they should be in adoption practice. In doing so, this Article considers whether a more child-centered approach to adoption practice comports with the Model Rules. In addition to rules of professional conduct, there are other legal constraints on a lawyer’s conduct:

[T]he rules adopted in every state to regulate the conduct of lawyers are just one set of guidelines for the practice of law. Discovery rules, malpractice claims, appellate review of lower court decisions, the inherent power of the courts to punish for contempt, and even the criminal law provide constraints on how lawyers should operate when representing clients.[21]

In assessing ethical lawyering in adoption, this Article examines all of these legal sources of ethical standards, as well as disciplinary rulings. This Article seeks to sketch the contours of ethical lawyering in adoption in order to shine light on the ethical blind spots adoption attorneys should avoid. Finally, this Article examines solutions to ethical blind spots from behavioral ethics.

1. Adoption Lawyers and Ethical Blind Spots

Adoption is a creature of the law,[22] creating the parent-child relationship when biology has not done so.[23] It is “conceived of as an area of comprehensive legal ordering,”[24] with the law’s role an expansive one, making “determinations of who should adopt, how the adoptions take place, and centrally of what constitutes an acceptable family.”[25] Lawyers are central to legal adoption, playing important roles from placement to finalization and beyond.[26] A lawyer may advise prospective adoptive parents[27] about locating a child, advertising rules, payment of prospective birth mother expenses, securing a home study, requirements for terminating the prospective birth parents’ rights, enforcing open adoption agreements, arranging adoption subsidies from the government, and the like.[28] A lawyer may represent a prospective birth mother in relinquishing parental rights or in revoking previously given consent to adoption or in enforcing open adoption agreements.[29] A lawyer may advise a prospective birth father about whether he has legally recognized parental rights and what he needs to do to secure those rights, and the lawyer may represent him in challenging an adoption.[30] A lawyer may represent the interests of the child in an adoption as a guardian or attorney ad litem or may represent an adult adoptee who seeks information about their birth family or adoption records.[31] A lawyer may represent an adoption agency or the state involved in adoption placements.[32] A lawyer may work in international adoption, concerned with both foreign law and United States immigration law;[33] or with an Indian tribe in an adoption involving the Indian Child Welfare Act.[34] The lawyering tasks under the heading “Adoption Law” are multitudinous. And, in addition to following the complex network of laws relating to adoption, lawyers are also obligated to follow the Model Rules designed to ensure ethical lawyering.[35]

The American Bar Association (“ABA”), which accredits law schools, mandates that law schools “offer a curriculum that requires each student to satisfactorily complete . . . one course of at least two credit hours in professional responsibility that includes substantial instruction in Model Rules, and the values and responsibilities of the legal profession and its members.”[36] The ABA also promulgates the Model Rules, which set minimum rules regulating the conduct of lawyers.[37] Most courses in law schools’ professional responsibility cirricula focus on those Model Rules.[38] And in most states, lawyers must take and pass the Multistate Professional Responsibility Exam, which focuses on the Model Rules, in order to be licensed to practice.[39] So when lawyers are trained and tested on lawyering ethics, they are instructed almost exclusively on the Model Rules that will prevent them from being disciplined, sanctioned, or disbarred by licensing authorities. Perhaps not surprisingly, “[i]ncreasingly, lawyers are equating ethical conduct with the minimum standards for avoiding discipline under the professional rules of professional conduct.”[40]

The Model Rules, though mandatory, “are notoriously under- or unenforced by disciplinary authorities.”[41] They create a one-size-fits-all approach to lawyering ethics, one that often fails to provide concrete guidance to lawyers in specific areas.[42] The Model Rules, often vague and uncertain, leave much ethical decision making to a lawyer’s own judgment.[43] It is in that area of judgment that the lessons of behavioral ethics can be so important. Behavioral ethics tells us that unethical decisions may start with faulty information acquisition. “Bounded awareness” prevents decision makers from focusing on important information that is needed and available and that may allow them to make better, more ethical decisions.[44] By focusing narrowly on a limited outcome—a need to make a profit, for example, or complete an adoption successfully—the actor is led “to not ‘see’ important, accessible, and perceivable information during the decision-making process.”[45] In deciding to adopt his client’s child, for instance, Stubblefield may focus on the good of adoption and not see the potential for conflict of interest and overreaching. Outcome bias allows decision makers to mask unethical conduct when an outcome is perceived as favorable, seeing only unethical or blameworthy behavior when it leads to a bad outcome.[46] If the adoption is perceived as good, then whatever behavior produced it must also be good. Immediacy of outcome also influences decision making; future interests lose out to immediate self-interest.[47] Stubblefield may not consider the future effects on his adopted child of his unethical conduct in completing the adoption. Further information-gathering may be caused by commitment bias; once a lawyer has committed to the position of her client, she may discount information inconsistent with the client’s objectives.[48]

“Bounded ethicality,” or ethical blind spots, are “the psychological processes that lead people to engage in ethically questionable behaviors that are inconsistent with their own preferred ethics.”[49] Thus, Stubblefield may recognize that an attorney should not represent a client when he cannot give undivided loyalty to her exclusive interests, but he may believe that he is able to put aside his self-interest in favor of his client’s interest.[50] Ethical blind spots explain why people are unintentionally unethical.[51] We often think of unethical behavior as intentional—lying, cheating, etc.—but in fact, “a large body of research has shown that unethical behavior often stems from actions that actors do not recognize as unethical.”[52] Implicit biases, largely unrecognized, can cause someone to act against their explicit ethical values.[53] Favoring one’s own group over disfavored out-groups is a common form of implicit bias, as is favoring one’s self-interest over that of others.[54] An adoption attorney may believe, for example, that unwed teen mothers cannot be adequate parents and may ignore his client’s expressions of a desire to parent when representing a prospective birth parent. After all, his implicit bias tells him that adoption placement is the only rational response to her situation, and he may disregard the specifics of her situation or more recent empirical evidence that paints a more nuanced view of teen mothers.[55]

But an attorney’s biases will remain implicit, invisible even to himself. A decision maker who acts against his own ethical values—say, by ignoring the wishes of the client because he knows better what is in her interest—will “maintain an ‘illusion of objectivity,’”[56] tending to assess himself as “objective, fair, and unbiased,” and thus capable of making the correct ethical choices when confronted with them.[57] Thus, in exercising ethical judgement, lawyers tend to be overconfident in their abilities to make ethically correct choices:

[A]ttorneys tend to believe that their own ethics and their firm’s ethical standards are more stringent than those of other attorneys and other firms. These views of the self can lead to an ethical blind spot that impedes our ability to perceive and thoughtfully consider the ethical tensions we inevitably face.[58]

Believing in their own high ethical standards, people seek to avoid straying so far over the line as to “require them to negatively update their self-perception that they are honest.”[59] Indeed, people are likely to remember only the facts that paint them as ethical actors and suppress facts that call that status into question.[60] “And if we are overconfident—in our own ethical judgment, or in our ability to fix or otherwise manage ethical problems—then we are unlikely to stop and think carefully about a decision or to revisit that decision later.”[61] Maintaining a moral self-image can motivate a decision maker to engage in “motivated forgetting,” actually changing the rules they believe in after engaging in wrongdoing.[62] In that way, they can “close the gap between their unethical behavior and their moral self-image.”[63]

A lawyer who carefully and appropriately follows every mandate of the Model Rules, with its focus on representing exclusively the interests of one’s client, may still find himself in conflict with what we might think of as the moral imperatives of an ethical society. Dr. Richard Wasserstrom describes the lawyer’s role as follows:

Once a lawyer represents a client, the lawyer has a duty to make his or her expertise fully available in the realization of the end sought by the client, irrespective, for the most part, of the moral worth to which the end will be put or the character of the client who seeks to utilize it. Provided that the end sought is not illegal, the lawyer is, in essence, an amoral technician whose peculiar skills and knowledge in respect to the law are available to those with whom the relationship of client is established.[64]

Leading scholar Carrie Menkel-Meadow also decries the tendency of rules of legal ethics to assume all law operates in focus on the sole interests of clients:

[T]he macro and philosophical ethical issues of when lawyers should not be adversarial, but should focus instead on more positive and creative forms of legal problem-solving, continue to be ignored in a system of law practice that assumes that adversarialism, winning legal cases, and maximizing client gain are the major goals of legal practice and legal dispute resolution.[65]

Adoption lawyers should struggle, even more than most lawyers, in the role-differentiated world described by Wasserstrom and decried by Menkel-Meadow. The touchstone for modern adoption has long been the best interest of the child,[66] but lawyers do not represent the child in adoption, instead representing the prospective adoptive parents or birth parents (or sometimes both).[67] Lawyers are obligated under this traditional client-centered approach to lawyering ethics to represent only the interests of their client and to ignore the interests of the child.

A starting point for ethical lawyering in adoption is the Model Rules. What do the Model Rules tell adoption attorneys about their ethical behavior?

II. Rules of Professional Conduct Applicable to Adoptions

Adoption lawyers, like all lawyers, are required to follow all the Model Rules mandated in the state in which they practice. Like all lawyers, they must serve clients competently and diligently, avoid conflicts of interest, communicate adequately with clients, be candid toward courts and (some) others, avoid deceptive advertising, charge reasonable fees, report the professional misconduct of other lawyers, and maintain the integrity of the legal profession. But some of these issues are more prominent in adoption practice than others. This Part examines the Model Rules in the context of adoption-related cases to illustrate the common ethical blind spots of adoption practice.

A. Competence

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.[68]

Adoption law can be extremely complex, involving both state and federal law (and potentially the laws of multiple states) and the rights and interests of multiple parties. This can be especially true where birth father rights are involved:

A father is not a legal parent unless he takes affirmative steps to grasp fatherhood. Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. If he is not married to the mother, he must do far more before he will be legally recognized as a father.[69]

What that “far more” is, to be legally recognized as a father, is often a contested issue in adoption.[70] Courts will consider whether the birth father supported the mother emotionally and financially during the pregnancy; whether he made plans for a baby, such as buying a crib or car seat; whether he offered marriage; whether he made arrangements to place the baby on his insurance; whether he expressed excitement at becoming a father; and whether he was listed on the birth certificate.[71] Given the fact-specific nature of a court’s inquiry, an inexperienced lawyer may not appropriately advise a birth father on how to assert his parental rights or provide sufficient guidance to prospective adoptive parents of the riskiness of a placement where a birth father is refusing to consent. A lawyer may also face civil liability for tortious interference with parental rights if she takes actions that cut off a birth father’s opportunity to parent.[72]

A father may protect his rights in some states by filing in the putative father registry.

Putative father registries, which exist in some thirty-five states, allow men to file forms asserting a parental interest in a child. In those states, an adoption cannot be completed unless there is a certification that the putative father registry has been searched and that no match can be made. If there is a match, then the putative father is entitled to notice of the adoption proceeding.”[73]

Putative father registry statutory schemes can be very complex, with short deadlines[74] and hyper-technical requirements.[75] One difficult issue with the putative father’s registry is where to file. When a birth father does not know when or where the child is born, or when or where the adoption proceeding is filed, he may fail to file timely or file in the wrong jurisdiction and may not receive notice of the adoption. “[S]ince there is no national putative father registry, confusion can exist as to where to file when the birth mother leaves the state where the birth father might be expected to file.”[76]

In a recent case, In re Krigel, where a long-time adoption lawyer was sanctioned for violations of legal ethics rules, the birth father resided in Kansas, the nonprofit adoption agency was incorporated in Kansas, and the birth father’s initial attorney was located in Kansas.[77] Kansas does not have a putative father’s registry.[78] The adoption proceeding, however, was in Missouri, which has a putative father’s registry.[79] Although Krigel represented the birth mother and was ultimately sanctioned for his ethical missteps in the case, Krigel was not the only lawyer involved in the adoption matter. [80] The birth father’s first lawyer was inexperienced in adoption cases, specializing instead in business and real estate matters.[81] His lack of knowledge caused him to rely on Krigel’s expertise, to the detriment of the birth father. The birth father’s first attorney did not appear to consider that the birth father needed to file in a putative father registry. In fact, one well-recognized problem with registries is that so few people know of their existence.[82] An expert witness in the In re Krigel case, Professor Mary M. Beck, testified that very few persons ever register for the putative father registry in Missouri; in the fifteen years since the registry was created, only a little over fifty men had registered.[83] It is not just birth fathers who are ignorant about the putative father registry; attorneys are often unaware of its existence if they do not practice in the adoption law area. I frequently receive calls from lawyers representing birth fathers, and the first question I ask is, “Have you filed in the putative father registry?” The most common response I get from lawyers is, “What’s the putative father registry?”

The birth father’s lawyer in In re Krigel was apparently not subject to discipline for his handling of the case, but he might well have been considered incompetent in failing to recognize that he was unprepared to handle the intricacies of a contested adoption case. He did not seek to associate an experienced lawyer on the case and instead relied on informal assurances from opposing counsel because of his expertise.[84] Though deceptive practices from Krigel may have played a part in his conduct, the birth father’s lawyer should have investigated further both legally and factually. Given that the birth mother resided in Missouri,[85] it would not have been unexpected for the birth and adoption to occur in Missouri and be subject to Missouri law. To appropriately protect the interests of the birth father, he should have filed in the putative father registry in Missouri.

The complexities of adoption practice go beyond issues surrounding birth fathers, of course. One particularly vexing area involves the Indian Child Welfare Act (“ICWA”), which imposes additional requirements in adoptions involving Indian children.[86] In an Alaska case, a court found that the lawyers representing the adoptive parents did not act with the “skill, prudence, and diligence required of an attorney” when they failed to advise their clients to fully comply with the ICWA in securing the consent of the birth mother.[87] The facts of the case are odd: the birth mother, the sister of the adoptive mother, became artificially inseminated with the adoptive father’s sperm.[88] The birth/adoptive father was Chickasaw, potentially triggering all the protections of the ICWA even for the non-Indian birth mother.[89] The birth mother’s consent needed to be affirmed in court before a judge, a step that the lawyers failed to do.[90] The birth mother then challenged the adoption.[91] Although the adoption was ultimately upheld, with the court ruling that the ICWA did not apply,[92] the adoptive parents sued the lawyers for legal malpractice.[93] They claimed that the lawyers were negligent in failing to follow the requirements of the ICWA, a subject in which they claimed expertise.[94] That failure gave the birth mother grounds to challenge the adoption. The lower court ruled in favor of the lawyers, finding it to be “a mere error of judgment, . . . a point of law [upon] which reasonable lawyers could differ.”[95] The appellate court disagreed, ruling that “the risk in failing to obtain the biological mother’s consent to the adoption in conformity with [the ICWA] should have been clear to any attorney possessed of the required level of professional competence.”[96]

A lawyer’s incompetence is often revealed by her failure to take appropriate steps to protect a client’s rights in what may look like more straightforward cases as well. In In re Hagedorn, the lawyer in an adoption case was disciplined for failure to provide competent representation.[97] While representing prospective adoptive parents, that lawyer failed to arrange for a required preplacement evaluation of the prospective adoptive parents, and in fact seemed not to realize the evaluation was necessary; failed to terminate the parental rights of the birth mother and father, having to belatedly notify the birth father by publication in order to terminate his rights; and failed to prepare or file a petition for adoption.[98] Though the child was in the custody of the prospective adoptive parents for over two years, the lawyer failed to secure the adoption despite promises to do so.[99]

The rule regarding competence requires lawyers to have the “legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”[100] What is reasonably necessary depends on the complexity and specialized nature of the matter, as well as the lawyer’s general experience.[101] But that standard is not one of specialized expertise: “In many instances, the required proficiency is that of a general practitioner.”[102] The comments to the rule provide, “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type which the lawyer is unfamiliar . . . . A lawyer can provide adequate representation in a wholly novel field through necessary study.”[103] A lawyer can also mitigate the issue by associating with a lawyer of established competence in the field.[104] At its core, however, “[c]ompetence includes the ability to discern when an undertaking requires specialized knowledge or experience that a lawyer does not have.”[105] A lawyer is expected to be familiar with basic well-settled principles of law and to possess the ability to analyze a client’s situation so as to apply the correct law to the facts.[106] A lawyer is also expected to possess the necessary legal research skills “to ascertain applicable rules of law, whether or not commonly known or settled, using standard research sources.”[107]

Lawyers must recognize that adoption is not simply a rosy-eyed “happy law.”[108] The law is complex, and the consequences of mistakes are potentially grave. Even if a lawyer avoids sanction from a bar authority or legal malpractice liability, violations of legal ethical rules can risk the finality of the adoption.[109] While the requirement to provide competent representation is a clearly stated rule of professional responsibility, “[c]ertain routine decisions or practices—providing competent services, maintaining sufficient support staff, or communicating with clients—may not be thought of as raising ethical issues in the same ways as more egregious behaviors . . . .”[110] This tendency toward “ethical fading,” the failure to “see” the ethical aspects of a decision, is an ethical blind spot attorneys must guard against.[111]

B. Candor

A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; . . . or (3) offer evidence that the lawyer knows to be false.[112]

A lawyer shall not[:] (b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.[113]

In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact when disclosure is necessary to  avoid  assisting  a criminal  or fraudulent  act  by  a  client . . . .[114]

While lawyers are obligated to represent the interests of their clients, lawyers are also officers of the court with an obligation to avoid undermining the integrity of the court’s process.[115] That obligation to the court is heightened in ex parte proceedings—those proceedings where only one side is presenting the case to the tribunal. Since there is no balance of presentation by opposing counsel, the sole advocate present has the duty “to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.”[116] That duty is especially strong when the lawyer’s failure to provide notice to the opponent is why the presentation is ex parte, as in adoption cases where the birth father is often not notified of the proceeding.

A lawyer cannot, consistent with the Model Rules, offer evidence knowing it to be false.[117] He cannot “ignore an obvious falsehood” when it is presented in court.[118] A lawyer who unknowingly offers false evidence has an obligation to the tribunal to correct that false evidence.[119] That obligation exists even if the testimony is elicited from his client by another lawyer’s examination, not his own.[120] Rule 3.3 clearly applies “to an attorney who fails to correct a misstatement to the court that was made in his presence by another attorney.”[121] As one court put it:

[A]s a general proposition, the prohibitions set forth in these [Model Rules] are not limited to affirmative misstatements of fact or law by an attorney. Indeed, we have recognized that, depending upon the circumstances, “silence can be no less a misrepresentation than words.” Therefore, our evaluation of the attorney’s discharge of his or her obligation is not simply a matter of considering the affirmative statements and misstatements of counsel. Rather, if an attorney has an obligation to speak in order to comply with his or her duty of candor to the tribunal, then silence also may also be a violation of the [Model Rules].[122]

In the In re Krigel case, Krigel permitted false and misleading testimony to be presented in court that portrayed a false impression that the birth father was not interested in the child or in asserting his parental rights.[123] During the hearing on the birth mother’s consent to adoption, Krigel elicited testimony from the birth mother and sat silently while another attorney elicited testimony from the birth mother that was false or misleading.[124] For example, the following exchange took place:

Krigel: Now, [birth father] has been consulted at length about this matter, has he not?

Birth mother: Yes.

Krigel: You and Ms. Merryfield have met with him on at least one occasion. Has it been more than once?

Birth mother: Just once.

Krigel: Even though he has been consulted, he has not stepped forward since the birth of the child claiming any rights to the child?

Birth mother: No.[125]

This exchange lacked an appropriate disclosure to the court that the attorney had advised the birth mother not to inform the birth father about the birth, the adoption plans, or anything else.[126] The birth father would have been hard pressed to step forward since the birth of the child, when the fact of the child’s birth had been concealed from him. Krigel also did not inform the court that the birth father had retained an attorney, instead creating the impression that the father had done nothing to assert his parental rights.[127] And even if Krigel did not know about the birth mother’s lies to the birth father, he had to have known that the entirety of the testimony was wildly inaccurate and incomplete. Krigel made no attempt to correct the impression created by the examination of the birth mother that the birth father, knowing about the birth, willfully shirked his responsibilities and showed no concern for the well being of the child.[128] In Mississippi Bar v. Land, the lawyer ran afoul of the rules when he answered discovery in such a way as to be “not only unresponsive, but also misleading in that it tended to give the impression” of a false state of affairs.[129] While lawyer Land’s statements may have been technically true, they “were calculated to deceive,”[130] much like Krigel’s carefully constructed questions to the birth mother.

Krigel also sat in silence when the guardian ad litem, Mann, questioned the birth mother, eliciting the following testimony:

Mann: . . . [F]rom the time of conception until now, has [birth father] had the ability to make contact with you continuously if he wanted.

Birth mother: Yes.

* * *

Mann: So there’s never been a gap in time where he could not communicate with you?

Birth mother: No.

* * *

Mann: Did he know about when the due date was?

Birth mother: Yes.

* * *

Mann: Has he come to the hospital?

Birth mother: No.[131]

At the time Krigel heard this testimony, he knew that he had advised against any contact with the birth father and knew that there were already steps taken to ensure that there would be no communication between his client and the birth father.[132] Even if he did not know that the birth mother lied about a later due date for the baby, he knew that the April 6 hearing was being held before the April 8 due date first communicated to the birth father.[133] He knew that if the birth mother had followed his no-contact advice, the birth father would not have known which hospital to go to even if he had known about the birth of the child.

Further, Krigel filed a document falsely stating that the birth mother did not know of any person claiming to have custody or visitation rights, though he knew full well that the birth father had such a claim.[134] And Krigel lied to the birth father’s lawyer when he assured him that the child would not be placed for adoption without the father’s consent, though he had already determined to employ a “passive strategy” to cut out the birth father and allow the adoption without his consent.[135] Omissions can be as dishonest as affirmative misrepresentations; “[a]ny differences between ‘false’ and ‘misleading’ statements are irrelevant” under the rules.[136]

A Utah lawyer was recently admonished for lack of candor when he misled the court in an adoption case where he represented an adoption agency.[137] After the birth mother consented to adoption, a possible birth father’s attorney sent a letter to the adoption agency stating that he did not consent to the adoption.[138] He filed to be declared the father and sought custody, and the adoption agency was served with the complaint.[139] When a hearing to terminate the natural father’s parental rights was held in a Utah court and the attorney appeared on behalf of the adoption agency, the judge asked “whether there was anything he needed to know that would prevent the court from issuing the order terminating parental rights.”[140] Although the attorney was aware of the lawsuit filed by the birth father, he “told the court only that they were aware that the named father had consulted a lawyer.”[141] The court signed the order terminating the third party’s parental rights.[142] The court later vacated the order citing the concealment of the complaint as the basis for vacating the order.[143] The case bears a striking resemblance to In re Krigel, with the attorney misleading the court via half-truths.

Lack of candor to the tribunal is an offense courts are unlikely to overlook. But a lawyer’s obligation of candor extends beyond the court.[144] “A lawyer is required to be truthful when dealing with others on a client’s behalf.”[145] The obligation is more limited than that owed to the court, however.[146] While a lawyer cannot lie to others, she “generally has no affirmative duty to inform an opposing party of relevant facts.”[147] A duty to disclose arises only “when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client,” and then only if disclosure is not prohibited by rules concerning confidentiality.[148]

In the In re Krigel case, the court sanctioned the attorney for the statement made to the birth father’s attorney, “indicating the child would not be adopted without Birth Father’s consent.”[149] Krigel denied that the statement was one of fact, claiming that he was merely explaining Missouri law of adoption since he knew the birth father’s lawyer was not well-versed in adoption law.[150] But, of course, false statements regarding law, as well as false statements regarding facts, are proscribed by the rule.[151] At the time he made that statement (whether of law or fact), he was employing a “passive strategy” designed to allow the adoption without the birth father’s consent.[152] Thus, at the time of making the statement, Krigel knew the statement of fact was false “and that his client, in fact, would seek to place the child for adoption without the father’s knowledge or consent.”[153] Further, given his experience in adoption law, and his previous use of the “passive strategy” to shut out birth fathers, he would have been well aware that Missouri law did permit adoptions without the consent of the birth father.[154] False statements about facts and law are equally deserving of sanction.[155]

While lawyers may be well aware of the obligation of candor, sometimes they seek to skirt as close to the line as they can because they feel an obligation to present the most favorable case possible in the interests of their clients. They may feel a conflict between their obligation of candor and their obligation to keep confidential certain matters disclosed by their clients. But lack of candor to the tribunal is an offense courts are likely to take very seriously. Courts may excuse other mistakes or take inexperience into account when lawyers make errors, but “inexperience does not go far in our view to excuse or to mitigate dishonesty, misrepresentation, or misappropriation. Little experience in the practice of law is necessary to appreciate such actual wrongdoing.”[156]

C. Respect for Rights of Others

In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person . . . .[157]

While a lawyer’s first duty is to the interests of the client, that duty “does not imply that a lawyer may disregard the rights of third persons.”[158] Many of the cases under this rule prohibiting embarrassment, delay, or burden involve lawyers engaging in harassing or embarrassing conduct.[159] But there are cases where lawyers burdened a third person by interfering with their rights or imposing unwarranted obligations; for example, in In re Royer, an attorney was disciplined for arranging the sale of his client’s building in need of demolition to a homeless man for one dollar so that the client could avoid paying demolition costs.[160] The sale burdened the purchaser with the costs of demolition, and since he would be unable to pay, it burdened the city which would have to undertake the costs.[161]

In In re Krigel, attorney Krigel was sanctioned under this provision because of his conduct toward the birth father.[162] As the Office of Disciplinary Counsel said,

Under the circumstances of this case, and given Respondent’s clear understanding as to the identity of the father, that the father was not willing to consent to an adoption, and that the father wanted to raise his child, Respondent’s conduct, including his conversation with [birth father’s lawyer], his instructions to the mother and her family to have no communication with the father, and his overall implementation of his “passive strategy” to “actively do nothing,” had no substantial purpose other than to impair and delay the father’s assertion of his parental rights . . . .[163]

The purpose of the “passive strategy” was to delay the birth father from learning facts necessary to his assertion of his legal rights.[164] Since the date of the child’s birth would have triggered the fifteen-day deadline for filing in the putative father’s registry, keeping the date of birth from the birth father was important to the strategy.[165]

Krigel’s strategy is a common one in adoption cases—ignore the birth father in the hopes that he will not successfully assert his parental rights and block the adoption.[166] Indeed, an expert witness who testified on behalf of Krigel said that it was “reasonable and within the ordinary practice of Missouri adoption attorneys representing the birth mother to utilize the ‘passive strategy.’”[167] Even where the identity of the birth father is known to the attorney, and he is represented by counsel, and he has made known his objection to the adoption and desire to parent, the expert witness testified, the “passive strategy” was appropriate.[168] Indeed, in an amicus brief filed by professors of family law and professional responsibility, the professors say of the “passive strategy” utilized by Krigel, “it is an appropriate course of action that any competent lawyer (in an adoption or otherwise) could choose.”[169] The brief of amici characterizes Krigel’s action as zealous representation of the client, fulfilling his obligation of loyalty and confidentiality in meeting the objectives of representation.[170] The amici opine that neither the birth mother nor her attorney had any legal obligation to inform the birth father of his rights or the facts necessary to assert his rights.[171] Indeed, in the advisory comments to the rule requiring truthfulness in statements to others, the ABA makes clear that a lawyer “generally has no affirmative duty to inform an opposing party of relevant facts.”[172]

The In re Krigel case is more complicated than mere passivity, however, as it is inextricably intertwined with deceit, misdirection, and obfuscation. As the court stated:

Krigel advised Birth Mother and her family to have no contact with Birth Father and to not divulge any information to Birth Father regarding the birth of their child. Krigel communicated with Zimmerman, indicating that the child would not be adopted without Birth Father’s consent. Further, Krigel advised Birth Mother and Birth Father to receive “counseling” from Merryfield, who was actively working with Birth Mother to place the child in an adoptive home. Despite actual knowledge that Birth Father wanted to raise the child, Krigel pursued a course of action that disregarded the parental rights of Birth Father and the best interests of the child in remaining with a natural parent. Krigel’s actions served no substantial purpose other than to impair and delay Birth Father’s assertion of his parental rights.[173]

Thus, Krigel actively concealed information, not just passively failed to disclose information. He actively misled the birth father into “counseling” without disclosing the actual purpose of the relationship. And he communicated with counsel for the birth father, actively deceiving him about the adoption by assuring him that no adoption would happen without the birth father’s consent.

Krigel’s conduct, in behavioral ethics terms, is a textbook example of “ethical fading:”

In order to avoid a conflict between their interests and principles, individuals are drawn to strategies that bleach out the moral content of their choices. Tendencies such as adopting euphemistic labels for injurious conduct, or understating responsibility for acts of omission, allow the ethical dimensions of decision making to fade from view.[174]

Using the neutral-sounding language of “passive strategy” allows Krigel to fade the ethical dimensions of burdening the birth father’s interests in favor of his self-interest.

After In re Krigel, it appears ethically risky to utilize the “passive strategy” of ignoring the rights of the birth father in hopes that he will not step forward to spoil the adoption, though without the active efforts at concealment at play in that case, it is uncertain that another court would reach the same conclusion as the In re Krigel court. It is a risky strategy for other reasons and might in fact show a lack of competence and diligence. As Elizabeth Brandt argues, “any system that finalizes an adoptive placement without notifying the father risks increased litigation at the moment of adoption.”[175] The delay tactic is not ultimately in the best interests of the child, since disrupting an adoption placement after a child has bonded with the prospective adoptive parents is potentially harmful.[176] A lawyer advising this strategy may also find himself and his clients subjected to liability for tortious interference with the birth father’s parental rights.[177]

It is better to find out as early as possible if the birth father objects to the adoption or is interested in parenting. Notifying the birth father of the adoption may serve to assuage his concerns about adoption, leading to his consent.[178] Seeking to exclude the birth father may actually cause objection to the adoption that shutting him out is designed to avoid, since “[b]irthfathers who either openly or tacitly approved of adoption were predominately those who were permitted to participate in the proceedings, whereas those who opposed adoption were mainly those who had been excluded.”[179] A lawyer can satisfy his ethical obligations of competence, diligence, loyalty, and confidentiality to the client, while respecting the rights of the birth father, by advising the birth mother or adoptive parent clients of the benefits of dealing with the birth father early and the dangers of ignoring his interests.

D. Compensation from Someone Other Than Client

A lawyer shall not accept compensation for representing a client from one other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgement or with the client-lawyer relationship; and (3) information relating to representation of a client is protected as required by [rules regarding confidentiality].[180]

A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgement in rendering such legal services.[181]

Krigel represented the birth mother in the adoption case, though his fee was paid by the prospective adoptive family and he was retained after recommendation of the adoption agency.[182] This pattern frequently occurs in adoption cases, with an attorney representing a birth parent who is unable to pay but whose fees are paid by the adoptive parents or an adoption agency.[183] Such arrangements, with third-party payers of attorney fees for the client, do present difficulties, however.

Because third-party payers frequently have interests that differ from those of the client, including interests in minimizing the amount spent on the representation and in learning how the representation is progressing, lawyers are prohibited from accepting or continuing such representations unless the lawyer determines that there will be no interference with the lawyer’s independent professional judgment and there is informed consent from the client.[184]

Further, this fee arrangement often creates ambiguity about who the lawyer is actually representing.[185] A prospective adoptive parent paying the bills may believe he is the lawyer’s client, the birth parent may have that same understanding or may believe she is the client, and the lawyer may also have a different understanding of who the client is. The lawyer may believe both parties are clients, which sets up a situation rife for a conflict of interest.[186] There may also be issues regarding the scope of representation—the adoptive parents are likely only willing to pay for legal services related to the consent and relinquishment of parental rights, but not any attempt to revoke that consent.[187]

Courts have approved arrangements whereby the adoptive parents pay legal fees for the birth parent. In In re Adoption of Banda, the birth mother sought to revoke her consent because her lawyer was paid by the adoptive parents.[188] The court held, in accordance with Ohio statutes, “the adoptive parents may agree to pay the birth mother’s attorney fees.”[189] In order to satisfy the Model Rules, however, the attorney should exercise independent judgment on behalf of the client even when paid by the adoptive parents.[190] Further, the court outlined best practices for adoption cases:

We are compelled to emphasize that while there is no evidence of any impropriety as to the fee arrangement here, such may not always be the result. The better practice is that the birth mother be solely responsible for her fees, or if the adoptive parents agree to the payment of the birth mother’s attorney fees, such payments must not be contingent upon the outcome of placement or adoption. The agreement for payment of fees by the adoptive parents should be in writing and consented to by all parties concerned.[191]

While noting that “there are concerns with the appearance of the petitioners or agency providing the independent counsel,” the Kansas legislature has approved such payments of counsel representing minor birth mothers since “there is also an incentive for such persons to insure a valid instrument is obtained and, consequently, to provide minors with attorneys who are truly independent of the petitioner or agency.”[192]

Payments to the birth parent’s attorney by the adoptive parents or adoption agency creates the appearance, if not the reality, that the attorney will be more supportive of the interests of the adoptive parents or agency in ensuring the adoption is finalized. While the Model Rules allow the practice, the attorney must take great care to represent only the interests of the client, not the person paying the bills. The Model Rules require the lawyer to exercise independent judgment in the interests of the client, so the attorney must carefully guard against even unconscious bias in favor of the adoptive parents. Any appearance of bias may well provide grounds for the birth mother to challenge her consent in court.

E. Fees

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.[193]

Fees, including lawyer fees, are regulated in adoption[194] because of concerns about commodification of children,[195] and both the appearance and reality of baby-buying and baby-selling.[196] States criminalize baby-buying and baby-selling,[197] though there can be considerable disagreement in distinguishing between these clearly prohibited practices and the permissible payment of fees and expenses in adoption.[198] High fees are not inevitable in adoption; adoption agencies did not initially charge fees to adoptive parents,[199] and until 1945, adoption agencies “maintained that financial transactions between adopters and agencies were strictly unethical.”[200] In other countries, adoption is exclusively government-run and does not entail high fees.[201] But high fees in American adoption is de rigeur.[202] And lawyers earn a portion of those fees.

Although law is a learned profession, as distinguished from a trade or business, it is not unreasonable for a lawyer to expect to be paid for his work.[203] The factors to be considered in judging the reasonableness of the fee include the time and labor involved, the novelty and difficulty of the issues involved, the fee customarily charged for similar legal services, and the experience and reputation of the lawyer.[204] Lawyers can charge fees contingent on the outcome in appropriate cases, but one leading adoption practitioner suggests contingent fees are not appropriate in adoption cases:

Contingent fees are not appropriate in adoptions. Whether the contingency is locating a child, having the child placed with the prospective adoptive parents, obtaining the birth parents’ consents, or successfully completing the adoption, a contingent fee suggests child selling and that the attorney’s professional objectivity is compromised by the incentive to satisfy the condition. In a dual representation, a contingent fee militates against the attorney’s giving equal recognition to protecting the birth mother’s rights; the contingency is invariably an event at least theoretically a step closer to terminating the birth mother’s parental rights and thus hostile to her legal interests.[205]

According to that same practitioner, “[a]doption attorneys commonly charge a set fee or an hourly rate. . . . The most straightforward adoption will take at least 15 professional hours to complete proficiently; any set fee, or cost estimate, should reflect that expectation.”[206] According to an annual survey at Adoptive Families Magazine, newborn adoption using an adoption attorney averages $37,829, with $13,780 attributable to attorney fees.[207] Using an adoption agency, the newborn adoption averages $43,239, with $4435 attributable to attorney fees.[208] In adoption from foster care, the average cost is $2938, with $947 attributed to attorney fees.[209] Thus, attorney fees in adoptions can vary widely.

In In re Krigel, the lawyer earned more than $20,000 as his fee for representing the birth mother and admitted that he worked less than ten hours on the case.[210] Interestingly, Krigel’s law firm’s web page includes an article about the costs of adoption, with a reminder that “[i]t is best to know upfront what fees and expenses you can anticipate so you can plan and budget accordingly.”[211] The judge, who ultimately removed the child from the prospective adoptive parents and placed legal custody with the birth father, questioned the amount of the fee, noting the large amount “for a minimal role in the litigation.”[212] Though the Model Rules prohibit lawyers from charging an unreasonable fee, Krigel was not charged with violating this rule.[213] Yet, “[c]harging a lot for doing very little is just as likely to violate Rule 1.5(a) as charging for doing nothing.”[214]

F. Dual Representation/Conflict of Interest

[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.[215]

One of a lawyer’s primary obligations to a client is singular loyalty and independent judgment:

The principle of loyalty of lawyer to client is a basic tenet of the Anglo-American conception of the lawyer-client relationship. . . . Where choices have to be made between the interest of a client and any other person—whether the lawyer personally or another client, the lawyer must be in such a position that all options that might favor the client can be considered free from the likely impairment of any interest other than those of the client.[216]

Thus, a lawyer cannot represent two clients when their interests are directly adverse—like representing both husband and wife in a divorce[217] or representing both the buyer and seller of real estate.[218] Even without direct adversity, however, a lawyer’s representation of multiple clients may impinge on the duty of loyalty by limiting the lawyer’s “ability to consider, recommend or carry out an appropriate course of action for the client” because of the lawyer’s obligation of loyalty to the other client.[219]

A lawyer’s obligation to keep the confidences of a client can create a conflict between two clients. The obligation to keep secret one client’s information may violate the duty of loyalty to the other client to whom the information may be relevant and useful.[220] For example, in the context of adoption, consider a case where the adoption attorney tries to represent both the birth mother and the birth father:

If, for example, the birth father abruptly wishes to contest the adoption, “reasonable steps to avoid reasonably foreseeable prejudice” may logically include assisting him in filing a timely challenge or paternity action; yet such conduct would overtly violate the duty owed to the birth mother wishing the adoption to continue. Warning the birth mother of the father’s changed intention may be necessary to avoid harm to her; yet this can hardly be squared with the attorney’s duty to protect the birth father and to maintain his confidences.[221]

Where the birth mother is represented by the same counsel as adoptive parents, or her independent counsel is paid by adoptive parents, “the birth mother may assume that her questions or any sign of hesitation will immediately be conveyed to their attorney; the resulting inability to talk freely with the attorney vitiates the purpose of separate representation.”[222]

An adoption lawyer seeking to represent both the prospective adoptive parents and the prospective birth mother will often face conflicts of interest. As one lawyer notes, “At first blush, one might regard the objectives and interests of birthparents, prospective adoptees, and adoptive parents in every adoption as wholly consistent and aligned toward a common goal: the timely and permanent placement of a child in a loving and proper home.”[223] But as is readily evident, “[a]n adoption is a highly emotional undertaking for both the adoptive and the biological parent[,]”[224] and even when interests might align at first, parties can change their minds for any reason in the course of the adoption case.[225] For that reason, the ABA Commission on Ethics and Professional Responsibility issued an informal opinion holding that “[a] lawyer may not ethically represent both the adoptive and biological parents in a private adoption proceeding.”[226] The Commission reasoned that the rights surrendered by the birth parents and granted to the adoptive parents are in potential conflict, and “[t]he biological parent’s right to revoke the consent is in direct conflict with the interests of the adoptive parent.”[227] Since each is entitled to independent advice from their attorney, they cannot both be appropriately advised by the same attorney; “[t]he inherent conflicts cannot be reconciled.”[228]

New York takes a very firm stand against dual representation in adoptions.[229] In In re Michelman, Stanley B. Michelman was suspended from the practice of law for three years after representing both the birth mother and the adoptive parents in two private adoptions.[230] He was sanctioned despite his argument that the adoptions were completed successfully and both sets of adoptive parents and birth mothers were satisfied with the outcomes.[231] He had been previously admonished by the Grievance Committee three times for representing adoptive parents and biological parents in the same proceeding.[232] In one case where Michelman was the attorney, the trial court refused to accept the birth parents’ extrajudicial consent to the adoption because Michelman advised them while representing the adoptive parent:

Conversations between a natural parent and the adoptive parents’ attorney, no matter how extensive, do not provide the assurance an adoption court needs that the natural parent fully understood her rights and options. The adoption process is typically a highly emotional undertaking for both natural and adoptive parents. . . . Since a natural parent gives up her superior position by signing an extrajudicial consent and has 45 days to revoke it, there is an inescapable conflict of interest between the two sets of “parents.” It is evident that an attorney for adoptive parents cannot be fully dedicated to achieving the goals of his clients and at the same time be relied upon to ensure that the natural parent’s relinquishment of her rights was knowing, intelligent and voluntary. Indeed, that attorney has, at the very least, a strong incentive to persuade her on behalf of his clients that surrender of the child is the best course of action.[233]

A conflict of interest because of dual representation will not only potentially subject a lawyer to discipline, it may also put the adoption at risk. A court may conclude that the birth mother’s consent is invalid because she did not have the services of an independent counsel, and even if the adoption is ultimately upheld, the dual representation provides one more point from which to argue the invalidity of the consent.[234]

Sometimes lawyers will seek to “cure” the dual representation problem by representing the adoptive parents and leaving the birth parent unrepresented. Consider the case of Tammy Lemley. Tammy’s boyfriend convinced her to relinquish their child for adoption and took her to an attorney’s office where she eventually signed a consent to the adoption.[235] But she was under age, making her consent void under Ohio law.[236] The lawyers told her after she turned eighteen that she needed to sign more papers—actually, she needed to sign papers once she reached majority because the previous papers were void.[237] That same day, Tammy’s parents went to the lawyers to ask for the return of the child and pointed out that Tammy’s consent was void because she was underage.[238] The lawyers refused, having already delivered the child to a couple in West Virginia for adoption.[239] The courts of Ohio ruled that Tammy’s consent was invalid,[240] and the West Virginia court granted full faith and credit to that ruling.[241] When Tammy brought a legal malpractice action against the lawyers who deceived her, the courts ruled in favor of the lawyers.[242] Legal malpractice requires that a lawyer breach a duty to a client, and Tammy Lemley was never the client, the adoptive parents were.[243] Of course, the issue may not be quite as clear-cut as the general rule that nonclients cannot sue for legal malpractice; courts may find that a lawyer owes a duty to nonclients in some circumstances.[244] And a court might also find that the lawyer was actually representing the birth mother, despite disclaimers to the contrary.[245] Further, dealing with an unrepresented birth mother presents other ethical issues, addressed elsewhere in this Article.[246]

One argument offered in support of dual representation is that the realistic alternative is unrepresented—or poorly represented—birth parents:

Often, the birth parents don’t want separate representation, sometimes to spare the cost, often because they recognize they don’t want advice, just closure on the pregnancy. . . . Moreover, the ideal of separate representation is seldom realized. The birth parents often elect no representation when dual representation is prohibited or declined, and instead get their adoption information secondhand through the adopting parents.[247]

While an attorney representing both parties may be conflicted, the argument goes, at least that the attorney owes a duty to both parties. Where dual representation is prohibited, “[s]ince the adoptive parents’ attorney has a duty to represent his clients zealously but has no corresponding duty to the birth mother, the Model Rules’ prohibition may put her in a worse situation than if she had no advice at all.”[248] Further, a birth parent’s attorney “is seldom paid commensurate with the adoptive parents’ attorney.”[249] In California, the statutory fee for independent counsel for birth parents, to be paid by adoptive parents, is “up to a maximum of five hundred dollars ($500) for that representation, unless a higher fee is agreed to by the parties.”[250] The typically low rate paid to birth mothers’ attorneys caused one commentator to argue that “the resulting quality of representation may be inferior.”[251]

A number of jurisdictions permit dual representation of birth parents and prospective adoptive parents in at least some circumstances, reasoning that the birth parents and the adoptive parents have similar interests, each side only interested in appropriate placement for the child.[252] California permits an attorney to represent both the prospective adoptive parents and the birth parents so long as written consent is obtained after informing the birth parents that they are entitled to representation by independent counsel paid for by the adoptive parents, and they waive the right to that representation.[253] One commentator argues that “if the requisite full disclosure is given to each client in a private adoption, the result will not be the client’s consent to dual representation. On the contrary, the client will recognize the dangers of dual representation.”[254] This position presumes, however, that the attorney is motivated to thoroughly explain the danger of dual representation, when in reality, “the lawyer has an incentive to phrase her explanation in a way that encourages the client to waive the conflict.”[255] After all, dual representation ensures more legal work and consequently more attorney fees. Consent to dual representation may also be impaired by the highly emotional nature of the decision of a birth mother to relinquish parental rights, such that she “may be unable to comprehend the potential problems that may arise when her lawyer attempts to represent not only her interests, but also those of persons whose interest is in permanently obtaining her child for themselves.”[256]

The Kansas courts have held that so long as there is no actual conflict, dual representation is permissible:

In adoption cases, such as this, the attorney can represent both the natural and adoptive parents. The attorney owes both sets of parents a duty to provide good faith advice concerning the legal consequences of their acts. This multiple representation can continue so long as no conflict develops between the parties. However, if a conflict occurs, the attorney must choose which conflicting interest he or she will represent.[257]

Representing both parties until a conflict arises, and then withdrawing when it does so, is risky in a number of ways. It is likely to delay proceedings as the now-unrepresented parties need to secure new counsel at a critical and newly contentious phase of the proceedings.[258]

The conflicted representation may also serve as grounds for challenging the validity of the birth mother’s consent, significantly disadvantaging the adoptive parents.[259] In Adoption of Alexander S., the appellate court chided the attorney representing both parties: “[u]nder any standards, [the birth mother] did not receive representation of counsel at a time when she needed it most.” The court further noted the attorney’s “failure to act on behalf of his client during the critical period when she expressed her unwillingness to consent.”[260] Even if arguments about dual representation vitiating consent ultimately prove unsuccessful, the possibility of dual representation provides one more avenue for seeking to undo the adoption and thereby increases costs, delays finality, and adds to stress for all.

It is not only dual representation of the birth parents and adoptive parents that may prove problematic. In one case, the court found an impermissible conflict when the same attorney represented the adoption/foster agency and the prospective adoptive parents.[261] The agency had supervised the child’s foster placement with the prospective adoptive parents, and when a second home study found deficiencies in the home, the lawyer had the child removed from the home, and the agency opposed the adoption.[262] The court held that the prospective adoptive parents needed to be represented by new counsel, not the attorney who was also representing the agency that was no longer advocating for the adoption.[263] “Clearly the agency attorney could not act both for the agency that originally consented to the adoption and for the prospective adoptive parent.”[264] The conflict was clear, and the prospective adoptive parents deserved “a lawyer who will deal with the agency only for the benefit of the [adoptive parent] and the [adoptive parent]’s desire to complete the adoption.”[265]

Dual representation may also present a conflict of interest when an attorney represents competing sets of adoptive parents seeking to adopt the same child. In In re Petrie, a couple seeking to adopt contacted attorney Petrie, who said he did not currently know of any adoptable children, but that if the couple were to find such a child, he would represent them in the adoption.[266] Some eighteen months later, the couple, through a mutual friend, learned of a birth mother seeking to place a child and arranged for her to be referred to Petrie.[267] Petrie notified the couple that he now had a child available for them, and they responded positively. Shortly thereafter, Petrie received a call from another couple seeking to adopt.[268] By this time, the lawyer believed he was representing the birth mother who believed that she had no obligation to the first couple, so he advised the birth mother to place the child with the second couple.[269] The court sanctioned Petrie for violations of the rules of professional conduct, noting, “In a situation involving independent sets of adoptive parents and only one available child, obviously one set of parents will be disappointed. An attorney cannot simultaneously represent both sets of adoptive parents without compromising his representation of one of them.”[270] The court also noted that it might be possible for an attorney ethically to represent multiple parties to an adoption, but that would only be permitted with disclosure and consent, which did not happen here.[271]

Permitting dual representation of birth parents and adoptive parents seems particularly odd in light of other similarly prohibited conflicts. For example, a lawyer is not permitted to represent both the buyer and seller in a real estate transaction.[272] For the buyer and seller, “what one party gets the other must concede,”[273] a description that is equally apt in an adoption when representing both the birth parents and the adoptive parents. Given the importance of the interests at play in adoption—constitutionally protected parental rights and the best interests of the child—independent counsel, unimpaired by dual loyalty, is essential.[274] In many states, there are few protections to ensure a birth mother’s rights are secured. She does not have to appear before a judge or other public official to confirm the validity of her relinquishment, and in private adoptions, there may not be a potentially neutral adoption worker or social worker to counsel her.[275] Thus, a birth mother’s lawyer is the only potential buffer to ensure that her consent is free from duress or coercion.[276] A lawyer representing the adoptive parents as well as the birth parent may, even unconsciously, privilege the interests of the person paying his fee.

G. Self-Interest and Other Conflicts of Interest

[A] lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if . . . there is a significant risk that the representation . . . will be materially limited by . . . a personal interest of the lawyer.[277]

Representation of adverse parties may impair duties of loyalty and independence, but so too may a lawyer’s own personal interests that are potentially adverse to a client’s interest.[278] In Oklahoma Bar Association v. Stubblefield, the attorney was approached by a pregnant woman interested in placing her child for adoption.[279] He agreed to help her find adoptive parents, and told her that if he did so he would be representing the adoptive parents, not her, in any adoption proceedings.[280] The birth mother also retained him to represent her in other legal matters unrelated to the potential adoption.[281] Stubblefield found a prospective adoptive couple desiring to adopt a male child, but then Stubblefield and his wife decided they wished to adopt the female child instead.[282] The birth mother consented to relinquish her parental rights and place the child for adoption, but did not know that Stubblefield and his wife were adopting the child.[283]

Shockingly, the court refused to rule retrospectively that Stubblefield should be sanctioned regarding the adoption, finding that “reasonable minds could and do differ regarding an attorney adopting his/her client’s child.”[284] But prospectively, such conduct was a different matter:

However, we find an attorney, after today, must not adopt the child of his/her client in a private adoption proceeding unless the attorney withdraws from representation and refers the client to another lawyer who can give independent legal counsel. The ramifications of adoption proceedings are broad inasmuch as they affect three distinct interests: the natural parents, the child and the adoptive parents. Potential conflicts do exist between these interests.[285]

Thus, the court ruled, a relinquishing parent must be afforded independent legal counsel, a lawyer whose legal advice “is not potentially or actually colored by his/her own self-interest in the child.”[286] Independent legal counsel ensures the integrity of private adoptions, but more importantly serves “to avoid subsequent emotionally traumatic custodial changes of the adopted child.”[287]

The idea that it is not sanctionable for a lawyer to adopt the child of a birth mother he is advising or representing is astonishing. When it comes to business transactions with clients, the Model Rules recognize that a lawyer’s legal training, together with the trusting relationship between the lawyer and potentially less powerful client, “create the possibility of overreaching.”[288] A lawyer cannot enter into business transactions with a client unless the terms are fair and reasonable to the client, and disclosed in a writing transmitting those terms in a manner that can be understood by the client.[289] The client must also be advised in writing that they should seek the advice of independent legal counsel and be given a reasonable opportunity to do so.[290] Finally, the client must give informed consent in a writing signed by the client that outlines the transaction terms and the role of the lawyer in the transaction.[291] Stubblefield took none of these steps necessary to protect a client from an overreaching attorney in a business transaction when adopting his client’s child without her knowledge.[292] If he had been buying his client’s business or house rather than adopting her child, his course of conduct would have clearly run afoul of the Model Rules.[293]

In another case where a lawyer was sanctioned for adopting the child of the birth mother who approached her about the adoption, the court ruled on grounds of lack of candor that the lawyer violated the rules of ethics.[294] But it is quite evident that conflict of interest played a significant part in the lawyer’s missteps. A Canadian birth mother reached out to a distant relative, lawyer Ritland, when she desired to place her child for adoption. She asked the Ritlands to consider adopting her baby.[295] Since the Ritlands had been trying unsuccessfully to conceive for more than a year, she had become “obsessed” with having a baby.[296] Ritland had not handled adoption cases before[297] so she began to research and discovered that Canadian children could not be easily placed in American families, that the birth mother was not considered a close enough relative to qualify as a family placement adoption, and that a home study for a nonfamily placement was beyond her financial means.[298] The birth mother informed her the birth father was out of the picture,[299] so Ritland concocted a scheme whereby her husband would be listed as the birth father on the child’s birth certificate, making him the legal father, and then after the requisite waiting period, Ritland would adopt the child in a stepparent adoption.[300] The plan was carried out, with Ritland creating false affidavits and false pleadings which were filed in court.[301] The biological father eventually filed for custody in Canada, leading to the falsehoods being revealed.[302]

Although none of the sanctions in Ritland involved conflicts of interest, the court did recognize that the attorney acted with self-interest.[303] But quixotically the court excused her selfish motivation because it “arose in part from a deep yearning for a child, genuine concern that [the birth mother] could not properly care for a baby, and a desire to protect [the child] from upheaval, consistent with her professional commitment to serving children in need.”[304] But it is precisely these motivations that created a conflict of interest that allowed her to systematically disregard the interests of the birth father and generate falsehoods for the court. The court also considered Ritland’s struggles with infertility, leading to “feelings of desperation” and “heartbreak.”[305] The court further stated: “[W]e believe that Respondent’s desire to have a child exerted a powerful emotional pull over her and that this yearning helps to explain Respondent’s decision to engage in the misconduct at issue.”[306] The court also relied on Ritland’s “unwavering professional dedication to helping children in need” in her other professional endeavors.[307]

It was all of these “pulls” on her judgment that led Ritland into error. The basis of all the conflict of interest rules requires lawyers to be able to identify when conflicts of interest impair their judgment, recognizing that when a lawyer’s interests are at play, “it may be difficult or impossible for the lawyer to give a client detached advice.”[308] Ritland should have been able to objectively recognize that her personal interests could have been coloring her perspective on the case. She should have referred the birth mother to an independent lawyer, someone who did not have a stake in the outcome of the case.

As Ritland illustrates, conflicts of interest may materially impair a lawyer’s representation of a client simply because the lawyer’s personal beliefs that may be relevant to adoption.[309] As the influential Restatement of the Law Governing Lawyers states, a conflict may be altruistic rather than financial and may “result from a lawyer’s deeply held religious, philosophical, political, or public-policy beliefs.”[310] In In re J.M.P., the court addressed a potential conflict when attorney Perez became involved in the adoption because of his anti-abortion views.[311] The birth mother was given his name at a health clinic as an “anti-abortionist attorney.”[312] He handled this adoption case, without charging a fee to either birth family or adoptive family, in line with his anti-abortion views.[313] Although the court upheld the adoption on other grounds, making it unnecessary to address the conflict-of-interest issue raised by Perez’s anti-abortion views, it noted that “his representation may have been materially limited by his own interest in preventing abortions by promoting adoptions.”[314] One justice dissented to upholding the adoption, believing that attorney Perez did have a conflict surrounding his anti-abortion views:

The record demonstrates that Perez was personally biased in favor of the adoption, to the point that he believed that the adoption should go forward even after he learned from [birth mother’s mother] that [birth mother] had expressed the desire to keep her child. Although Perez testified at the adoption hearing that his primary interest was in seeing the child born, and that once the birth occurred he had no personal interest in encouraging [birth mother] to go through with the adoption, the majority overlooks the fact that Perez admitted that he did not advise Roberts about [birth mother’s] reservations because he personally believed that the adoption was in the child’s best interests.[315]

Other parts of the rules of professional conduct recognize that a lawyer’s personal feelings might impair representation so as to create a conflict of interest. For example, the Model Rules permit a lawyer to withdraw from a case when “the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”[316] A lawyer may also avoid a court-appointed case if “the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer’s ability to represent the client.”[317] Thus, when a client wishes to decline further appeals and accept the death penalty, an attorney “to whom the death penalty is ‘repugnant,’ may seek leave to withdraw from the representation.”[318] And in a case discussing appointed counsel for minors seeking abortion, one court opined that an attorney who “had strongly held religious or moral beliefs about the wrongfulness of abortion” would be expected not to accept a court appointment.[319] These requirements are motivated, at least in part, by avoidance of exactly the kind of conflict of interest that arises when a lawyer represents a client despite a lawyer’s deeply held religious, philosophical, political, or public policy beliefs.

Many lawyers who handle adoption cases have some relationship to adoption, with many of them being adoptive parents. Even those without a personal connection to adoption have a positive view of adoption, perhaps to the extent of presenting a conflict of interest that may bias their lawyering advice in adoption cases. As two long-time adoption practitioners note,

It is also too easy for attorneys to become caught up in the view that family formation work always exemplifies goodness and morality, possibly causing them to disregard the interests of the other parent as the lawyer marches toward the goal of creating a new and legally recognized parent/child relationship.[320]

Adoption lawyers need to guard against allowing their personal views to skew their objective, independent advice in adoption cases.

H. Dealing with Unrepresented Persons

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.[321]

“An unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client.”[322] That is the crux of the problem when a birth mother interacts with the adoptive parents’ attorney. Despite the limitations of Rule 4.3, the language does not express a complete prohibition on dealing with unrepresented persons, leading one commentator to declare, “[t]he professional ethics of the American bar overtly permit attorneys to knowingly exploit the ignorance and inexperience of unrepresented litigants.”[323] This is so, so long as the lawyer explains to the nonclient that he is not a disinterested party, and he offers no conflicted legal advice beyond the advice to seek counsel.[324]

Because very few states mandate that a birth parent be represented by counsel in an adoption, they are commonly unrepresented.[325] Birth parents are often confused on this point, believing that the lawyer representing the adoptive parents is, in fact, their attorney. There is every reason for that confusion—the birth mother may have approached the lawyer herself, seeking help in placing the child.[326] That initial contact can create the impression that the lawyer is “her” lawyer. He will explain to her the laws concerning adoption, outline her legal rights, and discuss the steps in the legal process of adoption that pertain to her. Then the lawyer will prepare documents for the birth mother’s signature—the relinquishment of parental rights affidavit, the adoption consent, etc.—furthering the impression that he is doing legal work for her. One court has held that actions of this type in fact created an attorney-client relationship between the lawyer and the birth mother:

In addition, it may be noted that, while the appellant maintained that he never represented the petitioner and her parents and acted only for his anonymous clients, it is our view that actually the appellant represented both sides of the transaction in which he acted. At times when the petitioner had no attorney of her own, the appellant not only acted for his clients but he also prepared papers for the petitioner’s signature and advised her of her right to appear and object in the proposed adoption proceedings.[327]

But in Tammy Lemley’s case, a court found that the lawyers were not representing the birth mother despite similar actions.[328] The court conceded that Tammy might have believed the lawyers were representing her, but held that the law firm “engaged in no representations or conduct which could reasonably induce [Tammy] to believe they represented her.”[329]

Best practices in adoption would be for each party to be represented by independent counsel, but if a lawyer representing adoptive parents acquires consent or relinquishment from the birth parents, he must carefully explain that he is not the birth parents’ lawyer. Even that may not be sufficient to avoid unethical lawyering. Given the significant potential for conflict of interest,[330] a lawyer can still violate the Model Rules if giving legal advice other than advice to secure counsel.[331] Further, an attorney may find himself subject to liability for legal malpractice, despite the usual rule that a lawyer cannot be liable for breaches of duty to nonclients.[332] “[A]ttorneys may owe a duty of care to nonclients when the attorneys know, or should know, that nonclients will rely on the attorney’s representations and the nonclients are not too remote from the attorneys to be entitled to protection.”[333]

I. Confidentiality

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent . . . . A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.[334]

“A fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the representation.”[335] When there is dual representation of a birth parent and an adoptive parent, the duty of confidentiality can be a concern. Joint representation may prevent the attorney-client confidentiality privilege from attaching, making any confidences shared with the lawyer admissible in court.[336] A desire by one jointly represented party to prevent disclosure to another party creates a conflict of interest, potentially requiring withdrawal of the lawyer from representing both parties.[337]

Confidentiality and adoption traditionally go hand in hand, with a long history of secrecy in adoption.[338] Wayne Carp, noted adoption historian, quotes a family court judge rebuking a birth mother seeking access to information about her child placed for adoption: “secrecy is the foundation underlying all adoptions and if this secrecy is not to continue this great work must suffer.”[339] While forced secrecy is changing today, with the advent of open adoption and access to original birth certificates and adoption records in some jurisdictions,[340] the lawyer’s promise of confidentiality still applies.

Lawyers in adoption cases have used the obligation of confidentiality to hide the identity of the adoptive parents when birth parents have sought to challenge the adoption. In Lemley v. Barr, the prospective adoptive parents directed the attorneys not to reveal their identities when the birth mother sought return of her child:

The Barrs knew about the Ohio habeas corpus proceeding through their discussions with [their lawyer] and through news reports both on television and in print. They discussed whether to appear physically in the Ohio proceedings, whether they should comply with the judgment of the Ohio trial court, and whether they should divulge their identities. The Barrs knowingly and intentionally refused to reveal their names, and directed [their lawyers] to exercise the attorney-client privilege on their behalf.[341]

It took two years and two months after Tammy filed in court before court processes resulted in an order that the names of the prospective adoptive parents be revealed. The prospective adoptive parents utilized that time of secrecy, while well aware of the Ohio court action, to file for adoption in West Virginia.[342] Tammy was required to bring further litigation in West Virginia to seek return of her child, and though she prevailed on all legal issues, the West Virginia Supreme Court remanded for further proceedings to decide what was in the best interest of the child, now five years old, who would, in the court’s words, lose “the only family this child has ever known” if returned to his legal mother.[343] Thus, the delaying tactic of insisting on confidentiality to hide their identity worked to the benefit of the prospective adoptive parents.[344]

The tactic was less successful for the prospective adoptive parents in Tierney v. Flower.[345] As in Lemley, the prospective adoptive parents instructed their attorney not to reveal their identities or whereabouts when the birth mother sought return of the child.[346] The adoptive parents’ attorney argued in court that such disclosure would violate the obligation of confidentiality.[347] The lawyer also declined to state whether the adoption papers had been filed, claiming that “such a response was also of privileged nature since adoption papers were generally sealed so as not to become a matter of public record.”[348] The court was unpersuaded, in light of the best interest of the child:

In our opinion, there is no competent reason why the Supreme Court should uphold the claim of confidential relationship between the appellant and his clients to the point of sealing their identity where the safe and proper custody of a child is involved, particularly where, as at bar, the infant is out of the custody of his mother and is not lodged in the custody of persons who have any legal authorization for their assumption of control over the infant. The Supreme Court’s overriding concern with the welfare of the infant as a ward of the court overbalances any interest of technical claim on the appellant’s part with respect to the confidential relationship between him and his clients.[349]

The court further opined that, as beneficent as the requirement of confidentiality might be in the usual case, “the surreptitious withholding of the petitioner’s child by the anonymous clients and their failure so far to proceed with the proposed adoption proceeding wherein the petitioner could register her present objection to adoption and demand the return of her child might be a cloak for wrongdoing.”[350]

In the context of other legal processes involving children—child custody in divorce, for instance—commentators have noted that confidentiality rules may be incompatible with the best interests of the child.[351] In zealously representing the singular interest of the client, the lawyer must respect rules of confidentiality that hide potentially relevant information from the fact finder which may make a true determination of best interests difficult.[352] Rules of confidentiality also prevent adult adoptees and birth parents from reuniting. States seal original birth certificates and adoption records,[353] and though the lawyer in the case would have possession of all the information, the Model Rules surrounding confidentiality would prevent their disclosure, absent a waiver by the client.[354]

The legal profession places the obligation of confidentiality high in importance, while adoption is trending away from its history of secrecy and suppression. Increased openness offers many benefits for all members of the adoption triad and also shines light on potential adoption corruption which flourishes in darkness. Thus, the rules of confidentiality enforced by legal ethics may well have negative consequences in the long run.

III.  The Contours of Ethical Lawyering in Adoption

A. Child-Centered Versus Client-Centered Lawyering

Adoption is presented as a child-centered process of finding families for children in need of them, operating in the best interests of children.[355] But the rules of legal ethics require attorneys to approach it as a client-centered process, where the attorney seeks the ends of the client without consideration of the interests of the child or any other party.[356] A case may be couched in terms of the best interests of the child, but “[b]ecause the adversary process limits parties to fighting for their own interests, arguments made about the best interests of the child can be seen as mere manipulations to benefit the positions of the parties making them.”[357] And in adoption, there are many missing parties—the birth father is often absent[358] and the child, the subject of the adoption, is rarely given a voice or protection of counsel.[359] The birth mother may be off stage by the time the case makes it to court, having waived all notice of continuing proceedings by relinquishing her parental rights.[360] Extended family is generally ignored altogether.[361] Because adoption is usually viewed as a positive development for all—a birth parent unable or unwilling to parent, an adoptive family eager to welcome a much-wanted child, and a needy child desperate for family—sometimes little care is taken to determine if the child is really needy or if the birth parent is really unable to parent.[362] Adoption may not, in a particular case, be a win-win-win.

With the current client-centered approach to legal ethics, the lawyer’s role as counselor is particularly important in considering the best interests of the nonclient child. The Model Rules conduct make clear that “a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client’s situation.”[363] The Model Rules recognize that advice that is narrowly legal may well be inadequate; “practical considerations, such as . . . effects on other people,” may predominate.[364] A lawyer may need to offer even unwanted advice, and “may initiate advice to a client when doing so appears to be in the client’s interest.”[365] An understanding of the psychosocial aspects of adoption illustrates certain realities that lawyers must consider in adoption cases.[366]

Professor Katherine Kruse has argued that client-centered lawyering should not focus on the client’s legal interests, narrowly understood, but should consider all of the client’s interests:

As a result of their legal professional training, lawyers have a tendency to over-value their clients’ legal rights and interests relative to the weight that their clients might assign to the protection of those rights and interests when the clients compare[] them to the other things that the clients value. If a lawyer is not careful, a client’s human problem can disappear, and the client can appear instead as a bundle of legal rights and interests walking around in a human body. The client’s important non-legal interests—the client’s relationships with others, reputation and standing in the community, values, and commitments that the client wants to honor—can fade into the background as the client’s legal rights and interests come more sharply into focus.[367]

She argues that lawyers have “a responsibility to shape legal representation around a more robust and holistic understanding of client objectives,” obviating the singular focus that disregards the interests of others.[368] Stephen Ellmann posits that Carol Gilligan’s “ethic of care,” which “focuses not on abstract rights and duties, but rather on the connections between people,” can inform lawyers of their ethical obligations.[369] Ellmann concedes that a lawyer owes a greater duty of care to her client than to others, and “need not care equally for all involved in any given situation.”[370] But he argues that a lawyer need not follow a client’s directions when they are inconsistent with the ethic of care, as in when there are concerns for third parties.[371] In accord with Kruse, Ellmann believes that the lawyer should, instead, seek to “try to reshape her client’s decision making rather than permit him to make a putatively independent, but uncaring, choice.”[372]

But is an ethic-of-care approach to lawyering consistent with existing codes of ethics? Ellmann believes so, grounding his argument in the rules of professional responsibility governing the role of lawyers as advisors and counselors.[373] But he cautions that the existing rules provide “no overt authorization or encouragement of intervention into client decisions to the degree the ethic of care would sanction.”[374] The experience of collaborative lawyering also suggests that an ethic of care is consistent with the Model Rules for lawyers. Collaborative lawyering, utilized in family dispute resolution—in particular in divorce cases—offers the promise of a more cooperative and less contentious approach.[375] “[Collaborative lawyering] encourages spouses to honor the positive connections between them so that they can divorce respectfully and maintain good relationships with children and other relatives.”[376] Bar authorities have found that collaborative lawyering is consistent with rules of professional ethics.[377] While collaborative lawyering is utilized frequently in divorce,[378] other issues of family law, including adoption, seem ideal for a collaborative lawyering approach that centers the interest of the child.

B. Ensuring a Successful Adoption

Ethical adoption lawyering requires adherence to all of the rules of professional responsibility, of course. Not only is this adherence necessary to prevent disciplinary measures by the bar licensing authorities, it is also important in achieving a legally enforceable adoption that can withstand legal challenges. Finally, it is important in effectuating the promise of adoption, that it be in the best interest of the child.

When representing prospective adoptive parents, the lawyer’s first concern may well be that the adoption proceeds to final judgment. Some believe the best way to achieve that goal is to push the birth mother to sign relinquishment paperwork as quickly as the law allows and to ignore the birth father in the hopes that he will not assert any rights he may have. This approach, however, is risky. This course of conduct sets up potential challenges to the adoption.[379] Even if the challenges fail, they increase the costs of adoption, result in delays in finalization, and cause emotional trauma to all parties involved. Rather, it is in the best interest of the prospective adoptive parents to ensure that both prospective birth parents are making fully informed and voluntary decisions. Fully informed decisions can be made only after consultation with independent counsel, counsel who is not representing the adoptive parents or the adoption agency.[380] It is only slightly better when the independent counsel is paid by the adoptive parents; I have proposed previously that courts should appoint and pay for counsel for minor birth parents in the same manner in which they appoint counsel for parents in cases involving the involuntary termination of parental rights.[381] In advising the birth mother, ensuring the finality of the adoption requires careful advice to affirm that her consent is voluntary. Advising the mother of services available to help her parent—eligibility for state and federal welfare assistance for her and the child, available state services to determine paternity and enforce child support orders, for instance—will help her consider whether adoption placement is what she wants rather than an act of desperation.[382] Many states require similar information about resources available to help parents be informed before an abortion decision, so it would not be onerous to require it before an adoption placement decision.[383]

Some might argue that this proposal is asking lawyers to be social workers, and it is true that there may be a fine line between “where lawyering ends and social work begins.”[384] Yet, it is well-understood in child welfare cases that lawyers need to understand social work practice and vice versa.[385] If adoption law is truly designed to focus on the best interest of the child, then that interdisciplinary approach should extend to adoptions as well. A lawyer handling adoptions needs to be aware of the psycho-social realities of adoption and adoption relationships so that she can effectively counsel the client beyond legal technicalities. A lawyer may consider collaborating with a social worker if he feels limited in serving this important function.

Employing the “passive strategy” of the In re Krigel case with the birth father, ignoring him or shutting him out in the hopes that he will not do what is necessary to assert parental rights, is also risking a later challenge to the adoption from the birth father.[386] Going beyond passive to actively thwarting the birth father may not only risk the finality of the adoption, but it may lead to legal liability for tortious interference with parental rights as well as bar discipline as in In re Krigel.[387] The concern seems to be that if the attorney reaches out to the birth father, he may assert his rights, so it is better to ignore him and hope that he does not resurface at a critical time. But available research suggests that birth fathers who are involved in the adoption placement decision are more likely to be cooperative than otherwise.[388] Several states have simplified procedures that allow a disinterested birth father to easily bow out of the case.[389]

The perceived downside of actually securing valid consent from the prospective birth parents is that they may choose to parent rather than relinquish their parental rights. Though that may not be the end desired by the prospective adoptive parents, it is the end to be desired in adoption. Adoption is for children who do not already have parents. If a child has a willing and able parent, then adoption is not in the child’s best interest.[390] After all, “[a]doption is about finding families for children, not about finding children for families.”[391]

Psychosocial research also suggests that what is in the best interests of a child in a completed adoption is continuing relationships between the adopted child and birth family.[392] Ethical lawyering requires an attorney to advise parties to the adoption of the long-term consequences of adoption and of the benefits of preserving on-going relationships. An ethical adoption attorney advises clients to avoid the winner-take-all litigation strategy that shuts out the interests of others, especially the interests of the child. When I read a case like Lemley v. Barr[393] or In re Krigel,[394] I wonder how the prospective adoptive parents would explain their conduct to their adopted children as they reach adulthood: “Though your birth parent wanted to parent you, were quite capable of doing so, and fought at every turn to do so, I asked the lawyer to employ every trick and stratagem available to cut them out of your life. I won! Aren’t you lucky to be my child?!” Adopted children grow up to be adopted adults, and their views of their adoptions may not be quite as rose-colored as their adoptive parents believe.

C. Solutions from Behavioral Ethics

“The problems that descriptive work on unintentional unethical behavior identified have been difficult to address, given that people are unaware that their biases underlie them.”[395] The unconscious nature of most unethical decision making makes the usual prescription, educating attorneys about ethical rules and punishing them for breaking them, alone insufficient.[396] Indeed, there is some evidence that a system like the current attorney-sanction regime, with low rates of sanction, actually increases unethical behavior rather than improving behavior.[397] Instead, lawyers need to learn about behavioral psychology to help them understand and avoid ethical blind spots.[398] Tigran Eldred describes incorporating lessons from behavioral legal ethics in the professional responsibility courses he teaches[399] and given that students in every law school must take that class, it provides a natural home for lessons about the dangers of ethical blind spots.

Sezer, Gino, and Bazerman suggest that actors can avoid ethical blind spots by “moving from System 1 to System 2 processing.”[400] System 1 processing  is “fast, automatic, effortless, and emotional,” and results in processing that is far more biased than System 2 processing, which is “slow, deliberate, effortful, and reason based.”[401] Framing decisions so that decision makers can take more time and enable the shift from System 1 to System 2 processes,[402] as lack of time is a cognitive stressor that can result in unethical decisions.[403] Joint decision making can also result in more deliberative, less automatic, decision making.[404] This may be difficult for adoption lawyers, who often engage in solo practice, but that simply means that they must plan ahead to develop trusted networks of others with whom they can consult.[405]

When decision makers are prompted to look for problems with a decision they have made, they are more likely to engage in System 2 processing.[406] Focusing on counterfactuals before decisions are finalized, deliberately taking positions opposite to one’s first instincts, and actively considering an outsider’s perspective can move a decision maker toward System 2 processes.[407] Adoption lawyers should consider that different members of the adoption triad may have different views of adoption, both now and in the future. Consider how a particular action during the adoption process might appear later to an adoptee as an adult, for example. It may be that the lawyer’s client is the one pushing for unethical treatment of another party; as Deborah Rhode notes, “[t]he stress, acrimony, and financial pressures that can accompany legal disputes often compromise clients’ ability to perceive their own long-term interests or the ethical implications of self-serving behavior.”[408] The lawyer’s role, then, is to “provide a useful reality check for individuals whose judgment is skewed by self-interest or cognitive biases.”[409]

Since much of bounded ethicality is driven by unconscious self-interest, one way to alleviate the effect of self-interest may be “to change the ways that . . . lawyers calculate self-interest.”[410] Reframing the outcome goal also allows the lawyer to protect against potential unethical conduct by the client who may seek to push beyond ethical bounds to ensure that they successfully gain the child. A lawyer can cast ethical advice to respect the interests of all of the triad in more pragmatic terms:

Conduct that attorneys find ethically objectionable can be more diplomatically packaged as unduly risky, as something that will not play well with jurors, government regulators, the media or the general public. By the same token, the moral high road can also be portrayed as desirable for prudential reasons. In the long term, attorneys can often argue, “ethics pays.”[411]

In an adoption case, the lawyer representing prospective adoptive parents should see as the best outcome one that ensures that the adoption will be in the best interests of the child and will survive all potential legal challenges. Thus, rather than rushing the birth mother to a decision or erecting barriers to the birth father’s involvement, the lawyer’s self-interest would be to take all steps necessary to ensure that the interests of these parents are respected.

Social scientists also argue for institutional “fixes” to ethical blind spots by designing institutions and changing the design of existing institutions to promote ethical behavior.[412] One institutional fix, the institution of ethics codes, has been seen as successful by some social scientists, as ethics codes can assert ethical values that decision makers can aspire to.[413] But ethical codes alone are not enough to change behavior, as other incentives may create pressures to behave unethically.[414] Perhaps the best-known proponents of “nudging” actors toward better behavior through nearly invisible design changes are Cass Sunstein and Richard Thaler.[415] Nancy Rapoport has suggested that lawyers can be nudged toward better behavior by changing incentive structures and imposing default rules.[416] The adoption arena, especially the almost wholly unregulated area of private adoption, has default rules and incentive structures that allow faulty and unethical decision makers to flourish.[417]

Policymakers could certainly consider changes to the substantive law of adoption to rework some default rules. In the area of conflict of interest, for example, rather than relying on attorneys to correctly appraise whether they can appropriately represent both prospective birth parents and adoptive parents, dual representation should be banned altogether, as in New York.[418] Legislatures should require independent legal counsel for prospective birth parents and fund court-appointed attorneys for them, avoiding the potential for divided loyalties when the birth parent’s attorney is paid for by the adoptive parents.[419] Further protection for fathers’ rights in adoption would avoid the “passive strategy” designed to burden his assertion of rights.[420] These are rather large nudges, of course. Absent these fixes, adoption lawyers must create their own incentives to disconnect themselves from the unconscious biases that lead to bad decisions. Anticipating and actively guarding against ethical blind spots, incentivized with the realization that ethical adoption is in the best interests of all of the adoption triad, is a starting place.

Conclusion

The best interests of children are to be raised by their biological parents. If that is not possible, the best interests of children are a secure and permanent adoptive placement that respects their connection to their first families. Ethical lawyering in adoption ensures this outcome. But that ethical lawyering must go beyond mechanical adherence to the Model Rules. Ethical lawyering in adoption centers the interests of the child, while keeping in mind the interests of all members of the adoption triad. Adoption lawyers need to be competent in both adoption law and the psychosocial aspects of adoption. Best practices for ensuring a successful and legally unchallengeable adoption require cooperation and collaboration between parties, all of whom are represented by independent legal counsel. To guard against personal conflicts, lawyers need to examine their attitudes toward adoption and not allow the rainbows-and-unicorns fantasies of family formation to obfuscate the fact that all adoptions begin with loss—the child loses a first family, the birth family loses a child, the adoptive family often loses their image of a biological child. While adoptive families also gain a child—and the child gains a family—lawyering with loss in mind encourages an adoption attorney to consider the interests of all parties to minimize that loss. Believing that adoption work is purely good can lead to ethical blind spots, to an ends-justify-means rationalization that can risk both the lawyer’s license and the legality of the adoption itself. In a previous article, I argued that “ethical adoption practices should be as simple as doing the right thing because it is right.”[421] If further incentive is needed, lawyers must be aware that unethical adoption practices may risk civil damages for legal malpractice, risk sanction by the state bar, risk a court invalidating an adoption, and risk the best interests of the child.


  *    Professor of Law, Texas A&M University School of Law. I gratefully acknowledge the financial and institutional support of Texas A&M, without which this Article would not have been possible. This Article expands on an essay to be published by Adoption Quarterly’s special issue on adoption ethics. As is the tradition among those who write about adoption, I wish to note my place in the adoption triad: I am an adoptive parent of two children via international adoption.

        [1].    State ex rel. Okla. Bar Ass’n v. Stubblefield, 766 P.2d 979, 980–82 (Okla. 1988). The case is discussed in further detail. For further discussion, see infra notes 278–90 and accompanying text.

        [2].    Model Rules of Prof’l Conduct r. 1.8 cmt. 1 (Am. Bar Ass’n 2019).

        [3].    Model Rules of Prof’l Conduct r. 1.8(a)(1) (Am. Bar Ass’n 2019).

        [4].    Model Rules of Prof’l Conduct r. 1.8(a)(2) (Am. Bar Ass’n 2019).

        [5].    Model Rules of Prof’l Conduct r. 1.8(a)(3) (Am. Bar Ass’n 2019).

        [6].    See Stubblefield, 766 P.2d at 980–81.

        [7].    See, e.g., In re Lupo, 851 N.E.2d 404, 408–09, 411, 413 (Mass. 2006) (failing to provide a relative-client with reasonable terms in an understandable way and failing to advise the relative-client to seek independent counsel violated Rule 1.8); LK Operating, LLC v. Collection Grp., LLC, 279 P.3d 448, 455–58  (Wash. Ct. App. 2012) (purchasing interest in client’s business without appropriate disclosures violated Rule 1.8).

        [8].    Malinda L. Seymore, Adopting Civil Damages: Wrongful Family Separation in Adoption, 76 Wash. & Lee L. Rev. 895, 903–11 (2019) [hereinafter Seymore, Adopting Civil Damages] (arguing that adoption is a business and economic endeavor).

        [9].    See, e.g., Nigel V. Lowe, The Changing Face of Adoption—The Gift/Donation Model Versus the Contract/Services Model, in Parental Rights and Responsibilities 141, 152–53 (Stephen Gilmore ed., 2017); Barbara Yngvesson, Placing the “Gift Child” in Transnational Adoption, 36 Law & Soc’y Rev. 227 (2002).

      [10].    Model Rules of Prof’l Conduct r. 1.8(c) (Am. Bar Ass’n 2019) (“A lawyer shall not solicit any substantial gift from a client, . . . or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift . . . .”).

      [11].    Ellen J. Bennett et al., Annotated Model Rules of Professional Conduct 158 (8th ed. 2015).

      [12].    Model Rules of Prof’l Conduct r. 1.7(a)(2) (Am. Bar Ass’n 2019). Stubblefield was not ultimately sanctioned for his violation, but the court noted that in the future, attorneys would be so sanctioned. State ex rel. Okla. Bar Ass’n v. Stubblefield, 766 P.2d 979, 982–83 (Okla. 1988). The case is discussed further. See infra notes 278–90 and accompanying text.

      [13].    Lynn Mather & Leslie C. Levin, Why Context Matters, in Lawyers in Practice: Ethical Decision Making in Context 3, 12 (Leslie C. Levin et al. eds., 2012).

      [14].    Jennifer K. Robbennolt & Jean R. Sternlight, Behavioral Legal Ethics, 45 Ariz. St. L.J. 1107, 1111 (2013).

      [15].    Tigran W. Eldred, Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility, 2016 Mich. St. L. Rev. 757, 762 (2016).

      [16].    Id.

      [17].    Stubblefield, 766 P.2d at 983. The court did sanction Stubblefield for making misrepresentations to a court in connection with the birth mother-client’s divorce. Id.

      [18].    Dana E. Prescott & Gary A. Debele, Shifting Ethical and Social Conundrums and “Stunningly Anachronistic” Laws: What Lawyers in Adoption and Assisted Reproduction May Want to Consider, 30 J. Am. Acad. Matrim. L. 127, 153 (2017).

      [19].    See, e.g., Adoption, Lisa Ghan Blumenstock, https://www.blumenstocklaw.com/ services/adoption/ (“Adoptions are ‘happy law’—we love them!”) [https://perma.cc/C6VU-XYRH]; Adoption, Timmons Warnes LLP, https://www.classiccitylaw.com/adoption-v-21. html (“For us, this area of the law is an illustration of pure ‘happy law.’”) [https://perma.cc /9FQF-74YX]; Deborah M. Henson, My Professional Story, The Law Office of Deborah M. Henson, https://deborahmhenson.com/about-me/me-professional-story/ (referring to her adoption law practice as “happy law”) [https://perma.cc/9M3E-Y994].

      [20].    Evelyn Burns Robinson, Adoption and Loss: The Hidden Grief 117 (2003); David M. Brodzinsky, Children’s Understanding of Adoption: Developmental and Clinical Implications, 42 Prof. Psychol.: Res. & Prac. 200, 202–03 (2011); Elsbeth Neil, Coming to Terms with the Loss of a Child: The Feelings of Birth Parents and Grandparents About Adoption and Post-Adoption Contact, 10 Adoption Q. 1 (2006).

      [21].    Peter J. Henning, Lawyers, Truth, and Honesty in Representing Clients, 20 Notre Dame J.L. Ethics & Pub. Pol’y 209, 214 (2006).

      [22].    Alex Elson & Miriam Elson, Lawyers and Adoption: The Lawyer’s Responsibility in Perspective, 41 A.B.A. J. 1125, 1125 (1955) (“Adoption is a creation of the legal process.”); Jane S. Schacter, Constructing Families in a Democracy: Courts, Legislatures and Second-Parent Adoption, 75 Chi.-Kent L. Rev. 933, 936 (2000).

      [23].    Cynthia Hawkins DeBose, Mastering Adoption Law and Policy 3 (Russell Weaver ed., 2015).

      [24].    Amanda C. Pustilnik, Private Ordering, Legal Ordering, and the Getting of Children: A Counterhistory of Adoption Law, 20 Yale L. & Pol’y Rev. 263, 263 (2002).

      [25].    Id. at 264.

      [26].    Joan Heifetz Hollinger, The Role of the Lawyer § 1.06, in 1 Adoption Law and Practice (Joan Heifetz Hollinger ed., 2019) [hereinafter Hollinger, § 1.06].

      [27].    Until an adoption is final, those seeking to adopt are “prospective” adoptive parents, not adoptive parents. Until a biological mother has relinquished her parental rights, she is a mother or a “prospective” birth mother. The distinction is often elided out of convenience, though doing so can mask the actual relationships and rights between the parties to an adoption. Prospective adoptive parents may see themselves as fully imbued with parental rights and entitled to the child long before the legal status of parent has been created. Public sentiment in contested adoptions tends to favor the prospective adoptive parents and sees any disruption as the destruction of a legal family, even when that legal family has not yet been constructed; the language of “adoptive parents” contributes to this confusion. The terminology of “birth mother” for a pregnant and considering mother-to-be presupposes that she will relinquish, ignoring that until she does, she is the legal mother with the right to parent. She has the right to change her mind about an adoption placement, and labeling her a birth mother before she relinquishes masks that fact. While recognizing the difficulty with this choice of language, in this Article, I bow to convenience and refer to the parties seeking to complete an adoption interchangeably as “prospective” and not-prospective adoptive parents and birth parents.

      [28].    See Hollinger, § 1.06, supra note 26.

      [29].    Id.; see also Malinda L. Seymore, Sixteen and Pregnant: Minors’ Consent to Abortion & Adoption, 25 Yale J. L. & Feminism 99, 102–03, 130–31, 154–56 (2013) [hereinafter Seymore, Sixteen & Pregnant].

      [30].    Hollinger, § 1.06, supra note 26; see also Malinda L. Seymore, Grasping Fatherhood in Abortion and Adoption, 68 Hastings L.J. 817, 828, 834 (2017) [hereinafter Seymore, Grasping Fatherhood].

      [31].    Hollinger, § 1.06, supra note 26.

      [32].    Id.

      [33].    Id.; see also Malinda L. Seymore, Openness in International Adoption, 46 Colum. Hum. Rts. L. Rev. 163, 167–68, 193, 196 [hereinafter Seymore, International Adoption].

      [34].    Hollinger, § 1.06, supra note 26.

      [35].    Model Rules of Prof’l Conduct xi–xiii (Am. Bar Ass’n 2019).

      [36].    ABA Standards and Rules of Procedure for Approval of Law Schools 303 (2018–2019). The ABA requirement was adopted in 1974 in response to Watergate, a scandal that included more than its fair share of lawyers. Mary C. Daly et al., Contextualizing Professional Responsibility: A New Curriculum for a New Century, 58 Law & Contemp. Probs. 193, 194–95 (1995).

      [37].    Model Rules of Prof’l Conduct xi–xii (Am. Bar Ass’n 2019). Attorneys cannot be disciplined for violating the Model Rules, but the Model Rules have been extremely influential and have been adopted by bar authorities who can discipline lawyers for ethical violations. Lucian T. Pera, Grading ABA Leadership on Legal Ethics Leadership: State Adoption of the Revised ABA Model Rules of Professional Conduct, 30 Okla. City U. L. Rev. 637, 640–41, 653–54 (2005). As of 2013, forty-six jurisdictions had adopted the 2002 ABA Model Rules of Professional Conduct. Status of State Review of Professional Conduct Rules, A.B.A. (Sept. 20, 2013), https://www.americanbar.org/content/dam/aba/administrative/prof essional_responsibility/ethics_2000_status_chart.pdf [https://perma.cc/J8T5-5MZN].

      [38].    See Daly et al., supra note 36, at 194–96.

      [39].    Id. at 195–96.

      [40].    Susan Saab Fortney, Mandatory Legal Malpractice Insurance: Exposing Lawyers’ Blind Spots, 9 Saint Mary’s  J. on Legal Malpractice & Ethics 190, 235 (2019); see also Victoria J. Haneman, The Ethical Exploitation of the Unrepresented Consumer, 73 Mo. L. Rev. 707, 726 (2008) (“The dismal truth is that most practitioners do not contemplate ethics beyond reading a statute or code to determine if there is a violation.”).

      [41].    Mather & Levin, supra note 13, at 12. For statistics on the low level of discipline for attorneys, see Debra Moss Curtis, Attorney Discipline Nationwide: A Comparative Analysis of Process and Statistics, 35 J. Legal Prof. 209 (2011).

      [42].    Mather & Levin, supra note 13, at 12.

      [43].    Id.; Robbennolt & Sternlight, supra note 14, at 1125.

      [44].    Max H. Bazerman & Ovul Sezer, Bounded Awareness: Implications for Ethical Decision Making, 136 Organizational Behav. & Hum. Decision Processes 95, 97 (2016).

      [45].    Id. The authors use as an example experiments where participants are asked to count the number of passing balls on a video and miss the person in a gorilla costume: “By focusing on a particular task, they missed obvious information in their visual world.” Id.

      [46].    Ovul Sezer et al., Ethical Blind Spots: Explaining Unintentional Unethical Behavior, 6 Current Opinion Psychol. 77, 78 (2015).

      [47].    See id.

      [48].    Deborah L. Rhode, Moral Counseling, 75 Fordham L. Rev. 1317, 1326 (2006).

      [49].    Bazerman & Sezer, supra note 44, at 99; see Sezer et al., supra note 46, at 77. Social scientists define “ethical blind spots” as “situations in which people pay little (or no) attention to ethical considerations when doing so is against their self-interest.” Andrea Pittarello et al., Visual Saliency Influences Ethical Blind Spots and (Dis)honesty, Psychonomic Bull. & Rev. 1, 1  (2019) [hereinafter Pittarello et al., Visual Saliency].

      [50].    See Bazerman & Sezer, supra note 44, at 99. The article uses the example of Justice Antonin Scalia’s failure to recuse in a case involving his hunting buddy, Vice President Dick Cheney. The authors conclude that Justice Scalia “was unaware of the strong evidence that conflicts of interest have a strong psychological basis.” Id.; see, e.g., Pittarello et al., Visual Saliency, supra note 49, at 1.

      [51].    Sezer et al., supra note 46, at 77.

      [52].    Id.; see also Max. H. Bazerman & Ann E. Tenbrunsel, Blind Spots: Why We Fail To Do What’s Right and What To Do About It 21 (2011); Eldred, supra note 15, at 759 (“Unethical conduct is frequently the product of psychological factors that occur largely outside of the conscious awareness of the decision-maker.”); Leslie C. Levin, Bad Apples, Bad Lawyers or Bad Decisionmaking: Lessons from Psychology and from Lawyers in the Dock, 22 Geo. J. Legal Ethics 1549, 1561 (2009) (reviewing Richard Abel, Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings (2008)) (“Psychologists now believe that conscious deliberation plays a relatively minor role in shaping behavior and that much of what we might call ethical decision making is non-conscious.”).

      [53].    Sezer et al., supra note 46, at 77.

      [54].    Id.

      [55].    See Seymore, International Adoption, supra note 33, at 175.

      [56].    Sezer et al., supra note 46, at 77 (quoting Dolly Chugh et al., Bounded Ethicality as a Psychological Barrier to Recognizing Conflicts of Interest, in Conflicts of Interest:  Challenges and Solutions in Business, Law, Medicine, and Public Policy 74, 82 (Don A. Moore et al. eds., 2005)).

      [57].    Robbennolt & Sternlight, supra note 14, at 1117.

      [58].    Id. at 1116–17.

      [59].    Andrea Pittarello et al., Justifications Shape Ethical Blind Spots, 26 Psych. Sci. 794, 795 (2015) [hereinafter Pittarello et al., Justifications].

      [60].    Levin, supra note 52, at 1562.

      [61].    Robbennolt & Sternlight, supra note 14, at 1117.

      [62].    Sezer et al., supra note 46, at 78.

      [63].    Id.

      [64].    Richard Wasserstrom, Lawyers as Professionals: Some Moral Issues, 5 Hum. Rts. 1, 5–6 (1975).

      [65].    Carrie Menkel-Meadow, The Evolving Complexity of Dispute Resolution Ethics, 30 Geo. J. Legal Ethics 389, 392 (2017).

      [66].    E. Wayne Carp, Family Matters: Secrecy and Disclosure in the History of Adoption 11–12 (1998). The 1851 Massachusetts adoption statute is “commonly considered the first modern adoption law,” and it first imposed the “best interests of the child” standard to adoptions. Id.; see also Jamil S. Zainaldin, The Emergence of a Modern American Family Law: Child Custody, Adoption, and the Courts, 1796–1851, 73 Nw. U. L. Rev. 1038, 1042–43 (1979). The best interest of the child standard remains consistent in the adoption statutes of all fifty states. Joan Heifetz Hollinger, Introduction § 1.01, in 1 Adoption Law and Practice (Joan Heifetz Hollinger ed., 2019) [hereinafter Hollinger, § 1.01]; see also Uniform Adoption Act § 3-703(a) cmt. (1994) (“A judicial determination that a proposed adoption will be in the best interest of the minor adoptee is an essential—and ultimately the most important—prerequisite to the granting of the adoption.”).

      [67].    In a leading treatise on adoption law and practice, in a section describing the role of attorneys in adoptions, the treatise lists fourteen different roles that lawyers could play in adoptions, such as representing prospective adoptive parents, Indian tribes in ICWA cases, and birth parents, but only one of the roles references adoptees in adoption placement—–counseling an adolescent child on whether to consent to a proposed adoption by a stepparent or other known person and serving as a guardian ad litem for a younger adoptee. Hollinger, § 1.06, supra note 26; see also Elizabeth Samuels, Legal Representation of Birth Parents and Adoptive Parents, 9 Adoption Q. 73, 74 (2006) (noting that at least two states permit dual representation of the adoptive parents and the birth parents).

      [68].    Model Rules of Prof’l Conduct r. 1.1 (Am. Bar Ass’n 2019).

      [69].    Seymore, Grasping Fatherhood, supra note 30, at 819; see, e.g., Adoptive Couple v. Baby Girl, 570 U.S. 637, 641 (2013); Lehr v. Robertson, 463 U.S. 248, 261 (1983); Caban v. Mohammed, 441 U.S. 380, 385–89 (1979); Quilloin v. Walcott, 434 U.S. 246, 256 (1978); Stanley v. Illinois, 405 U.S. 645, 651 (1972).

      [70].    See Elizabeth Brandt, Cautionary Tales of Adoption: Addressing the Litigation Crisis at the Moment of Adoption, 4 Whittier J. Child & Fam. Advoc. 187, 192 (2005) (“Cases involving litigation of adoption by unwed fathers are increasingly becoming a staple of adoption practice.”).

      [71].    See, e.g., In re Adoption of Baby E.A.W., 658 So. 2d 961, 967 (Fla. 1995) (ruling that failure to provide emotional and financial support during pregnancy provides grounds to block father’s objections to adoption placement); In re Adoption of Baby James Doe, 572 So. 2d 986, 987, 989 (Fla. Dist. Ct. App. 1990) (holding that father expressed sufficient care and concern to be granted a say in the adoption, based upon evidence of “(1) an apartment lease signed by him and the natural mother, for the apartment in which they resided together during the natural mother’s pregnancy; (2) receipts for baby furniture, bedding, clothing, and gifts which he had purchased for the baby; and (3) an identification band worn by the mother using the [putative father’s name] while she was in the hospital for the birth of the child”); In re Adoption of B.G.S., 556 So. 2d 545, 550–51 (La. 1990) (noting that father acted sufficiently to acquire rights by holding himself out as father and seeking to place his name on the child’s birth certificate); In re Baby Girl S., 535 N.Y.S.2d 676, 681–83 (Sur. Ct. 1988) (ruling that father was entitled to block adoption based on the facts that he offered marriage upon learning of pregnancy, sought custody of the child, offered to pay pregnancy-related expenses, sought in court to establish paternity), aff’d sub nom. In re Raquel Marie X., 559 N.E.2d 418, 428–29 (N.Y. 1990).

      [72].    See, e.g., Wyatt v. McDermott, 725 S.E.2d 555, 556–58, 564 (Va. 2012) (accepting tortious interference with parental rights as a viable cause of action, including lawyer’s advice to birth mother to cut off birth father); Kessel v. Leavitt, 511 S.E.2d 720, 734–35, 765 (W. Va. 1998) (recognizing tortious interference with parental rights as a viable cause of action, involving actions by lawyer as well as birth mother).

      [73].    Seymore, Grasping Fatherhood, supra note 30, at 854–55 (footnotes omitted).

      [74].    Putative father statutes may give fathers as little as five days to file. See Neb. Rev. Stat. § 43-104.02. Though a thirty-day deadline is more typical. Rebeca Aizpuru, Protecting the Unwed Father’s Opportunity To Parent: A Survey of Paternity Registry Statutes, 18 Rev. Litig. 703, 715–16 (1999). The Missouri statute applicable in this case gives a fifteen-day window in which to file. Mo. Rev. Stat. § 453.030.

      [75].    Seymore, Grasping Fatherhood, supra note 30, at 855–56 (discussing strict time limits on filing and difficulties in determining where to file); Dale Joseph Gilsinger, Annotation, Requirements and Effects of Putative Father Registries, 28 A.L.R. 6th 349, 363 (2007) (discussing complexity in whether registries are applicable where father has already filed paternity action).

      [76].    Seymore, Grasping Fatherhood, supra note 30, at 855.

      [77].    480 S.W.3d 294, 296–98, 306 (Mo. 2016) (en banc).

      [78].    Brief for Informant at 32, In re Krigel, 480 S.W.3d 294 (No. SC95098).

      [79].    Mo. Rev. Stat. § 192.016; In re Krigel, 480 S.W.3d at 298.

      [80].    In re Krigel, 480 S.W.3d at 297, 300.

      [81].    Brief for Informant, supra note 78, at 9.

      [82].    Aizpuru, supra note 74, at 727.

      [83].    Brief for Informant, supra note 78, at 14 n.3.

      [84].    Id. at 22.

      [85].    Id. at 5. The birth mother lived about fifteen miles from the birth father’s Kansas residence, but across the state line in Kansas City, Missouri. Id.

      [86].    25 U.S.C. §§ 1901 to 1923 (2012).

      [87].    Doe v. Hughes, 838 P.2d 804, 807 (Alaska 1992).

      [88].    Id. at 805.

      [89].    In re Adoption of T.N.F., 781 P.2d 973, 973–74 (Alaska 1989).

      [90].    Id. at 975.

      [91].    Id. at 974.

      [92].    Id. at 981–82.

      [93].    Hughes, 838 P.2d at 806.

      [94].    Id.

      [95].    Id.

      [96].    Id. at 806–07.

      [97].    725 N.E.2d 397, 399–400 (Ind. 2000) (per curiam).

      [98].    Id. at 398–99.

      [99].    Id. at 399. Sometimes it is difficult to tell whether a lawyer’s failure is caused by a lack of competence—ignorance of what ought to be done—or a lack of diligence, in failing to do what she well knows ought to be done. Lack of diligence is also a violation of the rules of professional conduct. Model Rules of Prof’l Conduct r. 1.3 (Am. Bar Ass’n 2019) (“A lawyer shall act with reasonable diligence and promptness in representing a client.”). The court in In re Hagedorn found a violation of rule 1.3 as well. 725 N.E.2d at 400.

    [100].    Model Rules of Prof’l Conduct r. 1.3 (Am. Bar Ass’n 2019).

    [101].    Model Rules of Prof’l Conduct r. 1.1 cmt. 1 (Am. Bar Ass’n 2019).

    [102].    Id.

    [103].    Model Rules of Prof’l Conduct r. 1.1 cmt. 2 (Am. Bar Ass’n 2019).

    [104].    Id. When associating with another lawyer, the lawyer must obtain informed consent from her client and believe the other lawyer’s services will contribute to the competent representation of the client. Model Rules of Prof’l Conduct r. 1.1 cmt. 6 (Am. Bar Ass’n 2019).

    [105].    Bennett et al., supra note 11, at 27; see, e.g., In re Richmond’s Case, 872 A.2d 1023, 1028 (N.H. 2005) (“Rule 1.1 mandates that a general practitioner must identify areas in which the lawyer is not competent . . . .”).

    [106].    Christopher Sabis & Daniel Webert, Understanding the “Knowledge” Requirement of Attorney Competence: A Roadmap for Novice Attorneys, 15 Geo. J. Legal Ethics 915, 919 (2002).

    [107].    Bennett et al., supra note 11, at 27.

    [108].    See sources cited supra note 19.

    [109].    See discussion infra Sections II.C–F, III.B passim.

    [110].    Robbennolt & Sternlight, supra note 14, at 1121.

    [111].    Id. at 1120.

    [112].    Model Rules of Prof’l Conduct r. 3.3 (Am. Bar Ass’n 2019).

    [113].    Model Rules of Prof’l Conduct r. 3.4(b) (Am. Bar Ass’n 2019).

    [114].    Model Rules of Prof’l Conduct r. 4.1 (Am. Bar Ass’n 2019).

    [115].    Model Rules of Prof’l Conduct r. 3.3 cmt. 2 (Am. Bar Ass’n 2019).

    [116].    Model Rules of Prof’l Conduct r. 3.3 cmt. 14 (Am. Bar Ass’n 2019); see People v. Ritland, 327 P.3d 914, 921 (Colo. 2014) (sanctioning lawyer for failure to disclose in ex parte adoption proceeding where birth father was absent).

    [117].    Model Rules of Prof’l Conduct r. 3.3 cmt. 5 (Am. Bar Ass’n 2019).

    [118].    Model Rules of Prof’l Conduct r. 3.3 cmt. 8 (Am. Bar Ass’n 2019).

    [119].    Model Rules of Prof’l Conduct r. 3.3 cmt. 10 (Am. Bar Ass’n 2019).

    [120].    Id.

    [121].    Daniels v. Alander, 844 A.2d 182, 188 (Conn. 2004) (disciplining the associate who sat silently at counsel table while senior lawyer lied to the court for violating the rule requiring candor to the tribunal); see also In re Bruno, 956 So. 2d 577, 578 (La. 2007) (per curiam) (sanctioning the lawyer who remained silent when another lawyer falsely claimed they had not paid a witness, when the silent lawyer knew he had paid the witness); Brundage v. Estate of Carambio, 951 A.2d 947, 956 (N.J. 2008).

    [122].    Brundage, 951 A.2d at 956 (citation omitted).

    [123].    480 S.W.3d 294, 299 (Mo. 2016) (en banc).

    [124].    Id. (finding that Krigel’s questioning of the birth mother was designed to mislead the court); Brief for Informant, supra note 78, at 35 (noting that Krigel was in the courtroom throughout the testimony of his client and discussing other attorney’s questioning of the birth mother while Krigel was present).

    [125].    Brief for Informant, supra note 78, at 38–39.

    [126].    In re Krigel, 480 S.W.3d at 297–98 (describing the “passive strategy” Krigel employed in his representation of the birth mother).

    [127].    Brief for Informant, supra note 78, at 42.

    [128].    In re Krigel, 480 S.W.3d at 299.

    [129].    653 So. 2d 899, 901, 907 (Miss. 1994) (en banc). The court concluded the lawyer failed to correct the mistaken impression he created that there were no reports or photographs related to a personal injury where the plaintiff was struck in the eye. Id. at 909. The plaintiff believed it was a rock thrown from a lawnmower, but the lawyer knew it was his client’s son shooting with a BB gun. Id. at 900, 903. There were reports and photographs related to the BB gun, but not the lawnmower. Id. at 900.

    [130].    Id. at 908.

    [131].    Brief for Informant, supra note 78, at 40–41.

    [132].    In fact, at the hearing on attorney discipline, Krigel testified as follows concerning communication:

  1. Did you do anything to encourage communication between the young couple?
  2. No, I suggested to my client that the parties’ agreement that had existed before I ever got involved in the case, that they only communicate through lawyers and that there not be further communication between the birth mother and birth father, I suggested to her my advice to her was that probably was a good idea under the circumstances.

Id. at 26–30.

    [133].    In re Krigel, 480 S.W.3d at 298; Brief for Informant, supra note 78, at 16–18, 57.

    [134].    In re Krigel, 480 S.W.3d at 300.

    [135].    Id. at 297–98.

    [136].    See Douglas R. Richmond, Appellate Ethics: Truth, Criticism, and Consequences, 23 Rev. Litig. 301, 310 (2004); see also In re Cardwell, 50 P.3d 897, 898–99 (Colo. 2002) (en banc) (holding the lawyer should have spoken up when client falsely denied prior convictions); Daniels v. Alander, 844 A.2d 182, 188 (Conn. 2004) (holding the associate who sat silently at counsel table while senior lawyer lied to the court also violated rules requiring candor to the tribunal); In re Page, 774 N.E.2d 49, 49 (Ind. 2002) (per curiam) (holding the lawyer who remained silent while client lied, when the lawyer knew of credible evidence to the contrary, displayed lack of candor).

    [137].    State Bar News: Attorney Discipline, 32 Utah B.J. 57, 57 (May/June 2019).

    [138].    Id.

    [139].    Id.

    [140].    Id.

    [141].    Id.

    [142].    Id.

    [143].    Id. Lack of candor was also an issue in a recent case out of Arizona, where the State sought to terminate the parental rights of a birth father so that the child could be adopted. Donald W. v. Dep’t of Child Safety, 444 P.3d 258, 264, 268 (Ariz. Ct. App. 2019). The child was removed from the mother at birth because the mother had previously lost custody of a child due to neglect. Id. at 262 n.1. The father expressed a desire to parent his child and had taken a number of steps to develop a legal and emotional relationship with the child, even though the mother had moved to another state during the pregnancy and married another man. Id. at 262–64. Nonetheless, the State filed a petition alleging that the father was unfit and had abandoned or neglected the child. Id. at 263. The court chided the Department of Child Safety attorney for unethically filing a petition for termination, citing the Arizona version of the rules regarding candor: “The lack of factual support for the allegations in the petition relating to Father’s unfitness creates significant concerns about the ethical propriety of filing the dependency petition claiming Father abused or neglected and abandoned Melody.” See id. at 268 n.4. The court pointed out potential ethical problems in having brought a legal action without basis in fact or law, and in the lawyer’s not having carefully determined the factual basis of the action before bringing it. Id.

    [144].    See Model Rules of Prof’l Conduct r. 4.1(a) (Am. Bar Ass’n 2019).

    [145].    Model Rules of Prof’l Conduct r. 4.1 cmt. 1 (Am. Bar Ass’n 2019).

    [146].    Ronald D. Rotunda & John S. Dzienkowski, Legal Ethics: The Lawyer’s Deskbook on Professional Responsibility § 4.1-1 (2018) (“A lawyer’s obligation [to the tribunal under Rule 3.3] are greater than a lawyer’s obligations under Rule 4.1.”).

    [147].    Model Rules of Prof’l Conduct r. 4.1 cmt. 1 (Am. Bar Ass’n 2019).

    [148].    Model Rules of Prof’l Conduct r. 4.1(b) (Am. Bar Ass’n 2019).

    [149].    In re Krigel, 480 S.W.3d 294, 299 (Mo. 2016) (en banc).

    [150].    Brief for Informant, supra note 78, at 60 n.15.

    [151].    Model Rules of Prof’l Conduct r. 4.1 (Am. Bar Ass’n 2019).

    [152].    See discussion infra notes 162–66 and accompanying text (concerning the “passive strategy” employed by Krigel).

    [153].    Brief for Informant, supra note 78, at 61.

    [154].    Id. (noting that Krigel testified that he intends to keep using the strategy).

    [155].    See, e.g., Idaho State Bar v. Eliasen, 913 P.2d 1163, 1164, 1167 (Idaho 1996) (disciplining lawyer for misstatement of law regarding consequences of failing to pay a judgment).

    [156].    In re Cleland, 2 P.3d 700, 705 (Colo. 2000) (en banc) (per curiam).

    [157].    Model Rules of Prof’l Conduct r. 4.4 (Am. Bar Ass’n 2019).

    [158].    Model Rules of Prof’l Conduct r. 4.4 cmt. 1 (Am. Bar Ass’n 2019).

    [159].    See, e.g., People v. Beecher, 224 P.3d 442, 444 (Colo. 2009) (sanctioning the attorney for asking irrelevant questions about sexual abuse during deposition); Fla. Bar v. Buckle, 771 So.2d 1131, 1132, 1134 (Fla. 2000) (per curiam) (disciplining a criminal defense lawyer for sending humiliating letter to crime victim intended to intimidate her into withdrawing complaint); In re Comfort, 159 P.3d 1011, 1017, 1021 (Kan. 2007) (per curiam) (reprimanding the lawyer who wrote and published accusatory letter to another lawyer); In re White, 707 S.E.2d 411, 413, 415 (S.C. 2011) (per curiam) (finding the lawyer’s letter calling town officials “pagans” deserved disciplinary action).

    [160].    78 P.3d 449, 452, 455–57 (Kan. 2003) (per curiam).

    [161].    Id. at 457.

    [162].    In re Krigel, 480 S.W.3d 294, 299–300 (Mo. 2016) (en banc).

    [163].    Brief for Informant, supra note 78, at 50.

    [164].    Id. at 61.

    [165].    See In re Krigel, 480 S.W.3d at 309–10; Brief for Informant, supra note 78, at 18 (“The deliberate decision not to tell [birth father] the date of the birth of his own child was based upon Respondent’s legal advice and strategy.”); Brief for Informant, supra note 78, at 61, (arguing the purpose of the passive strategy was to “keep [birth father] ‘in the dark’ regarding the events that would have triggered the father’s right to exercise his parental rights.”); see also Mo. Rev. Stat. § 453.030.3(2)(c) (requiring father to file in putative father registry within fifteen days of the child’s birth).

    [166].    Seymore, Grasping Fatherhood, supra note 30, at 817, 846–47.

    [167].    Brief for Informant, supra note 78, at 34. Krigel also testified that the passive strategy was common among adoption attorneys, and that he would continue to utilize the strategy in future adoption cases unless the Missouri courts ruled otherwise. Id. at 62.

    [168].    Id.

    [169].    Brief of Amici Curiae Law Professors and Practitioners of Professional Responsibility and Family Law at 24, In re Krigel, 480 S.W.3d 294 (No. SC95098).

    [170].    See id. at 47–58.

    [171].    Id. at 32–33.

    [172].    Model Rules of Prof’l Conduct r. 4.1 cmt. 1 (Am. Bar Ass’n 2019).

    [173].    In re Krigel, 480 S.W.3d at 300. Although the court did not identify the child as a person burdened by Krigel’s conduct, such an argument could clearly be made. The court did recognize the “best interests of the child in remaining with a natural parent,” and Krigel’s actions certainly interfered with that. Id. at 300.

    [174].    Rhode, supra note 48, at 1322.

    [175].    Brandt, supra note 70, at 222.

    [176].    Id. at 223.

    [177].    See sources cited supra note 72.

    [178].    Brandt, supra note 70, at 224.

    [179].    See Eva Y. Deykin et al., Fathers of Adopted Children: A Study of the Impact of Child Surrender on Birthfathers, 58 Am. J. Orthopsychiatry 240, 243 (1988); see also Brandt, supra note 70, at 223–24 (“Moreover, the secrecy with which these cases move forward may, in itself, result in polarization and mistrust leading to litigation that might not otherwise take place.”).

    [180].    Model Rules of Prof’l Conduct r. 1.8(f) (Am. Bar Ass’n 2019).

    [181].    Model Rules of Prof’l Conduct r. 5.4(c) (Am. Bar Ass’n 2019).

    [182].    In re Krigel, 480 S.W.3d 294, 307 (Mo. 2016) (Fischer, J., dissenting).

    [183].    Statutes in a number of states permit this practice. See, e.g., Cal. Fam. Code § 8800(d); Kan. Stat. Ann. § 59-2115.

    [184].    Model Rules of Prof’l Conduct r. 1.8(f) cmt. 11 (Am. Bar Ass’n 2019).

    [185].    See Nancy J. Moore, Ethical Issues in Third-Party Payment: Beyond the Insurance Defense Paradigm, 16 Rev. Litig. 585, 603–109 (1997) (noting the importance of clarifying client identification).

    [186].    See infra Section II.F (discussing dual representation problems in adoption law).

    [187].    An analogous issue was presented in In re Adoption of N.A.P., 930 P.2d 609, 612, 614–15 (Kan. Ct. App. 1996). There, the birth mother was represented by independent counsel as required by Kansas law for minors relinquishing parental rights. Id. at 611, 614. After representing the birth mother in the execution of her relinquishment documents, the attorney, who was paid by the adoptive parents, declined to represent her when she went to him to revoke her consent. Id. at 614. The court held that the statute requiring independent counsel was satisfied by the initial representation and did not guarantee representation throughout the adoption proceeding. Id. at 614–15. Such a limited scope of representation would have to be adequately explained and consented to by the client. See Model Rules of Prof’l Conduct  r. 1.2(c)  (Am. Bar Ass’n 2019) (“A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”).

    [188].    559 N.E.2d 1373, 1376–77 (Ohio Ct. App. 1988).

    [189].    Id. at 1381.

    [190].    Id.

    [191].    Id. at 1383.

    [192].    In re Adoption of N.A.P., 930 P.2d at 614 (quoting Family Law Advisory Committee of the Kansas Judicial Council, Comments to 1990 Adoption and Relinquishment Act cmt. 5 S.B. 431 (1990)).

    [193].    Model Rules of Prof’l Conduct r. 1.5(a) (Am. Bar Ass’n 2019).

    [194].    See, e.g., Ariz. Rev. Stat. Ann. § 8-114; Iowa Code Ann. § 600.9; Mich. Comp. Laws § 710.54; S.C. Code Ann. § 63-9-310(F); see also Unif. Adoption Act § 7-102 (Unif. Law Comm’n 1994) (regulating unlawful payments related to adoption); Unif. Adoption Act § 7-103 (Unif. Law Comm’n 1994) (regulating lawful payments related to adoption).

    [195].    See Margaret Jane Radin, Market Inalienability, 100 Harv. L. Rev. 1849, 1925–27 (1987) (discussing commodification in the context of blood, organ, and baby-buying and selling).

    [196].    Joan Heifetz Hollinger, Types of Adoptions § 1.05, in 1 Adoption Law and Practice (Joan Heifetz Hollinger ed., 2019) [hereinafter Hollinger, § 1.05] (noting that in independent adoptions there is “the potential for black market transactions: the limited supply of adoptable babies, in contrast to the great demand for them, is said to generate incentives to unscrupulous birth parents, lawyers, and other intermediaries to sell babies at whatever price prospective adopters are willing to pay”).

    [197].    See, e.g., Cal. Penal Code § 181 (prohibiting the buying and selling of any persons); Cal. Penal Code § 273 (making it an offense “to pay, offer to pay, or to receive money or anything of value for the placement for adoption or for the consent to an adoption of a child”); Tex. Penal Code § 25.08 (stating that for purposes of adoption, it is an offense if a person “offers to accept, agrees to accept, or accepts a thing of value for the delivery of the child to another” or “offers to give, agrees to give, or gives a thing of value to another”); Wash. Rev. Code § 9A.64.030. In Thacker v. State, 889 S.W.2d 380, 384, 397 (Tex. App. 1994), the sole proprietor of an adoption agency was convicted of baby-buying because of payments made to a prospective birth mother.

    [198].    Hollinger, § 1.05, supra note 196 (“[C]onsiderable uncertainty remains as to what constitutes an unlawful payment in connection with an adoption.”).

    [199].    Danielle Saba Donner, The Emerging Adoption Market: Child Welfare Agencies, Private Middlemen, and “Consumer” Remedies, 35 U. Louisville J. Fam. L. 473, 487 (1996).

    [200].    Ellen Herman, Kinship by Design: A History of Adoption in the Modern United States 45 (2008).

    [201].    See, e.g., Lloyd Nelson, US vs. UK: International Differences in Fostering and Adoption, Foster Care Newsletter (Sept. 1, 2017), http://foster-care-newsletter.com/us-vs-uk-international-differences-in-fostering-and-adoption/ (“Whilst a private adoption in the U.S. can cost anywhere between $20,000 and $40,000, U.K. adoptions—much like adoptions through the state in the U.S.—are almost entirely without cost, with U.K. parents often paying just a small court fee to apply to adopt their matched child.”) [https://perma. cc/M9MV-ELUL].

    [202].    Adam Pertman, Adoption Nation: How the Adoption Revolution Is Transforming America 189 (2000).

    [203].    Eugene R. Gaetke & Sarah N. Welling, Money Laundering and Lawyers, 43 Syracuse L. Rev. 1165, 1182, 1182 n.85 (1992) (noting the origin of lawyers’ discomfort in discussing fees arises from the fact that law is a learned profession).

    [204].    Model Rules of Prof’l Conduct r. 1.5(a) (Am. Bar Ass’n 2019).

    [205].    Jed Somit et al., Formalizing the Legal Relationships § 5.04, in 1 Adoption Law and Practice (Joan Heifetz Hollinger ed., 2019); see also In re Adoption of Banda, 559 N.E.2d 1373, 1383 (Ohio Ct. App. 1988) (holding that payment of fees cannot be contingent on placement or adoption); Pamela K. Strom Amlung, Conflicts of Interest in Independent Adoptions: Pitfalls for the Unwary, 59 U. Cin. L. Rev. 169, 188 (1990) (noting that payment of fees contingent upon the adoption’s finalization may present conflict of interest).

    [206].    Somit et al., supra note 205.

    [207].    Editorial Team, Adoption Cost and Timing in 2016–2017, Adoptive Families, https://www.adoptivefamilies.com/resources/adoption-news/adoption-cost-timing-2016-20 17-survey-results/ [https://perma.cc/2499-6WTS].

    [208].    Id.

    [209].    Id.

    [210].    In re Krigel, 480 S.W.3d 294, 307 (Mo. 2016) (Fischer, J., dissenting).

    [211].    Understanding the Costs of Adoption, Krigel & Krigel (Nov. 5, 2015), https://www. krigelandkrigel.com/understanding-the-costs-of-adoption/ [https://perma.cc/Q65H-NA46].

    [212].    In re Krigel, 480 S.W.3d at 309–10 (Breckenridge, C.J., dissenting in part, concurring in part).

    [213].    See Information at 8–9, In re Krigel, 480 S.W.3d 294 (No. DHP 14-001).

    [214].    Bennett et al., supra note 11, at 79.

    [215].    Model Rules of Prof’l Conduct r. 1.7(a) (Am. Bar Ass’n 2019). The rule provides an exception that permits dual representation when a lawyer reasonably believes that she is able to provide competent and diligent representation despite the conflict, and the representation is not prohibited by law. Each affected client also has to give informed consent in writing. Finally, the representation is still prohibited if it involves representation in the same litigation or before the same tribunal. Model Rules of Prof’l Conduct r. 1.7(b) (Am. Bar Ass’n 2019).

    [216].    Charles W. Wolfram, Modern Legal Ethics § 7.1.3 (1986).

    [217].    See, e.g., Vinson v. Vinson, 588 S.E.2d 392, 394, 398–99 (Va. Ct. App. 2003).

    [218].    See, e.g., Iowa Supreme Court Bd. of Prof’l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 722–23 (Iowa 1999); In re Herriott, No. 2010-9790/A, 2014 N.Y. Misc. LEXIS 119, at *3–4, *10–11 (N.Y. Sur. Ct. Jan. 17, 2014).

    [219].    Model Rules of Prof’l Conduct r. 1.7 cmt. 8 (Am. Bar Ass’n 2019).

    [220].    Rotunda & Dzienkowski, supra note 146, at § 1.7-1(a).

    [221].    See Somit et al., supra note 205.

    [222].    Id.

    [223].    Hope C. Todd, Speaking of Ethics: Ethical Mandates in Private Adoptions, Wash. Law. 12 (Mar. 2014), https://www.dcbar.org/bar-resources/publications/washington-lawyer/ articles/march-2014-speaking-of-ethics.cfm [https://perma.cc/MJ7B-QPF9]; see also Somit et al., supra note 205 (arguing that dual representation is beneficial because “the conflict of interest between adopting parents and birth parents is often more hypothetical than real” with dual representation allowing “the adoption to be planned and proceed efficiently as a cooperative effort” based on “the shared interest in the welfare of the child”).

    [224].    ABA Comm’n on Ethics & Prof’l Responsibility, Informal Op. 87-1523 (1987).

    [225].    Todd, supra note 223, at 12.

    [226].    ABA Comm’n on Ethics & Prof’l Responsibility, supra note 224.

    [227].    Id.

    [228].    Id. The Commission found support for its conclusion by relying on opinions of several state bar authorities. See State Bar of Michigan Ethics, Op. 156 (1953); New York State Bar Ass’n Prof’l Ethics Comm., Op. 68 (1968); North Carolina State Bar Ethics, Op. 38 (1947); Virginia State Bar Ethics, Op. 741 (1986). Since the ABA opinion was issued, other bar authorities have also ruled that dual representation in adoption cases is unethical. See Oregon State Bar, Formal Op. No. 2005-28 (2005); Pa. Ethics, Op. 95-59 (1995); Wisconsin State Bar Ethics, Op. E-88-4 (1988). A number of states have also banned dual representation in adoption by statute. See Amanda Tamayo, A State Survey—Dual Representation in Adoption, 27 J. Am. Acad. Matrim. Laws., 481, 485–88 (2015).

    [229].    Katherine G. Thompson & Douglas H. Reiniger, The Need for and Importance of Separate Representation of the Parties in a Private-Placement Adoption § 6.01, in 1 Adoption Law and Practice (Jennifer Heifetz Hollinger ed., 2019).

    [230].    616 N.Y.S.2d 409, 409–10, 412 (N.Y. App. Div. 1994) (per curiam).

    [231].    Id. at 411–12. Michelman’s argument exhibits a classic outcome bias in ethical reasoning, where ethicality is judged not from the intentions of the actors but rather from whether the outcome is considered favorable or unfavorable. Bazerman & Sezer, supra note 44, at 100–01.

    [232].    In re Michelman, 616 N.Y.S.2d at 411–12.

    [233].    In re Male D., 523 N.Y.S.2d 369, 369, 372 (N.Y. Fam. Ct. 1987) (citation omitted).

    [234].    See discussion infra notes 253–62 and accompanying text.

    [235].    Lemley v. Barr, 343 S.E.2d 101, 102–03 (W. Va. 1986).

    [236].    See id. at 103 (citing Ohio Rev. Code Ann. § 5103.16).

    [237].    Id.

    [238].    Id.

    [239].    Id.

    [240].    Id. The court ruled that the lawyers “had obtained Tammy’s consent through duress, that she had no understanding of her position at the time she signed the adoption papers and, therefore, her consent was invalid.” Id.

    [241].    Id. at 104–05.

    [242].    Lemley v. Kaiser, No. 1804, 1987 Ohio App. LEXIS 6674, at *1, *3–4 (Ohio Ct. App. Apr. 30, 1987).

    [243].    Id. at *11–13. (“It is clear that no formal, explicit [attorney-client] relationship existed. A retainer was never signed, Miss Lemley paid no legal fees to the Kaiser firm, nor did the firm ever send her a bill.”). Interestingly, Krigel, whose case is discussed elsewhere, was previously sued for legal malpractice by birth parents who claimed he gave them faulty advice about the revocability of their consent to adoption. Collins v. Mo. Bar Plan, 157 S.W.3d 726, 730–31 (Mo. Ct. App. 2005). He defended by arguing that he was not in fact representing them. Id. at 736. The appellate court concluded that the birth parents had presented sufficient evidence to create an issue of fact on that point and remanded for the lower court to determine whether there was an attorney-client relationship. Id.

    [244].    Seymore, Adopting Civil Damages, supra note 8, at 952–55 (discussing legal malpractice liability in adoption cases, including liability to non-clients); see also 7 Am. Jur. 2D Attorneys at Law § 221 (2017) (“Attorneys may owe a duty of care to nonclients when the attorneys know, or should know, that nonclients will rely on the attorney’s representations and the nonclients are not too remote from the attorneys to be entitled to protection.”); Alan L. Cohen, Liability to Non-Clients for Malpractice, in 3 Personal Injury–Actions, Defenses, Damages § 11.06 (Mary James Courtenay ed., 2018) (“An adversary party may have a cause of action against an attorney for fraudulent, malicious, or intentional misrepresentations.”); Developments in the Law—Lawyers’ Responsibilities and Lawyers’ Responses, 107 Harv. L. Rev. 1547, 1551 (1994) (“Where once only the client could bring a malpractice action against the lawyer, now third parties can bring lawsuits . . . .”).

    [245].    See, e.g., Tierney v. Flower, 302 N.Y.S.2d 640, 644 (N.Y. App. Div. 1969) (finding lawyer represented birth mother, though he had been claimed he was exclusively representing the prospective adoptive parents).

    [246].    There are ethical issues in a lawyer’s interaction with an unrepresented birth parent, as well as issues surrounding dual representation. See Model Rules of Prof’l Conduct r. 4.3 (Am. Bar Ass’n 2019); discussion infra notes 304–16 and accompanying text.

    [247].    Somit et al., supra note 205; Thompson & Reiniger, supra note 229.

    [248].    Sharon Fast Gustafson, Note, Regulating Adoption Intermediaries: Ensuring That the Solutions Are No Worse than the Problem, 3 Geo. J. Leg. Ethics 837, 862 (1990).

    [249].    Somit et al., supra note 205.

    [250].    Cal. Fam. Code § 8800(d). As a point of comparison, one matrix of hourly attorney fees that are considered reasonable ranged from $307 per hour for attorneys with less than two years of experience to $613 per hour for attorneys with over thirty years of experience. USAO Attorney’s Fees Matrix—2015–2019, U.S. Dep’t Justice, https://www.justice. gov/usao-dc/file/796471/download [https://perma.cc/C33P-PVQ5]. Recall that Krigel testified that he spent approximately ten hours representing the birth mother and charged $20,000 for that representation. In re Krigel, 480 S.W.3d 294, 307 (Mo. 2016) (en banc) (Fischer, J., dissenting). The fee approved in California would amount to less than two hours of representation at the less-experienced end of the scale.

    [251].    Somit et al., supra note 205.

    [252].    Tamayo, supra note 228, at 483 (“The attorney has the ability to represent both clients without creating a conflict of interest as they cooperatively work towards a common goal of adoption.”); Linda Jean Davie, Note, Babes and Barristers: Legal Ethics and Lawyer-Facilitated Independent Adoptions, 12 Hofstra L. Rev. 933, 945 (1984) (“[T]he two sides are coming together for the same basic goal—namely, the transfer of custody and parenthood of a child—and that the interests of the parties are not conflicting at all.”).

    [253].    Cal. Fam. Code § 8800(d); see also Arden v. State Bar, 341 P.2d 6, 8–13 (Cal. 1959) (en banc) (permitting attorney’s dual representation of birth mother and adoptive parents because both consented, though the lawyer was publicly reprimanded for dishonesty in helping the birth mother hide her pregnancy from her parents and for secretly recording a conversation with her and threatening to use the tape to have her prosecuted for extortion when she sought to revoke her consent to the adoption).

    [254].    Thompson & Reiniger, supra note 229.

    [255].    Fred C. Zacharias, Waiving Conflicts of Interest, 108 Yale L.J. 407, 422 (1998) (footnote omitted).

    [256].    See Davie, supra note 252, at 949.

    [257].    In re Adoption of Baby Boy Irons, 684 P.2d 332, 340 (Kan. 1984); see also In re Baby Girl T, 21 P.3d 581, 589 (Kan. Ct. App. 2001) (permitting legal representation of both the adoptive parents and the birth parents so long as the attorney obtains consent after fully disclosing the foreseeable consequences of the dual representation).

    [258].    Thompson & Reiniger, supra note 229; see also Zacharias, supra note 255, at 419 (noting the existence of a danger of delay in permitting waiver of potential conflicts).

    [259].    See, e.g., Adoption of Alexander S., 235 Cal. Rptr. 761, 767, 769–70 (Cal. Ct. App. 1987), vacated on jurisdictional grounds, 750 P.2d 778, 785 (Cal. 1988).

    [260].    Id. at 769 (emphasis omitted).

    [261].    In re Adoption of Vincent, 602 N.Y.S.2d 303, 304 (N.Y. Fam. Ct. 1993).

    [262].    Id. at 304–05.

    [263].    Id. at 305.

    [264].    Id.

    [265].    Id.

    [266].    742 P.2d 796, 798 (Ariz. 1987) (en banc).

    [267].    Id.

    [268].    Id. at 798–99.

    [269].    Id. at 799, 804. Petrie recommended placement with the second couple because they were local and placing the child with the first couple would require him to travel to their county of residence, something he was “not excited” about. Id.

    [270].    Id. at 800.

    [271].    Id.

    [272].    See sources cited supra note 218.

    [273].    State Supreme Court Bd. of Prof’l Ethics & Conduct v. Wagner, 599 N.W.2d 721, 7216 (Iowa 1999) (quoting Charles W. Wolfram, Modern Legal Ethics 434 (1986)).

    [274].    See Seymore, Sixteen & Pregnant, supra note 29, at 154–55.

    [275].    A birth mother can waive all rights to appear and to even receive notice of the adoption proceedings in her initial out-of-court consent. See, e.g., Tex. Family Code § 161.103(c)(1) (allowing affidavit for voluntary relinquishment of parental rights to contain waiver of process in termination and adoption suit); Uniform Adoption act  § 2-406 (Uni. Law Comm’n 1994) (permitting waiver of notice in consent or other written document); Joan Heifetz Hollinger & William M. Schur, Notice, Process and In Personam Jurisdiction § 4.10, in 1 Adoption Law and Practice (Joan Heifetz Hollinger ed., 2019) (acknowledging acceptance of pre-suit waivers of process in adoption and termination of parental rights proceedings); Seymore, Sixteen & Pregnant, supra note 29, at 154 (“Though adoption is a legal process, it is not uncommon for a birth mother never to set foot in the courtroom.”).

    [276].    In re J.M.P., 528 So. 2d 1002, 1019–20 (La. 1988) (Calogero, J., dissenting) (“Thus, the attorney who represents the surrendering parent is the only person who is assigned, in the Louisiana statutory scheme, to stand between that parent and those who might seek to influence the adoption decision.”).

    [277].    Model Rules of Prof’l Conduct r. 1.7(a)(2) (Am. Bar Ass’n 2019).

    [278].    Model Rules of Prof’l Conduct r. 1.7(a) cmt. 10 (Am. Bar Ass’n 2019).

    [279].    State ex rel. Okla. Bar Ass’n v. Stubblefield, 766 P.2d 979, 980 (Okla. 1988).

    [280].    Id.

    [281].    Id. The other representation was in relation to criminal charges and in seeking custody of a child from a previous marriage. Id. She later asked him to help her complete a divorce proceeding that she had commenced with another attorney. Id. In preparing documents for the divorce, Stubblefield included in the petition a statement that no children had been born of the marriage and that the petitioner was not pregnant. Id. Because he did not disclose the pregnancy in the divorce petition, he “prevented the trial court in the adoption proceeding from determining whether there was a living biological father of the child, from whom consent to adopt was required.” Id. at 983.

    [282].    Id. at 981.

    [283].    Id. at 981–82 (“[T]he client purportedly had no knowledge of the adoption until after her consent became irrevocable and the adoption was granted.”).

    [284].    Id. at 982–83. Justice Simms dissented, writing, “I disagree with the majority . . . . I view respondent’s conduct as a clear and gross conflict of interest. I would have thought it beyond need for any discussion that a lawyer who had this relationship with his client and adopted her child without fully disclosing the facts to her and without her knowledge or consent, was unquestionably guilty of unprofessional conduct and flagrant self-dealing.” Id. at 985.

    [285].    Id. at 983 (majority opinion).

    [286].    Id.

    [287].    Id.

    [288].    Model Rules of Prof’l Conduct r. 1.8 cmt. 1 (Am. Bar Ass’n 2019).

    [289].    Id.

    [290].    Id.

    [291].    Model Rules of Prof’l Conduct r. 1.8(a)(3) (Am. Bar Ass’n 2019).

    [292].    Stubblefield, 766 P.2d at 983.

    [293].    See sources cited supra note 7.

    [294].    People v. Ritland, 327 P.3d 914, 916, 921 (Colo. 2014).

    [295].    Id. at 916. The court concluded that Ritland was not representing any client in the matter, not the birth mother and not her husband who she endeavored to make the legal father of the child by falsifying the birth certificate. Id. at 921, 927.

    [296].    Id. at 918.

    [297].    Taking on a matter without the competence to do so is another potential violation. Model Rules of Prof’l Conduct r. 1.1 (Am. Bar Ass’n 2019). Indeed, Ritland argued that her lack of experience should be viewed in mitigation of punishment, but the court rejected her argument. Ritland, 327 P.3d at 923–24 (quoting In re Cleland, 2 P.3d 700, 705 (Colo. 2000) (“[I]nexperience does not go far in our view to excuse or to mitigate dishonesty, misrepresentation, or misappropriation. Little experience in the practice of law is necessary to appreciate such actual wrongdoing.”)).

    [298].    Ritland, 327 P.3d at 918.

    [299].    Id. at 916. She readily believed the birth mother who said that the birth father had ordered her to have an abortion and threatened to kill both her and the baby if she did not have an abortion. Id. at 917–18. She also related that he had “taken off,” leaving no contact information. Id. at 917. She believed the birth mother because her professional background in domestic violence led her to believe the birth mother was genuinely in fear. Id. at 917–18. It is, of course, quite possible that her desire for a child caused her to accept this explanation too readily.

    [300].    Id. at 918.

    [301].    Id. at 918 n.7.

    [302].    Id. at 918–19.

    [303].    Id. at 915, 923.

    [304].    Id. at 923.

    [305].    Id.

    [306].    Id. at 923–24.

    [307].    Id. at 924–25.

    [308].    Model Rules of Prof’l Conduct  r. 1.7 cmt. 10 (Am. Bar Ass’n 2019).

    [309].    See Restatement (Third) of the Law Governing Lawyers § 125 (Am. Law Inst. 2000).

    [310].    Id. at § 125 cmt. c; see also Teresa Stanton Collett, Professional Versus Moral Duty: Accepting Appointments in Unjust Civil Cases, 32 Wake Forest L. Rev. 635, 640 (1997) (discussing the propriety of rejecting representation on moral or religious grounds); Bruce A. Green, The Role of Personal Values in Professional Decisionmaking, 11 Geo. J. Leg. Ethics 19, 37 (1997) (explaining a lawyer may not make decisions to achieve objectives defined by the lawyer’s personal moral or religious beliefs when they conflict with the client’s wishes).

    [311].    528 So. 2d 1002, 1004 (La. 1988). As one commentator noted in reference to the issue of counsel appointed to represent minor girls seeking abortions,

the irresoluble conflict of interest confronting any pro-life attorney required to assist a girl in obtaining an abortion. Such representation would place the attorney’s belief in the sanctity of human life in direct opposition to her professional commitment to loyally seek her client’s objectives. A conflict involving such fundamental beliefs would necessarily impact the attorney-client relationship and should be avoided.

Collett, supra note 310, at 642. Seeking to encourage adoption in order to avoid abortion could present the same conflict.

    [312].    In re J.M.P., 528 So. 2d at 1004.

    [313].    Id.

    [314].    Id. at 1012.

    [315].    Id. at 1021 (Calogero, J., dissenting).

    [316].    Model Rules of Prof’l Conduct r. 1.16(b)(4) (Am. Bar Ass’n 2019).

    [317].    Model Rules of Prof’l Conduct r. 6.2(c) (Am. Bar Ass’n 2019).

    [318].    Red Dog v. State, 625 A.2d 245, 247 (Del. 1993) (per curiam).

    [319].    Ind. Planned Parenthood Affiliates Ass’n v. Pearson, 716 F.2d 1127, 1137 (7th Cir. 1983). But see Bd. Prof’l Responsibility Supreme Court Tenn. Formed Ethics, Op. 96-F-140 (1996) (intimating that a lawyer cannot refuse appointment in such a case, even where “[t]he religious beliefs are so compelling that counsel fears his own personal interests will subject him to conflicting interests and impair his independent professional judgment”).

    [320].    Prescott & Debele, supra note 18, at 153.

    [321].    Model Rules of Prof’l Conduct r. 4.3 (Am. Bar Ass’n 2019).

    [322].    Model Rules of Prof’l Conduct r. 4.3 cmt. 1 (Am. Bar Ass’n 2019).

    [323].    Haneman, supra note 40, at 707.

    [324].    Model Rules of Prof’l Conduct r. 4.3 (Am. Bar Ass’n 2019).

    [325].    Samuels, supra note 67, at 75 (“In practice, when separate representation is not required by law, birth parents generally are unrepresented.”); Seymore, Sixteen & Pregnant, supra note 29, at 101.

    [326].    See, e.g., People v. Ritland, 327 P.3d 914, 923 (Colo. 2014); State ex rel. Okla. Bar Ass’n v. Stubblefield, 766 P.2d 979, 980, 983  (Okla. 1988); Lemley v. Barr, 343 S.E.2d 101, 102–03 (W. Va. 1986).

    [327].    Tierney v. Flower, 302 N.Y.S.2d 640, 644 (N.Y. App. Div. 1969).

    [328].    Lemley v. Kaiser, No. 1804, 1987 Ohio App. LEXIS 6674, at *13 (Ohio Ct. App. Apr. 30, 1987).

    [329].    Id.

    [330].    See discussion supra Section II.F.

    [331].    Model Rules of Prof’l Conduct r. 4.3 (Am. Bar Ass’n 2019).

    [332].    See Lemley, 1987 Ohio App. LEXIS 6674, at *11–13.

    [333].    7 Am. Jur. 2d Attorneys at Law § 221 (2017).

    [334].    Model Rules of Prof’l Conduct r. 1.6 (Am. Bar Ass’n 2019).

    [335].    Model Rules of Prof’l Conduct r. 1.6 cmt. 2 (Am. Bar Ass’n 2019).

    [336].    Model Rules of Prof’l Conduct r. 1.7 cmt. 30 (Am. Bar Ass’n 2019).

    [337].    Id.; see also discussion supra notes 218–28 and accompanying text.

    [338].    Seymore, International Adoption, supra note 33, at 168–73.

    [339].    Carp, supra note 66, at 106 (internal quotations omitted).

    [340].    Seymore, International Adoption, supra note 33, at 164. Even the Academy of Adoption and Assisted Reproduction Attorneys have promulgated a resolution advocating open access to adoption records. Acad. of Adoption & Assisted Reprod. Attorneys, Resolution Regarding Adopted Persons’ Access to Adoption Records (2018), https:// adoptionart.org/about-aaaa/publications/resolutions/ [https://perma.cc/3RLL-DTCU].

    [341].    343 S.E.2d 101, 103 (W. Va. 1986).

    [342].    Id.

    [343].    Id. at 104–05, 109.

    [344].    Advising delay, so long as the prospective adoptive parents are in possession of the child, is a familiar tactic in adoption cases. An Associated Press story quotes an adoption attorney advising delay, saying the longer the child can bond with the prospective parents before an adoption notice is filed, the better. “‘Time is your friend,’ [attorney] Dove had said.” Allen G. Breed, A Dying Man’s Race To Adopt—and a Small Miracle, NBC News.com, (Sept. 25, 2011, 11:51:40 AM ET), http://www.nbcnews.com/id/44597789/ns/health-health_care/t/ dying-mans-race-adopt-small-miracle/#.XO2CHaROlhE [https://perma.cc/3X42-DXWH]. Justice Sotomayor has warned of the danger of the parent-in-possession scenario, strongly suggesting that the law should not reward them: “[T]he law cannot be applied so as automatically to ‘reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation.’” Adoptive Couple v. Baby Girl, 570 U.S. 637, 692 (2013) (Sotomayor, J., dissenting) (quoting Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 54 (1989). And in that case, where the birth father was actually the parent in possession, the majority had no trouble returning the child to the prospective adoptive parents. Id. at 645–46, 651.

    [345].    302 N.Y.S.E.2d 640, 643–45 (N.Y. App. Div. 1969).

    [346].    Id. at 641–42.

    [347].    Id. at 642.

    [348].    Id.

    [349].    Id. at 643.

    [350].    Id. at 643–44; cf. Seymore, International Adoption, supra note 33, at 168 (arguing that “openness in international adoption is a practical solution to fraud, corruption, and trafficking in international adoption by using the ‘sunlight as disinfectant’ method”).

    [351].    Mary Kay Kisthardt, Working in the Best Interest of Children: Facilitating the Collaboration of Lawyers and Social Workers in Abuse and Neglect Cases, 30 Rutgers L. Rec. 1, 3 (2007); Janet Weinstein, And Never the Twain Shall Meet: The Best Interests of Children and the Adversary System, 52 U. Miami L. Rev. 79, 136–38 (1997).

    [352].    Weinstein, supra note 351, at 90.

    [353].    Seymore, International Adoption, supra note 33, at 173.

    [354].    See Model Rules of Prof’l Conduct r. 1.6  (Am. Bar Ass’n 2019).

    [355].    See sources cited supra note 66 (explaining the widespread use of the best interest of the child standard).

    [356].    Wasserstrom, supra note 64, at 5–6. Contra Katherine R. Kruse, Engaged Client-Centered Representation and the Moral Foundations of the Lawyer-Client Relationship, 39 Hofstra L. Rev. 577, 586–91 (2011) (arguing that the client-centered approach should include the consequences client decisions may have on others whose well being is valued by the client).

    [357].    Weinstein, supra note 351, at 90.

    [358].    Seymore, Grasping Fatherhood, supra note 30, at 826 (citing Caban v. Mohammed, 441 U.S. 380, 392 (1979)).

    [359].    Maryland is one of the few states that require the child be represented by counsel. See Md. Fam. Law Code Ann. § 5-338(a)(3).

    [360].    See, e.g., In re Hagedorn, 725 N.E.2d 397, 399 (Ind. 2000) (per curiam) (sanctioning attorney in adoption case where birth mother consented to adoption, but attorney failed to file the proper paperwork to finalize the adoption).

    [361].    Gilbert A. Holmes, The Extended Family System in the Black Community: A Child-Centered Model for Adoption Policy, 68 Temp. L. Rev. 1649, 1652 (1995). The Supreme Court has recognized some limited rights in extended families. See, e.g., Troxel v. Granville, 530 U.S. 57 (2000) (acknowledging states can grant grandparents’ statutory visitation rights but reversing trial court visitation order for unconstitutionally infringing on parental rights). But even that very limited right does not extend to biological families when the birth parents’ rights are terminated.

    [362].    Prescott & Debele, supra note 18, at 152–53 (“It is also too easy for attorneys to become caught up in the view that family formation work always exemplifies goodness and morality, possibly causing them to disregard the interests of the other parent as the lawyer marches toward the goal of creating a new and legally recognized parent/child relationship.”).

    [363].    Model Rules of Prof’l Conduct r. 2.1 (Am. Bar Ass’n 2019); see Kim Diana Connolly, Elucidating the Elephant: Interdisciplinary Law School Classes, 11 Wash. U. J.L. & Pol’y 11, 13 (2003) (arguing that “in order to understand legal problems, lawyers often need to examine them from the perspective of multiple disciplines”); Rhode, supra note 48, at 1318.

    [364].    Model Rules of Prof’l Conduct r. 2.1 cmt. 2 (Am. Bar Ass’n 2019).

    [365].    Model Rules of Prof’l Conduct r. 2.1 cmt. 5 (Am. Bar Ass’n 2019).

    [366].    For review of psychosocial literature relevant to adoption, see Seymore, International Adoption, supra note 33, at 166–67 (examining psychosocial literature regarding openness in adoption); Seymore, Grasping Fatherhood, supra note 30, at 847–50 (reviewing psychosocial literature regarding birth fathers), and Seymore, Sixteen & Pregnant, supra note 29, at 138, 144–45 (discussing psychosocial literature regarding birth mothers , similar literature regarding adoptees).

.

    [367].    Kruse, supra note 356, at 584.

    [368].    Id. at 586.

    [369].    Stephen Ellmann, The Ethic of Care as an Ethic for Lawyers, 81 Geo. L.J. 2665, 2665 (1993) (citing Carol Gilligan, In a Different Voice: Psychological Theory And Women’s Development (1982)). In another article, I described Gilligan’s work as follows:

Gilligan discovered that psychological theory about the moral development of humans was developed from tests and observations of boys and men. When she began to explore how girls and women resolved moral dilemmas she discovered “a different voice,” one heretofore ignored in psychological literature. Gilligan reported that boys resolved conflicts by employing a “hierarchical ladder of values,” while girls used a very different reasoning process, an “ethic of care,” focused on preserving relationships. Gilligan argues that girls and women see “a world comprised of relationships rather than of people standing alone, a world that coheres through human connection rather than through systems of rules.’ The relevance of this psychological work to law is obvious. Feminist legal scholars have used Gilligan’s work to argue that law is an essentially male discourse, with the woman’s voice marginalized. Law operates within Gilligan’s male-identified “hierarchy of rights” instead of the female identified “ethic of care.”

Malinda L. Seymore, Isn’t It a Crime: Feminist Perspectives on Spousal Immunity and

Spousal Violence, 90 Nw. U. L. Rev. 1032, 1068 (1996) (footnotes omitted) (first quoting Gary Minda, Jurisprudential Movements of the 1980s, 50 Ohio St. L.J. 599, 626–29 (1989); and then quoting Carol J. Gilligan, In a Different Voice 24–63 (1982)).

    [370].    Ellmann, supra note 369, at 2681–82.

    [371].    See id. at 2708–09.

    [372].    Id. at 2709.

    [373].    Id.

    [374].    Id. at 2709–10.

    [375].    See generally John Lande, Possibilities for Collaborative Law: Ethics and Practice of Lawyer Disqualification and Process Control in a New Model of Lawyering, 64 Ohio St. L.J. 1315 (2003) (assessing the state of collaborative law negotiation and how it interacts with legal ethical issues); Pauline H. Tesler, Collaborative Law: A New Paradigm for Divorce Lawyers, 5 Psychol. Pub. Pol’y & L. 967 (1999) (discussing the benefits offered by a collaborative law approach to the traditionally adversarial field of family law).

    [376].    Lande, supra note 375, at 1318.

    [377].    See, e.g., Unif. Collaborative Law Rules & Unif. Collaborative Law Act Prefatory Note (Unif. Law Comm’n 2010), reprinted in 48 Fam. L.Q. 55, 79-80 (2014) (“Numerous bar association ethics committees have concluded collaborative law is generally consistent with the Model Rules of Professional Conduct and the obligations of lawyers to clients.”); Ted Schneyer, The Organized Bar and the Collaborative Law Movement: A Study in Professional Change, 50 Ariz. L. Rev. 289, 289, 305–10 (2008) (“The state legislatures and courts that have taken notice of [collaborative law] to date are uniformly encouraging its use in divorce cases and other family disputes.”). Only the Colorado Bar has opined that collaborative law may violate ethics rules. Colo. Bar Ass’n Ethics Comm., Formal Op. 115 (2007). However, that position was rejected by the American Bar Association. ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 04-447 (2007).

    [378].    Unif. Collaborative Law Rules & Unif. Collaborative Law Act, supra note 377, at 69–70.

    [379].    See discussion supra notes 158–65, 234–42 and accompanying text.

    [380].    See discussion supra notes 216–76 and accompanying text.

    [381].    Seymore, Sixteen & Pregnant, supra note 29, at 154–56.

    [382].    Id. at 154–55.

    [383].    See id. at 155; Counseling and Waiting Periods for Abortion, Guttmacher Inst., https://www.guttmacher.org/state-policy/explore/counseling-and-waiting-periods-abortion [https://perma.cc/T9JX-EMST].

    [384].    See Paula Galowitz, Collaboration Between Lawyers and Social Workers: Re-examining the Nature and Potential of the Relationship, 67 Fordham L. Rev. 2123, 2125 (1999).

    [385].    Kathleen Coulborn Faller & Frank E. Vandervort, Interdisciplinary Clinical Teaching of Child Welfare Practice to Law and Social Work Students: When World Views Collide, 41 U. Mich. J.L. Reform 121, 121–22 (2007).

    [386].    See discussion supra notes 162–77 and accompanying text.

    [387].    See supra note 177 and accompanying text.

    [388].    Deykin et al., supra note 179, at 243; see also Brandt, supra note 70, at 223–24. (“Moreover, the secrecy with which these cases move forward may, in itself, result in polarization and mistrust leading to litigation that might not otherwise take place.”).

    [389].    Joan Heifetz Hollinger & William M. Schur, Releases, Consents, Relinquishments, Surrenders, Entrustment Agreements, Disclaimers, and Waivers § 4.11, in 1 Adoption Law and Practice (Joan Heifetz Hollinger ed., 2019) (“In some jurisdictions, alleged biological fathers and other persons who have or may claim a legal interest in a child are permitted to execute special documents through which they disclaim or quitclaim whatever legal rights they might otherwise have with respect to a child.”); see, e.g., Tex. Family Code § 161.106 (“A man may sign an affidavit disclaiming any interest in a child and waiving notice or the service of citation in any suit filed or to be filed affecting the parent-child relationship with respect to the child.”).

    [390].    The court in In re Krigel recognized that it was in the child’s best interest to remain with his natural father, rather than to be placed for adoption. 480 S.W.3d 294, 298, 300 (Mo. 2016) (en banc).

    [391].    Joyce Maguire Pavao, The Family of Adoption 24 (2005).

    [392].    For a review of relevant literature, see sources cited supra note 366.

    [393].    343 S.E.2d 101 (W. Va. 1986).

    [394].    480 S.W.3d 294.

    [395].    Sezer et al., supra note 46, at 78.

    [396].    Robbennolt & Sternlight, supra note 14, at 1156.

    [397].    Sezer et al., supra note 46, at 80 (“[W]eak sanctioning systems—those with both a small probability of detecting unethical behavior and small punishments—actually increase unethical behavior relative to having no sanctioning system.”).

    [398].    See Robbennolt & Sternlight, supra note 14, at 1157.

    [399].    See generally Eldred, supra note 15.

    [400].    Sezer et al., supra note 46, at 78.

    [401].    Id.; Bazerman & Sezer, supra note 44, at 103.

    [402].    Sezer et al., supra note 46, at 78; see also Robbennolt & Sternlight, supra note 14, at 1162.

    [403].    Robbennolt & Sternlight, supra note 14, at 1162.

    [404].    See Sezer et al., supra note 46, at 78–79.

    [405].    Robbennolt & Sternlight, supra 14, at 1162.

    [406].    Bazerman & Sezer, supra note 44, at 103 (noting that “we need research to discover the conditions that prompt System 2 thinking so that individuals will notice unethical behavior more often”).

    [407].    Tigran W. Eldred, Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases, 65 Rutgers L. Rev. 333, 389–90 (2013).

    [408].    Rhode, supra note 48, at 1320.

    [409].    Id.

    [410].    See Eldred, supra note 407, at 388.

    [411].    Rhode, supra note 48, at 1318–19.

    [412].    Sezer et al., supra note 46, at 79–80.

    [413].    Id. at 79.

    [414].    Id.

    [415].    See generally Richard H. Thaler & Cass R. Sunstein, Nudge: Improving Decisions about Health, Wealth, and Happiness (Penguin Books rev. ed., 2009) (expounding a theory of motivating human behavior through “nudges” or “any aspect of the choice architecture that alters people’s behavior in a predictable way without forbidding any options”).

    [416].    Nancy B. Rapoport, “Nudging” Better Lawyer Behavior: Using Default Rules and Incentives to Change Behavior in Law Firms, 4 Saint Mary’s J. Legal Malpractice & Ethics 42, 68 (2014).

    [417].    See Susan A. Munson, Comment, Independent Adoption: In Whose Best Interest?, 26 Seton Hall L. Rev. 803, 809, 814–15, 830 (1996) (decrying the largely unregulated nature of private adoption). But see Pustilnik, supra note 24, at 263–64, 266 (arguing that the unregulated nature of private adoption is a positive thing).

    [418].    See discussion supra notes 217–34.

    [419].    See discussion supra note 379 and accompanying text.

    [420].    See discussion supra notes 149–55 and accompanying text.

    [421].    Seymore, Adopting Civil Damages, supra note 8, at 961.

Pills, Public Nuisance, and Parens Patriae: Questioning the Propriety of the Posture of the Opioid Litigation

Pills, Public Nuisance, and Parens Patriae: Questioning the Propriety of the Posture of the Opioid Litigation

Michelle L. Richards, Pills, Public Nuisance, and Parens Patriae: Questioning the Propriety of the Posture of the Opioid Litigation54 U. Rich. L. Rev. 405 (2020).

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Michelle L. Richards *

Introduction

The opioid crisis has been in litigation for almost twenty years on various fronts, including criminal prosecutions of pharmaceutical executives, civil lawsuits by individuals against drug manufacturers and physicians, class actions by those affected by opioid abuse, and criminal actions filed by the Drug Enforcement Administration (“DEA”). In the early 2000s, opioid litigation began with individual plaintiffs filing suit against manufacturers and others for damages allegedly related to opioid use. The litigation has since expanded significantly in terms of the type of plaintiffs and defendants, the nature of the claims being asserted, and the damages attributable to the crisis.

The most current and active litigation is that which is pursued by state attorneys general in both federal and state courts to recover monies expended in their respective jurisdictions in response to the opioid epidemic.[1] Additionally, and to a greater extent, individual municipalities, including cities and counties and even tribes like the Cherokee Nation, have filed similar independent actions against drug manufacturers, distributors, and pharmacies.[2] In 2018, more than 400 of the cases filed in courts throughout the United States by individual states, local governments, individuals, and other nongovernmental entities against drug manufacturers, distributors, and pharmacies were consolidated and transferred for pre-trial coordination to the Northern District of Ohio by the Judicial Panel on Multidistrict Litigation under the multi-district litigation (“MDL”) process set forth in 28 U.S.C. § 1407.[3] Since that time, an additional 1500 parties have been added to this consolidated litigation, and there are approximately 330 opioid-related cases pending in various state courts, including fifty-five lawsuits filed by state attorneys general.[4] In fact, in April 2019, plaintiffs’ expert witnesses provided reports that estimated it will cost more than $480 billion to “fix” the crisis.[5]

One clear conclusion that can be drawn from even a cursory review of the nature of the litigation that has arisen over the last twenty years is that nearly every facet of the community, from individuals and families to government entities and corporations, has been affected by the opioid crisis. Another point that cannot be denied is that the prescription drug industry, including manufacturers, distributors, and pharmacies, played a significantly culpable role in allowing the crisis to develop into its current magnitude. However, what is also clear is that many, many others played supporting roles in this regard, including, but not limited to, individuals, friends; families; governments, both federal and state; licensing boards; and physicians.

So, how can litigation possibly sort through this massive morass of players, and will it really result in any sort of meritorious resolution? Some believe that the “how” is a recipe that combines, in part, parens patriae standing and common law public nuisance claims. However, based on a historical review of the mass tort cases that have used both parens patriae standing and public nuisance claims, it is unlikely that the opioid litigation will really benefit anyone or anything other than the lawyers who represent parties on both sides of the proverbial “v.” Most concerning is that opioid courts have been more interested in orchestrating a mass settlement than evaluating the propriety of the posture of the litigation itself.[6] For example, on September 11, 2019, Judge Dan Polster, the judge assigned to handle the massive opioid MDL, certified a “first-of-its-kind”[7] negotiating class to promote global settlements between local municipalities, including cities and counties, and the numerous defendants in the MDL, which include drug manufacturers, distributors, and sellers.[8]

This is not the first time that litigation has played a role in attempting to resolve a public health crisis. When the doctrine of parens patriae and public nuisance claims are invoked by the states and utilized in mass tort litigation, the matters typically resolve quickly, suggesting perhaps that these two doctrines are beneficial to both sides in matters of complex tort liability. For example, the litigation against the tobacco industry in the 1990s has been referred to as “the most salient example of a high-profile litigation effort that after settlement yielded vast sums.”[9] However, post-Big Tobacco, many strongly believe that the tobacco litigation actually did not do much to change the behavior of the general public and the tobacco industry itself.[10] And, perhaps most importantly, there is significant doubt as to whether that litigation actually improved the public health of the country.[11] Regardless, since the litigation against Big Tobacco, the combination of parens patriae standing and public nuisance claims has been used more frequently to address other public health concerns including guns, lead paint exposure, and, currently, opioids.[12]

Although many comparisons have been made between the Big Tobacco and opioid litigation to both justify and predict the ultimate outcome of the opioid litigation, there are significant differences between the two that should provide some impetus for courts to consider whether the continued use of parens patriae standing and public nuisance claims is justified in these types of matters. In fact, as compared to most other mass tort cases that have utilized a combination of parens patriae standing and public nuisance claims since Big Tobacco, the fact that the product involved in the opioid litigation is a legitimate and beneficial prescription drug should signal to the courts that the propriety of the procedural posture of the case deserves some consideration. Further, there are complex causation issues in opioid cases that did not exist in the Big Tobacco litigation. Finally, it is important to acknowledge that there continue to be serious concerns post-tobacco litigation that the settlement reached under the Master Settlement Agreement (“MSA”) did not achieve the goals of tort litigation because the settlement monies were rarely, if ever, used to assist those who were most affected by tobacco use; instead, lawyers took a large chunk of the pot, and states often spent the money for other needs.[13]

So far, some of the settlements reached in the opioid cases urgently point toward a need for judicial oversight over the manner in which standing is asserted and claims are pled. For example, in one of the opioid litigation cases that has already resolved, a significant portion of the money “recovered” by the governmental entities has not been allocated to opioid-related expenses.[14] In another case, Oklahoma’s Attorney General reached a $270 million settlement with one of the opioid manufacturers, in which the monies would be used to fund addiction research and treatment in Oklahoma and to pay legal fees to the private counsel retained by the state.[15] However, because a large portion of the damages claimed in the litigation were Medicaid payments made to Oklahoma citizens for healthcare costs allegedly attributable to opioid use, the federal government has now demanded that Oklahoma reimburse it for a portion of the federal contribution toward those Medicaid payments, which amounted to sixty-two percent of the costs of Oklahoma’s $5 billion Medicaid program in 2019.[16] As the terms of the settlement only provided for the costs of addiction research and legal fees, it is unclear as to how Oklahoma will address that reimbursement demand. Finally, there is some indication that these settlements are actually creating tax incentives for the opioid defendants as a portion of the settlement may be classified as “restitution,” for which a deduction is provided in tax law for “damage or harm which was or may be caused by the violation of any law or the potential violation of any law.”[17]

In light of the differences between the opioid and Big Tobacco litigation and the post hoc view of the resolution of the Big Tobacco and other mass tort litigation, this Article cautions against the use of parens patriae standing and public nuisance claims to achieve a mass settlement without first examining whether the use of those tools will truly lead to a resolution that fulfills the goals of tort litigation—namely, to define acceptable conduct in society, to direct compensation to victims of prohibited conduct, and to deter others from acting in a similar fashion.

Part I of this Article provides an overview of the parens patriae doctrine and the expansive role it has played in mass tort litigation. Part II discusses public nuisance claims and how they have evolved into an attractive tool for attorneys seeking reimbursement for expenditures made in relation to respective underlying tort claims. Part III examines, more specifically, the Big Tobacco litigation and evaluates resulting consequences. Part IV of this Article introduces the history of the opioid crisis and the litigation that has flowed from it. Finally, Part V compares the use of parens patriae and public nuisance claims in the opioid litigation to the Big Tobacco litigation and encourages the courts to consider the propriety of the use of those tools in the opioid crisis.

I. The History of the Parens Patriae Doctrine and Its Role in Mass Tort Litigation

The doctrine of parens patriae is one that the American judicial system adopted from England in an effort to provide standing to state governments to sue on behalf of their citizens when the interests of the state were violated. Although it was initially utilized to recover for violations of sovereign interests in the regulation of the state, the doctrine and its jurisprudence have evolved over the last century to include the state’s quasi-sovereign interests, like the health, safety, and welfare of its citizenry. However, the courts have struggled to provide a clear definition or criteria in defining quasi-sovereign interests. Regardless, over the last twenty years, states have expanded the use of parens patriae standing in mass tort cases, like the litigation against Big Tobacco and now the opioid litigation. However, with little to no judicial guidance on its modern use in mass tort litigation, it is relatively unclear as to whether such use is appropriate.

A. History and Development of the Parens Patriae Doctrine

The literal translation of the phrase “parens patriae” means “parent of the country,” and refers to the role of the state as sovereign and guardian of a person under a legal disability.[18] The doctrine can be traced back to the concept of “royal prerogative,” which gave the Crown the right or responsibility to care of persons who were legally unable to care for themselves or their property,[19] including “infants, idiots, and lunatics.”[20] However, the development of the doctrine in American law has had very little to do with government stepping in to represent legally incompetent citizens. Rather, the concept has evolved into providing Article III standing to state governments to sue on behalf of their citizens for violations of the states’ sovereign and quasi-sovereign interests.[21]

American courts have acknowledged that parens patriae is “inherent in the supreme power of every State.”[22] To that end, American courts, including the Supreme Court of the United States, have acknowledged a state’s authority to sue under parens patriae to protect and vindicate both the state’s interests and the interests of the citizens of that state.[23] The sovereign interests of a state include enforcement of criminal, civil, and other regulatory provisions.[24] A state’s quasi-sovereign interest exists in the promotion and protection of the health, safety, and welfare of its citizens.[25] Courts have held that a state may assert parens patriae standing to bring claims for violations of its criminal and civil laws, as well as claims that the health, safety, and welfare of its citizenry have been adversely affected by a particular defendant’s actions.[26]

The most modern and leading case in which the doctrine of parens patriae was invoked to provide a basis for recovery for damages to both a state’s sovereign and quasi-sovereign interests is Alfred L. Snapp & Son, Inc. v. Puerto Rico.[27] In this case, the Commonwealth of Puerto Rico filed a claim for declaratory relief for alleged violations of federal labor laws by individuals and companies in the Virginia apple industry.[28] In short, Puerto Rico alleged that the defendant violated federal law “by failing to provide employment for qualified Puerto Rican migrant farmworkers, by subjecting those Puerto Rican workers that were employed to working conditions more burdensome than those established for temporary foreign workers, and by improperly terminating employment of Puerto Rican workers.”[29] To that end, Puerto Rico alleged that the actions against those farmworkers denied the Commonwealth the “right to effectively participate in the benefits of the Federal Employment Service System” and caused injury to Puerto Rico’s efforts to reduce unemployment and “promote opportunities for profitable employment” to its citizens.[30]

In evaluating whether Puerto Rico had standing to bring such a claim, the Supreme Court discussed all of the interests that may or may not provide a foundation for parens patriae standing.[31] The Court began by identifying the sovereign interests upon which parens patriae standing may easily be asserted, namely, “the power to create and enforce a legal code, both civil and criminal,” and “the maintenance and recognition of borders.”[32] The Court also made it clear that parens patriae actions cannot be used to protect two kinds of nonsovereign interests: proprietary interests, such as ownership of land or other business interests; and private interests of its citizens, which may be pursued by the State but as a nominal party only.[33] Finally, and most importantly to this Article, the Court discussed the role of quasi-sovereign interests as a foundation for parens patriae standing.[34] Although the Court recognized that a state also possesses “quasi-sovereign interests,” these interests are less defined than sovereign interests.[35] In that regard, the Snapp Court attempted to develop and clarify the concept of quasi-sovereign interests by giving examples through its own jurisprudence.[36]

As noted by the Court, the ability to base a parens patriae action on quasi-sovereign interests was first recognized by the Supreme Court in 1900.[37] In Louisiana v. Texas, Louisiana sought to enjoin a quarantine by Texas officials, which limited trade between Texas and the port of New Orleans.[38] The court identified the litigation interest of Louisiana as that of parens patriae, as opposed to sovereign or proprietary, and noted that the claim of Louisiana “must be regarded not as involving any infringement of the powers of the State of Louisiana, or any special injury to her property, but as asserting that the State is entitled to seek relief in this way because the matters complained of affect her citizens at large.”[39]

From there, the Snapp Court cited to a line of cases in which states were able to successfully represent the interests of their citizens through parens patriae standing to enjoin public nuisances and remedy injury to its economic well-being.[40] For example, it discussed the harm caused when twenty railroads had allegedly conspired to fix rates that discriminated against Georgia shippers in violation of federal antitrust laws, and the Court stated:

If the allegations of the bill are taken as true, the economy of Georgia and the welfare of her citizens have seriously suffered as the result of this alleged conspiracy. . . . Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected.[41]

Ultimately, the Snapp Court concluded that “the articulation of [quasi-sovereign] interests is a matter for case-by-case development.”[42] However, based on its review of the jurisprudence above, the Court admitted that although “neither an exhaustive formal definition nor a definitive list of qualifying interests can be presented in the abstract—certain characteristics of such interests are so far evident.”[43] The Court held that those characteristics of a quasi-sovereign interests included a “set of interests that the State has in the well-being of its populace” and “must be sufficiently concrete to create an actual controversy between the State and the defendant.”[44]

The Court then defined the requirements for standing in a parens patriae action based on a violation of a state’s quasi-sovereign interests.[45] First, the State “must articulate an interest apart from the interests of particular private parties, i.e., the State must be more than a nominal party.”[46] Further, the State must assert a “quasi-sovereign interest,” which the Court described as falling into two categories: “a quasi-sovereign interest in the health and well-being”—physical and economic—of the residents of that state, and a quasi-sovereign interest “in not being discriminatorily denied its rightful status within the federal system.”[47]

Because the Court did not “draw any definitive limits on the proportion of the population of the State that must be adversely affected by the challenged behavior,”[48] post-Snapp, courts have accepted a state’s “interest in protecting and vindicating the health, safety, and welfare of its people” as a sufficient assertion of a quasi-sovereign interest for purposes of parens patriae standing.[49] The courts then evaluate “whether the injury is one that the State, if it could, would likely attempt to address through its sovereign lawmaking powers,” and whether the conduct causing such injury affects, either directly or indirectly, a “sufficiently substantial segment of its population.”[50]

Following Snapp, the parens patriae doctrine relative to the vindication of health, safety, and welfare of citizens as a quasi-sovereign interest continued to develop. Most cases involved the state’s interest in protecting its citizenry from environmental contamination, antitrust, and fraud, in which the states were seeking injunctive relief or some statutory damages.[51] The question of the propriety of monetary damages, as opposed to equitable or statutory relief, began to arise in the context of quasi-sovereign interests.

With respect to monetary damages, no court has affirmatively ruled that parens patriae actions may be brought for monetary damages to a quasi-sovereign interest. In fact, in 1973, the Ninth Circuit noted:

Parens patriae has received no judicial recognition in this country as a basis for recovery of money damages for injuries suffered by individuals. In a series of cases the Supreme Court has rejected parens patriae as a basis for invoking the court’s original jurisdiction where individuals were the real parties in interest.[52]

In fact, all but two of the Supreme Court parens patriae cases were actions for solely injunctive relief, and the Court denied recovery in both instances. First, in Georgia v. Pennsylvania Railroad Co., a case involving a conspiracy to fix railroad rates, the Court held that a damages award was inappropriate when allegedly collusive rates had been approved by the Interstate Commerce Commission.[53] In Hawaii v. Standard Oil Co. of California, a civil antitrust case, the Court held that Section 4 of the Clayton Act does not authorize damages for an injury to the general economy of the state.[54] Regardless, some have noted, “the plain implication to be drawn from both cases is that, absent some substantive bar, the Court was willing to allow damages to a State suing as parens patriae.”[55]

Regardless of the development of the parens patriae jurisprudence, it is clear that the Supreme Court, and the courts that followed Snapp, did not contemplate the use of this doctrine in the context of mass tort litigation, which makes the need for judicial perspective on the propriety of such use all the more necessary

B. The Evolution of Parens Patriae Standing in Litigation Against Big Tobacco and in Mass Tort Cases Post-Big Tobacco

The use of parens patriae in the Big Tobacco litigation was a marked expansion from the more traditional assertion of a quasi-sovereign interest as described by the Snapp Court. As discussed in Part III, after individuals who had tried to sue the tobacco industry for damages arising out of their use of tobacco products had been virtually unsuccessful, the state attorneys general found a way to success by developing a theory of parens patriae that they believed squarely fit within a broad, quasi-sovereign interest in the health, safety, and welfare of its people.[56] Although many factors contributed to the overall success in the ability of the attorneys general to reach a settlement with the tobacco companies, including states acting in concert with one another to combine “quality, resources, and risk taking,” the most relevant factor to this Article was the use and development of the parens patriae theory in mass tort actions.[57]

The litigation against the tobacco industry in the 1990s has been considered “[t]he most powerful and sweeping exercise of parens patriae power in [United States] history.”[58] However, because the cases ultimately resolved through a MSA, the actual propriety of the use of the doctrine of parens patriae was untested by the parties and the courts. In other words, although the tobacco litigation “revived” and modernized the parens patriae doctrine, playing the leading role in the ultimate resolution of the cases, the “settlement pretermitted the opportunity for courts to articulate the doctrine’s limits.”[59] In fact, Richard Ieyoub, the former Attorney General for the State of Louisiana and principal architect of the parens patriae theories espoused in the tobacco litigation, has acknowledged that although he is unsure as to whether “the particulars of Louisiana’s parens patriae theory would have prevailed in the tobacco litigation[, t]he state’s litigation with the industry [was] over.”[60]

It bears noting that only one court in the tobacco litigation specifically indicated its approval of the use of parens patriae as a means of aggregating claims.[61] Among the many cases filed by states against the tobacco industry, Texas v. American Tobacco Co. discussed a state’s authority to maintain a cause of action for harm to the health, safety, and welfare of its people to recover Medicaid expenditures made by the state on behalf of individuals whose health had allegedly been adversely affected by tobacco.[62] The court reaffirmed the finding by the Supreme Court in Snapp that a state can maintain a common-law parens patriae action to protect quasi-sovereign interests.[63] In examining the claims filed by Texas, the court found that the state had a sufficient interest to maintain an action in its quasi-sovereign capacity:

First, it is without question that the State is not a nominal party to this suit. The State expends millions of dollars each year in order to provide medical care to its citizens under Medicaid. Furthermore, participating in the Medicaid program and having it operate in an efficient and cost-effective manner improves the health and welfare of the people of Texas. If the allegations of the complaint are found to be true, the economy of the State and the welfare of its people have suffered at the hands of the Defendants. . . . It is clear to the Court that the State can maintain this action pursuant to its quasi-sovereign interests found at common law.[64]

In short, the litigation against Big Tobacco by individual states under parens patriae standing had little risk, yet the possibility of great reward. First, although each state brought its lawsuit in the name of its respective State, many of the tobacco claims were financed and managed by private law firms under contingent fee agreements.[65] Moreover, in part because of the high costs of extended litigation, the tobacco manufacturers were willing to settle.[66] It comes as no surprise then that states have continued the use of the parens patriae doctrine against manufacturers of guns, asbestos, breast implants, lead paint, firearms, and now, opioids.

Following the tobacco litigation, the viability of parens patriae in other mass tort cases has been the subject of many scholarly articles. For example, some commentators suggest parens patriae provided a means to aggregate private tort claims to “safeguard[] nearly all interests that a state might reasonably seek to protect” that could not otherwise be pursued in a private class action.[67] It bears noting that other scholars and commentators also thought that it was “unlikely” that there would be a “next tobacco,” as many thought the tobacco litigation was a “unique event.”[68] To that end, the propriety of the use of parens patriae standing, including whether the pursuit of monetary expenditures the state was already responsible for regardless of the tort liability of a third party as an exercise to protect a quasi-sovereign interest, was not a concern for anyone. Then along came the opioid litigation.

II. Development of Public Nuisance as a Viable Claim in Mass Tort Litigation

A. History and Growth of Public Nuisance as a Tort

Public nuisance has been described as an “ancient tort,” dating back to twelfth-century England, and originated as a “criminal writ to remedy actions or conditions that infringed on royal property or blocked public roads or waterways.”[69] The king was vested with the sole authority to bring a public nuisance claim as an extension of his sovereign powers, and injunction or abatement were the sole remedies.[70] The ability of others to bring such a claim was expanded in England in the sixteenth century to those who sustained “special” injuries as a result of a public nuisance, but the remedy was limited only to injunctive relief.[71]

In the United States, courts initially recognized the common law claim of public nuisance in a consistent fashion with English courts, and its purpose was to remedy conduct that interfered with a public right, usually involving the obstruction of public highways and navigable waterways.[72] In the mid-1800s, public nuisance was expanded to actions involving moral welfare, such as prostitution, gambling, etc.[73] By the 1930s, a need for clarity on what constituted a public nuisance necessitated the enactment of local statutes and ordinances to help define public nuisance and gave local governments the ability and authority to prohibit certain conduct.[74] This allowed courts to handle “low-level quasi crimes” as torts and to require abatement to minimize or eliminate the threat to public health or safety, as opposed to just imposing a criminal penalty.[75] Because legislative regulation began to supplant public nuisance actions, the tort was not even mentioned in the First Restatement of Torts in 1939.[76]

Although William Prosser, the original reporter for the Second Restatement of Torts’ sections on public nuisance, tried to limit public nuisance to “a criminal interference with a right common to all members of the public” and limited damages recovery only to those individuals who could satisfy the special injury rule, environmentalists saw an opportunity to broaden the rule to allow for suits to stop pollution activities that did not rise to the level of criminal conduct.[77] Consequently, the American Law Institute voted to expand the tort to include “unreasonable interference with a right common to the general public.”[78] Moreover, individuals had standing when suing “as a representative of the general public, as a citizen in a citizen’s action or as a member of a class in a class action.”[79] The special injury rule remained in place for individuals seeking damages, as opposed to injunctive relief or abatement.[80]

The use of the tort of public nuisance to resolve and manage public policy problems began with the expansion of the tort in section 821(2)(c) of the Restatement (Second) of Torts. Up until that time, a claim of public nuisance was generally alleged against a defendant for any “unreasonable interference with a right common to the general public,” including those conditions that endanger public health, safety, and welfare.[81] Because parens patriae standing allowed states to protect their quasi-sovereign interests in the health, safety, and welfare of their citizens, the use of the parens patriae doctrine to establish liability in public nuisance cases involving environmental contamination seemed like a natural fit. As noted by at least one scholar:

Although public nuisance law traditionally has been a disfavored area of the common law in the United States, over time creative plaintiffs’ attorneys have attempted to expand the scope of public nuisance law beyond its traditional boundaries to broaden litigation pursuits. Modern attempts to expand the scope of public nuisance law beyond its traditional realm began in the 1970s when plaintiffs in environmental contamination cases successfully revived public nuisance law, which had been largely dormant, to force industrial landowners to stop polluting and pay for the costs of environmental cleanup. Environmental litigation was seen as an appropriate venue for nuisance law because the litigation is connected to the traditional realm of nuisance law—i.e., real property.[82]

However, even when used in this “traditional realm” of environmental cases, public nuisance law has been criticized as a “notoriously vague and elastic concept in the common law.”[83] In fact, as early as 1906, the issue of nuisance was said to be “a much litigated and vexatious one.”[84] Moreover, William Prosser once characterized the tort of nuisance as a “legal garbage can,” and described it as an “impenetrable jungle” that has “meant all things to all people and has been applied indiscriminately to everything from an alarming advertisement to a cockroach baked in a pie.”[85]

Regardless of the criticism, the tort continued to be attractive because of its flexibility and vagueness, and the fact that a plaintiff could plead more generally as opposed to bringing claims with well-defined elements.[86] Moreover, public nuisance claims allowed plaintiffs to “rely on relaxed evidentiary standards on issues that can derail individual plaintiffs lawsuits,” most notably those that relate to “duty, breach, causation, and product identification.”[87] In other words, the undefined nature of the public nuisance claim created opportunities for state plaintiffs to bring claims on a massive scale that could be incredibly daunting to defendants.[88]

B. Expansion of Public Nuisance as a Novel Tort

A review of the jurisprudence involving public nuisance claims over the last forty years demonstrates an evolution that can be described as a “catch all” for “increasingly inventive claims.”[89] First, environmental contamination cases provided a fairly reasonable landscape on which to construct a claim for public nuisance in order to recoup the costs of environmental clean-up and force the offending industry to change their operating practices to reduce pollution. For example, a California court dismissed a class action filed by representative plaintiffs on behalf of more than seven million property owners and residents of Los Angeles County against automobile manufacturers, seeking injunctions and billions in compensation for air pollution.[90] In that case, the appellate court affirmed the trial court’s dismissal of the action, stating that the case was an attempt at “judicial regulation of the processes, products and volume of business of the major industries of the county,” which the court believed was “an undertaking . . . beyond its effective capability.”[91]

The pendulum then began to swing towards the attempted use of public nuisance claims in cases for products liability as opposed to unreasonable conduct. For example, in the asbestos litigation that began in the 1980s, schools and municipalities sought to recover the costs related to asbestos abatement, arguing that asbestos, as a product, constituted a public nuisance.[92] Courts rejected the idea that a product, in and of itself, could constitute a public nuisance.[93] Rather, these courts held that such an idea “would give rise to a cause of action . . . regardless of the defendant’s degree of culpability or of the availability of other traditional tort law theories of recovery.”[94]

Despite the initial lack of success of public nuisance claims in the product liability realm, lawyers continued to file the tort claim outside of environmental contamination, then expanded to products like tobacco, handguns, and lead paint.[95] In fact, the action against Big Tobacco has been described as an “ironic impetus for the filing of public nuisance claims against product manufacturers”[96] because the only court to actually review the propriety of the use of public nuisance claim in tobacco litigation ultimately dismissed it because the court was “unwilling to accept the state’s invitation to expand a claim for public nuisance beyond its ground in real property.”[97] As noted by one writer, “[e]ven though public nuisance theory was not validated in [a] single tobacco case, the plaintiff’s victory in achieving a mass settlement in litigation that included this novel theory gave it the hint of legitimacy the trial bar needed.”[98]

Following Big Tobacco, the use of public nuisance as a viable claim in the mass torts and products liability arena was off to the races with cities filing claims against the handgun industry for creating a public nuisance by failing to design both a safer gun and safer marketing and distribution strategies to eliminate the risk that these weapons could be used by criminals.[99] The relief sought by the governmental entities included compensation for the costs of emergency services, law enforcement services, prosecutions, and other expenses, as well as punitive damages and permanent injunctive relief to abate the alleged public nuisance.[100]

In dismissing the claim of public nuisance, courts noted that interference with a public right is not the same thing as widespread interference with private rights. For example, in a case filed against gun manufacturers and distributors by the City of Chicago, the City argued a public nuisance was established by the defendants knowingly designing, marketing, and selling guns that they knew would be used for illegal purposes by individuals.[101] There, the court questioned whether the public right asserted by plaintiffs was “merely an assertion, on behalf of the entire community, of the individual right not to be assaulted.”[102] The court declined to expand the concept of public rights, holding that it was “reluctant to recognize a public right so broad and undefined that the presence of any potentially dangerous instrumentality in the community could be deemed to threaten it.”[103] The court went on to explain the danger in conflating public rights with private rights in the context of public nuisance claims:

By posing this question, we do not intend to minimize the very real problem of violent crime and the difficult tasks facing law enforcement and other public officials. Nor do we intend to dismiss the concerns of citizens who live in areas where gun crimes are particularly frequent.   Rather, we are reluctant to state that there is a public right to be free from the threat that some individuals may use an otherwise legal product (be it a gun, liquor, a car, a cell phone, or some other instrumentality) in a manner that may create a risk of harm to another.

For example, the purchase and consumption of alcohol by adults is legal, while driving under the influence is a crime. If there is public right to be free from the threat that others may use a lawful product to break the law, that right would include the right to drive upon the highways, free from the risk of injury posed by drunk drivers. This public right to safe passage on the highways would provide the basis for public nuisance claims against brewers and distillers, distributing companies, and proprietors of bars, taverns, liquor stores, and restaurants with liquor licenses, all of whom could be said to contribute to an interference with the public right.

Similarly, cell phones, DVD players, and other lawful products may be misused by drivers, creating a risk of harm to others. In an increasing number of jurisdictions, state legislatures have acted to ban the use of these otherwise legal products while driving. A public right to be free from the threat that other drivers may defy these laws would permit nuisance liability to be imposed on an endless list of manufacturers, distributors, and retailers of manufactured products that are intended to be, or are likely to be, used by drivers, distracting them and causing injury to others.[104]

The court then noted that several other courts had considered this expansion of public nuisance claims to also be inappropriate.[105] For example, and most importantly to this Article, one New York appellate court observed:

[G]iving a green light to a common-law public nuisance cause of action today will, in our judgment, likely open the courthouse doors to a flood of limitless, similar theories of public nuisance, not only against these defendants, but also against a wide and varied array of other commercial and manufacturing enterprises and activities.

All a creative mind would need to do is construct a scenario describing a known or perceived harm of a sort that can somehow be said to relate back to the way a company or an industry makes, markets, and/or sells its nondefective, lawful product or service, and a public nuisance claim would be conceived and a lawsuit born.[106]

Finally, beginning in 1999, states attempted to use public nuisance as a viable theory in cases filed against lead paint manufacturers to reimburse them for the costs expended in treating lead exposure-related illnesses.[107] Although many of these cases also failed at different stages, the reasons that the individual courts rejected the use of public nuisance theories are notable. For example, the Rhode Island Supreme Court explained that allowing the state’s public nuisance claim “would change the meaning of public right to encompass all behavior that causes a widespread interference with the private rights of numerous individuals.”[108] The court viewed that it “would be antithetical to the common law and would lead to a widespread expansion of public nuisance law that never was intended.”[109] The court concluded, “[W]e see no reason to depart from the long-standing principle that a public right is a right of the public to shared resources such as air, water, or public rights of way.”[110]

Regardless of the historical reluctance of courts to expand the concept of a public nuisance claim to include “widespread interference” with private rights of public citizens, plaintiffs continue to heavily rely on this tort theory in mass tort litigation.[111] As will be discussed below, the theory is, once again, front and center in the opioid litigation.

III. The Litigation Against Big Tobacco and the Role of Parens Patriae and Public Nuisance

In November 1998, a multi-billion dollar settlement was reached in the litigation filed by forty-six state attorneys general, five U.S. territories, and the District of Columbia against the five largest tobacco companies in the United States.[112] The plaintiffs had sought to recover costs to public health systems, namely under Medicaid programs, to treat smoking-related ailments.[113] Until that time, the tobacco companies had not lost any of the several hundred smoking cases filed by individual plaintiffs.[114] Each time, juries found that the smokers were responsible for smoking and causing their own injuries.[115] However, with the advent of the attorneys general litigation, the legal strategy and theory changed, and Big Tobacco was forced to surrender. Because this litigation has become the blueprint for the use of parens patriae and public nuisance claims in mass tort actions, an examination of how the litigation developed and the consequences of the settlement deserve attention.

A. Individuals Versus Big Tobacco

Litigation against tobacco manufacturers for smoking-related illness and death began in the 1950s when cancer was linked, for the first time, to smoking.[116] Claims included negligent manufacturing, products liability, fraud, and violations of state consumer protection laws.[117] In each of these early cases, the manufacturers were able to successfully defend themselves by arguing that tobacco was not harmful, the individual plaintiff’s harm was caused by factors unrelated to smoking and tobacco, and smokers assumed the risk of cancer when they made the decision to smoke.[118] Until the 1980s, the manufacturers prevailed in all of these cases, and cases were either summarily dismissed or a jury rendered verdicts of “no cause of action” or in favor of the defendants.[119]

In 1992, the landmark case of Cipollone v. Liggett Group, Inc. became the first-ever successful jury trial by a smoker against the tobacco industry.[120] In this case, the plaintiff claimed that her lung cancer was caused, in part, by the manufacturers’ failure to properly inform the public about the risks of smoking, including addiction, and fraud in their failure to act on their knowledge of the risks of smoking.[121] During the course of the litigation, Cipollone’s attorney gained access to and entered into evidence more than 300 pages of internal documents from the cigarette manufacturers that demonstrated that the tobacco companies had research dating back to the 1940s that nicotine was both addictive and potentially carcinogenic.[122] In fact, the documents revealed that tobacco companies knew of the dangers of cigarettes well before the Surgeon General warned the public in 1964 that tobacco companies had conspired to conceal these documents in order to hide the health hazards of smoking.[123] The Cipollone case would be the first of several victories against the tobacco industry and has been viewed by some commentators as a monumental achievement in the anti-tobacco crusade.[124]

In the 1990s, the House Energy and Commerce Committee’s Subcommittee on Health and the Environment, led by Democratic California Representative Henry Waxman, investigated the dangers of tobacco.[125] In 1994, in one of the Subcommittee hearings, the chief executive officers of the seven largest tobacco companies testified that they did not believe nicotine was addictive.[126] Shortly thereafter, internal documents from tobacco manufacturer Brown & Williamson Tobacco Corporation surfaced showing that this testimony was false.[127]

In the late 1990s, as a result in large part of the revelation of documents from the Cipollone litigation and the House Subcommittee, an individual plaintiff secured the first “big” victory for smokers in a case in California in which a jury ordered the Philip Morris company to pay $51.5 million to a smoker who had developed inoperable lung cancer.[128] Although claims for smoking-related illnesses caused by post-1966 smoking were still preempted by federal law, individuals whose claims were predicated on pre-1966 smoking began to see some limited success in the courtroom against the tobacco manufacturers.[129] But, at about this same time, a new plaintiff, not constrained by the causation difficulties and other factors that limited plaintiffs in the past in bringing a successful claim against Big Tobacco, began to take shape—state attorneys general.

B. State Attorneys General Versus Big Tobacco

In 1994, the Attorney General for the State of Mississippi, Michael Moore, filed a lawsuit against the largest cigarette manufacturers in the country seeking a recoupment of the $940 million in costs the state had expended on Medicaid payments for sick smokers.[130] The theory of these lawsuits was that the cigarettes produced by the tobacco industry contributed to health problems among the population, which in turn resulted in significant costs to the state’s public health systems.[131] Michael Moore was quoted as declaring: “[The] lawsuit is premised on a simple notion: you caused the health crisis; you pay for it.”[132] By 1997, forty-six states had joined the litigation and all sought repayment of the monies they had expended in Medicaid benefits to individuals suffering from smoking-related illnesses.[133]

Recognizing that they were now facing the prospect of litigation in nearly every jurisdiction in the nation, the tobacco industry sought a congressional remedy in the form of a national settlement agreement.[134] The National Association of Attorneys General, led by Mississippi Attorney General Moore, proposed a national agreement that included more than $350 billion in baseline payments over twenty-five years to individual states and required funds to be earmarked to combat teenage smoking, oversight of the manufacturing process by the Food and Drug Administration, and federal advertising restrictions.[135] Additionally, the proposed national settlement agreement also provided the industry with immunity from state prosecutions, eliminated punitive damages in individual actions, and prohibited aggregate litigation by individual lawsuits.[136]

In 1997, while bills reflecting the proposed national agreement were still being passed around Washington, Mississippi’s Attorney General settled with the industry.[137] Florida, Texas, and Minnesota also settled shortly after.[138]

In November 1998, the attorneys general of the remaining forty-six states, including the Virgin Islands, Puerto Rico, and the District of Columbia, entered into the  MSA to resolve their claims against the largest tobacco manufacturers in the country, which accounted for ninety-eight percent of the domestic market, for over $200 billion over twenty-five years.[139] The nation’s remaining manufacturers, which comprised the remaining two percent of the domestic market, were given the opportunity to sign as “Subsequent Participating Manufacturer[s].”[140] Nearly all signed the document, which provided them with the same protection that the major manufacturers had received, but with significantly reduced financial obligations because of market share.

The terms of the Tobacco MSA provided not only for $200 billion in baseline payments over twenty-five years to each of the plaintiffs, but also included broader provisions.[141] Those included restrictions on advertising, particularly those targeting youth, to make the documents disclosed during discovery in the litigation available to the public, to create a foundation dedicated to reducing youth smoking and diseases related to smoking, and payments to the states in perpetuity.[142]

The conclusion of many scholars, the health care industry, and some of the state attorneys general that were involved in this litigation, including Mississippi Attorney General Michael Moore, is that the Tobacco MSA did not do enough to resolve the harm caused by tobacco use or prevent future harm from occurring.[143] Because of lack of oversight provisions in the Tobacco MSA, the settlement money came to states and continues to come with “no strings attached.”[144] In an NPR interview in 2013, Moore is quoted as saying:

What happened as the years went by, legislators come and go, and governors come and go . . . so we got a new governor and he had a new opinion about the tobacco trust fund. . . . So a trust fund that should have $2.5 billion in it now doesn’t have much at all, and unfortunately that’s one of my biggest disappointments.[145]

In that same interview, Myron Levin, a writer for the Los Angeles Times and founder of the health and safety news website Fair Warning, said that there was “a feeling” during the settlement process that the states had a “moral obligation” to spend monies on antismoking programs, but this was more of an effort “[t]o show the settlement was not just a big money grab.”[146] At the time, the expectation was that states would make a “big investment” in those programs, but most have not.[147] In fact, in 2007, the Centers for Disease Control and Prevention recommended that states should invest twelve percent of the tobacco settlement monies in anti-smoking programs.[148] But, as the NPR interview notes, “most state governments have decided to prioritize other things: Colorado has spent tens of millions of its share to support a literacy program, while Kentucky has invested half of its money in agricultural programs.”[149] A New York Times article notes that “[o]nly a small fraction of the money has gone to tobacco prevention,” and instead states used the “windfall” for other expenditures.[150]

Finally, according to the Campaign for Tobacco-Free Kids, “34.3 million U.S. adults still smoke and 47 million—about 1 in 5 adults—still use some form of tobacco.”[151] The organization notes the “large disparities” in smokers among income and education levels, and that youth e-cigarette use threatens another generation with nicotine addiction.[152] Finally, the Campaign for Tobacco-Free Kids also reported that in 2014, states spent 1.9% of their settlement payments and tobacco taxes on prevention programs that year.[153]

In short, although the litigation is viewed as having “an enormous positive impact,” it has also been described as “an enormous loss or failure.”[154] On the benefits side, “[t]he litigation exposed the tobacco industry’s lies, dramatically reduced teen smoking and resulted in limits in cigarette advertising.”[155] As further noted by the President of the Campaign for Tobacco-Free Kids, the litigation fell “far short of meeting the objectives. We didn’t change the industry’s conduct at all. The product is no safer.”[156] Lastly, government watchdog groups Citizens Against Government Waste and the Council for Citizens Against Government Waste noted that the Tobacco MSA “represents one of the most egregious examples of a government shakedown of private industry and offers a case study of the problems that stem from big government and big business scratching each other’s backs.”[157]

IV. The History of Opioids in the United States, the Current Crisis, and Litigation

A. History of Opioids in the United States

The United States has had an opioid problem, in some fashion, for a very long time. In 1806, after a German scientist extracted morphine from opium, the drug was used to treat everything from pain, anxiety, respiratory problems, and female ailments.[158] Morphine was so commonly used during the Civil War that many soldiers developed a dependency on the drug, ultimately referred to as “soldier’s disease.”[159] Between 1853, when the hypodermic needle was invented, and 1898, when heroin was synthesized from morphine, the use of opiates marketed in the United States as “non-addictive” medications was significant.[160] So significant, in fact, that by the end of the nineteenth century, the United States began to focus on ending the nonmedicinal use of derivatives of opium because of the addictiveness of the drug.[161]

In 1916, Bayer Pharmaceuticals developed the drug oxycodone as a substitute for morphine and heroin.[162] Once the Food and Drug Administration (“FDA”) was empowered in 1938 to approve drugs for their safety and effectiveness, opioid-derived medications like oxycodone were permitted to be sold throughout the United States.[163] Since the early 1960s, especially following periods of war, “abuse of prescription opioids containing oxycodone has been a major concern in the [United States].”[164] Veterans given opioids for combat-related injuries continued to use and misuse the drug even after the need for pain relief was over.[165] By the 1970s, opioids like hydrocodone and oxycodone were developed and marketed for both acute pain relief as well as pain associated with cancer.[166]

Despite the legislative efforts to ban heroin, including the International Opium Convention in 1912 and the Heroin Act of 1924, the importation of illegal heroin into the United States began to rise in the late 1950s and escalated during the Vietnam War.[167] In the 1950s, the United States was involved in an effort to contain the spread of Communism in Asia. In order to gain accessibility and protection along the southeast border of China, the United States established relationships with the various tribes and warlords that occupied that area and supplied them with “ammunition, arms, and air transport for the production and sale of opium.”[168] This action ultimately resulted in “an explosion in the availability and illegal flow of heroin into the United States and into the hands of drug dealers and addicts.”[169] With the Vietnam War came an additional significant increase in the illegal import of heroin into the United States. By 1970, the number of heroin addicts in the United States reached approximately 750,000.[170]

By 1973, the United States was officially involved in the “War on Drugs,” a phrase coined by President Richard Nixon following the creation of the DEA by Executive Order.[171] Throughout the next two decades, the United States medical community fell into “opiophobia,” a fear of prescribing opiates and other opioids for anything other than acute pain due to injury or surgery, or severe pain related to cancer or other terminal illness, because of the concern for addiction.[172] The placement of opioids like morphine, fentanyl, and oxycodone on the federal Schedule II drug list as part of the Controlled Substances Act in 1970 also contributed to this fear.[173]

However, in 1980, a one paragraph letter to the editors of the New England Journal of Medicine, entitled “Addiction Rare in Patients Treated with Narcotics,” is thought to be the impetus for an increase in support of opioid therapy for chronic pain.[174] In that letter, the authors stated that “only 4 of 11,882 patients who had pain and were given opioids became addicted to them.”[175] As scholars have noted, “this 5-sentence letter was referenced over 600 times in support of using opioids for chronic pain.”[176]

Over the next decade, the World Health Organization, medical textbooks, research studies and publications, and medical societies like the American Academy of Pain Medicine and the American Pain Society all encouraged the use of opioids to treat patients with chronic, noncancerous pain.[177] “[M]any states [also] passed Intractable Pain Acts that removed sanctions for physicians who prescribed long-term opioid drug therap[ies].”[178] It is no surprise that from 1990 to 1995, prescriptions for opioids increased by two million to three million each year.[179]

Over time, the concept of “pain” as a diagnosis for treatment was advanced by several influential groups. For example, in 1995, in his presidential address to the American Pain Society, James Campbell introduced the concept of pain as the fifth vital sign—next to body temperature, pulse, respiration rate, and blood pressure—in order to promote more aggressive pain management.[180] In 1999, the Joint Commission on Accreditation of Healthcare Organizations “issu[ed] pain management standards that hospitals and outpatient centers would have to meet for certification.”[181] Even the Department of Veterans Affairs developed a national pain management strategy in 2000 that referred to pain as the fifth vital sign.[182]

It followed then that several highly regarded medical organizations adopted the view that opioid therapy was appropriate for chronic pain with limited risk of danger. For example, in 2000, the American Medical Association’s Council on Scientific Affairs “noted that the risk of opioid addiction among patients without a history of  misuse or abuse was low.”[183] Further, the Federation of State Medical Boards called the use of opioids “essential” in the treatment of both cancerous and noncancerous chronic pain.[184] By that time, the larger medical community, including pharmaceutical drug companies, physicians, pharmacies, and medical and licensing boards, were all on board, and opioid drugs were back in favor.

B. The Present-Day Opioid Crisis

As demands for opioids to treat pain increased, drug companies explored how best to satisfy those demands in light of the addictive properties of the drug. In 1995, the drug that has been viewed as principally responsible for the latest opioid crisis, OxyContin, was produced by Purdue Pharma (“Purdue”) and approved by the FDA.[185] OxyContin was marketed and sold as being safe and non-addictive for the treatment of chronic pain, and was designed to slowly release the opioid over a twelve-hour period.[186] Initially, it was believed that the time-release formulation allowing for delayed absorption of the drug would “reduce the abuse liability of [the] drug,” but that claim was not backed up by clinical studies.[187] Based on these representations, doctors felt comfortable prescribing the medication.[188]

However, recreational drug users and abusers learned to get high by crushing or dissolving the pill, thereby getting the immediate and full effect of the opioid in the pill.[189] As a result, OxyContin quickly became the most desired prescription drug on the black market.[190] In fact, between 1996, when OxyContin hit the market, and 2000, sales grew from $48 million to over $1.1 billion.[191] “[T]he annual number of prescriptions for OxyContin increased from 670,000 to 6.2 million between 1997 and 2002, and the total number of opioid prescriptions [by all pharmaceutical companies] increased by 45 million.”[192] Additionally, “[n]early 62 million patients had at least [one] opioid prescription filled in 2016.”[193]

In 2007, the federal government brought criminal charges against Purdue and three of their executives for “misleading and defrauding doctors and consumers” by advertising OxyContin as safer and less addictive than other opioids.[194] Purdue and the three executives pleaded guilty and agreed to pay $634.5 million in criminal and civil fines.[195] In 2010, the FDA approved an “abuse-deterrent” formulation of OxyContin to allow physicians to continue to prescribe the drug while also curbing the abuse of the medication.[196]

In May 2015, the DEA executed the largest prescription drug bust in the history of the agency, “Operation Pilluted,” in which 280 people, including twenty-two doctors and pharmacists, were arrested for dispensing large amounts of opioids.[197] In 2017, the President of the United States declared the opioid crisis a national public health emergency, and legislative measures and industry efforts have been put into effect to address opioid addiction and find new pain management alternatives to opioids.[198]

According to the National Center on Health Statistics, “[s]ince 2011, fatal overdoses from [prescription] opioids alone have remained relatively stable, but those involving fentanyl have shot through the roof.”[199] In fact, synthetic fentanyl, created in 1960 as a treatment for cancer pain, played a part in sixty percent of opioid deaths in 2017, up from eleven percent five years ago.[200] “[T]he rate of drug overdoses involving [synthetic fentanyl] skyrocketed by about 113% each year from 2013 through 2016.”[201]

C. The Opioid Litigation by Individuals and Governmental Entities

With respect to the current opioid crisis, the civil litigation that has followed has included claims filed against drug manufacturers and physicians by individual plaintiffs, and suits brought by state and local governments that targeted not only the manufacturers and physicians, but also opioid distributors and pharmacy retailers. It also bears noting that, although this Article is largely focused on the civil litigation spawned by the opioid crisis, a number of criminal prosecutions and enforcement actions have also occurred. For example, in 2007, the United States filed a criminal case against Purdue and its three officers for violating federal law, including the misbranding of drugs under the Federal Food, Drug, and Cosmetic Act, which resulted in a guilty plea and a settlement of more than $620 million in criminal fines to the federal government, twenty-six states, and the District of Columbia.[202] Further, the DEA has also filed criminal actions against physicians and pharmacists for violating the Controlled Substance Act through improper opioid prescription practices.[203] In short, civil and criminal litigation has had a prominent role in the opioid crisis, and there does not appear to be any signs of an end.

  1. Individual Litigation Against Manufacturers and Physicians

In the early 2000s, the litigation that arose out of the opioid crisis was almost entirely focused on the pharmaceutical industry for the manufacture and distribution of the extended-release oxycodone drugs such as OxyContin.[204] The majority of these cases were filed as either individual suits or class actions, and alleged fraudulent and negligent marketing of these drugs as less addictive than other formulations.[205] The damages sought in these cases were for the costs associated with the prescriptions and for “expenses related to over-prescribing,” including the costs to the individual states in treating addiction.[206]

Most of the suits brought by private citizens against the manufacturers were dismissed at the summary judgment stage for a variety of different reasons. Simply put, many plaintiffs had difficulty establishing any sort of duty or causation because of intervening, superseding conduct of either the patients themselves or the physician who prescribed the drugs.[207] In many cases, courts found that addiction or abuse of a prescription drug was a choice made solely by the individual plaintiff and that dependence on prescription opioids amounted to “illegal conduct.”[208] Class actions were dismissed at the certification stage because the medical records of individual plaintiffs caused the class to fail the commonality requirement under Rule 23 of the Federal Rules of Civil Procedure.[209]

Claims brought against physicians also proved to be challenging for plaintiffs for some of the same reasons stated above. Additionally, plaintiffs struggled to establish that the requisite standard of care for a medical malpractice claim had been breached when dealing with prescription of opioids because there was not a clear standard on how to treat pain.[210] It bears noting that both state medical boards and the DEA had some success in disciplining doctors for overprescribing opioids and bringing criminal charges against doctors under the Controlled Substances Act for “knowingly prescribing a controlled substance without a legitimate medical purpose and outside the course of professional practice.”[211] In fact, between 2001 and 2004, pursuant to the “OxyContin Action Plan,” sixty percent of the arrests relating to the distribution, dispensing, and possession of OxyContin by the DEA were medical professionals, including doctors and pharmacists.[212]

  1. Parens Patriae and Public Nuisance Claims in Opioid Litigation by Governmental Entities

Although the suits brought by private citizens, as either individual suits or as a class action, were, in large part, dismissed by the trial courts, lawsuits filed by state and local governments, and even American Indian nations, have been much more successful. In these cases, the governmental entities as plaintiffs have invoked parens patriae standing to assert claims of public nuisance, among others, to recover monies expended in responding to the opioid crisis in their respective communities. Additionally, the net for defendants has been cast much wider in these cases than in those filed by private citizens and includes not only pharmaceutical manufacturers and physicians, but also opioid distributors, pharmacies and retailers, licensing boards, and other professional accreditation entities. In short, the pockets of the defendants have expanded in both width and depth.

For example, in 2001, West Virginia’s Attorney General filed suit against Purdue for maintaining a public nuisance, as well as violating the West Virginia Consumer Credit Protection Act, negligence, and antitrust violations, among others.[213] The State alleged it had expended more than $30 million in OxyContin-related costs between 1996 and 2003,[214] and sought “restitution and reimbursement sufficient to cover all costs expended for health care services and programs associated with the diagnosis and treatment of adverse health consequences of OxyContin use, including, but not limited to, addiction due to defendants’ wrongful conduct.”[215] The State also sought compensation for all prescription costs for OxyContin that it had incurred under Medicare as a result of the defendants’ wrongful conduct.[216] Although the case ultimately settled in 2004 for $10 million, some have viewed the willingness of West Virginia’s Attorney General to settle for such a small amount as a sign that, if given the chance, a trial court may find that the causal chain between the expenses incurred by the State was severed by the misuse of the drug by abusers in that jurisdiction.[217]

The relative success of West Virginia against an opioid manufacturer is thought to have prompted twenty-six other states and the District of Columbia to quickly file similar claims in a class action against Purdue, accusing the company of misbranding and fraud that led to opioid related expenditures in their respective jurisdictions.[218] In 2007, Purdue and three of its executives agreed to pay $600 million in civil and criminal fines to the federal government and almost $20 million to twenty-six states and the District of Columbia following a plea agreement in which the company pleaded guilty to a felony charge of misbranding OxyContin with the intent to defraud or mislead, and the executives pleaded guilty to a misdemeanor charge of misbranding.[219] An additional $130 million was spent to settle private civil claims related to OxyContin.[220] Although the settlement here was significantly more modest than the $250 billion Big Tobacco settlement, described more fully in Part III of this Article, the resolution of these claims proved to be a turning point for the opioid litigation as state and local governments began to see that the stage for the opioid cases could be set just as it had in Big Tobacco.

In 2007, the Commonwealth of Kentucky, as well as Pike County, Kentucky, filed a lawsuit against two drug manufacturers, Purdue and Abbott, in New York state court.[221] Kentucky had been a part of the 2007 national settlement described above, but had refused its $500,000 allocated portion, and instead the case was transferred to Kentucky state court.[222] The complaint alleged claims of public nuisance and antitrust, among others, and sought damages and equitable relief for the addiction and health problems suffered by residents and expenditures of money and services by both the County and the Commonwealth that were allegedly connected to the opioid crisis in their respective jurisdictions.[223] The case was removed to a federal district court in Kentucky,[224] and then transferred to and consolidated in a New York federal district court with other OxyContin cases involving antitrust claims against Purdue.[225] In responding to an effort to remove the case back to state court by the plaintiffs, Purdue argued that Kentucky consumers were the real parties in interest and that the case should be viewed as a class action under the Class Action Fairness Act (“CAFA”).[226] The court ultimately rejected this argument, holding that there were only two plaintiffs involved, Kentucky and Pike County and declared that the suit was a parens patriae action in which the state sought to vindicate its quasi-sovereign interests.[227]

Purdue ultimately appealed the issue of whether a parens patriae action, such as the one brought by the Kentucky Attorney General, was a class action and therefore removable to federal court under CAFA.[228] The Second Circuit concluded that since the complaint by the Commonwealth “[made] no mention” of the Kentucky class action rule, Kentucky Rules of Civil Procedure Rule 23, it could not be considered a class action under CAFA, which required that the civil action be filed under a state law equivalent to the Federal Rules of Civil Procedure Rule 23.[229] Purdue argued that, even absent the mention of Kentucky Rule of Civil Procedure Rule 23, the Kentucky Attorney General was actually relying on state law statutes to assert representative claims for restitution on behalf of individual OxyContin users.[230] However, even though the complaint alleged that defendant’s false misrepresentations and omissions about OxyContin caused Kentucky residents to become addicted and suffer health problems for which the Commonwealth ultimately paid for prescriptions and other medical services that would not have otherwise been required, the Second Circuit rejected that reasoning and stuck to its literal reading of the complaint as lacking any use of the term “class action” or reference to Kentucky Rules of Civil Procedure Rule 23.[231] In June 2013, Pike County settled its claims against Purdue for $4 million and the Commonwealth of Kentucky settled in 2015 for $24 million.[232]

Since December 2017, more than 2000 opioid-related cases filed by individual states, local governments, individuals, and other non-governmental entities against drug manufacturers, distributors, and pharmacies have been consolidated and transferred for pre-trial coordination to the Northern District of Ohio by the Judicial Panel on Multidistrict Litigation under the MDL process set forth in 28 U.S.C. § 1407 (“National Prescription Opiate MDL”).[233] When the first cases were consolidated, it was noted by some scholars that the consolidation of so many different types of defendants “[was] unusual” for an MDL.[234] In fact, some defendants protested the consolidation, arguing that the varied roles of each defendant—manufacturers, distributors, retailers, and doctors—would make it difficult, if not impossible, to be handled in an efficient and fair manner.[235] Considering that the Judicial Panel on Multidistrict Litigation (the “Panel”) was responsible for the consolidation and ultimately signed the transfer order, it is clear that the Panel did not find those differences compelling enough.

In both the National Prescription Opiate MDL as well as the hundreds of opioid-related cases filed across the country, the claims pleaded by the plaintiffs pursuant to parens patriae standing are numerous and varied, and include common law claims of public nuisance. For example, under the initial Transfer Order in the National Prescription Opiate MDL:

Plaintiffs in the actions before us are cities, counties and states that allege that: (1) manufacturers of prescription opioid medications overstated the benefits and downplayed the risks of the use of their opioids and aggressively marketed (directly and through key opinion leaders) these drugs to physicians, and/or (2) distributors failed to monitor, detect, investigate, refuse and report suspicious orders of prescription opiates. All actions involve common factual questions about, inter alia, the manufacturing and distributor defendants’ knowledge of and conduct regarding the alleged diversion of these prescription opiates, as well as the manufacturers’ alleged improper marketing of such drugs. Both manufacturers and distributors are under an obligation under the Controlled Substances Act and similar state laws to prevent diversion of opiates and other controlled substances into illicit channels. Plaintiffs assert that defendants have failed to adhere to those standards, which caused the diversion of opiates into their communities. Plaintiffs variously bring claims for violation of RICO statutes, consumer protection laws, state analogues to the Controlled Substances Act, as well as common law claims such as public nuisance, negligence, negligent misrepresentation, fraud and unjust enrichment.[236]

Immediately following the transfer of the opioid cases to his court by the Panel, Judge Polster provided some indication that he viewed his role in dealing with the opioid crisis in a way that “approximates a legislative approach more than a litigation approach.”[237] In fact, in the first hearing in January 2018, the judge stated:

People aren’t interested in figuring out the answer to interesting legal questions like preemption and learned intermediary, or unraveling complicated conspiracy theories. So my objective is to do something meaningful to abate this crisis and to do it in 2018. . . . What we’ve got to do is dramatically reduce the number of the pills that are out there and make sure that the pills that are out there are being used properly . . . . [W]e need a whole lot—some new systems in place, and we need some treatment. . . . We don’t need—we don’t need a lot of briefs and we don’t need trials. They’re not going to—none of them are—none of those are going to solve what we’ve got.[238]

As 2018 came and went, it became clear that the matter was not going to resolve as quickly as Judge Polster had once hoped. In fact, in December 2018, the court began ruling on numerous legal issues, including public nuisance and standing.[239] Although he dismissed a public nuisance claim brought by the City of Akron and limited the County’s claim to injunctive relief, he stated that:

It is accurate to describe the opioid epidemic as a man-made plague, twenty years in the making. The pain, death, and heartache it has wrought cannot be overstated. As this Court has previously stated, it is hard to find anyone in Ohio who does not have a family member, a friend, a parent of a friend, or a child of a friend who has not been affected.

Plaintiffs have made very serious accusations, alleging that each of the defendant Manufacturers, Distributors, and Pharmacies bear part of the responsibility for this plague because of their action and inaction in manufacturing and distributing prescription opioids. Plaintiffs allege that Defendants have contributed to the addiction of millions of Americans to these prescription opioids and to the foreseeable result that many of those addicted would turn to street drugs.

While these allegations do not fit neatly into the legal theories chosen by Plaintiffs, they fit nevertheless. Whether Plaintiffs can prove any of these allegations remains to be seen, but this Court holds that they will have that opportunity.[240]

In addition to the National Prescription Opiate MDL, there are at least 330 opioid-related cases pending in forty-five lower courts.[241] These cases have been brought by state attorneys general that have opted to file independent lawsuits against drug manufacturers, distributors, retailers, and medical providers, rather than “share the stage” with the national litigation.[242]

Most recently, the State of Oklahoma settled its lawsuit for a record $270 million against Purdue, which was scheduled to begin trial in May 2019.[243] The Oklahoma litigation, had it gone to trial, was considered a bellwether case, and one of the attorneys representing the State, Michael Burrage, summarized the trial strategy as the following: “We intend to prove that all of the defendants contributed to a public nuisance . . . and that they’re all responsible for the whole ball of wax.”[244] Approximately $200 million of the settlement “went to Oklahoma State University to establish a center for treatment and research on addiction, . . . [m]ore than $12 million was allocated to cities and counties, and the rest was spent” on private civil attorneys hired by the Attorney General to handle the lawsuit.[245] Because none of the money went into the state treasury, pursuant to the terms of the settlement agreement, Oklahoma legislators passed a law requiring future opioid settlements to be paid directly into the state treasury.[246] To that end, the $85 million settlement reached between Oklahoma and one of the other defendants, Teva Pharmaceuticals Industries, was deposited with the State.[247]

On June 12, 2019, the federal government, through the U.S. Centers for Medicaid and Medicare Services, asked for a portion of Oklahoma’s settlement with Purdue to be paid to it as reimbursement because it believed the basis for the settlement was for monies expended in Medicare payments for opioid-related health issues.[248] Interestingly, the Medicaid claims had been withdrawn from the lawsuit on April 4, 2019, nine days after Oklahoma’s Attorney General settled with Purdue.[249] Moreover, in its case against Johnson & Johnson, Oklahoma asserted only that the defendant “violated the state’s public nuisance law by fueling the drug crisis through deceptive promotion of drugs and by providing raw materials to drug manufacturers.”[250] In August 2019, the trial against Johnson & Johnson resulted in a historic jury verdict of $572 million.[251] Because Medicaid is funded jointly by state and federal governments and, in 2019, the federal government was responsible for about sixty-two percent of the cost of Oklahoma’s $5 billion Medicaid program,[252] it will be interesting to see whether Oklahoma ultimately reimburses the federal government, and, if so, how much.

Finally, attorneys for local governments across the country have revealed a plan for global settlement of the more than 24,000 local communities that have brought claims in either the National Prescription Opiate MDL or in their own state courts against opioid manufactures, distributors, retailers, and medical providers.[253] The plan sweeps cities, towns, villages, and counties, but not states themselves, into a single “negotiating class,” which would allow local government leaders to participate in settlement negotiations, approve or disapprove any settlement, and provide opportunities to opt-out entirely.[254] On September 11, 2019, despite the lack of any clear procedural rule that gave him authority to do so, Judge Polster certified this class and included more than 30,000 local governments nationwide that have not yet filed lawsuits.[255] Attorneys general for most states involved in the national litigation indicated that a settlement with local governments could harm the ability to reach a comprehensive national settlement with both state and local governments.[256] Interestingly, on September 14, 2019, attorneys for some of the pharmacy defendants filed a motion to disqualify Judge Polster for bias based on his numerous comments over the last twenty-one months that he intended to conclude the litigation with a settlement as opposed to trials that could ultimately lead to appeals and his substantial involvement in the settlement talks themselves.[257]

V. The Posture of the Opioid Litigation Deserves the Judicial Review that Never Happened in Big Tobacco

The formula for the opioid litigation, a combination of parens patriae standing based on a rather undefined quasi-sovereign interest and vague public nuisance claims, is one that was developed and utilized in the Big Tobacco litigation and evolved in subsequent mass tort cases. Despite the fact that, as stated in Part II, many of those post-Big Tobacco courts rejected the use and expansion of a public nuisance claim in cases involving legal products like guns, asbestos, and lead paint, the relative “success” of the Big Tobacco litigation has seemingly skewed the vision of the judiciary and empowered state attorneys general and local governments to pursue money damages in the opioid litigation through the vague claims of public nuisance. Moreover, there was no examination as to whether this pursuit is legally proper as a function of quasi-sovereign interests by a governmental entity because the Big Tobacco Litigation settled through an MSA. What is clear from Part III, however, is that the Big Tobacco litigation did not really further any of the goals of tort law—deterrence, defining acceptable social conduct, and compensation of victims—and it did not bring about any significant change in public policy or social reform. Rather, the only conclusion that can be drawn from Big Tobacco is that the litigation succeeded in transferring some money from private, corporate wallets to government coffers with little-to-no oversight.

In an effort to learn from mistakes of the past, there are several steps that can be taken now to try and accomplish some true remediation of the opioid crisis. First, by comparing the Big Tobacco litigation and the opioid litigation, one must conclude that there are more differences than there are similarities. As such, the procedural posture of the opioid litigation should be reviewed carefully to assure that the claims asserted, and the parties asserting them, are proper. To that end, the courts must make a determination of whether state attorneys general and local governments have parens patriae standing to pursue monetary damages for reimbursement of expenditures made in connection with opioid use in their respective jurisdictions as a function of a quasi-sovereign interest. Further, in light of the fact that opioids are legal drugs and are heavily regulated by the FDA and DEA, the courts must also determine whether the use of public nuisance claims in the opioid litigation is proper. In this regard, courts must consider whether they should manage these types of public policy concerns through public nuisance litigation.

A. Big Tobacco Litigation Is Not the Same as the Opioid Litigation

As stated previously, the use of the parens patriae doctrine, in conjunction with public nuisance claims, has taken center stage in the opioid litigation. At first blush, it may seem like this is Big Tobacco all over again. In fact, the lawyers that played prominent roles in the tobacco litigation are now involved in the opioid litigation, and many state and local governments are hiring these lawyers and law firms on a contingency-fee basis to sue the private industry defendants.[258] However, there are significant and relevant differences between the litigation against Big Tobacco and litigation against opioid defendants, as well as other products that have been the subject of mass public nuisance tort claims filed by governmental entities under parens patriae standing, that suggest that the propriety of the use parens patriae and public nuisance claims in opioid litigation, as well as the likelihood of success, should be reevaluated.

First, and perhaps most importantly, the products in the other mass tort cases, as compared to opioids, are radically different in that the benefits associated with those products are outweighed by the risk factors of the products themselves. As one article notes, “[t]obacco is the only consumer product that is not capable of being used safely.”[259] In fact, until the MSA was put into place, cigarettes were not governed by any regulatory body. As described in Part II, as time went on, products like lead paint and asbestos became the focus of mass tort and products liability litigation. In each of these cases, the products that were the focus of the litigation were deemed to have no real legitimate or beneficial use that was not outweighed by the safety issues surrounding them. For example, although asbestos is an excellent heat insulator, the product’s risk factors to the health of those who are exposed to the product outweighs the benefit. Similarly, although the addition of lead to paint promotes faster drying and improves the overall quality of the paint, the risks associated with lead in paint, particularly those used in homes and on toys, outweighs the beneficial factors. Consequently, both products have been banned, either in whole or in large part, in the United States.[260]

Conversely, as noted above, opioids can be and are routinely used safely, and are commonly used to treat chronic pain and other pain symptoms. Further, opioids are regulated by the FDA and the DEA, and patients can receive a legitimate prescription for opioids from a licensed physician or medical provider. Moreover, as noted by the health care community, the use of opioids to treat pain is beneficial, and the risks of the product, like addiction, can be reduced significantly when the patient works collaboratively with his medical provider.[261]

Further, the pool of plaintiffs in the opioid litigation is radically different as compared to the plaintiffs in the litigation against Big Tobacco and other mass tort products. As stated previously, the plaintiffs in Big Tobacco were individual states who brought claims against the tobacco manufacturers to recover monies expended as Medicaid payments made to citizens of the respective states for smoking-related illnesses. In the opioid litigation, cities, counties, and tribes have taken the lead in filing their cases in courts across the country, with state attorneys general taking a backseat in their own respective state actions. Why is this important? Because one of the keys to success in the tobacco litigation was the ability of the plaintiffs to cooperate and agree on how to resolve the matter. In the opioid litigation, there are cases in nearly every state and a massive MDL in Cleveland, Ohio that has consolidated more than 1500 cases for purposes of pre-trial proceedings and discovery. It is unlikely, given the “unique needs and plans” of each community, that there will be any ability to be cohesive and reach a global settlement.[262] As such, the fact that these individual state and local governments have been permitted to utilize parens patriae standing to bring these opioid lawsuits without any real evaluation of the propriety of such use is concerning.

Also, the named defendants in the opioid litigation are substantially different than those in the tobacco litigation. In the tobacco litigation, there were a finite number of major tobacco manufacturers as named defendants. Once the MSA was reached, provisions were made for the smaller manufacturers to join the settlement. This manageable group made it much easier for the state attorneys general to negotiate a settlement to resolve the claims. The opioid litigation defendants are numerous and are as varied as the number of lawsuits filed. In some cases, the respective governmental plaintiff named only one or two of the major opioid manufacturers. In other cases, manufacturers, distributors, and pharmacies are named defendants. Still, in others, the plaintiffs have sued manufacturers, doctors, and the clinics that sell the drugs. As is the case with respect to the types of plaintiffs bringing these claims, resolving all of the opioid claims filed across the country with something like the global settlement achieved in the litigation against Big Tobacco is extremely unlikely.

Compared to the Big Tobacco litigation, in which causation was a minimal concern to the parties because proper use of tobacco was connected to health concerns, causation issues abound in the opioid litigation. The causation waters are significantly murkier in the opioid crisis than in Big Tobacco because the reasons why state and local governments expend monies to respond to the opioid crisis in their respective communities are different depending on the individual who becomes addicted to the drug. The courts are either unwilling or disinterested in considering these causation issues and the relative fault of each defendant, but have concluded, without any evaluation of the requisite evidence, that the pharmaceutical industry as a whole is liable.

As ironic as it sounds, one of the more important differences between the Big Tobacco and opioid litigation is that the industry that sold the unsafe and unregulated product, tobacco, is significantly wealthier than the players involved in the heavily regulated opioid industry. As experts note, “[t]he U.S. opioid market generates around $10 billion in annual gross sales. Big Tobacco had nearly $20 billion in net profits in 2016.”[263] So why does this matter? Because the ultimate monetary resolutions sought by the plaintiffs across the country threaten to bankrupt a sector of the industry that needs to continue to function because opiates are necessary, valuable, beneficial, and safe drugs.

B. Judicial Guidance on the Issue of Parens Patriae Standing To Protect Quasi-Sovereign Interests and Recover Monetary Expenditures in the Opioid Litigation Is Necessary

Parens patriae actions have been recognized as appropriate in the context of the protection of quasi-sovereign interests. However, as the Supreme Court noted in Snapp, because “an exhaustive formal definition” or “definitive list of qualifying interests” in determining what is or is not a quasi-sovereign interest cannot be provided,[264] the Court required that the characteristics of a quasi-sovereign interest be “sufficiently concrete to create an actual controversy between the State and the defendant.”[265] Consequently, concerns for the health, safety, and welfare of a state’s people have been recognized as a quasi-sovereign interest for parens patriae standing.[266] However, the Snapp Court advised that an inquiry be made as to whether the injury to the state is one that it “would likely attempt to address through its sovereign lawmaking powers,” as well as whether the causal conduct affected a “substantial segment of the population.”[267]

When looking at Big Tobacco, one might be convinced that the use of parens patriae was appropriate in light of the overall resolution of the litigation. However, it cannot and should not be ignored that the “settlement pretermitted the opportunity for courts to articulate the doctrine’s limits.”[268] As previously stated, even Louisiana’s Attorney General, the principal architect of the parens patriae theories espoused in the tobacco litigation, has acknowledged that he is unsure as to whether “the particulars of Louisiana’s parens patriae theory would have prevailed in the tobacco litigation.”[269]

Since that time, only one court has examined whether the exercise of parens patriae power to recover damages, like Medicaid expenditures, made as a consequence of the conduct of a third party is proper.[270] In Texas v. American Tobacco Co., the question arose as to whether the State could bring a direct action against a tortfeasor to recover Medicaid benefits, or whether the reimbursement and subrogation process provided by the Medicaid statute and Texas law was the exclusive remedy.[271] The court reasoned:

First, it is without question that the State is not a nominal party to this suit. The State expends millions of dollars each year in order to provide medical care to its citizens under Medicaid. Furthermore, participating in the Medicaid program and having it operate in an efficient and cost-effective manner improves the health and welfare of the people of Texas. If the allegations of the complaint are found to be true, the economy of the State and the welfare of its people have suffered at the hands of the Defendants. . . . It is clear to the Court that the State can maintain this action pursuant to its quasi-sovereign interests found at common law. [272]

As noted by some scholars, in American Tobacco Co., the judge “clearly assumed that damages, to the extent proven, would be available to a state seeking to vindicate its quasi-sovereign interests.”[273] However, other than the conclusory finding that this action was in furtherance of a quasi-sovereign interest, there was no analysis of this issue, including whether or not this action truly satisfied the guidance of the Snapp Court.[274] For example, the court did not consider whether the issue was one in which Texas “would likely attempt to address through its sovereign lawmaking powers,” or whether the causal conduct of the tobacco manufacturers affected a “substantial segment of [the] population.”[275] Rather, the court found that, even though the purpose of the applicable federal and state regulations was to “require states such as Texas to recover money spent that can be attributed to the wrongs of third-parties” through subrogation of rights, it was “impractical” to require the state to “follow the mandates of the Medicaid statute’s reimbursement provisions . . . on a claim-by-claim basis.”[276] Although the court was clearly compelled that claim-by-claim subrogation cases were ineffective and costly as compared to a parens patriae action, nowhere in the opinion is there any evidence that the court considered whether the population affected by the conduct of the tobacco manufacturers was “substantial.”[277]

As was the case in the tobacco litigation, in the opioid litigation, the damages for which parens patriae standing are being asserted are for expenditures and other monetary damages sustained, including Medicaid expenses, as a consequence of the opioid crisis. Because courts in the Big Tobacco litigation, in light of the mass settlement, never had the chance to analyze whether these types of actions were truly in furtherance of a quasi-sovereign interest, courts should feel compelled to provide that kind of guidance now. This would provide significant confidence in the validity of any settlement between the parties, as well as guidance to future actions in which parens patriae standing to recover Medicaid and other monetary damages are claimed.

Post-Big Tobacco, parens patriae suits have become “an increasingly popular vehicle for state attorneys general to vindicate the rights of their constituents.”[278] If parens patriae in the context of quasi-sovereign interests is viewed as a “go to” tool for states and local governments in mass tort claims, the opportunity for some real consideration and analysis by our judicial system to assure that the procedural tool is not abused is now.

C. Courts Must Consider Whether Public Nuisance Tort Claims by Governmental Entities Are Appropriate in Mass Torts Claims Like the Opioid Litigation

As detailed in Part II, public nuisance, due to its characteristics, is an incredibly unique tort claim. It “represents a uniquely potent weapon in the hands of governmental entities and contingency fee private counsel representing them.”[279] One scholar describes public nuisance claims as this:

Public nuisance offers plaintiffs several important strategic advantages. Its primary advantage is a more direct focus on the merits—the existence of the nuisance, the injury, and the appropriate remedy—than is available in many statutory cases, where the focus is often on procedure or violations of permits or standards. Moreover, public nuisance gives plaintiffs the opportunity to obtain damages and injunctive relief, lacks laches and other common tort defenses, is immune to administrative law defenses like exhaustion, avoids the private nuisance requirement that the plaintiff be a landowner/occupier of affected land, eliminates a fault requirement, and circumvents any pre-suit notice requirement.[280]

Even though public nuisance claims are “notoriously vague and elastic,” governmental entities continue to try and stretch the parameters of the common law to their advantage.[281] Clearly, that “stretch” occurred in the Big Tobacco litigation, but the courts were unable to examine the propriety of it as the case resolved though the MSA. The opioid courts now have a chance to do what the Big Tobacco courts were foreclosed from doing and to provide judicial guidance and opinion on whether the use of the public nuisance claim in parens patriae actions is appropriate. In order to accomplish that task, the courts must consider several issues, including whether the opioid cases satisfy the requirement of a public right, whether the remedy pursued is that which is traditionally recoverable in a public nuisance claim, and whether a show of causation is required. Most importantly, the court must examine whether a public nuisance claim is the most appropriate vehicle for remedying what is really a public policy problem.

First, the courts must consider whether the consequences sustained by a particular jurisdiction and attributed to the abuse of prescription opioids by individuals is truly a violation of a public right. Public rights are “collective in nature and not like the individual right that everyone has not to be assaulted or defamed or defrauded or negligently injured.”[282] As noted by many, “the rights protected by public nuisance law are not simply aggregations of private rights.”[283] In fact, some have argued that “[a] mass tort, such as distributing a defective product to millions of consumers, violates a large number of private rights. But this does not convert such a tort into a violation of a public right.”[284] Therefore, the question becomes whether governmental entities, such as state attorneys general and local governments, are attempting to “obscure the individual nature” of injuries allegedly suffered by individuals in their jurisdictions and attributed to opioid manufacturers by “focusing on the widespread use of the product or its potential to cause harm.”[285] If that is true, then the courts must justify why the remedy sought by the governmental entities is compensable when the claims brought by private citizens have nearly all been dismissed for lack of causation due to misuse of the product; intervening, superseding conduct of the plaintiff or the physician who prescribed it; or illegal conduct. Also, in many of these cases, the governmental agencies include the damages to the individual citizens themselves in their prayers for relief.[286]

It is important to note that in April 2019, a magistrate in the opioid MDL considered a motion to dismiss public nuisance claims in Muscogee (Creek) Nation v. Purdue Pharma, L.P.[287] There, the defendants argued that the public nuisance claims filed by the plaintiffs should be dismissed as an unlawful expansion of public nuisance law based on the reasoning set forth in City of Chicago v. Beretta U.S.A. Corp., a case concerning firearms as a public nuisance.[288] In City of Chicago, the allegations pleaded by the plaintiffs were that “[t]he defendants’ conduct of ‘intentionally and recklessly’ designing, marketing, distributing, and selling firearms that they ‘should know’ will be taken to Chicago causes ‘thousands of firearms to be possessed and used in Chicago illegally’ and causes ‘a significant and unreasonable interference’ with the rights of the public.”[289] The City of Chicago Court found this allegation to be an improper expansion of the public nuisance theory, stating

[a]ny change of this magnitude in the law affecting a highly regulated industry must be the work of the legislature, brought about by the political process, not the work of the courts. In response to the suggestion of amici that we are abdicating our responsibility to declare the common law, we point to the virtue of judicial restraint.[290]

Similar to the claims pled in City of Chicago, the claims in the opioid litigation are that the nuisance occurred as a result of defendants’ conduct in sales, marketing, and distribution of opioids.[291] However, regardless of similarity to City of Chicago, the opioid court not only denied the defendants’ motion, but failed to distinguish the opioid cases from the gun cases relative to claims of public nuisance. Moreover, the court made no effort to articulate why the use of the public nuisance theory in the opioid litigation would not be an improper expansion and use of a public nuisance claim, as the court in City of Chicago found.[292] In fact, as of this writing, the parties in the National Opioid Prescription MDL will argue a motion on September 16, 2019, as to who should hear the contested theory of public nuisance, the judge or a jury.[293]

Further, the court must consider whether the monetary remedies requested by the parties are recoverable in a public nuisance claim. Traditionally, as previously discussed, remedies for public nuisance were limited to abatement or injunctive relief. The costs of abatement in cases remedying a public nuisance, like blocking a public roadway or interfering with navigable waters, would be ascertainable.[294] However, the costs of abating a large public policy or public health problem like the opioid crisis are absolutely incomprehensible. Although there is precedent “for allowing a state to seek a damage remedy as well, especially in cases where abatement would involve significant expense, in cases that involve concurrent causes of action, such as statutory and regulatory violations, or in cases where the offensive conduct has already been discontinued,”[295] in the opioid litigation, where parties are claiming increased health costs, lost productivity, increased demand for emergency services, generalized detrimental effect on families and communities, and other social issues, determining how to estimate those damages becomes all the more difficult. Moreover, the inability to calculate specific damages that are traced to the wrongful conduct of the defendants “incentivizes manufacturers to settle because their potential liability . . . remains imprecisely defined.”[296] The courts should resist this push by both sides to reach some monetary resolution without some inquiry into the basis for the damages claimed attributable to the individual defendants.

D. The Courts Must Consider the Appropriate Causation Standard and the Effect It Will Have on Public Policy

Causation standards and public policy concerns play a significant role in determining the propriety of the use of public nuisance claims. Some courts have refused to allow governmental entities to change the inquiry from whether a particular defendant caused a particular injury to whether the defendant “substantially participated” in creating a perceived threat to public health and safety.[297] However, in cases in which that inquiry was expanded, the end result resembles “the creation of a social program more than the resolution of a particular dispute.”[298]

As can be seen in many of the complaints filed in the opioid litigation, the focus of the parties is less on the discrete injury to the public right and more on the “generalized societal problem.”[299] Consequently, judges, like Judge Polster in the National Prescription Opiate MDL, are encouraged to focus more on the overall crisis and less on the requirements of the tort claims before them. For example, as noted by Judge Polster, “[m]ore and more over the last [fifty] years, cities have turned to courts to solve complex social problems . . . . Whether that’s good or bad, people can debate. But it is a fact.”[300] Judge Polster acknowledged that ultimate resolution of the opioid crisis is a social problem more appropriate for the executive and legislative branches, as opposed to the courts, but acknowledged “it’s here.”[301] The concern then becomes the use of public nuisance as a litigation strategy. As noted by some commentators, such use “can create an uncomfortable separation of powers issue by allowing state attorneys general to step into a regulatory role for which they have no constitutional authority.”[302] However, to the extent that the opioid courts can refrain from issuing injunctive relief in the form of regulatory schemes and focus on elements of the claims pleaded and the defenses asserted, the danger of legislating public policy reform from the bench is greatly reduced.[303]

As noted previously, the court and the parties have begun to consider causation issues in the National Prescription Opiate MDL, but with the certification of the negotiating class of local governments, that issue may ultimately be overshadowed by the focus on settlement. Provided that this court, and other opioid courts like it around the country, can focus on the legal issues before it and resist the temptation to implement “solutions” to the public health crisis, the use of public nuisance claims in future cases will not be untenably expanded.

Conclusion

Mass tort cases like the national opioid litigation, as well as the aggregate pressure of the thousands of state and local government lawsuits that have been filed independently across the country, will have an enormous impact on public policy. Although the question as to whether “litigation is the ideal way to solve a public health problem,”[304] is a good one, it bears noting that several scholars also note that

[l]itigation has helped set the agenda and frame the issues in this crisis. The start of litigation, or in some cases the mere threat of it, has brought additional political, health, and educational attention to the opioid crisis and, arguably, changed the way actors at the edge of the web, including distributors, retailers, and accreditation entities, conceive of their responsibilities. In addition, the pressure to rehabilitate a company reputation damaged by litigation and other publicity may prompt companies to contribute to the solution, perhaps even before court resolution.[305]

As noted by at least one commentator, “‘Courts are hard-wired for litigation,’ through which facts can come to light.”[306] Pushing hard, as Judge Polster initially stated, for “something meaningful to abate this crisis” is a lofty goal, but the courts cannot ignore the fact that pushing for resolution without any fact-finding, evidentiary proofs, or witness testimony is a “short-circuiting of that process” that can leave the validity and propriety of any resolution up for debate.[307] Most importantly, any positive impact or change to public policy is placed at risk because of a lack of confidence in the manner in which that impact or change came about.

The combination of parens patriae standing and public nuisance claims as an instrument to reform public policy and institute social change through judicial action is wildly problematic. As can be seen post-Big Tobacco, there is significant doubt as whether the litigation by states achieved any of the goals of tort law or if it was just a “big money grab” by governmental entities.[308] To that end, it is comforting to see that, at least in the National Prescription Opiate MDL, there is some movement by the court and the parties involved to confirm that the cases are postured correctly in order to achieve more than just a cash settlement or paper resolution and to assure that the legal doctrines and claims employed by the parties are utilized properly now and in the future. Rest assured, unlike the end of the Big Tobacco litigation in which many thought that it was “unlikely” there would be a “next tobacco,” there will be a “next opioid” case.[309] The courts should use the current opioid litigation to assist those future parties and their respective litigation in posturing their case so that there are no questions as to the propriety of the use of procedural tools and claims, like parens patriae and public nuisance.


     *  Assistant Professor of Law, University of Detroit Mercy School of Law, J.D., 1994, University of Detroit Mercy School of Law; B.A., 1991, Michigan State University.  The author gratefully acknowledges the support of Detroit Mercy Law colleagues Professor Julia Belian, mentor Professor Howard Abrams, and research assistant Aaron Pattison (2020). Many thanks also to Allison Bohan and the staff at University of Richmond Law Review.

        [1].    See In re Nat’l Prescription Opiate Litig., No. 1:17-md-02804 (N.D. Ohio Dec. 8, 2017).

        [2].    Id.

        [3].    Transfer Order, In re Nat’l Prescription Opiate Litig., 290 F. Supp. 3d 1375 (J.P.M.L. Dec. 5, 2017).

        [4].    Christine Vestal, Pay Attention to This Little-Noticed Opioid Lawsuit in Oklahoma, Pew Charitable Trusts: Stateline (Feb. 14, 2019), https://www.pewtrusts.org/en/resea rch-and-analysis/blogs/stateline/2019/02/14/pay-attention-to-this-little-noticed-opioid-laws uit-in-oklahoma [https://perma.cc/LNN8-JJN9].

        [5].    Alison Frankel, Expert Witness in Opioids MDL: Fixing Crisis Will Cost $483 Billion, Reuters: On The Case (Apr. 18, 2019, 5:48 PM), https://www.reuters.com/article/us-  otc-opioids/expert-witness-in-opioids-mdl-fixing-crisis-will-cost-483-billion-idUSKCN1RU 2I5 [https://perma.cc/4XSH-EJSZ].

        [6].    See Jan Hoffman, Can This Judge Solve the Opioid Crisis?, N.Y. Times (Mar. 5, 2018), https://www.nytimes.com/2018/03/05/health/opioid-crisis-judge-lawsuits.html [https: //perma.cc/QP8G-U7GC]; see also In re Nat’l Prescription Opiate Litig., No. 1:17-md-02804, 2019 U.S. Dist. LEXIS 101660 (N.D. Ohio Apr. 1, 2019); In re Nat’l Prescription Opiate Litig., No. 1:17-md-02804, 2018 U.S. Dist. LEXIS 213567 (N.D. Ohio Dec. 19, 2018).

        [7].    See Alison Frankel, Opioid MDL Judges OKs Novel Negotiating Class as ‘Likely To Promote Global Settlement’, Reuters: Credit RSS (Sept. 12, 2019, 5:20 PM), https://www. reuters.com/article/us-otc-opioids/opioid-mdl-judges-oks-novel-negotiating-class-as-likely-to-promote-global-settlement-idUSKCN1VX2RE [https://perma.cc/JJN2-HEAC].

        [8].    See Order Certifying Negotiating Class and Approving Notice at 1, 7–8, In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804 (N.D. Ohio Sept. 11, 2019).

        [9].    Abbe R. Gluck et al., Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46 J.L. Med. & Ethics 351, 351 (2018).

      [10].    See id.

      [11].    See id.

      [12].    See id.

      [13].    Spencer Chretien, Up in Smoke: What Happened to the Tobacco Master Settlement Agreement Money?, Citizens Against Gov’t Waste: The WasteWatcher (Dec. 12, 2017, 3:36 PM), https://www.cagw.org/thewastewatcher/smoke-what-happened-tobacco-master-settlement-agreement-money [https://perma.cc/XDB8-ZV6R]; see also U.S. Gov’t Accountability Office, GAO-07-534T, Tobacco Settlement: States’ Allocations of Payments From Tobacco Companies for Fiscal Years 2000 Through 2005 (2007).

      [14].    See Marianne Skolek, West Virginia Uses OxyContin Settlement Money To Build Gym, Nat’l Pain Rep. (Apr. 30, 2012), http://nationalpainreport.com/west-virginia-uses-oxy contin-settlement-money-to-build-a-gym-8814021.html [https://perma.cc/X8AF-UYDP].

      [15].    Lenny Bernstein, Federal Government Demands Part of Oklahoma’s $270 Million Deal with Purdue, Wash. Post (June 27, 2019, 5:25 PM EDT), https://www.washingtonpost. com/health/federal-government-demands-part-of-oklahomas-270-million-deal-with-purdue/ 2019/06/26/dc548592-9833-11e9-916d-9c61607d8190_story.html  [https://perma.cc/6H4C-RFGY].

      [16].    See id.

      [17].    Kevin McCoy, ‘Clearly a Game.’ Opioid Lawsuit Settlements Appear Aimed at Giving Tax Breaks to Drug Firms, Experts Say, USA Today (Sept. 12, 2019, 5:50 PM ET), https: //www.usatoday.com/story/money/2019/09/12/pharmaceutical-companies-purdue-pharma-mckesson-teva-eye-tax-deductions-opioid-lawsuit/2215109001/ [https://perma.cc/C4XV-2W 23].

      [18].    See Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 600 (1982) (quoting Parens Patriae, Black’s Law Dictionary (5th ed. 1979)).

      [19].    Id.

      [20].    Hawaii v. Standard Oil Co., 405 U.S. 251, 257 (1972).

      [21].    Id. at 258–59.

      [22].    Snapp, 458 U.S. at 600 (quoting Late Corp. of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1, 57 (1890)).

      [23].    See Richard P. Ieyoub & Theodore Eisenberg, State Attorney General Actions, the Tobacco Litigation, and the Doctrine of Parens Patriae, 74 Tul. L. Rev. 1859, 1864 (2000).

      [24].    See Snapp, 458 U.S. at 601.

      [25].    See id. at 607.

      [26].    See, e.g., id. at 601, 607.

      [27].    Id. at 592.

      [28].    Id. at 597–99.

      [29].    Id. at 597–98 (citation omitted).

      [30].    Id. at 598.

      [31].    Id. at 599–601.

      [32].    Id. at 601.

      [33].    Id. at 601–02.

      [34].    Id. at 602–03.

      [35].    Id. at 602.

      [36].    Id. at 602–07.

      [37].    Id. at 602 (discussing Louisiana v. Texas, 176 U.S. 1 (1900)).

      [38].    Louisiana, 176 U.S. at 19, 22.

      [39].    See id. at 19.

      [40].    Snapp, 458 U.S. at 603–05 (citing North Dakota v. Minnesota, 263 U.S. 365 (1923); Wyoming v. Colorado, 259 U.S. 419 (1922); New York v. New Jersey, 256 U.S. 296 (1921); Kansas v. Colorado, 206 U.S. 46 (1907); Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907); Kansas v. Colorado, 185 U.S. 125 (1902); Missouri v. Illinois, 180 U.S. 208 (1901)).

      [41].    Georgia v. Pennsylvania R.R. Co., 324 U.S. 439, 439, 443, 450–51 (1945).

      [42].    Snapp, 458 U.S. at 607.

      [43].    Id.

      [44].    Id. at 602.

      [45].    Id. at 607.

      [46].    Id. (emphasis omitted).

      [47].    Id.

      [48].    Id.

      [49].    See Ieyoub & Eisenberg, supra note 23, at 1864.

      [50].    See Snapp, 458 U.S. at 607.

      [51].    See Ieyoub & Eisenberg, supra note 23, at 1853–57; Jack Ratliff, Parens Patriae: An Overview, 74 Tul. L. Rev. 1847, 1854–57 (2000).

      [52].    California v. Frito-Lay, Inc., 474 F.2d 774, 775–76 (9th Cir. 1973). “The rationale of these decisions is that ‘[a]n action brought by one State against another violates the Eleventh Amendment if the plaintiff State is actually suing to recover for injuries to designated individuals.’” Id. at 776 n.4 (quoting Hawaii v. Standard Oil Co., 405 U.S. 251, 258 n.12 (1972)).

      [53].    324 U.S. 439, 443, 452–53 (1945).

      [54].    405 U.S. 251, 252 (1972).

      [55].    Maine v. M/V Tamano, 357 F. Supp. 1097, 1101 (1973).

      [56].    See Ieyoub & Eisenberg, supra note 23, at 1860, 1863–64.

      [57].    See id. at 1860–61.

      [58].    Gabrielle J. Hanna, The Helicopter State: Misuse of Parens Patriae Unconstitutionally Precludes Individual and Class Claims, 92 Wash. L. Rev. 1955, 1956 (2017) (citing Ieyoub & Eisenberg, supra note 23, at 1860–61).

      [59].    Ieyoub & Eisenberg, supra note 23, at 1880–83.

      [60].    Id. at 1862.

      [61].    See Texas v. Am. Tobacco Co., 14 F. Supp. 2d 956, 971 (E.D. Tex. 1997) (“In the Court’s opinion, [parens patriae as] such a basis for suit has long been available to the State. . . . In this case, the State has simply dusted off a long recognized legal theory and seeks to use it to further the purposes of the statutes in question and right the alleged wrongs involved in this matter.”).

      [62].    Id. at 960–61.

      [63].    Id. at 962.

      [64].    Id. at 962–63 (citations omitted).

  [65].    Richard C. Ausness, The Role of Litigation in the Fight Against Prescription Drug

Abuse, 116 W. Va. L. Rev. 1117, 1147 (2014) (citing Michael DeBow, The State Tobacco Litigation and the Separation of Powers in State Governments: Repairing the Damage, 31 Seton Hall L. Rev. 563, 568 (2001)).

      [66].    Id. (citing Howard M. Erichson, Coattail Class Actions: Reflections on Microsoft, Tobacco, and the Mixing of Public and Private Lawyering in Mass Litigation, 34 U.C. Davis L. Rev. 1, 10 (2000)).

      [67].    See Ieyoub & Eisenberg, supra note 23, at 1882; see also Ratliff, supra note 51, at 1855–58; Annie K. Tao, Note, A More Powerful Plaintiff: State Public Nuisance Lawsuits Against the Gun Industry, 70 Geo. Wash. L. Rev. 212, 225–26 (2002).

      [68].    Benjamin E. Metz, Reconstitutionalizing Parens Patriae: How Federal Parens Patriae Doctrine Appropriately Permits State Damages Suits Aggregating Private Tort Claims 2 & n.7 (unpublished note) (on file with Columbia Law Review), https://www.law.columbia. edu/sites/default/files/microsites/career-services/Reconstitutionalizing%20Parens%20Patri ae.pdf  [https://perma.cc/9326-V89E].

      [69].    Joshua K. Payne & Jess R. Nix, U.S. Chamber Inst. for Legal Reform, Waking the Litigation Monster: The Misuse of Public Nuisance 3 (2019), https://www.instit uteforlegalreform.com/uploads/sites/1/The-Misuse-of-Public-Nuisance-Actions-2019-Resear ch.pdf [https://perma.cc/B9M5-HVZY].

      [70].    Id.

      [71].    Id. at 4.

      [72].    See id. at 4–5; see also Donald G. Gifford, Public Nuisance as a Mass Products Liability Tort, 71 U. Cin. L. Rev. 741, 800 (2003); Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541 (2006).

      [73].    Restatement (Second) of Torts § 821B cmt. b (Am. Law Inst. 1979).

      [74].    See Schwartz & Goldberg, supra note 72, at 546.

      [75].    Victor E. Schwartz et al., Game Over? Why Recent State Supreme Court Decisions Should End the Attempted Expansion of Public Nuisance Law, 62 Okla. L. Rev. 629, 633 (2010).

      [76].    Payne & Nix, supra note 69, at 5 (citing Gifford, supra note 72, at 805–06).

      [77].    Gifford, supra note 72, at 806–07; see also Payne & Nix, supra note 69, at 6.

      [78].    Payne & Nix, supra note 69, at 7 (citing Restatement (Second) of Torts § 821B(1) (Am. Law Inst. 1977)); see also Gifford, supra note 72, at 806–07.

      [79].    Payne & Nix, supra note 69, at 7 (quoting Restatement (Second) of Torts § 821C(2)(c) (Am. Law Inst. 1977)).

      [80].    Id. at 7–8. The Restatement also provides:

(1) In order to recover damages in an individual action for a public nuisance, one must have suffered harm of a kind different from that suffered by other members of the public exercising the right common to the general public that was the subject of interference.

(2) In order to maintain a proceeding to enjoin to abate a public nuisance, one must

(a) have the right to recover damages, as indicated in Subsection (1), or

(b) have authority as a public official or public agency to represent the state or a political subdivision in the matter, or

(c) have standing to sue as a representative of the general public, as a citizen in a citizen’s action or as a member of a class in a class action.

Restatement (Second) of Torts § 821C (Am. Law Inst. 1977).

      [81].    Id. § 821B(1).

      [82].    James K. Holder, Opening the Door Wider?: Opioid Litigation and the Scope of Public Nuisance Law, In-House Def. Q., Spring 2018, at 33, 34 (emphasis omitted).

      [83].    Id.

      [84].    Joseph A. Joyce & Howard C. Joyce, Treatise on the Law Governing Nuisances iii (1906).

      [85].    Holder, supra note 82, at 34 (quoting William L. Prosser, Nuisance Without Fault, 20 Tex. L. Rev. 399, 410 (1942)); see also Prosser and Keeton on the Law of Torts § 86, at 616 (W. Page Keeton et al. eds., 5th ed. 1984).

      [86].    Holder, supra note 82, at 34.

      [87].    Id.

      [88].    See id.

      [89].    See, e.g., Richard O. Faulk, Uncommon Law: Ruminations on Public Nuisance, 18 Mo. Envtl. L. & Pol’y Rev. 1, 4–10 (2010).

      [90].    Diamond v. General Motors Corp., 97 Cal. Rptr. 639, 641–42 (Cal. Ct. App. 1971).

      [91].    Id. at 646.

      [92].    Richard O. Faulk & John S. Gray, Alchemy in the Courtroom? The Transmutation of Public Nuisance Litigation, 2007 Mich. St. L. Rev. 941, 957 (2007).

      [93].    See, e.g., Detroit Bd. of Educ. v. Celotex Corp., 493 N.W.2d 513, 521 (Mich. Ct. App. 1992).

      [94].    See, e.g., Tioga Pub. Sch. Dist. #15 v. United States Gypsum Co., 984 F.2d 915, 921 (8th Cir. 1993).

      [95].    Payne & Nix, supra note 69, at 13–14; Schwartz & Goldberg, supra note 72, at 543.

      [96].    Payne & Nix, supra note 69, at 13.

      [97].    Id. (quoting Texas v. Am. Tobacco Co., 14 F. Supp. 2d 956, 973 (E.D. Tex. 1997)).

      [98].    See id. at 13 (alteration in original) (quoting Schwartz et al., supra note 75, at 638–39).

      [99].    See, e.g., City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1105–06, 1108 (Ill. 2004); People v. Sturm, Ruger & Co., 761 N.Y.S.2d 192, 194 (N.Y. App. Div. 2003).

    [100].    Beretta, 821 N.E.2d at 1106.

    [101].    Id. at 1108–09.

    [102].    Id. at 1116; see also Restatement (Second) of Torts § 821B (Am. Law Inst. 1977) (“A public right is . . . not like the individual right  that  everyone  has  not  to  be  assaulted . . . .”).

    [103].    Beretta, 821 N.E.2d at 1116.

    [104].    Id.

    [105].    Id. at 1119–20 (collecting cases).

    [106].    People v. Sturm, Ruger & Co., 761 N.Y.S.2d 192, 196 (N.Y. App. Div. 2003).

    [107].    See Payne & Nix, supra note 69, at 14.

    [108].    State v. Lead Indus. Ass’n, 951 A.2d 428, 454 (R.I. 2008).

    [109].    Id. at 453.

    [110].    Id. at 455.

    [111].    See, e.g., id. at 454.

    [112].    Master Settlement Agreement, Pub. Health L. Ctr. Mitchell Hamline Sch. L., https://www.publichealthlawcenter.org/topics/commercial-tobacco-control/commercial-toba cco-control-litigation/master-settlement-agreement  [https://perma.cc/2C3K-VCHS].

    [113].    See Tobacco Control Legal Consortium, Pub. Health L. Ctr., The Master Settlement Agreement: An Overview 2 (2019), https://www.publichealthlawcenter.org/ sites/default/files/resources/MSA-Overview-2019.pdf  [https://perma.cc/UB2J-Q2UM].

    [114].    See D. Douglas Blanke, World Health Org., Towards Health With Justice: Litigation and Public Inquiries as Tools for Tobacco Control 16–17 (2002), https:// www.publichealthlawcenter.org/sites/default/files/resources/who-tobacco-litigation-2002. pdf [https://perma.cc/RRB2-JJ4M].

    [115].    See id. at 17.

    [116].    Kathleen Michon, Tobacco Litigation: History & Recent Developments, Nolo, https:/ /www.nolo.com/legal-encyclopedia/tobacco-litigation-history-and-development-32202.html [https://perma.cc/HCV2-9C2L].

    [117].    Id.

    [118].    Id.

    [119].    Id.; see also Blanke, supra note 114, at 16–17.

    [120].    505 U.S. 504, 512 (1992).

    [121].    Id. at 509–10.

    [122].    See Allison Torres Burtka, Taking on Big Tobacco, Am. Museum Tort Law, https://www.tortmuseum.org/the-tobacco-cases/ [https://perma.cc/46TX-XJKB]; Donald Janson, A “Bulldog” Battles Tobacco Industry, N.Y. Times (June 12, 1988), https://www.ny times.com/1988/06/12/nyregion/a-bulldog-battles-tobacco-industry.html [https://perma.cc/ 6HTR-RR96].

    [123].    Burtka, supra note 122.

    [124].    See Douglas N. Jacobson, After Cipollone v. Liggett Group, Inc.: How Wide Will the
Floodgates of Cigarette Litigation Open?
, 38 Am. U. L. Rev. 1021, 1024 (1989).

    [125].    See Burtka, supra note 122.

    [126].    Burtka, supra note 122; see also Regulation of Tobacco Products (Part 1): Hearing Before the Subcomm. on Health and the Env’t of the H. Comm. on Energy and Commerce, 103d Cong. (1994).

    [127].    Burtka, supra note 122; see also Michael Orey, A Surprise Ending for a Paralegal Who Became a Spy Against Tobacco, Wall St. J. (Sept. 13, 1999, 12:01 AM ET), https://  www.wsj.com/articles/SB937170593180878707 [https://perma.cc/WJ89-VSQA].

    [128].    Henley v. Philip Morris Inc., 113 Cal. Reptr. 2d 494, 496 (Cal. Ct. App. 2001).

    [129].    See id. at 497 (discussing the “mild warning” Congress implemented in 1996 to improve safety).

[130].    See Michael Janofsky, Mississippi Seeks Damages from Tobacco Companies, N.Y. Times (May 24, 1994), https://www.nytimes.com/1994/05/24/us/mississippi-seeks-damages-from-tobacco-companies.html [https://perma.cc/X9EB-FMDY]; Barry Meier, Acting Alone, Mississippi Settles Suit with 4 Tobacco Companies, N.Y. Times (July 4, 1997), https://www. nytimes.com/1997/07/04/us/acting-alone-mississippi-settles-suit-with-4-tobacco-companies. html [https://perma.cc/FGK6-FXHE].

    [131].    See Janofsky, supra note 130; Meier, supra note 130.

    [132].    Janofsky, supra note 130.

    [133].    See Tobacco Control Legal Consortium, supra note 113, at 2.

    [134].    Maria Gabriela Bianchini, The Tobacco Agreement that Went up in Smoke: Defining the Limits of Congressional Intervention into Ongoing Mass Tort Litigation, 87 Cal. L. Rev. 703, 705 (1999).

    [135].    See id. at 708; Mark Curriden, Up in Smoke, A.B.A. J. (Mar. 18, 2007, 11:31 AM CDT), http://www.abajournal.com/magazine/article/up_in_smoke [https://perma.cc/6JNV-28J9].

    [136].    Bianchini, supra note 134, at 708–09.

    [137].    See Tobacco Control Legal Consortium, supra note 113, at 2; Meier, supra note 130.

    [138].    See Tobacco Control Legal Consortium, supra note 113, at 2.

    [139].    Knight et al., CRS Report for Congress: The U.S. Tobacco Industry in Domestic and World Markets 2–3 (1998), https://digital.library.unt.edu/ark:/67531/met acrs513/m1/1/high_res_d/98-506e_1998Jun09.pdf [https://perma.cc/CSC9-BTCB]; Tobacco Control Legal Consortium, supra note 113, at 1–2; Master Settlement Agreement (1998), Pub. Health L. Ctr. Mitchell Hamline Sch. L., https://www.publichealthlawcenter.org /sites/default/files/resources/master-settlement-agreement.pdf [https://perma.cc/L2R9-F92F].

    [140].    Knight et al., supra note 139, at 2–3; Tobacco Control Legal Consortium, supra note 113, at 1–2; Master Settlement Agreement (1998), supra note 139.

    [141].    Tobacco Control Legal Consortium, supra note 113, at 1–2, 5–6.

    [142].    Id. at 5–6.

    [143].    See, e.g., 15 Years Later, Where Did All the Cigarette Money Go?, NPR: All Things Considered (Oct. 13, 2013, 5:52 PM ET), https://www.npr.org/2013/10/13/233449505/15-ye ars-later-where-did-all-the-cigarette-money-go [https://perma.cc/94DK-TR3R].

    [144].    Id.

    [145].    Id.

    [146].    Id.

    [147].    Id.

    [148].    Id.

    [149].    Id.

    [150].    Jim Estes, How the Big Tobacco Deal Went Bad, N.Y. Times (Oct. 6, 2014), https://www.nytimes.com/2014/10/07/opinion/how-the-big-tobacco-deal-went-bad.html [https://perma.cc/5YTJ-ERGF].

In Alaska, $3.5 million in settlement money was spent on shipping docks. In Niagara County, N.Y., $700,000 went for a public golf course’s sprinkler system, and $24 million for a county jail and an office building. And in North Carolina, in the ultimate irony, $42 million of the settlement funds actually went to tobacco farmers for modernization and marketing. . . . Nine states—Alaska, California, Iowa, Michigan, New Jersey, New York, Ohio, Rhode Island and West Virginia—and Washington, D.C., Puerto Rico and Guam decided to get as much of those annual payments as fast as they could by mortgaging any future payments as collateral and issuing bonds. They traded their future lifetime income for cash today—at only pennies on the dollar.

Id.

    [151].    Broken Promises to Our Children: A State by State Look at the 1998 Tobacco Settlement 20 Years Later, Campaign for Tobacco-Free Kids, https://www.tobaccofreekids.org/ what-we-do/us/statereport [https://perma.cc/2L6K-DKZL].

    [152].    Id.; Cigarette Smoking and Tobacco Use Among People of Low Socioeconomic Status, CDC, https://www.cdc.gov/tobacco/disparities/low-ses/index.htm [https://perma.cc/3EKD-4CMR].

    [153].    Estes, supra note 150.

    [154].    Historic Tobacco Case Revisited: Biggest Litigation Win Ever or a Complete Scam?, Dallas Morning News (Apr. 15, 2016), https://www.dallasnews.com/business/2016/04/15/ historic-tobacco-case-revisited-biggest-litigation-win-ever-or-a-complete-scam [https://per ma.cc/D6N2-H5PK].

    [155].    Id.

    [156].    Id.

    [157].    Chretien, supra note 13.

    [158].    Michael Waldrop, A Little Less Regulation: Why Federal Pain Management Laws Are Hurting State Efforts To Combat the Opioid Epidemic, 43 Mitchell Hamline L. Rev. 881, 887 (2017); Erick Trickey, Inside the Story of America’s 19th-Century Opiate Addiction, Smithsonian (Jan. 4, 2018), https://www.smithsonianmag.com/history/inside-story-americ as-19th-century-opiate-addiction-180967673/ [https://perma.cc/R2RK-85SW].

    [159].    Jessica Glenza, America’s Opioid Epidemic Began More than a Century Agowith the Civil War, Guardian (Dec. 30, 2017, 7:00 AM EST), https://www.theguardian.com/sci ence/2017/dec/30/americas-opioid-epidemic-began-more-than-a-century-ago-with-the-civil-war [https://perma.cc/7EFG-MV4G]; Trickey, supra note 158.

    [160].    The History of Opiates, Michael’s House, https://michaelshouse.com/opiate-re hab/history-of-opiates [https://perma.cc/9HBB-BKZF]; see also The Opium Kings: Opium Throughout History, PBS: Frontline, https://www.pbs.org/wgbh/pages/frontline/shows/he roin/etc/history.html [https://perma.cc/4K7U-AN58].

    [161].    The History of Opiates, supra note 160. In 1909, what has been thought to be the genesis of the “war on drugs” began. Id. First, Congress passed the Opium Exclusion Act barring the importation of opium for smoking. Id. In 1914, the Harrison Narcotics Act placed tax on opiates and required both physicians and pharmacists to register in order to distribute it. Id. Finally, in 1924, Congress passed the Heroin Act that effectively stopped the sales of heroin in the United States. Id.

    [162].    See id.

    [163].    Id.

    [164].    Id.; see also Teresa A. Rummans et al., How Good Intentions Contributed to Bad Outcomes: The Opioid Crisis, 93 Mayo Clinic Proc. 344, 344 (2018).

    [165].    Rummans et al., supra note 164, at 344.

    [166].    Id.

    [167].    Id.

    [168].    A Selected History of Opium, New Humanitarian (Aug. 4, 2004), http://www.the newhumanitarian.org/report/25857/afghanistan-selected-history-opium [https://perma.cc/ M4SU-SKCW]; History of Drug Abuse: The 50’s, Palm Partners Recovery Ctr., https: //www.palmpartners.com/history-of-drug-abuse-the-50s/ [https://perma.cc/64WR-26P2].

    [169].    History of Drug Abuse: The 50’s, supra note 168.

    [170].    A Selected History of Opium, supra note 168.

    [171].    The History of Opiates, supra note 160.

    [172].    See Bruce Moldovan, ‘Opiophobia’ Past and Present, Prac. Pain Mgmt., https:// www.practicalpainmanagement.com/treatments/pharmacological/opioids/opiophobia-past-present [https://perma.cc/4M8U-5UHE].

    [173].    Id.; The History of Opiates, supra note 160.

    [174].    Rummans et al., supra note 164, at 345 (citing Jane Porter & Hershel Jick, Addiction Rare in Patients Treated with Narcotics, 302 New Eng. J. Med. 123, 123 (1980)).

    [175].    Id.; see also Caitlin Esch, How One Sentence Helped Set off the Opioid Crisis, Marketplace (Dec. 13, 2017), https://marketplace.org/2017/12/13/opioid/ [https://perma.cc/ MY2G-N5JC].

    [176].    Rummans et al., supra note 164, at 345 (citing Pamela T.M. Leung et al., A 1980 Letter on the Risk of Opioid Addiction, 376 New Eng. J. Med. 2194, 2194 (2017)).

    [177].    See id.

    [178].    Id. at 345–46.

    [179].    Id. at 346 (citing America’s Addiction to Opioids: Heroin and Prescription Drug Abuse: Hearing Before the S. Caucus on Int’l Narcotics Control, 113th Cong. 2–3 (2014) (statement of Nora D. Volkow, M.D., Director, Nat’l Inst. on Drug Abuse)).

    [180].    See Ameet Sarpatwari et al., The Opioid Epidemic: Fixing a Broken Pharmaceutical Market, 11 Harv. L. & Pol’y Rev. 463, 465 (2017); see also James N. Campbell, APS 1995 Presidential Address, 5 J. Pain 85, 85–86 (1996).

    [181].    See Sarpatwari et al., supra note 180, at 465; see also Donald M. Phillips, JCAHO Pain Management Standards Are Unveiled, 284 J. Am. Med. Ass’n 428, 428–29 (2000).

    [182].    See Sarpatwari et al., supra note 180, at 465; see also Veterans Health Admin., U.S. Dep’t of Veterans Affairs, Pain as the 5th Vital Sign Toolkit 1, 5 (2000).

    [183].    See Sarpatwari et al., supra note 180, at 466; see also Barry D. Dickinson et al., Use of Opioids To Treat Chronic, Noncancer Pain, 172 W.J. Med. 107, 107 (2000); J. David Haddox et al., The Use of Opioids for the Treatment of Chronic Pain, 13 Clinical J. Pain 6, 6 (1997).

    [184].    See Sarpatwari et al., supra note 180, at 466 (quoting Fed’n of State Med. Bds. of the U.S., Model Guidelines for the Use of Controlled Substances for the Treatment of Pain 1 (1998)).

    [185].    See Timeline of Selected FDA Activities and Significant Events Addressing Opioid Misuse and Abuse, U.S. Food & Drug Admin. (May 30, 2019), https://www.fda.gov/drugs/inf ormation-drug-class/timeline-selected-fda-activities-and-significant-events-addressing-opioid-misuse-and-abuse [https://perma.cc/J847-HJVQ].

    [186].    See id.

    [187].    Esch, supra note 175.

    [188].    Rummans et al., supra note 164, at 346.

    [189].    Art Van Zee, The Promotion and Marketing of OxyContin: Commercial Triumph, Public Health Tragedy, 99 Am. J. Pub. Health 221, 223 (2009).

    [190].    See id. at 221, 223.

    [191].    Id. at 221.

    [192].    Rummans et al., supra note 164, at 346.

    [193].    Id.

[194].    Purdue Settles OxyContin Charge for $600M, CNN: Money (May 10, 2007, 1:48 PM EDT), https://money.cnn.com/2007/05/10/news/companies/oxycontin/index.htm [https://per ma.cc/2X7S-AGX8]; see also Barry Meier, In Guilty Plea, OxyContin Maker To Pay $600 Million, N.Y. Times (May 10, 2007), https://www.nytimes.com/2007/05/10/business/11drug- web.html [https://perma.cc/3LJK-4T3D].

    [195].    Purdue Settles OxyContin Charge for $600M, supra note 194.

    [196].    EJ Mundell, FDA OK’s ‘Abuse-Deterrent’ Label for New Oxycontin, WebMD (Apr. 16, 2013), https://www.webmd.com/pain-management/news/20130416/fda-approves-abuse-deterrent-label-for-new-oxycontin#1 [https://perma.cc/DBJ8-KZ9Z].

    [197].    Alan Rook, “Operation Pilluted” Largest DEA Prescription Drug Operation Ever, myMatrixx (May 21, 2015), https://www.mymatrixx.com/operation-pilluted-largest-dea-pre scription-drug-operation-ever [https://perma.cc/872H-ZTQZ].

    [198].    See Ending America’s Opioid Crisis, White House, https://www.whitehouse.gov/ opioids [https://perma.cc/ACQ2-MB5Z].

    [199].    The U.S. Opioid Crisis Is Now a Fentanyl Crisis, Employee Benefit News (Sept. 10, 2018, 10:46 AM EDT), https://www.benefitnews.com/articles/us-opioid-crisis-is-now-a-fe ntanyl-crisis [https://perma.cc/5SPP-RJAF]; see also Anna Edney & Lauren Etter, The Opioid Crisis, Bloomberg, https://www.bloomberg.com/quicktake/heroin [https://perma.cc/W6 XC-678Z].

    [200].    The U.S. Opioid Crisis Is Now a Fentanyl Crisis, supra note 199.

    [201].    Nadia Kounang, Fentanyl Is the Deadliest Drug in America, CDC Confirms, CNN (Dec. 27, 2018, 9:51 PM ET), https://www.cnn.com/2018/12/12/health/drugs-overdose-fentan yl-study/index.html [https://perma.cc/3SAS-EBVL].

    [202].    See Gluck et al., supra note 9, at 353.

    [203].    Id. at 354.

    [204].    Id. at 353.

    [205].    Id.

    [206].    Id.

    [207].    See id.

    [208].    See, e.g., Foister v. Purdue Pharma L.P., 295 F. Supp. 2d 693, 704–05 (E.D. Ky. 2003); Price v. Purdue Pharma Co., 920 So. 2d 479, 486 (Miss. 2006).

    [209].    E.g., Wethington v. Purdue Pharma L.P., 218 F.R.D. 577, 588–90 (S.D. Ohio 2003).

    [210].    Ben A. Rich & Lynn R. Webster, A Review of Forensic Implications of Opioid Prescribing with Examples from Malpractice Cases Involving Opioid-Related Overdose, 12 Pain Med. S59, S62–S63 (2011).

    [211].    See Gluck et al., supra note 9, at 354 (citing Kelly K. Dineen & James M. DuBois, Between a Rock and a Hard Place: Can Physicians Prescribe Opioids To Treat Pain Adequately While Avoiding Legal Sanction?, 42 Am. J.L. & Med. 7, 9–10 (2016)).

    [212].    Diane E. Hoffmann, Treating Pain v. Reducing Drug Diversion and Abuse: Recalibrating the Balance in Our Drug Control Laws and Policies, 1 St. Louis U. J. Health L. & Pol’y 231, 236, 280 (2008).

    [213].    Joseph B. Prater, Comment, West Virginia’s Painful Settlement: How the OxyContin Phenomenon and Unconventional Theories of Tort Liability May Make Pharmaceutical Companies Liable for Black Markets, 100 Nw. U. L. Rev. 1409, 1424–25 (2006).

    [214].    Id. at 1425.

    [215].    Id. (quoting Complaint at *21–22, West Virginia ex rel. McGraw v. Purdue Pharma L.P., No. 01-C-137S 2001, W. Va. Cir. Ct. LEXIS 2 (W. Va. Cir. Ct. June 11, 2001).

    [216].    Id. (citing Complaint, supra note 215, at *21).

    [217].    Richard C. Ausness, The Role of Litigation in the Fight Against Prescription Drug Abuse, 116 W. Va. L. Rev. 1117, 1149 (2014).

    [218].    Id.

    [219].    United States v. Purdue Frederick Co., 495 F. Supp. 2d 569, 570–73 (W.D. Va. 2007); Shannon Henson, Purdue Pharma Settles with States over OxyContin, Law360 (May 8, 2007, 12:00 AM EDT), https://www.law360.com/articles/24311/purdue-pharma-settles-with-states-over-oxycontin [https://perma.cc/KGZ4-RSPH].

    [220].    Purdue, 495 F. Supp. 2d at 572.

    [221].    Kentucky ex rel. Conway v. Purdue Pharma, L.P., 821 F. Supp. 2d 591, 593 (S.D.N.Y. 2011).

    [222].    Id.; Bill Estep, OxyContin Maker To Pay State $24 Million To Settle Claim It Marketed Powerful Painkiller Improperly, Lexington Herald Leader (Dec. 23, 2015), https: //www.kentucky.com/News/state/article51291770.html [https://perma.cc/68CY-3ZN8] (discussing Kentucky’s refusal to settle with Purdue Pharma for $500,000).

    [223].    See Purdue Parma, L.P., 821 F. Supp. at 594.

    [224].    Id. at 594–95.

    [225].    Id. at 595.

    [226].    Id. at 600–01.

    [227].    Id. at 601.

    [228].    Purdue Pharma L.P. v. Kentucky, 704 F.3d 208 (2d Cir. 2013).

    [229].    Id. at 216 & n.7.

    [230].    Id. at n.7.

    [231].    See id. at 216 & n.7.

    [232].    Estep, supra note 222.

    [233].    Transfer Order, supra note 3.

    [234].    Gluck et al., supra note 9, at 359.

    [235].    Id.

    [236].    Transfer Order, supra note 3, at 1378.

    [237].    Gluck et al., supra note 9, at 359.

    [238].    Transcript of Proceedings at 4, 9, In re Nat’l Prescription Opiate Litig., No. 1:17-CV-2804-DAP (N.D. Ohio Jan. 9, 2018).

    [239].    See Cty. of Summit v. Purdue Pharma L.P., No. 1:17-md-02804-DAP (N.D. Ohio Dec. 19, 2018).

    [240].    Id. at 38–39.

    [241].    Vestal, supra note 4.

    [242].    Id.

    [243].    Martha Bebinger, Purdue Pharma Agrees to $270 Million Opioid Settlement with Oklahoma, NPR (Mar. 26, 2019), https://www.npr.org/sections/health-shots/2019/03/26/706 848006/purdue-pharma-agrees-to-270-million-opioid-settlement-with-oklahoma [https://pe rma.cc/XY4D-NWAY].

    [244].    Vestal, supra note 4.

    [245].    Bernstein, supra note 15.

    [246].    Id.

    [247].    Id.

    [248].    Id.

    [249].    Id.

    [250].    Id.

    [251].    Jan Hoffman, Johnson & Johnson Ordered To Pay $572 Million in Landmark Opioid Trial, N.Y. Times (Aug. 26, 2019), https://www.nytimes.com/2019/08/26/health/okla homa-opioids-johnson-and-johnson.html [https://perma.cc/8UQ5-HPKM].

    [252].    See Bernstein, supra note 15.

    [253].    See Brian Mann, Architecture for Possible Nationwide Opioid Settlement Unveiled, NPR (June 14, 2019, 4:20 PM ET), https://www.npr.org/2019/06/14/732661209/architecture-for-landmark-nationwide-opioid-settlement-unveiled [https://perma.cc/S6TW-4SYR].

    [254].    Id.

    [255].    See Order Certifying Negotiating Class and Approving Notice at 1–2, 5, 8,  In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804 (N.D. Ohio Sept. 11, 2019).

    [256].    Geoff Mulvihill & Mark Gillispie, Lawyers Pause Plan To Divide Any National Opioid Settlement, MedicalXpress (June 25, 2019), http://medicalxpress.com/news/2019-06-lawyers-national-opioid-settlement.html [https://perma.cc/DHW2-GUT8].

    [257].    Jan Hoffman, Opioid Defendants Seek To Disqualify Judge Overseeing 2,300 Cases, N.Y. Times (Sept. 14, 2019), https://www.nytimes.com/2019/09/14/health/ohio-opioid-lawsu it-judge.html [https://perma.cc/A57G-25VV].

    [258].    See Brian Eckert, This Is How Opioid Lawsuits Differ from Big Tobacco’s, Classaction.com (Jan. 26, 2018), https://www.classaction.com/news/opioid-lawsuits-big-to bacco/ [https://perma.cc/3SFL-3NTH].

    [259].    Stasia Mosesso, Up in Smoke: How the Proximate Cause Battle Extinguished the Tobacco War, 76 Notre Dame L. Rev. 257, 261 (2000).

    [260].    See Residential Lead-Based Paint Hazard Reduction Act of 1992, 42 U.S.C. § 4821; Toxic Substances Control Act, 15 U.S.C. § 2601; 40 C.F.R. pts. 9, 721 (2019) (asbestos); 40 C.F.R. pt. 745 (2019) (lead paint).

    [261].    See Andrew Rosenblum et al., Opioids and the Treatment of Chronic Pain: Controversies, Current Status, and Future Directions, 16 Experimental & Clinical Psychopharmacology 405 (2008).

    [262].    See Eckert, supra note 258.

    [263].    See id.

    [264].    Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1981).

    [265].    Id. at 602.

    [266].    Ieyoub & Eisenberg, supra note 23, at 1864.

    [267].    Snapp, 458 U.S. at 607.

    [268].    Ieyoub & Eisenberg, supra note 23, at 1880–83.

    [269].    Id. at 1862.

    [270].    See Texas v. Am. Tobacco Co., 14 F. Supp. 2d 956 (E.D. Tex. 1997).

    [271].    Id. at 961–62.

    [272].    Id. at 962–63 (citations omitted).

    [273].    Ieyoub & Eisenberg, supra note 23, at 1879.

    [274].    See id.

    [275].    Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 607 (1982).

    [276].    Am. Tobacco Co., 14 F. Supp. 2d at 964.

    [277].    See id.

    [278].    Alexander Lemann, Note, Sheep in Wolves’ Clothing: Removing Parens Patriae Suits Under the Class Action Fairness Act, 111 Colum. L. Rev. 121, 122 (2011).

    [279].    Payne & Nix, supra note 69, at 25.

    [280].    Denise E. Antolini, Modernizing Public Nuisance: Solving the Paradox of the Special Injury Rule, 28 Ecology L.Q. 755, 774–75 (2001) (citations omitted).

    [281].    See Payne & Nix, supra note 69, at 25–26; Holder, supra note 82, at 34.

    [282].    Schwartz et al., supra note 75, at 634.

    [283].    Thomas W. Merrill, Is Public Nuisance a Tort?, 4 J. Tort L., 2011, at 9, 10.

    [284].    Id. at 10 & n.41 (referencing parens patriae actions).

    [285].    Payne & Nix, supra note 69, at 26.

    [286].    See, e.g., Complaint, State v. Purdue Pharma L.P., No. 217-2017-CV-00402, 2018 WL 4566129 (N.H. Super. Ct. Sept. 18, 2018); Complaint, State v. Purdue Pharma, L.P., No. CV-17 CI000261 (Ohio Ct. Com. Pl. Ross County May 31, 2017); Complaint, State v. Purdue Pharma, L.P., No 2017-L-013180 (Cook Cty. Ct. Dec. 27, 2017).

    [287].    See In re Nat’l Prescription Opiate Litig., No. 1:17-md-02804, 2019 U.S. Dist. LEXIS 101660             (N.D. Ohio Apr. 1, 2019).

    [288].    City of Chicago v. Beretta U.S.A. Corp., 821 N.E.2d 1099, 1105–06 (Ill. 2004).

    [289].    Id. at 1109.

    [290].    Id. at 1148.

    [291].    In re Nat’l Prescription Opiate Litig., No. 1:17-md-02804, 2019 U.S. Dist. LEXIS 101660 (N.D. Ohio Apr. 1, 2019).

    [292].    See id.

    [293].    Hoffman, supra note 257.

    [294].    Payne & Nix, supra note 69, at 27.

    [295].    Michael J. Purcell, Settling High: A Common Law Public Nuisance Response to the Opioid Epidemic, 52 Colum. J.L. & Soc. Probs. 135, 162 (2018).

    [296].    Id.

    [297].    See, e.g., City of Chicago v. Am. Cyanamid Co., 823 N.E.2d 126, 135, 137 (Ill. App. Ct. 2005); City of St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 113–14 (Mo. 2007).

    [298].    Payne & Nix, supra note 69, at 29; see Charles H. Moellenberg, Jr. et al., No Gap Left: Getting Public Nuisance Out of Environmental Regulation and Public Policy, in 7 Expert Evidence Rept. (BNA ed., Sept. 24, 2007).

    [299].    Payne & Nix, supra note 69, at 30; see Docket, In re Nat’l Prescription Opiate Litig., 290 F. Supp. 3d 1375 (J.P.M.L. Dec. 5, 2017).

    [300].    Jeremy Nobile, Cleveland Court Is Big Pharma’s Battleground for Opioid Liability, Crains Cleveland (Dec. 8, 2018, 4:00 AM), https://www.crainscleveland.com/legal/clevela nd-court-big-pharmas-battleground-opioid-liability [https://perma.cc/W5AR-YVQR].

    [301].    Id.

    [302].    Purcell, supra note 295, at 163 (citing Donald G. Gifford, Impersonating the Legislature: State Attorneys General and Parens Patriae Product Litigation, 49 B.C. L. Rev. 913, 946 (2008)).

    [303].    Id.

    [304].    Abbe Gluck, Opioids and Unorthodox Civil Procedure: Will the MDL Solve the Crisis?,  Take Care (Mar. 7, 2018), https://takecareblog.com/blog/opioids-and-unorthodox-civil-procedure-will-the-mdl-solve-the-crisis  [https://perma.cc/LG67-ZFV3].

    [305].    Gluck et al., supra note 9, at 360.

    [306].    Hoffman, supra note 6 (quoting University of Georgia Law Professor Elizabeth C. Burch).

    [307].    Joel Achenbach & Lenny Bernstein, A Federal Judge Vowed To Tackle the Opioid Crisis. Drug Companies Say That’s a Sign of Bias, Wash. Post (Sept. 15, 2019, 4:27 PM EDT), https://www.washingtonpost.com/health/a-federal-judge-vowed-to-tackle-the-opioid-crisis-drug-companies-say-thats-a-sign-of-bias/2019/09/15/94b12f8a-d7ab-11e9-a688-30369 3fb4b0b_story.html [https://perma.cc/MGV7-QMEZ]; Hoffman, supra note 6.

    [308].    See 15 Years Later, Where Did All the Cigarette Money Go?, supra note 143.

    [309].    See Metz, supra note 68, at 2 & n.7.

The Corporate Chameleon

The Corporate Chameleon

Megan Wishchmeier Shaner, The Corporate Chameleon, 54 U. Rich. L. Rev. 527 (2020).

Click here to download PDF.


Megan Wishchmeier Shaner*

Introduction

Since the adoption of the first American general incorporation statutes in the late nineteenth century, corporate law has contemplated three distinct actors involved in the corporation—directors, stockholders, and officers.[1] Today, officers are widely considered among the most central, if not the central, figures in corporate governance. Yet they are the least theorized participants.[2] While corporate statutes and case law make clear the identities of directors and stockholders, officers are left relatively undefined.[3] Over 120 years after the creation of modern corporation law, “Who is an ‘officer’ of a corporation?” remains an open question. The definitional uncertainty surrounding “officer” is problematic at the individual, institutional, judicial, and legislative levels. Categorization as a corporate officer carries with it distinct legal duties, rights, and liabilities. Currently, individuals, boards, and their counsel are left to speculate as to “officer” status. Lacking in established definitional boundaries, parties opportunistically define “officer” to fit their particular argument, causing judicial analysis and rulemaking as it pertains to corporate officers to become inconsistent and unpredictable.

Historically, corporate codes identified a handful of officers that every corporation should, and in some cases, must have.[4] Over the years, the adoption of statutory reforms largely stripped out all references to any particular office or title. Corporate statutes contemplate a distinct “officer” category, but refrain from articulating that role with any specificity, leaving it up to corporations to do so in their governing documents.[5] Corporations have, however, refrained, through private ordering in their bylaws or otherwise, from clarifying the term “officer.”[6] In fact, corporations have done the opposite; through exercising the freedom of contract provided under the enabling regime of modern corporate law, corporations have muddied the definitional waters, fashioning officer titles in myriad ways and giving titles to countless people, many of whom lack traditional officer responsibilities and authority. Over the years corporate law has developed in such a way that identifying the officers of a corporation, as that role is contemplated in corporate jurisprudence, is arguably a more challenging task than it has ever been.

In addition to state corporate codes, federal securities law, jurisdictional statutes, and bankruptcy law all make reference to the corporate “officer.” Each defining “officer” in slightly different terms, courts disagree over the proper interpretation of “officer” and the proper identification of persons occupying this role.[7] A contributing factor to the inconsistent interpretations is the lack of a “north star” definition in state corporate law for courts to look to for guidance. The resulting definitional fluidity within and across disciplines means that individuals can move in and out of “officer” status in a chameleon-like fashion depending on the context and jurisdiction in which they operate.[8]

To be sure, this chameleon-like result is not exclusive to the term “officer.” There are many words in the English language that take on new or specialized meanings depending on the area of law or jurisdiction in which one is operating. Moreover, legal definitions can expand, contract, or be transformed into new definitions depending on the context in which a word or phrase is being used. The variable nature of words in the law becomes problematic, however, when there is a lack of established consensus and clarity in defining a term. Linguistic precision is vital to the development, practice, and application of the law, but to achieve this, there needs to be clear delineation of a term’s legal meaning(s). This is necessary for individuals to understand their legal responsibilities and authority, and for lawyers and judges to communicate efficiently and effectively. If left unresolved, definitions will be determined ex post, allowing parties to opportunistically define terms to fit their particular argument or position.

While limited in scope, “officer” scholarship to date has focused on identifying the authority, responsibility, and liability of these individuals. Research in this area (including that written by this author) avoids the messy step of having to delineate with precision “officer” status in a corporation.[9] However, before officer jurisprudence is further developed by the courts or scholars, the threshold question of “To whom does the doctrine apply?” needs to be answered. Corporate governance specifies different consequences that attach to the different categories of corporate actors. It is both normatively and practically problematic to decide consequences without reference to a clearly defined category.

Defining “officer” has become particularly pressing in light of the private ordering movement in corporate law. With increasing frequency, parties are structuring key aspects of corporate governance through private contracting methods.[10] Observing that the ambiguity surrounding officers in corporate law makes it a ripe topic for private ordering, the American Bar Association (“ABA”) has created a Task Force on Officer Liability charged with developing ways of addressing uncertainties in officer doctrine and developing model provisions suitable for use in employment agreements and governing documents.[11] Integral to these efforts will be establishing a clear consensus on the legal default definition of “officer.” As individual corporations and their stockholders begin to attempt to structure the governance of their entity through provisions in the governing documents or contract, clarity as to whom the law views as an “officer” is critical.

This Article seeks to address what is currently missing from corporate law—a clear way of determining “officer” status as that distinct legal role is contemplated in corporate jurisprudence. Part I discusses the three primary actors involved in the internal governance of the corporation—directors, stockholders, and officers—and how the law defines each one. While corporate law clearly contemplates officers as a distinct role, a quick comparison of the three reveals a failure to identify with any precision the bounds of “officer” status. Part II looks to other areas of the law for guidance in defining and identifying the officers of the corporation. While the policy considerations underlying the definitions of “officer” in each of these other areas of the law may be similar or different to those animating “officer” for purposes of state corporate law, the articulation and identification of individuals occupying the officer role are nevertheless instructive. Finally, Part III applies the lessons learned from the struggles courts in securities law and bankruptcy law have had in identifying officers and proposes a test for determining “officer” status. Adopting a prototype-centered approach, the proposal rejects a fixed definition in lieu of a multi-factor approach that embodies the traditional and legal officer roles espoused by courts and scholars. The result stabilizes the meaning of “officer” as a category of corporate actor and provides predictability and certainty to corporations, officers, directors, stockholders, third parties, and their counsel going forward.

1. Corporate Actors

As the Supreme Court observed in 1906, “A corporation is, after all, but an association of individuals under an assumed name and with a distinct legal entity.”[12] That association can range from a one-person, individually run enterprise to involving hundreds of thousands of people.[13] Regardless of size, state statutes contemplate three participants in the governance of the corporate endeavor (which positions can be held by the same or different persons)—directors, officers, and stockholders.[14] These internal participants are to be distinguished from what scholars and jurists frequently refer to as “other constituencies” which can include employees, creditors, and customers, among others.[15]

The internal participants in a corporation have a unique relationship shaped by the distinct rights and responsibilities vested in each actor in governing the corporate enterprise. The traditional pattern of corporate governance is structured in a hierarchical, triangular fashion.[16] A small number of individuals sit atop the corporate triangle managing the business and affairs of the corporation.[17] The largest number of participants, the stockholders, who are the residual owners of the corporation, comprise the base of the triangle and have limited governance rights.[18] To protect against self-interested, careless behavior by those at the top, while ensuring efficient management of the corporation, corporate law provides for a system of checks and balances.[19] Each with their own particular role to play in the corporate system of checks and balances, identification as a director, officer, or stockholder has significant implications for the legal authority, rights, responsibility, and liability of an individual.[20] Key topics in corporate law, such as fiduciary duties, derivative litigation, director elections, exculpation, advancement and indemnification, reliance on experts and officers, bylaw amendments, internal affairs doctrine, and books and records inspection rights all, to differing degrees, contemplate the distinct roles these actors occupy in the corporation.[21]

A. Directors

Director (n): “A  person  appointed  or  elected  to  sit  on  a  board that  manages  the  affairs  of  a  corporation  or  other organization . . . .”[22]

Corporate law situates the board of directors at the center of the governance universe. Statutorily tasked with managing the business and affairs of the corporation—a charge that can only be delegated, never abdicated—director primacy is viewed by many as a bedrock principle of corporate law.[23] In light of the importance of the board to a corporation’s livelihood, it is not surprising that state statutes detail the procedures surrounding the structure and composition of this decision-making body. Every board of directors must have at least one director on its board, with the exact number (which can be specific or a method for determining that number) set forth in the governing documents.[24] Directors need not be stockholders of the corporation they serve. State statutes merely require that directors be natural persons.[25] A corporation’s governing documents, federal securities laws, and stock exchange listing requirements may, however, prescribe other qualifications to be able to serve on the board.[26]

Identification of a corporation’s directors is theoretically a relatively straightforward task. Corporate statutes address the selection, resignation, removal, and terms of directors.[27] Directors are generally elected by the stockholders of the corporation on an annual basis.[28] Where, however, there is a newly created directorship or vacancy on the board, such opening can be filled by the stockholders or the board.[29] In either scenario—election or appointment—a director holds his or her spot on the board until a successor is elected and qualified.[30] In addition to the election and qualification of a successor, corporate statutes recognize three other scenarios under which the term of a director ends: death, resignation, and removal.[31] A director is free to resign at any time upon notice to the corporation.[32] With respect to removal, only the stockholders of the corporation may remove directors.[33] Removal may be with or without cause, except in instances of cumulative voting or classified boards.[34]

Clarity regarding the identity of the directors of the corporation at any one point in time is of paramount importance. The board is the backbone of the corporate enterprise, charged with ultimate responsibility of managing the corporation’s business and affairs.[35] Because directors must act as a collective body, a corporation can become immobilized when controversy surrounds the validity of just one individual’s director status.[36] Accordingly, in addition to setting forth the process and procedures surrounding director selection and removal, corporate statutes further provide an avenue for expedient judicial relief where questions exist surrounding the identity of the proper directors of an entity.[37]

B. Stockholders

Stockholder (n): “Someone who owns or holds a share or shares in a company, esp. a corporation.”[38]

Corporate law describes stockholders as the owners of, and residual claimants to, the corporation.[39] This is because stockholder status is tied to ownership of shares of stock—common stock or preferred stock—of the corporation. Shares represent a unit of interest in the corporation that entitles the holder to certain rights, powers, and preferences vis-à-vis the corporation.[40] Under statutory defaults, “there is no limit on the number of stockholders or the number of shares that a corporation may issue. A corporation may have thousands or even millions of stockholders.”[41] Facebook Inc., for example, reported in its Form 10-K for 2018 that as of December 31, 2018, it had 2.385 billion shares of Class A common stock issued and outstanding and 469 million shares of Class B common stock issued and outstanding, held by approximately 3780 stockholders of record and forty-one stockholders of record, respectively.[42]

Similar to directors, the law provides a means of definitively determining stockholder status. Corporate statutes prescribe in detail the procedures surrounding the creation, issuance, transfer, repurchase, and record keeping for shares of stock.[43] A corporation must be able to easily identify its stockholders and is statutorily required to maintain a “continuing record of stockholdings” including the names, addresses, and number of shares registered to each stockholder of record as well as a ledger reflecting any transfers of stock.[44] This stock ledger then serves as “the only evidence as to who are the stockholders entitled . . . to examine the list [of stockholders] or to vote . . . at any meeting of stockholders.”[45]

While stockholders generally have limited participatory rights in managing the corporate enterprise, they are statutorily vested with certain election and approval rights.[46] Being able to determine with precision who is entitled to vote is thus imperative to establish the validity of corporate decision making and actions. On the front end, in addition to stock ledger requirements, state statutes set forth bright line rules for setting the record dates to determine who receives notices of meetings, who can vote at meetings, and who can act by written consent.[47] Inspectors are then appointed by a corporation to (1) determine the “number of shares outstanding and the voting power of each,” (2) “[d]etermine the shares represented at a [stockholders’] meeting and the validity of proxies and ballots,” (3) “[c]ount all votes and ballots,” (4) determine and keep “record of the disposition of any challenges made to any determination by the inspectors,” and (5) prepare a written report and certify the foregoing determinations.[48] Then on the back end, statutes such as Section 225 of the Delaware General Corporation Law provide the courts with the power to review and determine the validity of any stockholder vote or written consent.[49]

C.  Officers

Officer (n): “Someone who holds an office of trust, authority, or command. . . . In corporate law, the term refers esp. to a person elected or appointed by the board of directors to manage the daily operations of a corporation, such as a CEO, president, secretary, or treasurer.”[50]

While as a formal legal matter the board is the focal point of corporate power, its actual role in corporate decision making is much more modest. It is officers that largely shoulder the decision-making duties.[51] The discrepancy between the allocation of formal legal authority to the board and actual exercise of authority by officers is particularly evident in public corporations.[52] As is consistently noted in the literature and cases: “Today, directors in the modern public corporation select senior officers ‘and then step aside, intervening only in times of crisis, or on very large issues such as a merger or major refinancing.’”[53]

In comparison to directors and stockholders, corporate statutes and case law provide limited guidance surrounding officers.[54] Corporate statutes merely specify that officers are to be elected by the board of directors unless otherwise provided in the corporation’s governing documents.[55] Historically, corporate statutes also articulated the traditional officer roles to be occupied within the corporation. Chief executive officer, president, vice president, treasurer, and secretary were officer positions typically cited in statutes.[56] As modern corporation law became more enabling, the specific statutory nomenclature regarding officers disappeared in favor of more general permissive language.[57] Today, corporations have considerable freedom to designate officers with whatever titles and duties they choose.[58] As a prominent treatise on corporate law advises: “A corporation need not have a president or a vice president or a secretary or a treasurer, as such; it could have a ‘czar’ or a ‘potentate’ and a ‘recordkeeper.’”[59] While these specific titles have not come into vogue, corporate America has seen some creative variations on the traditional officer titles. For example, Stonyfield Farm CEO Gary Hirshberg’s official title was “CE-Yo,” Steve Jobs’s official title at Apple was “iCEO,” Twitter CFO Adam Bain was the corporation’s “President of Revenue,” and even more unconventional, the CEO’s title at SCVNGR, Inc. is “Chief Ninja.”[60] While a bit extreme, these examples illustrate that identification of corporate officers is not always a straightforward task.

At the other end of the spectrum, individuals working at a corporation may be given officer-like titles when in substance their role is more akin to a rank-and-file employee. “A larger corporation may have a number of vice presidents, assistant vice presidents, assistant secretaries, assistant treasurers, and so on . . . . As  the number of vice presidents in corporations has proliferated,  super  vice  presidencies under such titles as ‘executive vice president’ or ‘senior vice president’ have been created . . . .”[61] In the context of short-swing liability under federal securities laws, for example, the courts frequently point out the practice of giving individuals honorary officer titles with no commensurate responsibility or authority.[62] Given the flexibility afforded to corporations in fashioning corporate offices and titles, officers are not fungible across corporations in the same way as directors.[63]

Further complicating the matter is that the number of officers a corporation may employ has no limits. With respect to directors, state statutes make clear that the corporation’s governing documents shall define the range, if not the exact number, of directors that can serve on the board.[64] No such analogous requirement exists for officers. And it would be the rare charter or bylaws that set forth a range or exact number of officers for the corporation. More often, bylaws provide for a few specific offices and then include broad authorizing language empowering the board to create such offices and appoint such other officers as the board may, in its discretion, deem necessary.[65] The lack of boundaries on the number of individuals that can serve as an officer coupled with the wide discretion in the titling of those individuals, means the potential for (and actual) abstruseness in identifying who occupies the officer role, as that role is contemplated in corporate jurisprudence, is great.

In sum, state corporate statutes and case law, as well as the internal governance documents of corporations, fail to provide a clear means for determining “officer” status. The next section summarizes efforts to define the role of corporate “officer” in other areas of the law. As quickly becomes clear in reviewing these definitions, there is no cohesive delineation of “officer” status; rather, the legal meaning of officer is relatively fluid.

II. Competing Definitions

As previously discussed, there is a dearth of corporate case law or statutes defining “officer.” Identification of corporate officers has, however, implications beyond state corporate law. Securities laws, bankruptcy laws, jurisdictional statutes, and others specifically take into account the corporate “officer” position in their rules and regulations. The following sections describe how these other areas of the law attempt to identify the officers of the corporation. While the policy considerations underlying the definitions of “officer” in each of these other areas of the law may be similar or different to those animating “officer” for purposes of corporate law, the articulation and identification of individuals occupying the officer role are nevertheless instructive. In fashioning its own definition, state corporate law can learn from the struggles legislators, courts, and parties have faced in trying to discern who is and is not an officer of the corporation.

A. Securities Law

Federal securities laws make reference to the “officers” of a corporation in several different contexts, imposing disclosure requirements, certification requirements, and other obligations on individuals occupying this role. The definition of “officer” for purposes of the rules promulgated under the Securities Exchange Act of 1933 (“the 1933 Exchange Act”) and the Securities and Exchange Act of 1934 (“the 1934 Exchange Act”) is set forth in Rule 3b-2 and Rule 405, respectively: “The term officer means a president, vice president, secretary, treasury or principal financial officer, comptroller or principal accounting officer, and any person routinely performing corresponding functions with respect to any organization whether incorporated or unincorporated.”[66] Rule 3b-7 further defines “executive officers” as “president, any vice president of the registrant in charge of a principal business unit, division or function (such as sales, administration or finance), any other officer who performs a policy making function or any other person who performs similar policy making functions for the registrant.”[67] These definitions of officer and executive officer are relevant for obligations under the 1933 Exchange Act and 1934 Exchange Act such as disclosure of compensation and bonuses, disclosure of loans exceeding certain thresholds, certification of certain filings, whistleblower provisions, and disclosure of hedging practices.[68]

Following the stock market crash of 1929, Congress enacted Section 16 of the 1934 Exchange Act to address, among other things, insider trading and short-swing profits.[69] The reporting and automatic liability provisions in Section 16 apply only to directors, officers, and beneficial owners of more than ten percent of any class of equity security of an issuer corporation.[70] Originally, the definition of “officer” in Section 16 was quite broad: “a president, vice-president, treasurer, secretary, comptroller, and any other person who performs for an issuer, whether incorporated or unincorporated, functions corresponding to those performed by the foregoing officers.”[71]

Despite a facially straightforward definition, early cases applying Section 16 to alleged officers disagreed as to the proper interpretation and application of that term.[72] In analyzing transactions covered by Section 16, courts adopted three different approaches to determining who is an officer. The first test uses an objective approach, focusing solely on the title of the individual at issue.[73] The mere status of an individual triggers application of the statute. On the other end of the spectrum, some courts applied a subjective approach, looking beyond an individual’s title to his or her job duties, access to information, authority to influence corporate affairs, and decision making.[74] These courts reason that a more functional analysis for determining “officer” status furthers the purpose and goals of the statute.[75] Drawing from both the objective and subjective approaches arose the “title-with-exception” analysis which provides that an individual’s title creates a presumption of “officer” status, which can be rebutted upon a showing that functionally the individual was not in a position to influence corporate decision making or have access to confidential information.[76]

Later revisions to the rules promulgated under Section 16 are viewed as having put to rest at least some, if not all, of the uncertainty in determining who qualifies as an officer that arose from the competing approaches applied by the courts.[77] Additionally, Section 16’s “officer” definition was revised and narrowed in Rule 16a-1(f) so that Section 16 would apply to “executive officers” and not “officers” more broadly.[78] Rule 16a-1(f) provides that

[t]he term “officer” shall mean an issuer’s president, principal financial officer, principal accounting officer (or, if there is no such accounting officer, the controller), any vice-president of the issuer in charge of a principal business unit, division or function (such as sales, administration or finance), any other officer who performs a policy-making function, or any other person who performs similar policy-making functions for the issuer.[79]

These revisions were intended to clarify that Section 16’s responsibilities and liabilities are not applicable to those individuals who are an officer in title only, thereby rejecting the objective-only approach applied by some courts.[80] The revisions and the SEC’s guidance related thereto indicate that a subjective analysis is necessary in determining “officer” status, however, the degree to which function versus title should be considered by the courts is not entirely clear.

In sum, courts applying federal securities laws have struggled with the relative weight given to an individual’s title versus what role their functions should play in determining whether an individual is an “officer” as contemplated in the statute and rules promulgated thereunder. Even where statutes and regulations, such as Section 16 and Rule 16a-1(f), appear to articulate a clear definition for “officer,” ambiguity with respect to the exact ambit of that definition exists.

B. Bankruptcy Law

When a corporation is a debtor in bankruptcy, federal bankruptcy law imposes additional scrutiny on the review and approval of transactions, fees, and claims involving “insiders” of the entity. For example, included in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 were amendments to the U.S. Bankruptcy Code that placed stringent limits on the ability of a court to approve “key employee retention plans” (KERPs) and severance payments to insiders in corporate reorganizations.[81] Another example is Section 547 of the Bankruptcy Code (“Section 547”), which imposes a longer preferential payment reach-back period to negate transfers of debtor property made to insiders—a one-year preference period for insiders as opposed to a ninety-day preference period for all others.[82]

An “insider” as defined in the Bankruptcy Code includes, among others, the directors and officers of a debtor corporation.[83] “Officer” is not defined in the Bankruptcy Code and there has been limited case law interpreting the term.[84] In those instances where bankruptcy courts have had to determine “officer” status, they generally cite to the dictionary definition of “officer.”[85] The majority of courts have also made clear, however, that the presence or absence of traditional officer titles or words is not dispositive in determining “officer” status under the Code.[86] The courts instead have applied a case-by-case, functional approach taking into account an individual’s involvement in the affairs of the corporation and authority over critical financial decisions, dictating policy, and/or the disposition of assets.[87]

One important takeaway from the cases interpreting “officer” is that the exact boundaries of “officer” status appear to shift depending on the particular section of the Bankruptcy Code at issue. Courts look to the particular purpose or policy underlying a statutory section in crafting its interpretation of “officer” and concluding whether an individual falls under that category.[88] For example, in the context of Section 547—the preferential payment reach-back—the courts have focused on the individual’s ability to dictate financial decisions and have access to sensitive financial information in determining “officer” status.[89] In support of its attention to financial controls, the courts reference the policy and purpose underlying Section 547—the prevention of insiders with access to nonpublic financial information influencing the disposition of assets to their benefit and the detriment of the non-insider creditors.[90] In contrast, KERP challenges under Section 503—which are primarily concerned with the prevention of self-interested executive compensation—elicit a broader functional assessment by the courts where an individual’s more general responsibilities and authority to influence corporate decision-making (not just financial decisions) are taken into account for determining “officer” status.[91] Yet nowhere in the Bankruptcy Code is there an indication that “officer” is intended to have this type of definitional fluidity across provisions. Rather, it is a product of the lack of clarity in defining “officer” not only in bankruptcy law, but across disciplines.[92]

C. Jurisdictional Statutes

In 2004, the Delaware legislature amended its implied consent statute to include certain officers of Delaware corporations. Specifically, Section 3114(b) of the Delaware Code provides that individuals who accept election or appointment as an officer (or serve in such capacity) are deemed to have consented to personal jurisdiction in the state of Delaware.[93] For purposes of the statute, “officer” is defined as one who:

(1)  Is or was the president, chief executive officer, chief operating officer, chief financial officer, chief legal officer, controller, treasurer or chief accounting officer of the corporation at any time during the course of conduct alleged in the action or proceeding to be wrongful;

(2)  Is or was identified in the corporation’s public filings with the United States Securities and Exchange Commission because such person is or was [one] of the most highly compensated executive officers of the corporation at any time during the course of conduct alleged in the action or proceeding to be wrongful; or

(3)  Has, by written agreement with the corporation, consented to be identified as an officer for purposes of this section.[94]

In defining “officer,” the statute takes a more formulaic approach, focusing on the titles of individuals within the corporate enterprise in part (b)(1), and the identification as a highly compensated executive officer for purposes of certain federal securities regulations reporting requirements in (b)(2). Interestingly, while the Delaware General Corporation Law has moved to eliminating any specific titles in its provisions, the jurisdictional statute that applies to corporate participants includes them. Further, in contrast to bankruptcy law and other federal securities regulations, Delaware’s jurisdictional statute lacks a catch-all provision in the definition of “officer” to pick up individuals who are functional equivalents of those titled offices, instead relying on compensation levels to serve as a proxy for “officer” status.

D. ALI Principles

The American Law Institute (“ALI”) is an independent organization founded in 1923 for the purpose of bringing clarity to different areas of the law through the articulation of basic legal principles, while also providing constructive assessments of the law and recommendations on what the law should be.[95] To that end, the ALI promulgates Restatements of the Law, Model Codes, and Principles of Law.[96] In 1994, the ALI published a study and set of recommendations in the area of corporate governance (the ALI Principles). A stated purpose of the project was “to clarify the duties and obligations of corporate directors and officers and to provide guidelines for discharging those responsibilities in an efficient manner, with minimum risks of personal liability.”[97] Based in part on federal securities rules and regulations, the ALI Principles define “officer” as:

(a)  the chief executive, operating, financial, legal, and accounting officers of a corporation;

(b)  to the extent not encompassed by the foregoing, the chairman of the board of directors (unless the chairman neither performs a policymaking function other than as a director nor receives a material amount of compensation in excess of director’s fees), president, treasurer, and secretary, and a vice-president or vice-chairman who is in charge of a principal business unit, division, or function (such as sales, administration, or finance) or performs a major policymaking function for the corporation; and

(c)  any other individual designated by the corporation as an officer.[98]

The ALI incorporates both function and labels in its definition. In Subsection (a), “officer” status arises out of a combination of the duties an individual performs as well as their status within the corporation (i.e., “chief”).[99] Subsection (b) then shifts to looking at the title of an individual while still preserving functional space with the catch-all category of “performs a major policymaking function for the corporation” as a whole.[100] Finally, Subsection (c) captures purely the corporation’s labeling of its participants as “officers” of the enterprise without reference to duties or function.[101]

Similar to the approach adopted by federal securities laws, the ALI tiers the legal consequences of “officer” status based on which part of the definition—(a), (b), or (c)—the individual satisfies.[102] For example, the sections of the ALI Principles addressing the duty of care and the business judgement rule apply to all individuals falling under Section 1.27’s “officer” definition.[103] In contrast, only individuals who qualify as “officer[s]” under Subsections (a) or (b) are considered “senior executive[s]” and are subject to provisions like disclosure of corporate opportunities.[104] Finally, individuals who are “chief” officers under Subsection (a) are further defined as “principal senior executives”[105] and in that capacity have additional rights and obligations in managing the corporate enterprise.[106]

III.  Defining “Officer” in State Corporate Law

The American legal system generally operates through a system of categories and consequences.[107] Corporate law is no different. State corporate law depicts directors, officers, and stockholders each as distinct categories of actors within the operations and governance of the corporation.[108] And membership in each of these categories carries with it distinct legal duties, rights, and liabilities.

While consequences are important, it is largely categorization that drives legal analysis and rulemaking.[109] Corporate law clearly envisions a distinct “officer” category,[110] but it fails to articulate that role with any certainty, leaving it up to corporations to do so in their governing documents. To date, however, corporations fail to provide any meaningful specificity in this regard.[111] Moreover, courts and scholars have focused their efforts on expounding the legal consequences of “officer” status largely to the exclusion of the categorization issue.[112] As discussed in more detail infra, courts have made clear that there is a formal distinction in corporate law (1) between officers and directors, and (2) between officers and employees or agents.[113] The officer-director and officer-agent divides trigger significant legal consequences vis-à-vis the individual officer, the corporation, and third parties; however, where those demarcations are, exactly, is left to speculation.

A. Officers Versus Directors

Officers are frequently grouped together with directors in discussions of corporate governance and described collectively as “corporate management.”[114] Yet the officer clearly occupies its own discrete role in the corporate form.[115] Legally and practically speaking, there is a formal distinction between the two types of corporate managers. Officers are selected by and serve at the pleasure of the board of directors.[116] Further, officers, unlike the board, have no inherent authority to act on behalf of the corporation, rather they acquire it via delegation from the board or in the bylaws.[117] Consequently, the typical division of managerial responsibilities within a corporation is (1) the board is tasked with setting corporate policy and approving corporate acts, and (2) the officers are charged with implementing those policies and managing the day-to-day business and affairs.[118] Regardless of the specific allocation of managerial functions, at all times the board remains the ultimate authority within the corporation and therefore must monitor the corporate enterprise, including officers.[119]

B. Officers Versus Employees or Agents

Officers, are, for legal purposes, an extension of the corporation’s own self.[120] They control the daily operations of the corporation, binding the entity for purposes of contract and tort obligations.[121] In addition, notice given to and the knowledge of an officer can be considered notice and knowledge of the entity, regardless of whether the notice or knowledge was, in fact, communicated.[122] While these are also consequences attendant to agency status generally, officers occupy a more elevated role than the average agent. Officers, as contemplated in corporate jurisprudence, and realized at most corporations, wield significant power and authority within the corporate enterprise.[123] They are also afforded considerable discretion in their decision making. As made clear by the Delaware Court of Chancery, “the terms officers and agents are by no means interchangeable.”[124]

Agent status can apply to a broad array of individuals working on behalf of a corporation.[125] Examples range from the chief executive officer, to outside legal and financial advisors, to a checkout clerk at the local franchise. Language in the case law, however, indicates that corporate law contemplates “officers,” as being distinct from mere “employees,” articulating the difference as a result of the discretionary authority or power to exercise corporate functions that officers, but not employees, possess.[126] What constitutes sufficient discretionary authority or power to rise to the level of an officer is, however, less than clear.

At the extremes, delineating officers from other corporate agents is not difficult. In the examples used above, one can easily distinguish a CEO from a checkout clerk. Likewise, outside legal and financial advisors, by definition, will not by that role itself be considered part of the internal governance structure as an officer. The exercise becomes much more challenging in the middle where individuals are afforded limited discretion in corporate affairs and have ambiguous designations, thus allowing for considerable subjectivity, and consequently inconsistent, determinations regarding their legal role. Given the distinct legal features attendant to “officer” status, distinguishing officers from other corporate agents ex ante and ex post can carry with it significant legal consequences.

C. The Need for a Definition

As explained in the previous section, corporate jurisprudence and scholarship explore and delineate the various roles within the corporate structure—director versus officer versus employees or agent—vis-à-vis the legal consequences attendant to those roles. Yet, to date, these resources fail to identify with any precision the bounds of “officer” status itself. Corporate doctrine specific to officers is relatively new as compared to directors and agents, and thus is underdeveloped.[127] Analyzing and creating the law in this area without linguistic certainty as to the term “officer” is both normatively and practically problematic. The following two examples illustrate why.

Officers are entrusted with managing vast aggregations of wealth on behalf of the stockholders.[128] “The existence and exercise of this power carries with it certain fundamental fiduciary obligations to the corporation and its shareholders.”[129] The Delaware Supreme Court explained officers’ fiduciary obligations in Gantler v. Stephens, holding that “the fiduciary duties of officers are the same as those of directors.”[130] In situating officers in their own special director-like fiduciary role within the corporation, Gantler and its progeny make a well-defined dividing line between officer and ordinary agent status imperative. Corporate law makes clear that the basis for imposing fiduciary duties on directors is the trustee-like role they occupy in the corporation and not because of any agency relationship.[131] As a result, there are important differences between the content of directorial and agency fiduciary duties.[132] Under current legal principles, officers, on the other hand, awkwardly straddle the agent-director fiduciary dichotomy. Scholars disagree as to the proper classification of officers and case law and treatises seem to point in both directions.[133] Absent from the Gantler court’s opinion (or subsequent opinions) is clarity regarding which corporate agents are the officers who owe the parallel fiduciary duties described by the court.[134] Given that corporate statutes are similarly silent in defining “officer,” individuals and their counsel are left to speculate as to which fiduciary principles they are obliged to discharge—director or agency.[135]

Along similar lines, there is still much to be developed in the way of officer fiduciary doctrine.[136] Going forward, as courts tackle the task of delineating the contours of officer fiduciary duties, “Who is an officer?” is an essential consideration.[137] How can courts articulate fiduciary obligations without a clear reference point as to whom they apply? Indeed, the basis for imposing fiduciary duties, the contours of those duties, and the applicable standards of judicial review differ in important respects depending on an individual’s legal status.[138] Declaring and imposing legal obligations on individuals without first making clear to whom they apply is a normatively problematic way of developing the law.

There are also strong pragmatic reasons why corporate law needs a definition of “officer.” Because there is a lack of established consensus in defining “officer,” parties will opportunistically define it ex post in a way that suits their particular argument or position. This may, however, be a very different definition than the ex ante expectations regarding “officer” status. The case of Aleynikov v. Goldman Sachs Group, Inc.[139] illustrates this problem. In Aleynikov, the Third Circuit was tasked with interpreting Goldman’s advancement bylaw provisions.[140] Specifically, the court had to decide whether Sergey Aleynikov, who served as a vice president at Goldman, Sachs & Co., a subsidiary of Goldman, was included in the definition of “officer.”[141]

In analyzing the relevant bylaw provisions, the court concluded that the term “officer” was ambiguous and allowed extrinsic evidence to be introduced to help determine its meaning.[142] Citing to several dictionary definitions of “officer,” the court stated that “the plain meaning of the term officer is someone holding a position of trust, authority, or command.”[143] Interestingly, in articulating the definition of “officer,” the court stated that “the election or appointment requirement cannot properly be considered a part of the ordinary, dictionary definition of officer.”[144] This is in direct contrast to decisions under the Bankruptcy Code and the 1934 Exchange Act, which specifically tie “officer” status to election or appointment by the board.[145] Ultimately, the court concluded that Aleynikov was not an “officer” covered by the advancement bylaw.[146]

In addition to the suit before the Third Circuit, Aleynikov had filed a parallel suit seeking advancement in the Delaware Court of Chancery.[147] While noting that issue preclusion prevented re-litigating the interpretation issues previously resolved in the Third Circuit decision, the court nonetheless indicated in dicta that the Third Circuit had erred in finding that “officer” did not encompass “vice presidents.”[148] The court considered a broad body of evidence in interpreting “officer” including the bylaw language itself, drafting history, the ordinary and plain meaning of the language at issue, industry standards/trade usage, corporate policy considerations, applicable state and federal government regulations, the conduct of the parties themselves, and the transactional context.[149] Ultimately, the court concluded that someone given the “title ‘Vice President’ could reasonably conclude that he was an ‘officer’ who was entitled to advancement rights under the Bylaws.”[150]

The differing conclusions reached by the courts in the Aleynikov litigation highlight the practical problems stemming from the ambiguity of “officer” status in corporate law. As both the Court of Chancery and the New Jersey District court pointed out, “officer” in the case of Goldman Sachs bylaws clearly includes someone with the title of “vice president.” Indeed, both courts concluded that at the time of Aleynikov’s receipt of the title of “Vice President,” the parties believed he was an officer of the entity.[151] Nevertheless, capitalizing on the inherent ambiguity of such term, the corporation was able to successfully avoid its advancement obligations by challenging the term ex post in litigation. With no consensus surrounding “officer” status as a general matter of law, parties may strategically define “officer” to avoid legal obligations (as was the case in Aleynikov) or, alternatively, apply legal obligations such as fiduciary duties, even when ex ante the parties’ understanding of “officer” was different.

A final development in corporate law necessitating the need for definitional clarity with regard to “officer” is the private ordering movement. With increasing frequency, the governing documents of corporations are being used as a platform for defining and structuring key aspects of corporate governance.[152] Corporate law provides corporations with the freedom to fashion their corporate offices as they see fit.[153] This contractual freedom, coupled with the existing uncertainties surrounding officer duties and liabilities, makes corporate officers a ripe area for private ordering. Indeed, a task force of the American Bar Association has begun looking at just such matters.[154] In order for private ordering in this space to be effective and fair, a set of standard default rules or definitions from which parties can then deviate is necessary.[155] In the absence of a set of standard defaults, parties incur material transaction costs in the drafting process.[156] Even more concerning, private ordering in the absence of legal defaults results in “unique provisions that lead to ad hoc judicial decisions interpreting specific provisions that provide no predictability in future cases [because the provisions] are often poorly drafted and unclear, leading to increased litigation costs and inefficiencies for all parties.”[157] Establishing a uniform understanding of what “officer” means for purposes of corporate law would serve as a solid foundation for private ordering and interpreting such contracting going forward.

D. Considerations in Crafting a Definition

There are several lessons to be learned from the struggles in defining and interpreting “officer” in areas outside of corporate law. First are the tiered definitions of officers. In securities laws, for example, “officer” is defined somewhat broadly while “executive officer” captures a narrower set of individuals.[158] In contrast to officers, executive officers are subject to more stringent reporting requirements and automatic liability for certain transactions.[159] The definitions in the ALI’s Corporate Governance Principles similarly propose different ranks within “officer” status—“officer,”[160] and “principal executive officer.”[161] The Principles distinguish the substantive legal treatment applicable to an individual based on the exact officer classification.[162] While all “officers” owe, for example, the duty of care,[163] a smaller subset of this group is subject to the disclosure obligations regarding corporate opportunities,[164] and a smaller group yet—principal executive officers—are vested with director-like management authority and subject to other obligations.[165] State statutes do not, however, employ different types of officers as these other resources do. Nor do state corporate statutes make distinctions within the category of “officer.”[166] Thus, in crafting a definition for “officer” that will work for corporate statutes as currently drafted, such definition must be flexible enough to encompass all of the different references to, and uses of “officer.”[167]

The second, perhaps more complicated, consideration to take into account in designing a cohesive definition is the subjective versus objective approaches employed by courts in determining “officer” status. This has also been described as the “legal officers” versus “traditional officers” debate.[168] In both the securities and bankruptcy contexts, courts disagree whether “officer” status should be determined based on (1) objective criteria such as title and director election or appointment,[169] or (2) subjective, functional criteria such as responsibilities, duties, access to information or financial resources.[170] Advocates of an objective, legal approach to defining “officer” cite to the clear guidance it provides to market actors. Courts employing the subjective, pragmatic approach push back on this argument, asserting that a title-focused approach is akin to strict liability and “places responsibility for meticulous observance of the provision upon the shoulders of the insider, and he or she must bear the risk of any inadvertent miscalculation.”[171]

The consideration first raised—the lack of different degrees of “officer” in corporate codes—may actually dictate the answer to the second consideration—whether to employ a subjective or objective approach. A definition of “officer” must be flexible enough to work for all of the different references to “officer” in state corporate statutes. Unlike the more rigid objective approach, the subjective approach leaves room for consideration of the specific statute’s policy and purpose in defining “officer.”[172] This would allow for a more nuanced definition of “officer” that could span the different instances when that term is used in the statute. Further, a subjective approach would accommodate the freedom in creating offices that corporate law allows as well as the varying duties officers may have across and within corporations.[173]

E. A Proposal: Establishing the “Officer” Prototype

As previously discussed, the law specifies different consequences that attach to different categories of corporate actors—directors, officers, stockholders, agents, employees. To avoid incoherent and inconsistent application of the law, criteria for membership in any particular category must be established.[174] Scholars in law, psychology, and philosophy have studied the topic of categories and developed theories surrounding category formation.[175] One identified model is the prototype-centered category. A prototype-centered category may be defined through identification of one or more prototypes (i.e., an example of “what [the] category most obviously includes”) or, alternatively, it may be based on some number of features generally common to the prototype.[176] The prototype-centered model of category is often used in creating and applying legal principles.[177]

Two examples in business law that employ a prototype-centered category in determining legal status are agency law and partnership law. The test for establishing principal-agent status flows from the definition of “agency” in section 1.01 of the Restatement (Third) of Agency: “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.”[178] Based on this definition, courts have identified three requisite characteristics for an agency relationship to exist: (1) mutual agreement, (2) the agent must act on behalf of the principal, and (3) the agent will act subject to the principal’s control.[179] Courts use these specific features to differentiate a legal agency relationship from other uses and understandings of “agency” (for example, commercial, economic, philosophical, and literary definitions).[180] The comments to section 1.01 of the Restatement illustrate the prototype-focused approach of determining agency status, distinguishing the agency prototype from other legal relationships (e.g., debtor-creditor, bailor-bailee) based on the absence of specific features common to an agency relationship.[181]

A partnership is defined as an “association of two or more persons to carry on as co-owners a business for profit.”[182] Because there is no bright-line test for resolving disputes over the characterization of profit-sharing, courts have also looked to different factors in determining the existence of a partnership. Those include “(1) a community of interest in the venture, (2) an agreement to share profits, (3) an agreement to share losses, and (4) a mutual right of control or management of the enterprise.”[183] A potential fifth factor, the parties’ own characterization of their relationship, is sometimes also taken into consideration but courts are clear that such characterization is not dispositive.[184] Like agency law, determining partner status is a case-by-case, fact-specific analysis. Also, like agency status, the legal category of “partnership” is prototype-centered with the partnership prototype being defined in relation to the absence or presence of the common features outlined above.

In light of the lack of a specific statutory definition, “officer” status should be analyzed in a prototype-centered manner similar to that of agency and partnership status. First, when the law uses a term from ordinary language, such as “officer,” a prototype-centered category is well suited to define the scope of that legal category.[185] As explained by Professors Kristin Hickman and Claire Hill:

For most words, terms, and concepts, we quickly recognize some clear examples. We can also readily imagine cases that are murkier. The Pope and a thirteen-year-old boy, while meeting the formal definition of bachelor, are certainly not prototypical. The obvious instances represent the category’s core, while the more questionable ones are at the category’s penumbra.[186]

Obvious examples like a CEO, CFO, or COO represent the core of the “officer” category while roles such as vice president, vice secretary, and vice treasurer are more attenuated and raise questions as to “officer” status and thus make up the penumbra of “officers.”

A prototype-centered approach to defining “officer” is further fitting as it allows for a subjective, functional based component in the analysis. As discussed in section III.D, a subjective approach accommodates the different statutory provisions throughout corporate statutes that use “officer” as well as the wide variation in officer titling and appointment that occurs in today’s corporations. A prototype-centered definition of “officer” would be based on some number of features generally common to the officer prototype, thus taking into account the substance of the officer role before attaching legal consequences. The proposed test avoids a fixed definition tied to formal titles in lieu of a list of factors that embody the substance of the officer role that corporate law seeks to regulate. Accordingly, using characteristics of corporate officers frequently identified by courts and scholars, the following factors should be considered in determining “officer” status.

*  Title given to the individual.[187]

*  Articulation of the office held in the corporation’s governing documents.[188]

*  Appointed or elected by the board (or an officer with delegated appointment authority).[189]

*   Industry custom/standards.[190]

*  Involvement in policymaking functions for the corporation.[191]

*  Exercises discretionary authority or power in managerial decision making (e.g., exercising the power of the corporation).[192]

*  Occupies a position of trust, which can include performing duties that would allow the individual access to financial information or other confidential information about the corporation’s affairs such that the individual could “exert undue influence over corporate decisions.”[193]

These factors take into account both the legal and traditional roles of officers in the corporation. Courts should look at the totality of the circumstances in determining “officer” status, and no one of the factors in the above list should be wholly dispositive. The factor-based test proposed here directly rejects prior case law basing “officer” status solely on labels or election/appointment by the board.[194] As a prototype-based category, there is a “concern . . . that, in the absence of meaningful constraints against minimal compliance pressures, a category’s coverage may become incoherent and inconsistent, and the category may operate to treat in the same way things that do not seem to bear any substance-based relationship to one another.”[195] The per se “officer” test applied by the courts in fact, does just that by basing categorization on minimal qualifications such as title and appointment thereby capturing substantive and shallow “officers” alike in the category. Instead, this paper proposes a holistic approach that considers all relevant “officer” characteristics. Moreover, the proposed approach is consistent with the fact-specific, case-by-case analysis that is characteristic of corporate law.[196]

Conclusion

Corporate law is clear that “officers” play a distinct legal role within the corporation. Yet ambiguity persists in determining who exactly occupies this space. State statues, cases, corporate governing documents, and academic scholarship have all, to date, avoided squarely addressing the question “Who is an ‘officer’ of a corporation?” The lack of consensus in delineating “officer” status has allowed parties to opportunistically choose definitions that support their ex post interests.[197] And the courts differ in their interpretation and identification of officers leading to inconsistent and incoherent results.[198] At this juncture, corporations, directors, officers, stockholders, and third parties alike live in a state of uncertainty and unpredictability with respect to these important corporate actors.

In addition to these pragmatic problems, the ambiguity in defining “officer” has contributed to the marginalization of officer doctrine, in particular the development of fiduciary duties. How can courts, parties, and scholars engage in a thoughtful, informed dialogue regarding the proper role and accountability for officers if there is not a clear understanding of who an “officer” is? How can legal counsel adequately advise these key management members of their legal responsibilities if the law makes it unpredictable as to whom these rights, responsibilities, and liabilities will apply? And in an era of private ordering, how can parties engage in efficient, fair contracting regarding officers if the default legal principles from which they are operating are undefined?

This Article attempts to remedy the definitional fluidity attached to “officer.” A prototype-centered officer category based on both objective and subjective factors allows for a nuanced, yet consistent definition that can function under existing corporate statutory regimes. Hopefully, as the category of “officer” becomes stabilized in corporate law, the legal consequences attached to that status will similarly become clear.


                        Associate Dean for Research & Scholarship; Professor of Law, The University of Oklahoma College of Law. For helpful comments and discussions, I would like to thank Afra Afsharipour, Brad Bernthal, Wendy Netter Epstein, Charlie Korsmo, Christopher Odinet, and Christina Sautter. I would also like to thank the participants in the National Business Law Scholars Conference, the Law and Society Annual Meeting, and BYU Law School’s Winter Deals Conference whose thoughtful comments and questions contributed to the completion of this Article.

[1].    See, e.g., Act of Mar. 10, 1899, ch. 273, § 5, 21 Del. Laws 446 (1899) (granting corporations power “[t]o appoint such officers and agents as the business of the corporation shall require, and to allow them suitable compensation.” (emphasis added)); see also 1 R. Franklin Balotti & Jesse A. Finkelstein, The Delaware Law of Corporations & Business Organizations, § History (3d ed. Supp. II 2019) (providing a brief history of the General Corporation Law of the state of Delaware); 1 James D. Cox & Thomas Lee Hazen, Cox & Hazen on Corporations 87–90 (2d ed. 2003) (describing the first American general incorporation acts); Curtis Alva, Delaware and the Market for Corporate Charters: History and Agency, 15 Del. J. Corp. L. 885, 896 (1990) (“Delaware adopted its first modern general corporation law in 1899.”); S. Samuel Arsht, A History of Delaware Corporation Law, 1 Del. J. Corp. L. 1 (1976) (discussing the early history of Delaware corporate law).

        [2].    See William T. Allen et al., Commentaries and Cases on the Law of Business Organizations 108 (3d ed. 2009) (“In fact, most corporation statutes do not even mention the position of chief executive officer (CEO), the most important single organizational role in the large majority of corporations.”); Deborah A. DeMott, Corporate Officers as Agents, 74 Wash. & Lee L. Rev. 847, 848 (2017) (“Although officers are crucial to explaining how corporations function, scholarly and theoretical accounts of corporate law and governance tend to slight officers’ positions as well as the distinctive quality of their duties.”); Jennifer O’Hare, Private Ordering and Improving Information Flow to the Board of Directors: The Duty To Inform Bylaw, 53 U. Rich. L. Rev. 557, 563 (2019) (“Given the importance of the role played by officers in corporations, as well as the use of the term in several corporate statutes, it is curious that neither the Delaware legislature nor the Delaware judiciary have defined ‘officer’ for purposes of corporate law.”); Robert B. Thompson, Corporate Governance After Enron, 40 Hous. L. Rev. 99, 108–09 (2003) (“[T]here is almost nothing in corporate statutes about the duties of officers . . . .”).

        [3].    See Verity Winship, Jurisdiction over Corporate Officers and the Incoherence of Implied Consent, 2013 U. Ill. L. Rev. 1171, 1195–96 (“‘Officer’ means . . . who-knows-what for triggering state-law fiduciary duties.”).

        [4].    See, e.g., Del. Code Ann. tit. 8, § 142(a) (1967) (requiring corporations to have “a president, secretary, and treasurer”); Model Bus. Corp. Act § 50 (Am. Bar Ass’n 1969).

        [5].    See, e.g., § 142(a) (2019) (“Every corporation organized under this chapter shall have such officers with such titles and duties as shall be stated in the bylaws or in a resolution of the board of directors . . . .”).

        [6].    See O’Hare, supra note 2, at 566 (finding that the bylaws of the fifty largest U.S. public corporations provide little information about officers or their duties beyond basic boilerplate provisions).

        [7].    See, e.g., infra Sections II.A–B.

        [8].    See Robert Charles Clark, Corporate Law 114 (1986) (stating that where to draw the line on who is an “officer” is “not always clear” and categorization as an “officer” can differ depending on the context at issue).

        [9].    See, e.g., O’Hare, supra note 2, at 566; Megan Wischmeier Shaner, Officer Accountability, 32 Ga. State U. L. Rev. 357, 359 n.3 (2016) (focusing primarily on senior executive officers when discussing “officers” under corporate law); Lyman P.Q. Johnson, Dominance by Inaction: Delaware’s Long Silence on Corporate Officers n.9 (Wash. & Lee Univ. Sch. of Law Working Paper Series, Paper No. 2017-11, 2017), http://ssrn.com/labstrait=2964033 (“This chapter does not address how ‘officers’ should be defined.”) [https://perma.cc/BXB3-XTDQ].

      [10].    See Jill E. Fisch, The New Governance and the Challenge of Litigation Bylaws, 81 Brook. L. Rev. 1637, 1638 (2016) (“[F]or the most part the innovations take the form of private ordering—that is, the adoption of issuer-specific rules that are contractual in nature (as opposed to statutes, agency rules, or decisional law).”); D. Gordon Smith et al., Private Ordering with Shareholder Bylaws, 80 Fordham L. Rev. 125, 127 n.12 (2011). This private ordering can occur in a corporation’s governing documents or in separate contracts.

      [11].    See Notice of Business Law Section Annual Meeting, Am. Bar Ass’n Dir. & Officer Liab. Comm. (Sept. 10, 2018) (on file with author) (announcing and describing new Officer Liability Task Force).

      [12].    Hale v. Henkel, 201 U.S. 43, 76 (1906), overruled in part by Murphy v. Waterfront Comm’n of N.Y. Harbor, 378 U.S. 52 (1964).

      [13].    See, e.g., Bernard F. Cataldo, Limited Liability with One-Man Companies and Subsidiary Corporations, 18 Law & Contemp. Probs. 473, 474–75 (1953); Warner Fuller, The Incorporated Individual: A Study of the One-Man Company, 51 Harv. L. Rev. 1373, 1374–75 (1938).

      [14].    See Del. Code Ann. tit. 8, §§ 141, 142, 151, 158; see also Edgar v. Mite Corp., 457 U.S. 624, 645–46 (1982) (“The internal affairs doctrine is a conflict of laws principle which recognizes that only one State should have the authority to regulate a corporation’s internal affairs—matters peculiar to the relationship among or between the corporation and its current officers, directors, and shareholders.”); Jesse H. Choper et al., Cases and Materials on Corporations 5 (5th ed. 2000); Cox & Hazen, supra note 1, at 390 (describing the “traditional corporate pattern” as triangular and involving stockholders, directors, and officers); Walter A. Effross, Corporate Governance 4 (2d ed. 2013) (describing the “basic triad” of a corporation—stockholders, directors, and officers—which reflects the ownership and management structure of the corporation).

      [15].    See Effross, supra note 14, at 1.

      [16].    See Cox & Hazen, supra note 1, at 390 (describing corporate governance as a triangle of participants); Larry E. Ribstein, Why Corporations?, 1 Berkeley Bus. L.J. 183, 196–98 (2004); see also Adolf A. Berle, Jr. & Gardiner C. Means, The Modern Corporation and Private Property 6–7 (The Macmillan Company 1932).

      [17].    If one uses a statutory allocation of power lens through which to view the corporation the group at the top of the corporate governance triangle would be the board of directors. See § 141(a). On the other hand, when viewed from the perspective of actual day-to-day decision making at the corporation, executive officers would occupy the top position in corporate governance. See Cox & Hazen, supra note 1, at 390 (stating that officers occupy the top of the corporate governance decision-making pyramid).

      [18].    See Cox & Hazen, supra note 1, at 390.

      [19].    See Thompson, supra note 2, at 108–09 (“There are constraints on this broad power given to directors, as most students of corporate law could recite. Shareholder voting is required, not just to elect directors, but also as a prerequisite to mergers and similar transactions after they have been proposed by directors. Shareholder voting can sometimes act to cleanse conflicts of interest that exist for the directors. Fiduciary duty—perhaps the most visible legal check on board power—is an after-the-fact judicial limit on the use of the power given in the corporate statute.” (footnotes omitted)); Julian Velasco, The Fundamental Rights of the Shareholder, 40 U.C. Davis L. Rev. 407, 442 (2006) (“Fiduciary duties and shareholder approval requirements limit director autonomy, and the right to elect directors is intended to keep directors accountable to the shareholders.”). For example, ultimate power and authority for managing the business and affairs of the corporation is vested in the board of directors. See § 141(a). A principal constraint on this expansive grant of authority are the fiduciary duties owed by directors in making decisions. Stockholder-initiated lawsuits are the vehicle through which fiduciary duties are largely enforced. To protect against abusive stockholder litigation, however, corporate law restricts derivative lawsuits through the demand requirement provided for in Delaware Chancery Court Rule 23.1.

      [20].    While directors and officers must be natural persons, stockholders need not. See § 141(b). For purposes of this Article, when stockholders are described as “individuals,” it is intended to capture individual natural persons as well as individual entities that own stock in a corporation.

      [21].    See id. §§ 109, 141(e), 145, 211, 220; CA, Inc. v. AFSCME Emp’s Pension Plan, 953 A.2d 227, 231 (Del. 2008) (addressing the interplay of stockholder power to amend the bylaws with the statutory grant of authority given to directors); VantagePoint Venture Partners 1996 v. Examen, Inc., 871 A.2d 1108, 1113 (Del. 2005) (“The internal affairs doctrine applies to those matters that pertain to the relationships among or between the corporation and its officers, directors, and shareholders.”); Del. Ch. Ct. R. 23.1.

      [22].    Director, Black’s Law Dictionary (10th ed. 2014).

      [23].    See § 141(a) (“The business and affairs of every corporation . . . shall be managed by or under the direction of a board of directors.”); Gorman v. Salamone, No. 10183-VCN, 2015 Del. Ch. LEXIS 202, at *14 (Del. Ch. July 31, 2015) (“Section 141(a) . . . establishes ‘the bedrock statutory principle of director primacy’ . . . .”); Stephen M. Bainbridge, Director Primacy: The Means and Ends of Corporate Governance, 97 Nw. U. L. Rev. 547, 550 (2003); see also McMullin v. Beran, 765 A.2d 910, 916 (Del. 2000).

      [24].    See § 141(b) (“The board of directors of a corporation shall consist of 1 or more members . . . .”).

      [25].    See id.; see also Friedman v. Dolan, C.A. No. 9425-VCN, 2015 Del. Ch. LEXIS 178, at *35 (Del. Ch. June 30, 2015) (“The DGCL does not discuss minimum levels of attendance, committee service, or professional experience.”).

      [26].    For example, an entity’s organizational documents may impose stock ownership requirements (typically found in a close corporation), or independence requirements (typically found in a public corporation). See § 141(b) (“The certificate of incorporation or bylaws may prescribe other qualifications for directors.”); Rule 5605 Board of Directors and Committees, in The Nasdaq Stock Market Rules, Nasdaq (2019), http://nasdaq.cchwallstreet.com/ NASDAQTools/bookmark.asp?id=nasdaq-rule_IM-5605&manual=/nasdaq/main/nasdaq-eq uityrules/ [https://perma.cc/TF9Q-RFK8]; Section 303A.01 Independent Directors, in NYSE Listed Company Manual, NYSE, https://nyseguide.srorules.com/listed-company-manual (last updated Nov. 25, 2009)  (defining and requiring a majority of “independent” directors to serve on listed companies’ boards) [https://perma.cc/6AR8-UDZ4].

      [27].    See § 141(b) (number of directors; providing for a minimum of one director); id. (the only statutory criteria for directors is that they be a natural person); id. (resignation of directors); § 141(d) (classified boards of directors); id. (directors designated by special classes or series of stock); § 141(k) (shareholder removal of directors); § 223 (filling vacancies on the board); § 225(c) (judicial removal of directors). Some of the director statutes cited herein are default provisions; thus, the process and procedures surrounding directors may be provided for in a combination of organizational documents (i.e., the corporate charter and bylaws) and the corporate statute.

Corporate statutes make clear the process and procedures regarding the selection and tenure of directors; however, actual implementation of those processes and procedures at any one corporation can result in uncertainty. But see Velasco, supra note 19, at 410 (“The role of the director in the corporation is clearly defined.”).

      [28].    See § 211 (providing for the annual meeting of stockholders for holding the election of directors). A corporation’s certificate of incorporation may provide for a staggered board of 1, 2 or 3 years, in which case only some (not all) of the directors are up for election in any one year. Id. § 141(d) (providing for staggered boards).

      [29].    See id. § 223(a).

      [30].    See id. §§ 141(b), 223. In the case of a staggered board, Section 223 makes clear that a director filling a vacancy or newly created directorship “shall hold office until the next election of the class for which such directors shall have been chosen, and until their successors shall be elected and qualified.” Id. § 223(b).

      [31].    See id. § 141(b), (k); Crown EMAK Partners, LLC v. Kurz, 992 A.2d 377, 400 (Del. 2010) (stating that the Delaware General Corporation Law contains “procedural methods by which the term of a sitting director can be brought to a close: first, where the director’s successor is elected and qualified; second, if the director resigns; or third, if the director is removed”).

      [32].    See § 141(b).

      [33].    See id. § 141(k). Directors may not remove fellow directors. See also Balotti & Finkelstein, supra note 1, § 4.4.

      [34].    See § 141(k).

      [35].    See id. § 141(a); Clark, supra note 8, at 22 (“The model behind corporate law’s treatment of authority is one of a unilaterally controlled flow of authority from a single wellspring of power [(the board)] rather than a bubbling up and flowing together of many individual sources of personal power.”) (alteration in original); Thompson, supra note 2, at 108 (“The fulcrum of corporate governance for Delaware is clear: All corporate power is to be exercised by or under the direction of the board of directors.”).

      [36].    Directors are only authorized to act collectively, and not individually. Charles R.T. O’Kelley & Robert B. Thompson, Corporations and Other Business Associations 150 (8th ed. 2017) (“[D]irectors’ management power must be exercised collectively and by majority rule, and individual directors are not given general agency power to deal with outsiders.”).

      [37].    See § 225(a); 2 Edward P. Welch et al., Folk on the Delaware General Corporation Law § 225.01 (6th ed. 2019). This includes resolving disputes arising from director elections, appointments, resignations, and removals. See, e.g., § 225(a); Martin v. Med-Dev Corp., C.A. No. 10525-VCP, 2015 Del. Ch. LEXIS 272, at *35–50 (Del. Ch. Oct. 27, 2015) (addressing the validity of a director resignation); Hockessin Cmty. Ctr., Inc. v. Swift, 59 A.3d 437, 459–60 (Del. Ch. 2012) (addressing removal dispute). Further, “[t]he court also has jurisdiction to determine the right of individuals to hold office even if such individuals are not subject to the jurisdiction of the court.” Welch et al., supra, § 225.01 (citing Grossman v. Liberty Leasing Co., 295 A.2d 749, 752 (Del. Ch. 1972)).

      [38].    Stockholder, Black’s Law Dictionary (10th ed. 2014).

      [39].    See Robert W. Hamilton & Richard A. Booth, Business Basics for Law Students 290, 294–95 (4th ed. 2006) (“The corporate model that appears in state incorporation  statutes  assumes  that  stockholders  are  the  ultimate  owners  of  the  enterprise . . . .”); O’Kelley & Thompson, supra note 36, at 152 (“[T]he holders of those shares are the corporation’s risk bearers and residual claimants.”).

      [40].    The specific rights, powers, and preferences attached to any class or series of stock must be set forth in the corporation’s certificate of incorporation. § 102(a)(4); see Allen et al., supra note 2, at 118. “Under their share contract and by virtue of their status as owners of shares, shareholders have three classes of rights against the corporation: (1) rights as to control and management, (2) proprietary rights, and (3) remedial and ancillary rights.” Cox & Hazen, supra note 1, at 718–19. As one prominent corporate casebook explains:

Corporate law everywhere provides that equity investors in the corporate entity legally own something distinct from any part of the corporation’s property: They own a share interest. This share, or stock, is their personal legal property, and generally . . . such a share may be transferred together with all rights that it confers.

Allen et al., supra note 2, at 99.

      [41].    Hamilton & Booth, supra note 39, at 290. While corporate statutes do not limit the number of shares a corporation may issue, the charter does. See § 102(a)(4) (requiring the charter to set forth the total number of shares a corporation is authorized to issue as well as the specific allocation of those shares across different classes or series of stock). Further, although state corporate statutes do not limit the number of shares any one person or entity can own, such limits may be provided for in the entity’s governing documents, private contracts such as stockholder agreements or federal regulations. See § 151(a) (stating that limitations, special rights or restrictions on stock shall be set forth in the certificate of incorporation). Defensive devices and provisions such as poison pills and anti-takeover statutes, while not limiting how many shares a stockholder can own, effectively do so through penalties resulting from hitting certain ownership thresholds. See § 203 (restricting “business combinations” with stockholders owning “15% or more of the outstanding voting stock of the corporation”); Moran v. Household Int’l, Inc. 500 A.2d 1346, 1349 (Del. 1985) (explaining how a rights plan, or “poison pill,” operates).

      [42].    Facebook, Inc., Annual Report (Form 10-K) 31, 79 (Jan. 31, 2019). The 3780 stockholders of record for the Class A common stock is likely an underestimate, as the company acknowledges that “[b]ecause many of our shares of Class A common stock are held by brokers and other institutions on behalf of stockholders, we are unable to estimate the total number of stockholders represented by these record holders.” Id. at 31.

      [43].    See, e.g., § 102(a)(4) (capitalization structure must be in the certificate of incorporation); § 151 (classes and series of stock); § 152 (issuance of stock); § 158 (stock certificates); § 213 (record date); § 219 (list of stockholders); Welch et al., supra note 37, § 213.01 (“A corporation should be able readily to identify its stockholders from the corporation’s records.”) (citing In re Giant Portland Cement Co., 21 A.2d 697, 701 (Del. Ch. 1941)).

      [44].    §§ 219, 220 (2019); see also Funkhouser v. Fusion Sys. Corp., C.A. No. 12895 (Del. Ch. Mar. 17, 1993) (oral ruling); Magill v. N. Am. Refractories Co., 128 A.2d 233, 236–37 (Del. 1956); In re Giant Portland Cement Co., 21 A.2d at 701; Welch et al., supra note 37, § 219.03 (“It is implicit in sections 219 and 220 that Delaware corporations have an affirmative duty to maintain a stock ledger.”).

      [45].    § 219(c) (2019).

      [46].    See Velasco, supra note 19, at 430–31 (“Shareholder voice is limited to a few instances explicitly authorized by statute.”); see, e.g., § 211 (election of directors); § 242 (approval of amendments to the certificate of incorporation); § 251 (approval of mergers); § 271 (approval of sales of all or substantially all of a corporation’s assets).

      [47].    See § 213. State statutes also provide for record date setting with respect to dividends and distributions. Id.

      [48].    Id. § 231(a)–(b).

      [49].    See id. § 225(a) (addressing the review of the election or removal of directors and officers); § 225 (b) (addressing the review of any vote of stockholders on all matters other than the election of directors).

      [50].    Officer, Black’s Law Dictionary (10th ed. 2014).

      [51].    See JANA Master Fund, Ltd. v. CNET Networks, Inc., 954 A2d 335, 340 (Del. Ch. 2008) (stating that “[officers] have the far more onerous task of operating the company each day”); Balotti & Finkelstein, supra note 1, § 4.10[A], [C]; Claire Hill & Brett McDonnell, Executive Compensation and the Optimal Penumbra of Delaware Corporate Law, 4 Va. L. & Bus. Rev. 333, 343 (2009); Ribstein, supra note 16, at 188 (“[T]he corporate form of centralized management involves dividing management between professional full-time executives who manage the firm day-to-day and directors who oversee the board and set policy.”); see also Clark, supra note 8, at 105–06. Section 3.01 of the ALI Principles of Corporate Governance explicitly recognizes this delegation and reference principal senior executives alongside the board as having management authority. See Principles of Corporate Governance, § 3.01 (Am. Law Inst. 2019) [hereinafter ALI Principles]; id. at cmt. a (stating that “[section] 3.01 reflects long-established corporate practice” that it is the officers and not the board that operate the business of the corporation).

      [52].    See Grimes v. Donald, No. CIV.A. 13358, 1995 Del. Ch. LEXIS 3, at *25–26 (Del. Ch. Jan. 11, 1995) (“Of course, given the large, complex organizations through which modern, multi-function business corporations often operate, the law recognizes that corporate boards, comprised as they traditionally have been of persons dedicating less than all of their attention to that role, cannot themselves manage the operations of the firm, but may satisfy their obligations by thoughtfully appointing officers, establishing or approving goals and plans and monitoring performance.” (citations omitted)), aff’d, 673 A.2d 1207 (Del. 1996); see also Clark, supra note 8, at 105–06; Myles L. Mace, Directors: Myth and Reality 41, 58, 70, 73, 76, 191 (1971); Myles L. Mace, Directors: Myth and Reality—Ten Years Later, 32 Rutgers L. Rev. 293, 294–97 (1979).

      [53].    Megan Wischmeier Shaner, Stockholder Litigation, Fiduciary Duties, and the Officer Dilemma, in Research Handbook on Representative Shareholder Litigation 334 (Sean Griffith et al. eds. 2018) (quoting Lynn A. Stout, On the Proper Motives of Corporate Directors (or, Why You Don’t Want to Invite Homo Economicus To Join Your Board), 28 Del. J. Corp. L. 1, 18 (2003)). But see Marcel Kahan & Edward Rock, Embattled CEOs, 88 Tex. L. Rev. 987 (2010) (describing the decline in executive power).

      [54].    See DeMott, supra note 2, at 848 (discussing how officers have been overlooked in corporate law discussions and literature); Lyman P.Q. Johnson & David Millon, Recalling Why Corporate Officers Are Fiduciaries, 46 Wm. & Mary L. Rev. 1597, 1617 (2005); Stephen P. Lamb & Joseph Christensen, Duty Follows Function: Two Approaches to Curing the Mismatch Between the Fiduciary Duties and Potential Personal Liability of Corporate Officers, 26 Notre Dame J.L., Ethics & Pub. Pol’y 45, 46–47 (2012); Shaner, supra note 9; Megan W. Shaner, The (Un)Enforcement of Corporate Officers’ Duties, 48 U.C. Davis L. Rev. 271 (2014); Johnson, supra note 9, at 6.

      [55].    See, e.g., Del. Code Ann. tit. 8, § 142; Model Bus. Corp. Act § 8.40(a) (Am. Bar Ass’n 2016) (“A corporation has the officers described in its bylaws or appointed by the board of directors in accordance with the bylaws.”); see also Gorman v. Salamone, No. 10183-VCN, 2015 Del. Ch. LEXIS 202, at *11 (Del. Ch. July 31, 2015) (holding that the board of directors, and not the stockholders, has the authority to remove and replace officers).

      [56].    See, e.g., § 142(a) (1967) (requiring a corporation to have “a president, secretary, and treasurer”); Model Bus. Corp. Act § 50 (Am. Bar Ass’n 1969).

      [57].    See § 142 (2019) (“Every corporation organized under this chapter shall have such officers with such titles and duties as shall be stated in the bylaws or in a resolution of the board of directors which is not inconsistent with the bylaws . . . .”); Cox & Hazen, supra note 1, at 335. Under Delaware law, the only positive limitations on selecting officers are that a corporation must have (1) an officer with the authority to sign instruments to be filed with the Secretary of State and stock certificates, and (2) an officer who has the duty to record stockholders’ meetings and directors’ meetings. §§ 142(a), 158.

      [58].    See Welch et al., supra note 37, § 142.02, 4-354.1 n.5 (“Professor Folk commented in the first edition of this treatise that the result of the 1970 amendment was to give a corporation freedom to designate its executives by whatever names it wishes and to allocate the managerial power delegated to executives.”) (citing Ernest L. Folk, III, The Delaware General Corporation Law § 142 cmt. 2 (1st ed. 1972)).

      [59].    Balotti & Finkelstein, supra note 1, § 4.10[C].

      [60].    Alyson Shontell, 13 Completely Ridiculous Tech Executive Titles, Business Insider (Sept. 13, 2010, 12:10 PM), https://www.businessinsider.com/completely-ridiculous-ceo-tit les-2010-9 [https://perma.cc/GNS3-RCXJ].

      [61].    Cox & Hazen, supra note 1, at 121.

      [62].    See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Livingston, 566 F.2d 1119, 1122 (9th Cir. 1978) (finding that despite title, the individual lacked any power of an actual executive officer); Rosenbloom v. Adams, Scott & Conway, Inc., 552 F.2d 1336, 1338–39 (9th Cir. 1977) (finding the plaintiff’s corporate title to be hollow).

      [63].    The selection, removal, term, and duties of directors are relatively standardized across all corporations given the statutory framework within which these actors exist. The role of “officer,” on the other hand, is not statutorily structured to the same degree. Moreover, state and federal law have eliminated the ability to create figurehead or “dummy” directors. See In re Puda Coal Inc. Stockholders Litigation, No. 6476-CS, transcript of bench ruling issued (Del. Ch. Feb. 19, 2013). As explained by one well-known treatise:

The rationale for not permitting director titles and position without concomitant obligations is that there is a “holding out” and thus justifies imposition of fiduciary obligations. The same may not be true of honorary or purely titular officers. Unlike figure-head directors, merely making someone a vice president may not confer any authority nor impose any special fiduciary obligation.

5 Thomas Lee Hazen, Treatise on the Law of Securities Regulation § 13.24 (6th ed. 2009).

      [64].    See Del. Code Ann. tit. 8, § 141(b) (“The number of directors shall be fixed by, or in the manner provided in, the bylaws, unless the certificate of incorporation fixes the number of directors . . . .”); Model Bus. Corp. Act § 8.03 (Am. Bar Ass’n 2016) (“A board of directors shall consist of one or more individuals, with the number specified in or fixed in accordance with the articles of incorporation or bylaws.”).

      [65].    See, e.g., Balotti & Finkelstein, supra note 1, at art. IV (“The officers of the corporation shall consist of . . . such other officers as the Board of Directors may from time to time determine, each of whom shall be elected by the Board of Directors . . . .”); see also O’Hare supra note 2, at 566 (reviewing public company bylaws and finding only boilerplate language).

      [66].    17 C.F.R. § 240.3b-2 (2019); see § 230.405 (Rule 405 containing the same general definition of “officer” for purposes of the 1933 Act).

      [67].    § 240.3b-7; see § 230.501(f) (the definitional section for “executive officer” relating to unregistered sales made pursuant to Regulation D).

      [68].    See Disclosure of Hedging by Employees, Officers, and Directors, 84 Fed. Reg. 2402, 2402–03, 2425–26 (Feb. 6, 2019) (to be codified at 17 C.F.R. pts. 229, 240); Sarbanes-Oxley Act of 2002, Pub. L. No. 107–204, 116 Stat. 787 § 402, amending section 13 of the 1934 Act, 15 U.S.C.A. § 78m (prohibiting loans to executive officers); Sarbanes-Oxley Act of 2002, Pub. L. No. 107–204, 116 Stat. 787 § 403 (requiring the CEO and CFO to certify financial statements).

      [69].    See Brad B. Erens, New Section 503(c) of the Bankruptcy Code—Who Is an “Officer” Under the KERP Amendment?, 21 No.7 Andrews Corp. Officers & Directors Liab. Litig. Reporter 14, at *3–4 (2005). In addition, section 16(a)’s notice of stock ownership requirements by corporate insiders like “officers” alerts investors to insiders engaging in transactions involving shares of the corporation. See Securities Exchange Act of 1934, § 16(a), 15 U.S.C. § 78p(a) (2012); 4 Thomas Lee Hazen, Treatise on the Law of Securities Regulation § 13.1[1]–[2] (5th ed. 2005).

      [70].    Securities Exchange Act of 1934 § 16(a), 15 U.S.C. § 78p(a) (2012); see also Thomas Lee Hazen, The Law of Securities Regulation 530 (6th ed. 2009).

      [71].    Lockheed Aircraft Corp. v. Rathman, 106 F. Supp. 810, 812 (S.D. Cal. 1952).

      [72].    See Hazen, supra note 70, at 531; David E. Gardels, Section 16(b) of the Securities and Exchange Act of 1934: Is a Vice President an Officer, 58 Neb. L. Rev. 733 (1979) (discussing case law addressing the definition of “officer” under Section 16(b) of the 1934 Exchange Act); A. John Murphy, Who Is an Officer Under Section 16(b)—Who Knows, 12 San Diego L. Rev. 378, 378 (1975) (exploring the “spreading confusion and tests that are proliferating from the federal courts in their quest to resolve the dilemma of ‘who is an officer?’ under Section 16(b) . . . .”).

      [73].    See, e.g., Adler v. Klawans, 267 F.2d 840, 845 (2d Cir. 1959); Ferraiolo v. Newman, 259 F.2d 342, 344 (6th Cir. 1958).

      [74].    See, e.g., C.R.A. Realty Corp. v. Crotty, 878 F.2d 562, 566–67 (2d Cir. 1989); Colby v. Klune, 178 F.2d 872, 873 (2d Cir. 1949).

      [75].    See C.R.A. Realty Corp., 878 F.2d at 566–67 (reasoning that a functional test would best serve the congressional purpose in enacting Section 16).

      [76].    See, e.g., Winston v. Fed. Exp. Corp., 853 F.2d 455, 457–58 (6th Cir. 1988); Nat’l Med. Enters., Inc. v. Small, 680 F.2d 83, 84 (9th Cir. 1982).

      [77].    See Hazen, supra note 70, at 531.

      [78].    See Ownership Reports and Trading by Officers, Directors and Principal Stockholders, 53 Fed. Reg. 49,997, 50,000 (Dec. 13, 1988 (codified at 17 C.F.R. pt. 240)). In defining “officer” more narrowly for purposes of Section 16 only, the Securities and Exchange Commission (“SEC”) stated that “of particular concern is the inclusion of all vice presidents in the definition [of “officer”] and that “[m]any businesses give the title of vice president to employees who do not have significant managerial or policymaking duties and are not privy to inside information.” Id. at 50,000; see also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Livingston, 566 F.2d 1119, 1121–22 (9th Cir. 1978) (finding that a corporation had 350 “executive vice presidents”).

      [79].    17 C.F.R. § 240.16a-1(f) (2018). The revised definition of “officer” only applies to Section 16 and the rules promulgated thereunder. See § 240.16a-1 (“Terms defined in this rule shall apply solely to section 16 of the Act and the rules thereunder.”).

      [80].    See Hazen, supra note 70, at 531. The SEC has stated that section 16 was “intended to apply to those officers who have routine access to material non-public information, not those with particular titles.” Ownership Reports and Trading by Officers, Directors and Principal Stockholders, 53 Fed. Reg. 49,997, 50,000 (proposed Dec. 13, 1988) (to be codified at C.F.R. pts. 229, 240, 249, 270, 274).

      [81].    Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, Pub. L. No. 109-8, § 331, 119 Stat. 23, 102 (codified at 11 U.S.C. § 503(c) (2012)).

      [82].    § 547.

      [83].    § 101(31)(B).

      [84].    See In re Glob. Aviation Holdings Inc., 478 B.R. 142, 147 (Bankr. E.D.N.Y. 2012) (citing In re Borders Grp. Inc., 453 B.R. 459, 468 (Bankr. S.D.N.Y. 2011)); Erens, supra note 69, at *1; Paul R. Hage & Partick R. Mohan, Recent Developments in Section 503—Administrative Expenses & Key Employee Retention, Incentive and Severance Plans, in Norton Annual Survey of Bankruptcy Law 779, 823 (2013 ed.).

      [85].    See In re Glob. Aviation, 478 B.R. at 147–48 (stating that “officer” is defined as a “person elected or appointed by the board of directors to manage the daily operations of a corporation”) (internal quotation marks omitted); In re Foothills Tex., Inc., 408 B.R. 573, 579 (Bankr. D. Del. 2009) (stating that “in considering a statute the Court starts with its plain meaning” and then looking to dictionary definitions of “officer”); cf. In re Borders Grp. Inc., 453 B.R. at 468 (citing the dictionary definition of “officer”).

      [86].    See In re Glob. Aviation, 478 B.R. at 148; In re Foothills Tex., Inc., 408 B.R. at 579 (“[T]he mere title of a person does not end the inquiry.”); Office of U.S. Tr. v. Fieldstone Mortg. Co., 2008 U.S. Dist. LEXIS 91479, at *8 (D. Md. 2008) (lower court stating that “the Court is not precluded by the terminology that I used from taking evidence from behind the titles that people hold in any given situation”). But see id. at *18–20 (reversing the bankruptcy court and holding that the important inquiry is whether the individual was appointed or elected by the board). In NMI Sys., Inc. v. Pillard (In re NMI Sys., Inc.), for example, the court held that a vice president was not an officer for the purposes of the “insider” definition because his title was conferred for marketing purposes only. 179 B.R. 357, 370 (Bankr. D.D.C. 1995).

      [87].    See In re Glob. Aviation, 478 B.R. at 148; In re Borders Grp. Inc., 453 B.R. at 469; Fieldstone Mortg. Co., 2008 U.S. Dist. LEXIS 91479, at *8 (“[T]he question is whether they are officers in the traditional sense, in the sense that they are making decisions, they’re acting on behalf of the corporation, they are in charge, they are insiders.”) (alteration in original); In re 9281 Shore Rd. Owners Corp., 187 B.R. 837, 853 (E.D.N.Y 1995). But see Fieldstone Mortg. Co., U.S. Dist. LEXIS 91479, at *1–4 (“Insofar as the bankruptcy court understood the definition of ‘officer’ to require additional ‘traditional’ elements, like major decision-making, it expanded the term beyond its ordinary legal meaning.”).

      [88].    See, e.g., In re NMI Sys. Inc., 179 B.R. at 369–70; see C.R.A. Realty Corp. v. Crotty, 878 F.2d 562, 566–67 (2d Cir. 1989) (concluding that the test for “officer” status for purposes of Section 16(b) of the 1934 Exchange Act was whether the individual had access to confidential information that would allow the individual to engage in the actions the section sought to prohibit). But see In re Foothills Tex., Inc., 408 B.R. at 583 (disagreeing “that the meaning of ‘officer’ should vary according to the context in which the word is used”).

      [89].    See, e.g., In re NMI Sys. Inc., 179 B.R. at 370 (applying the Bankruptcy Code’s preference statute and tying “officer” status to whether an individual “was . . . in the inner circle making the company’s critical financial decisions”).

      [90].    See id. at 368–69 (distinguishing “officer” status under securities laws from bankruptcy laws in that the policies behind the statutes are different and stating that “the employee’s functions and status, viewed relative to the statute’s goals in using the term ‘officer,’ ought to control whether the person is an officer”); In re Erin Food Svcs., Inc., 980 F.2d 792, 796 (1st Cir. 1992).

      [91].    See, e.g., In re Glob. Aviation, 478 B.R. at 148.

      [92].    See In re NMI Sys. Inc., 179 B.R. at 368 (noting the lack of case law addressing the meaning of the term “officer”); see also Erens, supra note 69, at *2–4.

      [93].    Del. Code Ann. tit. 10, § 3114(b); see also Eric A. Chiappinelli, Jurisdiction over Directors and Officers in Delaware, in Research Handbook on Representative Shareholder Litigation 316, 319 (Sean Griffith et al. eds., 2018); Eric A. Chiappinelli, The Underappreciated Importance of Personal Jurisdiction in Delaware’s Success, 63 DePaul L. Rev. 911, 944 (2014); Winship, supra note 3 (discussing Delaware’s implied consent statutes).

      [94].    § 3114(b).

      [95].    See About ALI, A.L.I., https://www.ali.org/about-ali/ [https://perma.cc/D395-TAWL].

      [96].    Id.

      [97].    ALI Principles, supra note 51, President’s Foreword at XI, XXI.

      [98].    Id. § 1.27; see id. at cmt. a (“Subsections (a) and (b) are derived in part from Rule 16a-1(f) under the Securities Exchange Act, Rule 405 under the Securities Act, and Federal Securities Code § 202(112).”).

      [99].    Id. § 1.27 cmt. b (“The term ‘chief’ in Subsection (a) modifies each of the functions in that subsection. If, as sometimes occurs, the corporation designates more than one individual to hold an office encompassed within Subsection (a) (e.g., a two- or three-person office of the chief executive), all the individuals so designated should fall within that Subsection.”).

    [100].    See id. § 1.27(b). Subsection (b) is narrower than the definition of “executive officer” of Rule 3b-7 of the Securities Exchange Act, upon which it is based. See id. § 1.27 cmt. c.

    [101].    See id. § 1.27(c).

    [102].    See id. § 1.27 cmt. d.

    [103].    See id. § 4.01 (“A director or officer has a duty to the corporation to perform the director’s or officer’s functions in good faith, in a manner that he or she reasonably believes to be in the best interests of the corporation, and with the care that an ordinarily prudent person would reasonably be expected to exercise in a like position and under similar circumstances. This Subsection (a) is subject to the provisions of Subsection (c) (the business judgment rule) where applicable.”).

    [104].    See id. § 1.33 (“‘Senior executive’ means an officer described in Subsection (a) or (b) of § 1.27 (Officer).”); see also id. § 5.02 (Transactions with the Corporation).

    [105].    See id. § 1.30 (“‘Principal senior executive’ means an officer described in Subsection (a) of § 1.27 (Officer).”).

    [106].    See, e.g., id. § 3.01 (Management of the Corporation’s Business: Functions and Powers of Principal Senior Executives and Other Officers); § 5.15 (Transfer of Control in Which a Director or Principal Senior Executive Is Interested).

    [107].    Kristin E. Hickman & Claire A. Hill, Concepts, Categories, and Compliance in the Regulatory State, 94 Minn. L. Rev. 1151, 1158–59 (2010) (“Laws attach consequences to particular categories of behavior.”).

    [108].    See, e.g., Del. Code Ann. tit. 8, § 145 (identifying the directors, officers, agents and employees of a corporation).

    [109].    See Hickman & Hill, supra note 107, at 1185; cf. Kari Hong, The Absurdity of Crime-Based Deportation, 50 U.C. Davis L. Rev. 2067, 2074 (2017) (describing how the Illegal Immigration Reform and Immigration Responsibility Act of 1996 attaches deportation consequences based on categories of crimes committed by non-citizens).

    [110].    See Iman Anabtawi & Lynn A. Stout, Fiduciary Duties for Activist Shareholders, 60 Stan. L. Rev. 1255, 1257 (2008); R. Franklin Balotti & Megan W. Shaner, Safe Harbor for Officer Reliance: Comparing the Approaches of the Model Business Corporation Act and Delaware’s General Corporation Law, 74 Law & Contemp. Probs. 161 (2011); Johnson & Millon, supra note 54, at 1617; Lamb & Christensen, supra note 54, at 46; Shaner, supra note 53; Megan Wischmeier Shaner, Restoring the Balance of Power in Corporate Management: Enforcing an Officer’s Duty of Obedience, 66 Bus. Law. 277 (2010).

    [111].    See O’Hare, supra note 2, at 566 (finding only boilerplate language regarding officers in a review of public company bylaws).

    [112].    See, e.g., Johnson, supra note 9, at 5 n.9 (“This chapter does not address how ‘officers’ should be defined.”); O’Hare, supra note 2, at 563 (pointing out the issue but focusing on officer disclosure obligations instead); Shaner, supra note 9, at 359 n.3 (focusing primarily on senior/executive officers when discussing “officers” under corporate law). But see DeMott, supra note 2, at 848 (exploring the implications of the definitional fluidity surrounding “officer” and answering the question using agency law).

    [113].    See § 141(e) (referencing officers and employees separately); § 145 (delineating between directors, officers, employees, and agents for purposes of indemnification and advancement).

    [114].    See, e.g., Anabtawi & Stout, supra note 110, at 1262–65, 1307 (discussing officer and director fiduciary duties in the same manner); Lyman P.Q. Johnson & Robert V. Ricca, (Not) Advising Corporate Officers About Fiduciary Duties, 42 Wake Forest L. Rev. 663, 665 (2007) (finding a disparity in the advice that corporate lawyers provide to directors and officers regarding fiduciary duties).

    [115].    See Anabtawi & Stout, supra note 110, at 1262–63; Johnson & Millon, supra note 54, at 1617; Shaner, supra note 110; Lamb & Christensen, supra note 54, at 62.

    [116].    See, e.g., § 142; Model Bus. Corp. Act § 8.40 (Am. Bar Ass’n 2016); Gorman v. Salamone, No. 10183-VCN, 2015 Del. Ch. LEXIS 202, at *16–19 (Del. Ch. July 31, 2015) (holding that the board has the authority to hire and fire officers of the corporation).

    [117].    See § 142; Welch et al., supra note 37, at 4-358 (“Professor Folk commented in the first edition of this treatise that apart from the bylaws or authorization by the board of directors, officers have relatively narrow inherent or presumptive authority.”).

    [118].    See Grimes v. Alteon, Inc., 804 A.2d 256, 266 (Del. 2002) (holding that a CEO lacked the authority to enter a contract to sell shares of stock because the statute required board approval of such acts); Allen et al., supra note 2, at 102, 110–12; Balotti & Finkelstein, supra note 1, § 4.10[A] (“The term ‘management,’ however, is deemed to encompass ‘supervision, direction and control,’ while ‘the details of the business [may be] delegated to inferior officers, agents and employees.’”) (alteration in original) (quoting Canal Capital Corp. v. French, No. 11764, 1992 Del. Ch. LEXIS 133, at *8 (Del. Ch. July 2, 1992)); Johnson & Ricca, supra note 114, at 78–79 (“Typical functions of the officers include entering into ordinary business transactions, devising business strategies, setting business goals, managing risks, and generally working with subordinates to ‘[p]lan, direct, or coordinate operational activities.’”) (footnotes omitted).

    [119].    See In re Caremark Int’l Inc. Derivative Litig., 698 A.2d 959, 971 (Del. Ch. 1996).

    [120].    See Goldman v. Shahmoon, 208 A.2d 492, 494 (Del. Ch. 1965) (“Officers as such are the corporation.”); cf. Deborah A. DeMott, Forum-Selection Bylaws Refracted Through an Agency Lens, 57 Ariz. L. Rev. 269, 270 (2015).

    [121].    See Allen et al., supra note 2, at 102 (“Legally speaking, the corporate officers are agents of the company.”); Cox & Hazen, supra note 1, at 326 (“The officers of a corporation are in legal theory the agents of the corporation.”). Directors, on the other hand, are not agents of the corporation. See Automatic Self-Cleansing Filter Syndicate Co., Ltd. v. Cunninghame, 2 Ch. 34 (Eng. C.A. 1906).

    [122].    See Kirschner v. KPMG LLP, 938 N.E.2d 941, 950–51 (N.Y. 2010) (imputing knowledge of executive’s fraud to the corporation under agency principles for purposes of the doctrine of in pari delicto defense).

    [123].    Haft v. Dart Grp. Corp., 841 F. Supp. 549, 570 (D. Del. 1993) (“Basic to the law of corporations is the notion that a corporate office embraces the right to exercise corporate functions.”).

    [124].    Goldman, 208 A.2d at 493–94 (stating that “there appears to be a historically rigid view of the attributes which set a corporate officer apart from an employee. . . . Officers as such are the corporation. An agent is an employee.”).

    [125].    There are three elements necessary to establish an agency relationship: (1) mutual consent between the principal and agent, (2) the agent agrees to act on the principal’s behalf, and (3) the agent agrees to be subject to the principal’s control. See Restatement (Third) of Agency § 1.01 (Am. Law Inst. 2006). The parties do not need to have contemplated that an agency relationship be created, nor is the parties’ characterization of their relationship in an agreement or in the context of industry or popular usage determinative of agency status. See id. § 1.02. Rather, an agency relationship is created when all three elements are present. See id.

    [126].    See Goldman, 208 A.2d at 492–94 (finding person with “no discretionary authority or power” not to be an “officer”); see also Haft, 841 F. Supp. at 570 (“Basic to the law of corporations is the notion that a corporate office embraces the right to exercise corporate functions. . . . Not every corporate employee is possessed of the authority and duty to exercise the powers of the corporation.”); Clark, supra note 8, at 114 (“Generally, only the more important executives in the corporation are called officers. Where the line is drawn is not always clear . . . .”).

    [127].    See Shaner, supra note 9, at 367–70; Shaner, supra note 53, at 334; Shaner, supra note 54, at 276.

    [128].    See Myron T. Steele, The Moral Underpinnings of Delaware’s Modern Corporate Fiduciary Duties, 26 Notre Dame J. L., Ethics & Pub. Pol’y 3, 14–18 (2012); Lynn A. Stout, On the Proper Motives of Corporate Directors (or, Why You Don’t Want To Invite Homo Economicus To Join Your Board), 28 Del. J. Corp. L. 1, 3–4 (2003).

    [129].    Aronson v. Lewis, 473 A.2d 805, 811 (Del. 1984); see Tamar Frankel, Fiduciary Law, 71 Calif. L. Rev. 795, 808 (1983) (“[T]he risk of abuse which all fiduciary relations pose for the entrustors is the main feature which triggers the application of fiduciary law, when the protective mechanisms outside of fiduciary law cannot adequately eliminate this risk.”).

    [130].    965 A.2d 695, 708 (Del. 2009).

    [131].    A director is not a legal agent of the corporation. The fiduciary nature of directors arises from the statutorily dictated role of the board and the breadth of the board’s managerial power and responsibility. See In re Goldman Sachs Grp., Inc. S’holder Litig., No. 5215-VCG, 2011 Del. Ch. LEXIS 151, at *2 (Del. Ch. Oct. 12, 2011) (“The restrictions imposed by Delaware case law set this boundary by requiring corporate officers and directors to act as faithful fiduciaries to the corporation and its stockholders.”); Gorman v. Salamone, No. 10183-VCN, 2015 Del. Ch. LEXIS 202, at *14 (Del. Ch. July 31, 2015) (“Section 141(a) . . . establishes ‘the bedrock statutory principle of director primacy . . . .’”).

    [132].    These differences include, for example, the different standards of liability for the duty of care—simple negligence for agents and gross negligence for directors. See Stone v. Ritter, 911 A.2d 362, 369 (Del. 2006) (discussing “the conduct giving rise to a violation of the fiduciary duty of care (i.e., gross negligence)”); Model Bus. Corp. Act §§ 8.30–.31(Am. Bar Ass’n 2016); Restatement (Third) of Agency § 8.08 (Am. Law Inst. 2006). In addition, agents owe the duties of care, loyalty, and obedience, while directors only owe the duties of care and loyalty. See Stone, 911 A.2d at 370; Model Bus. Corp. Act § 8.30 (Am. Bar Ass’n 2016); Restatement (Third) of Agency §§ 8.01–.12 (Am. Law Inst. 2006); Balotti & Finkelstein, supra note 1, § 4.13 at 4-113 (“[D]irectors [of a Delaware corporation] ‘owe fiduciary duties of care and loyalty to the corporation and its shareholders.’”) (quoting Mills Acquisition Co. v. Macmillan, Inc., 559 A.2d 1261, 1280 (Del. 1989)); Robert A. Ragazzo & Frances S. Fendler, Closely Held Business Organizations, 104 (2d ed. 2012) (“The law places three major duties on the agent: loyalty, care, and obedience.”).

    [133].    See DeMott, supra note 2, at 850; A. Gilchrist Sparks, III & Lawrence A. Hamermesh, Common Law Duties of Non-Director Corporate Officers, 48 Bus. Law. 215, 217–20 (1992).

    [134].    See Paul E. McGreal, Corporate Compliance Survey, 71 Bus. Law. 227, 239–40 (2016) (discussing the effects of this uncertainty).

    [135].    While Professors Johnson and Ricca assert that officers’ lack of legal advice on fiduciary obligations is a result of the scant fiduciary duty doctrine, another significant factor contributing to this state of affairs is the ambiguity surrounding who should be receiving the advice. See Johnson & Ricca, supra note 118, at 665–66 (discussing the lack of advice officers receive regarding fiduciary duties).

    [136].    This is a fact frequently noted by the Delaware courts. See Chen v. Howard-Anderson, 87 A.3d 648, 666 n.2 (Del. Ch. 2014) (“A lively debate exists regarding the degree to which decisions by officers should be examined using the same standards of review developed for directors. Given how the parties have chosen to proceed, this decision need not weigh in on these issues and intimates no view upon them.”) (citations omitted); Hampshire Grp., Ltd. v. Kuttner, No. 3607-VCS, 2010 Del. Ch. LEXIS 144, 2739995, at *35 (Del. Ch. July 12, 2010) (“There are important and interesting questions about the extent to which officers and employees should be more or less exposed to liability for breach of fiduciary duty than corporate directors. The parties in this case have not delved into any of those issues, and I see no justifiable reason for me to do so myself.”); see also Shaner, supra note 53, at 334.

    [137].    See In re Citigroup Inc. S’holder Derivative Litig., 964 A.2d 106, 114 n.6 (Del. Ch. 2009) (“In defining [fiduciary] duties, the courts balance specific policy considerations such as the need to keep directors and officers accountable to shareholders and the degree to which the threat of personal liability may discourage beneficial risk taking.”); Hickman & Hill, supra note 107, at 1185.

    [138].    See  § 141(b); supra note 132. In addition, the standard of liability for a director’s breach of the duty of care is gross negligence, while it is simple negligence for an agent. See Stone v. Ritter, 911 A.2d 362, 369 (discussing “the conduct giving rise to a violation of the fiduciary duty of care (i.e., gross negligence)”); Model Bus. Corp. Act §§ 8.30–8.31 (Am. Bar Ass’n 2016); Restatement (Third) of Agency § 8.08 (Am. Law Inst. 2006). Further, a director is not a legal agent of the corporation. The fiduciary nature of directors arises from the statutorily director role of the board and the breadth of the board’s managerial power and responsibility. See In re Goldman Sachs Grp., Inc. S’holder Litig., No. 5215-VCG, 2011 Del. Ch. LEXIS 151, at *2 (Del. Ch. Oct. 12, 2011) (“The restrictions imposed by Delaware case law set this boundary by requiring corporate officers and directors to act as faithful fiduciaries to the corporation and its stockholders.”); Gorman v. Salamone, No. 10183-VCN, 2015 Del. Ch. LEXIS 202, at *14 (Del. Ch. July 31, 2015) (“Section 141(a) . . . establishes ‘the bedrock statutory principle of director primacy . . . .’”).

    [139].    765 F.3d 350 (3d Cir. 2014).

    [140].    Id. at 353.

    [141].    Id. Section 4.1 of Goldman’s bylaws authorized Goldman’s Board of Directors to “elect [such officers as necessary, including] . . . one or more Vice Presidents.” Section 6.4 of the bylaws contained a specific advancement provision for officers of Goldman Sachs Group subsidiary companies which stated that

the term “officer,” . . . when used with respect to a Subsidiary . . . shall refer to any person elected or appointed pursuant to the by-laws of such Subsidiary or other enterprise or chosen in such manner as is prescribed by the by-laws . . . [and] shall include in addition to any officer of such entity, any person serving in a similar capacity or as the manager of such entity.

The Goldman Sachs Grp., Amended and Restated Bylaws (Form 8-K), Exh. at 14, 17–18 (May 28, 2013).

    [142].    Aleynikov, 765 F.3d at 353, 360–61.

    [143].    Id. at 360–61.

    [144].    Id. at 361.

    [145].    See, e.g., Office of U.S. Tr. v. Fieldstone Mortg. Co., No. CCB-08-775, 2008 U.S. Dist. LEXIS 91479, at *11–14 (D. Md. Nov. 5, 2008) (“[T]he fact of board appointment or election is frequently identified as distinguishing ‘officer’ positions from other titled positions within a corporation.”).

    [146].    Aleynikov, 765 F.3d at 367.

    [147].    Aleynikov v. Goldman Sachs Grp., Inc., No. 10636-VCL, 2016 Del. Ch. LEXIS 222, at *1 (Del. Ch. July 13, 2016).

    [148].    See id. at *18–19.

    [149].    Id. at *7–18.

    [150].    Id. at *8. The District Court of New Jersey that originally heard the case similarly found that “[t]he usual and ordinary meaning of vice president, supplemented by [precedent,] ma[de] out a fair case that the By-Laws here is unambiguous” and that the category of “officers” in the Bylaws included a person with the title of “vice president.” Aleynikov v. Goldman Sachs Grp., Inc., No. Civ. 12-5994 (KM), 2013 U.S Dist. LEXIS 151603, at *55–56. (D.N.J. Oct. 22, 2013).

    [151].    Aleynikov, 2013 U.S. Dist. Lexis 151603, at *52–53; Aleynikov, 2016 Del. Ch. Lexis 222, at *15–16.

    [152].    See Megan Wischmeier Shaner, Interpreting Organizational “Contracts” and the Private Ordering of Public Company Governance, 60 Wm. & Mary L. Rev. 985, 996–1005 (2019) (describing the private ordering movement in corporate America).

    [153].    See Williams v. Geier, 671 A.2d 1368, 1381 (Del. 1996) (“At its core, the Delaware General Corporation Law is a broad enabling act which leaves latitude for substantial private ordering[s].”); supra note 57 and accompanying text; see also Cox & Hazen, supra note 1, at 143 (“Under the corporation acts of most states, wide latitude is given to the organizers to include in the articles certain optional provisions and to make certain special variations on the ordinary rules prescribed by statute”); Leo E. Strine, Jr., Delaware’s Corporate-Law System: Is Corporate America Buying an Exquisite Jewel or a Diamond in the Rough? A Response to Kahan & Kamar’s Price Discrimination in the Market for Corporate Law, 86 Cornell L. Rev. 1257, 1260 (2001) (describing the DGCL as creating “a wide realm for private ordering”); Leo E. Strine, Jr. et al., Putting Stockholders First, Not the First-Filed Complaint, 69 Bus. Law. 1, 56–57 (2013).

    [154].    See supra note 11 and accompanying text.

    [155].    See Leo E. Strine, Jr. & J. Travis Laster, The Siren Song of Unlimited Contractual Freedom, in Research Handbook on Partnerships, LLCs, and Alternative Forms of Business Organizations 11, 11–13 (Mark Lowenstein & Robert Hillman eds. 2014).

    [156].    See id. at 11–12. These transaction costs occur, in part, because parties “cannot rely on their understandings of default principles of law. Instead, they must evaluate entity-specific provisions, ostensibly bargained for on an investment-by-investment basis to protect their interests.” Id. at 12.

    [157].    Id. at 12. Chief Justice Strine and Vice Chancellor Laster have discussed these problems in the context of limited liability companies and limited partnerships, which enjoy unlimited contractual freedom with few statutory defaults. Id. at 11.

    [158].    See supra notes 78–79 and accompanying text.

    [159].    See supra notes 79–80, 169–70 and accompanying text.

    [160].    See ALI Principles, supra note 51, § 1.27.

    [161].    See id. § 3.01.

    [162].    See id. § 1.27, cmt. c.

    [163].    See id. at Part IV.

    [164].    See id. § 5.02 (Transactions with the Corporation).

    [165].    See id. § 3.01; see also id. § 5.15 (Transfer of Control in Which a Director or Principal Senior Executive is Interested).

    [166].    The Delaware General Corporation Law, for example, does not differentiate between its references to “officer” throughout its provisions. See, e.g., Del. Code Ann. tit. 8, § 141(e) (directors ability to rely on officers of the corporation); § 142 (providing for officers in the corporation); § 145 (providing for indemnification and advancement for officers); § 225 (determining the validity of officer appointment and removal). The statute does, however, delineate between directors, officers, employees, and agents. See, e.g., § 145 (referencing each of these different corporate roles for purposes of indemnification and advancement); § 141(e) (referencing officers and employees separately).

    [167].    Alternatively, states could amend their corporate statutes to provide for different types of officers akin to that employed by securities laws and the ALI Principles.

    [168].    See Office of U.S. Tr. v. Fieldstone Mortg. Co., No. CCB-08-755, 2008 U.S. Dist. LEXIS 91479, 1, at *8–9 (D. Md. Nov. 5, 2008) (discussing the difference between the legal definition of “officer” and officers in the “traditional” sense (i.e., function)).

    [169].    See, e.g., id. at *8.

    [170].    See, e.g., C.R.A. Realty Corp. v. Crotty, 878 F.2d 562, 563 (2d Cir. 1989); Colby v. Klune, 178 F.2d 872, 873, 975 (2d Cir. 1949). Some courts have sought a middle ground on this debate, looking first to titles and then analyzing subjective factors. See, e.g., Winston v. Fed. Exp. Corp., 853 F.2d 455, 457 (6th Cir. 1988); Nat’l Med. Enterprs., Inc. v. Small, 680 F.2d 83, 84 (9th Cir. 1982).

    [171].    14 Carol A. Jones, Fletcher Cyclopedia of the Law of Corporations § 6857.15 (2012) (Liability for Short Swing Trading Under Section 16(b)—Definition of Director and Officer Under Section 16(b).

    [172].    See In re NMI Sys., Inc., 179 B.R. 357, 370 (Bankr. D.D.C. 1995) (defining “officer” status under Section 101(31) of the Bankruptcy Code in light of the specific preference statute that referenced the term and concluding that “officer” status was based on whether the individual was “in the inner circle making the company’s critical financial decisions”); C.R.A. Realty Corp., 878 F.2d at 567 (concluding that “officer” status arises when the employee had access to confidential information that could permit the employee to take actions that Section 16(b) seeks to prohibit); see also Erens, supra note 69, at *3 (“Courts, however, are not likely simply to adopt the definition of “officer” in Rule 16a-1(f) for purposes of determining who is an officer under the Bankruptcy Code under Section 503(c). Among other things, a functional approach to determining the contours of the definition requires that a court look to the purpose of Section 503(c), which differs from the purpose of Section 16 of the Securities Act.”).

    [173].    See supra notes 57–59 and accompanying text (describing the enabling nature of corporate law and flexibility in creating corporate offices).

    [174].    See Hickman & Hill, supra note 107, at 1185–86 (discussing theories of categories across disciplines).

    [175].    See id. at 1186. Three of the main views on category formation discussed in the literature are (1) necessary and sufficient conditions categories, (2) prototype-centered categories, and (3) goal-centered categories. See id.

    [176].    Id. at 1186, 1190.

    [177].    Id. at 1191 (“Given the reliance of ordinary language on prototypes, it is not surprising that legal categories often center on prototypes as well.”).

    [178].    Restatement (Third) Agency § 1.01 (Am. Law Inst. 2006).

    [179].    See Ragazzo & Fendler, supra note 132, at 7. In determining whether these characteristics are present, courts employ a fact-specific analysis.

    [180].    See Restatement (Third) Agency § 1.01 cmt. b. (Am. Law Inst. 2006) (discussing the different understandings of “agency”).

    [181].    Id. § 1.01 cmt. c.

    [182].    Unif. P’ship Act § 6(1) (Unif. Law Comm’n 1914); Revised Uniform P’ship Act § 202(a) (Unif. Law Comm’n 1997).

    [183].    See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 176 (Tex. 1997).

    [184].    See id. at 176–77.

    [185].    Hickman & Hill, supra note 107, at 1191; cf. Restatement (Third) Agency § 1.01 cmt. b. (Am. Law Inst. 2006) (“Moreover, the terminology of agency is widely used in commercial settings and academic literature to characterize relationships that are not necessarily encompassed by the legal definition of agency.”).

    [186].    Hickman & Hill, supra note 107, at 1191.

    [187].    See Adler v. Klawans, 267 F.2d 840, 845 (2d Cir. 1959) (finding officer title to be per se evidence of Section 16 liability under the 1934 Exchange Act); Ferraiolo v. Newman, 259 F.2d 342, 344 (6th Cir. 1958); see also Del. Code Ann. tit. 8, § 142(a) (“Every corporation . . . shall have such officers with such titles and duties as shall be stated in the bylaws or in a resolution of the board . . . .”). But see In re Foothills Texas, Inc., 408 B.R. 573, 579 (2009) (determining “officer” status and stating that “the mere title of a person does not end the inquiry”).

    [188].    See § 142(a) (providing that the officers may be provided for in the bylaws).

    [189].    See id. § 142(a) (providing for director appointment of officers); Office of U.S. Tr. v. Fieldstone Mortg. Co., No. CCB-08-775, 2008 U.S. Dist. LEXIS 91479, at *12–14 (D. Md. Nov. 5, 2008) (“[T]he fact of board appointment or election is frequently identified is distinguishing ‘officer’ positions from other titled positions within a corporation.”). But see Aleynikov v. Goldman Sachs Grp., Inc., 765 F.3d 350, 361 (3d Cir. 2014) (holding that the “election or appointment requirement cannot properly be considered a part of the ordinary, dictionary definition of officer”). Officers can also appoint other officers if such power is provided in the governing documents or delegated by the board. See § 142(a); Transcript of Record at 23, Kale v. Wellcare Health Plans, Inc., No. 6393-VCS, 2011 WL 11071500 (Del. Ch. June 13, 2011) (“[A]nd when the bylaws of the company let officers, key officers make other officers, I think it’s pretty, to me—there’s no real rebuttal evidence.”); Aleynikov v. Goldman Sachs Grp., Inc., No. 10636-VCL, 2016 Del. Ch. LEXIS 222, at *16 (Del. Ch. July 13, 2016) (noting that the bylaws allowed officers to appoint other officers).

    [190].    See Aleynikov, 2016 Del. Ch. LEXIS 222, at *15–17 (citing to banking industry customs and standards in interpreting “officer”).

    [191].    See ALI Principles, supra note 51, § 1.27(b); In re NMI Sys., Inc., 179 B.R. 357, 369–70 (Bankr. D.D.C. 1995) (stating that officers are “active in setting overall corporate policy”); see also W.H. Elliott & Sons Co. v. Gotthardt, 305 F.2d 544, 545 (1st Cir. 1962) (a factor cited in a common law breach of fiduciary duty claims case brought by creditors); Officer, Black’s Law Dictionary (9th ed. 2009) (defining officer as “a person who holds an office of trust, authority, or command.”); Officer, Merriam-Webster Collegiate Dictionary (11th ed. 2009) (“One who holds an office of trust, authority, or command.”).

    [192].    See Haft v. Dart Grp. Corp., 841 F. Supp. 549, 570 (D. Del. 1993) (“Basic to the law of corporations is the notion that a corporate office embraces the right to exercise corporate functions. . . . Not every corporate employee is possessed of the authority and duty to exercise the powers of the corporation.”); Goldman v. Shahmoon, 208 A.2d 492, 493–95 (Del. Ch. 1965) (finding person with “no discretionary authority or power” not to be an “officer”); John Armour & Jeffrey N. Gordon, Systemic Harms and Shareholder Value, 6 J. Legal Analysis 35, 65 (2014) (describing “officers” as “executives, tasked with making decisions about the running of the company” and holding “power to initiate corporate decision-making”); Sparks & Hamermesh, supra note 133, at 216 (describing an “officer” as a person entrusted with “administrative and executive functions” but not one who lacks “judgement or discretion as to corporate matters”).

    [193].    In re NMI, Sys., Inc., 179 B.R. at 370; see C.R.A. Realty Corp. v. Crotty, 878 F.2d 562, 567 (2d Cir. 1989); Colby v. Kline, 178 F.2d 873, 873 (2d Cir. 1949).

    [194].    See supra note 73 and accompanying text.

    [195].    Hickman & Hill, supra note 107, at 1195.

    [196].    See supra notes 87–88 and accompanying text. Another example of an area of corporate law employing this type of balancing test is the corporate opportunity doctrine. See Broz v. Cellular Info. Sys., Inc., 673 A.2d 148 (1996).

    [197].    See supra notes 148–51 and accompanying text.

    [198].    Compare Office of U.S. Tr. v. Fieldstone Mortg. Co., No. CCB-08-775, 2008 U.S. Dist. LEXIS 91479 at *12–16 (D. Md. Nov. 5, 2008) (relying on board election/appointment as determiner of “officer” status), with Aleynikov v. Goldman Sachs Grp., Inc., 765 F.3d 350, 361 (3d Cir. 2014) (holding that board appointment was not a determiner of “officer” status).

Give Me Your Tired, Your Poor (Unless They Are From “One of Three Mexican Countries”): Unaccompanied Children and the Humanitarian Crisis at the U.S. Southern Border

Give Me Your Tired, Your Poor (Unless They Are From “One of Three Mexican Countries”): Unaccompanied Children and the Humanitarian Crisis at the U.S. Southern Border

Samantha R. Bentley, Comment, Give Me Your Tired, Your Poor (Unless They Are From “One of Three Mexican Countries”): Unaccompanied Children and the Humanitarian Crisis at the U.S. Southern Border, 54 U. Rich. L. Rev 569 (2020).

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Introduction

There is undoubtedly a humanitarian crisis at the southern border of the United States.[1] At the height of the Trump Administration’s Family Separation policy in Summer 2018, thousands of children were separated from their parents.[2] Photos of children in cages,[3] children sleeping on the floor wrapped in mylar blankets,[4] and children screaming,[5] went viral. This issue was in the news again in June 2019 when several Democratic Presidential candidates visited a detention center for unaccompanied children in Florida.[6] This issue reflects the inadequacies within the United States immigration system. Specifically, it reflects a failure to respond to the increased number of children and families seeking admission into the United States, primarily at the southern border.[7]

This Comment argues that the United States’s response to the humanitarian crisis at its border is wholly inadequate. It argues that the government chose to advance two policies, Zero Tolerance and Family Separation, that exacerbated the humanitarian crisis at the border. These policies facilitated practices that violated domestic and international law. Most importantly, this Comment argues that the United States government traumatized one of the most vulnerable groups of people in the world: children.

Part I discusses United States immigration law, specifically as it relates to unaccompanied children. It will also discuss the background of the Zero Tolerance and Family Separation policies implemented in response to the border crisis. Part II will discuss the United States’s international legal obligations under the Convention on the Rights of the Child. Part III will discuss the policy implications of Zero Tolerance and Family Separation on domestic law. It will also provide policy alternatives and recommendations. Lastly, Part IV will discuss the policy implications of Zero Tolerance and Family Separation under international law.

I. United States Federal Law

First, this Part will discuss what happens to an unaccompanied child when she reaches the United States border. This process is also applicable to children who arrive at the border with their family but are subsequently separated. This Part will then discuss the rights of children in government detention under the Flores Settlement Agreement and relevant federal law. Lastly, this Part will discuss how the Trump Administration’s Zero Tolerance and Family Separation policies impacted unaccompanied children.

A. Custody and Detention of Unaccompanied Children

Noncitizens arriving at the border must navigate both the custodial system and the removal system.[8] While this Part focuses on the rights of children within the custodial system, a child’s journey does not end there. An immigration judge may make the discretionary decision to remove or deport the child at the end of the child’s immigration proceedings.[9] The custodial system is meant to provide for the child’s care while the child’s removal proceedings in immigration court are pending.[10] There are typically two ways that the government cares for an unaccompanied child in its custody: detention or release to a sponsor.[11] The custodial process for unaccompanied children involves three agencies: the Department of Justice (“DOJ”), which is responsible for the adjudication of immigration law;[12] the Department of Homeland Security (“DHS”), which is responsible for the enforcement of immigration law;[13] and the Department of Health and Human Services (“HHS”), which is responsible for the care and custody of unaccompanied children.[14]

The custodial process involves two periods of detention. First, when a child arrives at the border, or is apprehended within the United States, the child is typically placed in CBP custody.[15] CBP must initially determine whether the child is an “unaccompanied alien child[]” (“UAC”).[16] CBP detains the child pending UAC status determination.[17] If the child meets the requirements for UAC status, CBP must normally transfer the child to ORR within seventy-two hours of making the status determination.[18] This rule may only be violated in “exceptional circumstances.”[19]

Second, after UAC status determination, the child is transported from CBP to ORR custody.[20] ORR must ensure that the child is “promptly placed in the least restrictive setting that is in the best interest of the child.”[21] Realistically, ORR has two choices: release the child to an individual sponsor or detain the child during the pendency of the child’s immigration proceedings. ORR may release the child to an individual sponsor if ORR determines that the “proposed custodian is capable of providing for the child’s physical and mental well-being.”[22] As part of this process, all potential UAC sponsors undergo background checks and are required to complete a sponsor assessment process to identify risk factors or potential safety concerns.[23] If the child is detained, ORR must do so in the “least restrictive setting that is in the best interest of the child.”[24] This generally requires that children be detained in a nonsecure, state-licensed facility within five days of apprehension.[25] The requirements for such detention facilities are outlined in the Flores Settlement Agreement discussed below.

B. Rights of Children Under the Flores Settlement Agreement

The Flores Settlement Agreement established national standards of detention for all immigrant children held in government custody.[26] The Flores Settlement Agreement arose out of a class action lawsuit challenging the prison-like conditions in which children were detained, despite undergoing civil immigration proceedings.[27] The litigation spanned nine years and resulted in the Flores Settlement Agreement, which established a “nationwide policy for the detention, release, and treatment of minors” in government custody.[28] The Flores Settlement Agreement applies to accompanied and unaccompanied children.[29]

The Flores Settlement Agreement requires the government to “place each detained minor in the least restrictive setting appropriate to the minor’s age and special needs . . . and to protect the minor’s well-being and that of others.”[30] It favors releasing children into the custody of a parent or legal guardian over detention while civil immigration proceedings are pending.[31] However, if children are detained instead of released, the Flores Settlement Agreement requires that the child be “expeditiously” processed[32] and detained in a nonsecure, state-licensed facility.[33] Placement in such a facility may be permissibly non-expeditious if there is an “influx of minors into the United States,” meaning more than 130 children are eligible for placement in a state-licensed facility at any given time.[34] Generally, detention in an unlicensed facility in excess of twenty days is impermissible.[35] This rule is often violated.[36]

If a child is detained, the minimum requirements for detention include “suitable living accommodations, food, appropriate clothing, and personal grooming items.”[37] Children must have access to “[a]ppropriate routine medical and dental care, family planning services, and emergency health care services” as well as educational services, recreation, and leisure time activities.[38]While detained, children must be afforded a bond redetermination hearing before an immigration judge.[39]

Children must have at least one individual counseling session per week, where the counselor addresses the developmental and crisis-related needs of the child, and group counseling sessions at least twice per week.[40] The child should be given access to religious services of the child’s choice “whenever possible,” as well as visitation with family members, regardless of the family member’s immigration status.[41] Lastly, children may not be detained with unrelated adults, unless separation is not “immediately possible,” in which case the child should not be detained with an unrelated adult for more than twenty-four hours.[42]

C. Executive Policy

This section discusses two discretionary policies implemented by the Trump Administration: Zero Tolerance and Family Separation. The policies set by each presidential administration have a significant impact on immigration law. There are a number of discretionary choices a president can make to enforce immigration law.[43] Discretion can be exercised to address immediate human concerns of the child.[44] It can be used to prioritize prosecution of certain groups of migrants over others, such as those migrants who pose the greatest threat to public safety.[45] Or, discretion can be used to fully prosecute certain offenses. Nonetheless, discretion can result in a myriad of unintended consequences for the rest of the immigration system and for the people within it. This section explains the consequences of two discretionary policies, Zero Tolerance and Family Separation, on the United States immigration system.

  1. Zero-Tolerance Policy

On April 6, 2018, President Trump issued a memorandum, ending President Obama’s “Catch and Release” policy.[46] On the same day, then-Attorney General Jeff Sessions issued a memorandum to all federal prosecutors directing them “to adopt immediately a zero-tolerance policy for all offenses referred for prosecution under section 1325(a).”[47] Section 1325(a), “Improper entry by alien,” makes it a crime to (1) enter or attempt “to enter the United States at any time or place other than as designated by immigration officers,” (2) elude “examination or inspection by immigration officers,” or (3) attempt to enter or obtain entry “to the United States by a willfully false or misleading representation or the willful concealment of a material fact.”[48] The memorandum required federal prosecutors to prosecute, “to the extent practicable,” all improper entry cases referred to their offices.[49] Improper entry is a misdemeanor for a first offense, punishable by not more than six months imprisonment.[50]

Prior to the implementation of the Zero Tolerance policy, when CBP apprehended a noncitizen family attempting to enter the United States without inspection, CBP usually placed the adult family members in civil immigration proceedings but did not refer the adult family members for criminal prosecution.[51] If the adult had a criminal history or an outstanding warrant, or if CBP could not determine whether the adult was the child’s legal parent or guardian, then the family was separated.[52] Most families were detained together or released while their immigration cases were pending.[53] The Zero Tolerance policy fundamentally changed this process and resulted in the subsequent Family Separation policy.

  1. Family Separation Policy

Family Separation was an inevitable consequence of the Zero Tolerance policy. If an undocumented family was apprehended at a point of entry, or if a family was apprehended while attempting to cross the border illegally, Zero Tolerance required CBP to refer the adult family members to DOJ for criminal prosecution.[54] Thus, noncitizen, adult family members were referred for criminal prosecution, pursuant to Zero Tolerance, but their children were not.[55] As a result, most children were deemed UACs because the child’s parents were unable “to provide care and physical custody” of the child while the parents were being criminally prosecuted.[56] The child would remain in CBP custody, separate from their parents, who would be criminally prosecuted.[57]

Family separation also occurs when DHS does not believe the adult is actually the parent or legal guardian of the child.[58]Even if the adult is the parent or legal guardian of the child, DHS can choose to separate the parent and the child because of the parent’s criminal history or because of medical concerns.[59] Under this policy, families lawfully seeking asylum could be separated.[60] Parents released from criminal custody, and later placed in civil immigration custody, have had difficulties locating and reuniting with their children.[61] In some cases, parents are deported without their children.[62]

On June 20, 2018, President Trump signed an Executive Order amending his Family Separation policy to prefer family detention where the law and resources permitted such detention.[63] Five days later, CBP decided to temporarily stop referring adults with children for criminal prosecution because CBP lacked family detention space.[64] Then-Attorney General Jeff Sessions contradicted CBP’s stance and emphasized that the federal prosecutors would continue to fully prosecute noncitizen adult family members, requiring separation from their children.[65] But, a June 26, 2018 court order preliminarily enjoined DHS from continuing to separate families under certain circumstances.[66]

The number of children separated from their families because of the Zero Tolerance and Family Separation policies is unknown because DHS did not have a centralized system to identify or track separated families.[67] It is possible that children continue to be separated from their parents even after the Executive Order, CBP announcement, and preliminary injunction.[68] The Trump Administration’s discretionary decision to implement these policies has resulted in substantial human rights violations, even after the policies were rescinded.[69] The next Part will analyze the consequences of these policies, as well as their legality, under international and domestic law.

II. International Law

Nearly fifty million children around the world have been uprooted from their homes.[70] Not all children are forcibly displaced; some children migrate for educational or work opportunities.[71] Some twenty-eight million children are fleeing conflict or escaping poverty.[72] No matter the reason for child migration, children should be seen as children first and as immigrants second. This principle is enshrined in the Convention on the Rights of the Child (“CRC”), the leading human rights treaty on children’s rights. This Part will first discuss the CRC and will then discuss the United States’s legal obligations under the CRC. For the purposes of this Part and Part IV, the term “state” or “nation-state” will be used to refer to a sovereign nation.

A. The Convention on the Rights of the Child

The CRC is unique in its definition of the rights of children under international law. It combines civil, political, economic, social, and cultural rights into a single instrument, while emphasizing that these rights are equally important and inextricably related to one another.[73] Under United States federal law, unaccompanied children are typically treated as migrants first and as children second.[74] Conversely, the CRC adopts the view that children are first and foremost persons and active bearers of rights.[75] Children’s rights are divided into four general principles: (1) nondiscrimination; (2) the best interests of the child; (3) the right to participation; and (4) the right to life, survival, and development.[76]

First, nondiscrimination requires state parties to ensure that all children are treated equally irrespective of the child’s, or their parent’s, “race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”[77] Girls and boys, children with disabilities and able-bodied children, noncitizen children and children with citizenship status must be given equal opportunities under this principle. Second, the “best interests of the child” is the primary consideration in any decision regarding the child.[78] The child’s interest is at the forefront of all actions “whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.”[79] Ultimately, the goal is to holistically determine the best interests of the child to ensure that the child effectively enjoys their rights, as laid out by the CRC.[80]

Third, a child has the right to participation.[81] This principle recognizes that children are individuals and ensures that the views of the child are protected, particularly during judicial and administrative proceedings.[82] It also recognizes a right for children who are “capable of forming his or her own views” to “express those views freely in all matters affecting the child.”[83]Lastly, a child has the inherent right to life, survival, and development.[84] This provision is broad sweeping; “development” encompasses a child’s physical, mental, spiritual, moral, psychological, and social development.[85]

B. United States’s Legal Obligations Under the CRC

The United States has signed the CRC, but it is the only country in the world that has not ratified the CRC.[86] A treaty is legally binding on a nation-state when it consents to be bound by the treaty.[87] In the United States, this requires a two-step process: signature and ratification. When a nation-state signs a treaty, it “signifies agreement over the negotiated text, preliminary endorsement of the treaty and an intention to consider its adoption as a binding legal obligation.”[88] Signatories to a treaty have “the obligation to refrain from acts which would defeat the object and purpose of that Treaty prior to its entry into force.”[89] A treaty only becomes binding once the nation-state has ratified it, and the ratification process varies based on the domestic process of each nation-state.[90]

The United States has not ratified the CRC. However, that does not mean it has no international obligations under the treaty. The widespread international acceptance of the CRC supports the argument that it has risen to the level of customary international law.[91] This is because customary international law is defined by similar standards of nation-state action, or inaction, over time.[92] In addition to general international acceptance of a given rule, the individual nation-state must “expect that those practices are legally required of them” before the practice becomes binding customary international law.[93] Customary international law is not binding on nation-states that have “expressly and persistently objected” to generally accepted international standards that would otherwise bind the nation-state.[94]

Assuming the CRC rises to the level of customary international law, it could be argued that the United States is a persistent objector, and thus, is not bound to the terms of the CRC.[95] Though the United States played a pivotal role in drafting the CRC, government leaders and American citizens have expressed opposition to its ratification.[96] Dissidents note that the CRC would undermine freedom and independence for families and interfere with the United States’s sovereignty.[97] Despite these objections, the United States has adopted provisions of the CRC into its domestic law, refuting the idea that the United States is a persistent objector of the entire treaty. The “best interest of the child” principle, enshrined in Article 3 of the CRC, is incorporated to United States domestic immigration law with respect to unaccompanied children.[98] The United States has also adopted two optional protocols to the CRC that create obligations under international law.[99] Therefore, even though the United States has not ratified the CRC, the United States has legal obligations under the CRC.[100]

III.  Zero Tolerance and Family Separation Under United States Federal Law

DHS was not fully prepared for the implementation, or the consequences, of the Zero Tolerance and Family Separation policies.[101] In December 2018, nearly 15,000 children were detained.[102] An Office of the Inspector General (“OIG”) review of HHS in January 2019 concluded that “[t]he total number and current status of all children separated from their parents or guardians by DHS and referred to ORR’s care is unknown.”[103] The sharp increase in the number of children who met UAC status, and were thus detained, is a government-created issue. The government’s response to the consequences of its own policies were wholly inadequate in addressing the continued influx of unaccompanied children at the southern border. The fallout of these policies created a number of problematic consequences. This Part will analyze the consequences of Zero Tolerance and Family Separation. It will then provide policy recommendations and alternatives.

A. Policy Implications

The Zero Tolerance and Family Separation policies had major consequences in three areas: (1) children in CBP detention, (2) family detention, and (3) family reunification. First, these policies impacted the duration and quality of CBP detention. Section one will examine those issues in the context of two CBP detention facilities in Tornillo and McAllen, Texas. Second, as an alternative to these policies, some have suggested detaining families together, not in ORR facilities but in one of the three existing ICE-owned facilities. However, section two argues that the existing family detention centers do not meet the requirements necessary to comply with the Flores Settlement Agreement. Lastly, after the Trump Administration amended the Family Separation policy, family reunification became difficult. These difficulties will be explored through an analysis of the Ms. L.litigation.

  1. Children in CBP Custody

First, the Zero Tolerance and Family Separation policies do not comply with federal law because UACs remain in CBP custody for much longer than is legally permissible.[104] Because these policies increased the number of children classified as UACs, it became difficult for CBP to quickly transfer children to ORR custody, resulting in extended periods of detention in CBP facilities meant for short-term detention. This issue will be examined through an analysis of two CBP facilities located at the southern border: one in Tornillo, Texas, and the other in McAllen, Texas.

The Trump Administration built a temporary housing facility in June 2018 with 450 beds in Tornillo, Texas, to deal with the overflow of children in CBP custody.[105] This facility opened days after Trump signed an executive order announcing his administration’s policy to maintain family unity.[106] Despite the “end” of Family Separation, the Tent City rapidly expanded, housing upwards of 6000 children before it closed in January 2019.[107]

Between May 5 and June 20, 2018, when Zero Tolerance was formally in effect, the OIG collected data on the average length of custody from detention centers in the El Paso, Texas sector, which includes Tornillo.[108] The OIG report indicated that nearly forty percent of children detained in the El Paso sector were detained in excess of seventy-two hours.[109] Border Patrol officials indicated that children remained in CBP custody beyond the seventy-two hour requirement because HHS was unable to accept the child for placement in ORR detention facilities.[110] They also indicated possible delays due to medical needs of the child or issues with arranging transportation of the child with ICE.[111]

Despite the various reasons for prolonged detention, CBP is violating federal law by failing to transfer children to ORR custody in a timely manner. In “exceptional circumstances,” CBP may exceed the seventy-two hour rule.[112] This statutory standard creates tension with the Flores Settlement Agreement because release to a sponsor, not prolonged detention, is preferred under Flores.[113] Even in situations where a child may be detained longer than seventy-two hours, it is rarely in the child’s best interest to remain in CBP custody for an indeterminate amount of time. Detained, unaccompanied children have high rates of post-traumatic stress disorder, anxiety, depression, and suicidal ideation.[114]

Moreover, CBP detention centers were not created for long-term detention and do not have the resources necessary to meet the detention standards required by the Flores Settlement Agreement. At the central Ursula facility in McAllen, Texas, for example, a former warehouse was converted into a detention and processing facility for migrant children and adults, who are separated by metal wire cages.[115] In June 2018, OIG visited nine CBP facilities, including Ursula.[116] It found that Ursula provided children with basic necessities such as bottled drinking water, portable toilets in the holding areas, and food.[117] However, the Flores Settlement Agreement does not require only that children’s basic necessities are met; it also requires that children have access to educational services, recreation, and leisure time activities.[118] Ursula does not provide these services, which are necessary to maintain a child’s wellbeing.

For example, in her Congressional testimony, Michelle Brané described her visit to the Ursula Processing center:

There were no toys, no books, and generally nothing for the children to do. Some televisions hung from the fencing in some of the cages, but they were not on when I was there. Children were not permitted to run around or play, and in fact were scolded by guards if they tried. The lights were on 24 hours a day, as in all Border Patrol facilities. Despite the summer Texas heat outside, the warehouse was extremely cold. There were no windows. The children had access to porta-potties set up in a central station in the middle of a set of cages. There was no plumbing in this section of the warehouse. There were tanks of water for washing hands, but the children told me that the water usually ran out by mid-morning.[119]

Her testimony continues to describe the conditions of the facility and the demeanor of the children, who were mostly scared, confused, and crying.[120]

These conditions do not meet the standards set forth in the Flores Settlement Agreement because the well-being of children in the Ursula Processing Facility is not protected. [121] For example, Brané spoke with a sixteen-year-old girl who had been caring for a non-related toddler girl detained in the same cage as her.[122] A sixteen-year-old girl should not be responsible for a toddler, nor should a toddler be dependent on a sixteen-year-old girl. Both children are traumatized enough from the mere fact of detention where they have little to do but worry about what comes next or what happened to their family. Detaining a child under these circumstances, and beyond the seventy-two hour limit, only increases trauma.[123]

Unfortunately, the situation at Tornillo and Ursula are not isolated; space at CBP processing facilities is generally dwindling.[124] The government is trying to make up for the inadequacies in detention space, but in so doing, it is ignoring the requirements of the Flores Settlement Agreement.[125] CBP facilities are not meant to detain children for long periods of time, and detaining children in such an unsuitable environment in excess of the seventy-two-hour period is particularly harmful and cruel to a child’s development and mental health. Though there is an unprecedented number of children and families apprehended at the southern border,[126] minimizing the psychological harm of children should be the government’s priority.

More simply, the Zero Tolerance and Family Separation policies are not pragmatic solutions to the reality of the situation at the southern border. Immigrants seeking admission into the United States are no longer single adults.[127] The issue is now a humanitarian crisis wherein thousands of families are running from lives of poverty, violence, and corruption in Guatemala, El Salvador, and Honduras.[128] The focus should not be on deterrence through full prosecution and endless detention. Civil detention is costly, both in terms of the psychological toll it exacts on children and in terms of fiscal expense.[129] Given the humanitarian concern, the government should treat UACs as children first and as immigrants second.

  1. Family Detention as an Alternative to Family Separation

Once a child is transferred from CBP to ORR custody, a child should spend no more than twenty days in ORR detention.[130]Detaining a child beyond the twenty day limit, especially if the child was also detained beyond the seventy-two hour limit, is not in the best interest of the child.[131] Not only does the child suffer the trauma of having her liberty taken away from her while in detention, she may also be separated from her family. One alternative to having ORR detain children separately from their adult family members, is to detain families together.

There are currently three civil family detention centers in the United States. Two family detention centers, the Karnes County (“Karnes”) and South Texas (“Dilley”) detention facilities, are owned and operated by private companies under contract with ICE.[132] The third facility, Berks County Residential Center in Pennsylvania, is operated by Berks County and can hold up to ninety-six  people, but as of April 2019, houses only nine people.[133] None of these facilities are state licensed, as required by the Flores Settlement Agreement.[134] There is also concern over whether these facilities are “nonsecure.”[135]

The basic model of civil detention mirrors criminal confinement in a way that calls into question whether a civil detention facility can be truly “nonsecure.” Civil immigration detention involves around the clock confinement, continuous staff supervision of detainees, and envisions a facility with “secure perimeters” similar to jails.[136] Though the inside of a civil detention facility may allow for greater movement of detainees than prisoners, detainees cannot leave the facility.[137] The inability to leave the facility is a massive deprivation of liberty and in many ways requires constant supervision to ensure detainees do not try to leave. It is difficult to argue that civil family detention facilities are “nonsecure” because each existing facility employs a variety of security measures for “detainee safety” to keep detainees within the four walls of the facility.[138] Unless the Karnes, Dilley, and Berks facilities become “non-secure,” legal family detention is not possible.

Family detention also may not be possible because of the overall lack of space available for immigrants in civil detention.[139]Thus, even if the three existing family detention centers were state licensed and nonsecure, there would not be enough room at these facilities to detain all families apprehended at the southern border.[140] Family detention would also require reunification of thousands of separated children and their parents, something the government continues to struggle with months after it allegedly stopped separating families.

  1. Family Reunification and the Ms. L. Litigation

Six days after President Trump issued an executive order amending his family separation policy, a federal court issued a preliminary injunction, ordering the Trump Administration to stop separating families and to reunite those families who were separated.[141] As of December 2018, DHS reported to the court that 2737 children may have been separated from a parent while the family separation policy was in full force.[142] The original Ms. L. class included only children who were detained in ORR or DHS custody, or were in ORR foster care, on the date the preliminary injunction was issued.[143] On March 8, 2019, the class was amended and the court ordered the Trump Administration to also identify children who were separated before the preliminary injunction was issued on June 26, 2018.[144]

The total number of children separated from their parents by DHS is unknown.[145] Creating a procedure to unify families has been difficult for the government.[146] Some families are still being separated at the border[147] while other families are reunited but must deal with the lasting trauma of being separated. Ultimately, the consequences of the Zero Tolerance and Family Separation policies are government created. Neither the Zero Tolerance policy nor the Family Separation policy achieved its goal of deterring families from coming to the United States. Between October 2018 and August 2019, CBP apprehended 457,871 family units and 72,873 UACs at the southern border.[148] CBP apprehended 107,212 family units and 50,036 UACs in 2018 and 75,622 family units and 41,435 UACs in 2017 at the southern border.[149] The federal government continues to view civil immigration detention as a way to deter immigrant families from attempting to cross the southern border.[150] Empirical research does not support this view.[151] If the government’s goal is to deter families, it should consider alternatives to Zero Tolerance and Family Separation. Though, the government’s goal should not be deterrence; it should be to address immediate humanitarian concerns.

B. Policy Recommendations

I propose three alternatives to Zero Tolerance and Family Separation. First, the court overseeing the Ms. L. litigation should clarify the meaning of when a parent “presents a danger” to the child. The Ms. L. litigation requires reunification of children separated from a parent, “absent a determination that the parent is unfit or presents a danger to the child.”[152] This language gives the government a massive amount of discretion to continue to separate children from their parents if the CBP agent makes a discretionary and nonreviewable decision that the parent “presents a danger” to the child.[153] DHS considers four things when determining whether a parent presents a danger to a child, the parent’s: “(1) criminal history; (2) communicable disease; (3) unfitness or dangerousness (including hospitalizations); or (4) some other criteria that do not automatically exclude the parent from being treated as a Ms. L. class member at a later point in time.”[154] Because the court did not define what “presents a danger,” DHS is able to use the four vague standards listed above to make the determination itself.

The court should specifically define when a parent “presents a danger” to the child to reduce the number of children unnecessarily separated from their parents.[155] For example, under DHS’s interpretation, a parent may have a “criminal history,” and be deemed to “present a danger to the child” if the parent attempted to enter the United States illegally.[156] Such a “criminal history” does not necessarily mean that the parent is dangerous, particularly if the family is seeking asylum.[157]

The decision of whether a parent presents a danger to a child should also be reviewable by an immigration judge.[158] Initial separations are “based on the information that is available at the time to those [CBP] agents encountering an adult and child.”[159] As additional information becomes available, a parent or child should be able to ask for review of DHS’s initial determination that family separation is necessary. This check on DHS’s discretion is necessary to prevent needless and severe trauma. The overriding interest should be to ensure that families are not arbitrarily separated given the irreparable harm that family separation causes.[160]

Second, the Flores Settlement Agreement should be codified to reflect its preference for releasing children, not detaining them. DHS and HHS have proposed a rule that would terminate the Flores Settlement Agreement and promulgate new regulations to take its place.[161] Among other things, the proposed regulations would eliminate the state licensure requirement for accompanied children and adopt an alternate federal licensing scheme.[162] Adoption of the rule would effectively allow for indefinite detention of children with their parents, contrary to the Flores Settlement Agreement’s core preference for releasing children.

Under the Flores Settlement Agreement, all children must generally be released from an unlicensed facility after twenty days,[163] including children who are detained with their parents. Because none of the three family detention facilities are state licensed under the Flores Settlement Agreement, children, but not their parents, must be released from those facilities after twenty days.[164] The proposed rule would legally allow children to be detained longer than twenty days because family detention centers could become licensed by the federal government instead of by states.[165] Because it would be easier for a detention facility to obtain a federal license under the proposed rule, non-state-licensed facilities could quickly become federally licensed and allow for prolonged detention of children with their family.

Extended detention of children creates tension with the Flores Settlement Agreement’s preference for release, but it allows a child to remain with her parents. If the government reconsidered its civil detention model, it would not have to decide between traumatizing a child through detention or traumatizing a child through family separation.[166] Therefore, the government could codify the Flores Settlement Agreement in its current form without having to worry about licensing issues because it could release, instead of detain,  the family.

Lastly, and most importantly, children should be viewed as children first and as immigrants second. United States immigration laws treat children differently depending on whether the child is deemed unaccompanied, accompanied, an asylum seeker, trafficked, undocumented, and so on.[167] These labels ignore the reality that the steps necessary to protect the rights of children, and to keep children safe, are often the same despite their legal status.[168] Children are one of the world’s most vulnerable populations, and yet, the United States uses its laws to differentiate between which children are deserving and which are not. The United States may not realistically be able to grant every child citizenship. However, the United States can do a lot more to help the children who come knocking at its door.

IV. Zero Tolerance and Family Separation Under International Law

The CRC takes a different approach to children’s rights than United States domestic law. For example, the United States has adopted the “best interest of the child” principle, but only with respect to placement of unaccompanied children in ORR custody.[169] The CRC takes the broader stance that the best interest of the child is the primary consideration for any decision regarding the child.[170] This Part will first discuss what a system that implements the best interest of the child principle, as articulated in CRC Article 3, could look like in the United States. Secondly, it will discuss foreign policy and the root causes of the current humanitarian crisis.

A. Best Interest of the Child

The Committee on the Rights of the Child has emphasized that immigration detention on the sole basis of a child’s immigration status is a clear violation of the CRC and is never in the best interest of the child.[171] In the United States, the best interest of the child principle is narrow and does not apply to all children.[172] This principle should apply to all children because it is discriminatory to give children more or less rights solely on the basis of their immigration status.[173] Moreover, one of the fundamental purposes of the CRC is to ensure that nation-states implement policies that prioritize the child’s best interest over their other laws and policies.[174] The United States can begin to achieve that goal by recognizing that accompanied and unaccompanied children are children deserving of the same rights under the law.

There are many ways the United States can act in the best interest of all children apprehended at its border. First, it could change its model of civil detention for children. Around-the-clock confinement of children in CBP or HHS custody is a massive deprivation of a child’s liberty, whether it is deemed civil detention or criminal incarceration. A system that puts the best interest of the child first would ensure that when a child is in CBP or HHS custody, that child is not subject to prison-like detention.[175]This could mean expanded efforts to place unaccompanied children with a sponsor while their immigration case is pending.[176]It could also mean that children are allowed to leave the facility during the day with a case worker. However, keeping a child in a non-state-licensed, secure facility is not the best interest of the child.[177]

The United States could also expand the appointment of child advocates to all children.[178] A child advocate could help the child ensure her basic needs are being met, ensure the child is safe, and help the child overcome language barriers. However, a child advocate may not be enough. General Comment No. 6 of the CRC requires that children have proper representation through a guardian or advisor and a legal representative.[179] Appointment of counsel is not required in civil cases in the United States, even for children facing deportation.[180] This should not be the case. Providing all children with counsel to assist them in removal proceedings would help protect the child’s best interest.[181] Government-sponsored legal representation for all children is one of the best ways to ensure a child’s rights are protected during immigration proceedings given their vulnerability and the possibility of deportation.

B. Foreign Policy Concerns

Implementing the best interest of the child approach for all children does not begin when a child arrives at the southern border. It requires consideration of broader issues, namely why children seek asylum in the first place. The current humanitarian crisis primarily involves children coming from El Salvador, Guatemala, and Honduras. Immigration is multifaceted; there is not often one reason why people choose to immigrate. Generally, violence and gangs in Central America have influenced many children to seek asylum in the United States.[182] Poverty, lack of meaningful education, and employment are other reasons for immigration.[183]

Despite the high number of people fleeing Central America, the Trump Administration proposed ending foreign-assistance programs in Guatemala, Honduras, and El Salvador.[184] President Trump has portrayed this action as a punishment for Central America’s failure to stop immigration.[185] However, ending foreign-assistance programs will only hurt children and increase the number of asylum seekers at the southern border. It also ignores the reality that a majority of foreign aid goes to nongovernmental organizations, churches, charities, and private contractors.[186] If the United States wants to decrease the number of children from Central America seeking asylum, it should help address the underlying causes of immigration through foreign-assistance programs.

Conclusion

The United States’s approach to the current humanitarian crisis at the border is entirely misplaced. The Zero Tolerance and Family Separation policies, in addition to cutting off foreign aid to Guatemala, Honduras, and El Salvador, are simply not going to stop people from immigrating. A fifteen-year-old girl left El Salvador because, “the gang threatened me. One of them ‘liked’ me. . . . In El Salvador they take young girls, rape them and throw them in plastic bags.”[187] A sixteen-year-old girl left Guatemala because her grandmother, “beat me from the time I was little . . . my boyfriend also beat me . . . I left because he tried to kill me by strangling me.”[188] A twelve-year-old boy left Honduras “because I wanted to be with my mother . . . My grandmother mistreated me . . . She forced me and my siblings to work. I couldn’t stand to be there any-more.”[189]

The United States’s current policies do not achieve their goal of deterrence.[190] However, the goal of the immigration system, in light of the current humanitarian crisis should not be deterrence. It should be child focused. Families should be separated in limited circumstances, such as where the child is being trafficked. Children should not be detained in prison-like settings. Children should be given an advocate who can help them navigate the immigration system. Most importantly, children should be treated as children first and as immigrants second.

 Samantha R. Bentley *


        [1].       In April 2019, the Deputy Commissioner of Customs & Border Protection (“CBP”) stated, “The humanitarian crisis created by a massive influx of family groups and unaccompanied children in recent months has forced CBP to reallocate resources away from law enforcement, trade and travel missions to process and provide care for those in our custody.” CBP Releases March Statistics for Southwest Border Migration, U.S. Customs & Border Prot. (Apr. 9, 2019) [hereinafter CBP March Statistics], https://www.cbp.gov/newsroom/national-media-release/cbp-releases-march-statistics-southwest-border-migration [https://per ma.cc/UH66-4LUQ].

        [2].       In subsequent litigation, the government certified a class of 2816 children, 2737 of which were separated from a parent. Office of Inspector Gen., U.S. Dep’t of Health & Hum. Servs. OEI-BL-18-00511, Separated Children Placed in Office of Refugee Resettlement Care 10 (2019) [hereinafter Separated Children in ORR Care]; see also infra Section III.A.3. However, because the government had no formal tracking system in place, the total number of children separated from their families is unknown. Separated Children in ORR Care, supra at 13.

        [3].       Nomaan Merchant, Hundreds of Children Wait in Border Patrol Facility in Texas, Associated Press (June 18, 2018), https://www.apnews.com/9794de32d39d4c6f89fbefaea 3780769 [https://perma.cc/734D-YDXK]. Some immigration advocates shared photos of children in cages that were actually from 2014, not from summer 2018. Anne Flaherty & Calvin Woodward, AP Fact Check: Fallacies on Both Sides in Immigration Debate, Associated Press (May 29, 2018), https://www.apnews.com/d110c36836ab4003ad77396025616f04 [https://perma.cc/CP5E-KSKV]. Unfortunately, the inhumane treatment of unaccompanied children in government custody is not a new issue.

        [4].       Merchant, supra note 4.

        [5].       Dominique Mosbergen, The Heartbreaking Story Behind That Viral Crying Toddler Photo, Huffington Post (June 18, 2018, 8:09 AM), https://www.huffpost.com/entry/crying-toddler-border-viral-photo-john-moore-getty-photographer_n_5b277ec6e4b0f9178a9edc31 [https://perma.cc/LPD3-H99A]. This two-year-old Honduran girl was featured as Time’s July 2018 cover. Kainaz Amaria, Time Magazine’s Cover Isn’t Bold or Brave. It’s Exploitative., Vox (June 22, 2018, 1:10 PM), https://www.vox.com/2018/6/21/17488680/time-magazine-cover-family-separation-border-trump-john-moore [https://perma.cc/5529-NSL3].

        [6].       Maxwell Strachan, Angelina Chapin & Gavriella Jacobovitz, Elizabeth Warren Says Detained Kids Treated ‘like Little Prisoners’ at Homestead Shelter, Huffington Post (June 26, 2019, 11:39 AM), https://www.huffpost.com/entry/elizabeth-warren-homestead-migrant-children-debates_n_5d1382abe4b01ab45fc182b4 [https://perma.cc/9HHF-NSJN].

        [7].       The total number of migrants apprehended at the southwestern border has decreased since 2000, when 1,643,679 migrants were apprehended. U.S. Border Patrol, Southwest Border Sectors Total Illegal Alien Apprehensions by Fiscal Year (2019), https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-southwest-border-sector-apps-fy1960-fy2018.pdf  [https://perma.cc/CH26-3F8G]. By comparison, from October 2018 through August 2019, 811,016 migrants were apprehended at the southwestern border. U.S. Customs & Border Prot., Southwest Border Migration FY 2019, https://www.cbp.gov/newsroom/stats/sw-border-migration [https://perma.cc/Q3TC-79XG]. What makes this situation a humanitarian crisis is not the number of apprehensions; it is who is apprehended. In the first six months of Fiscal Year 2019, sixty percent of apprehended migrants at the southwestern border were families and unaccompanied children, generally from Guatemala, Honduras, and El Salvador. CBP March Statistics, supra note 2. The number of families apprehended increased 370% between Fiscal Year 2019 and Fiscal Year 2018. Id.

        [8].    M.                Aryah Somers et al., Constructions of Childhood and Unaccompanied Children in the Immigration System in the United States, 14 U.C. Davis J. Juv. L. & Pol’y 311, 333 (2010).

        [9].       8 U.S.C. § 1229a(a)(1) (2018).

      [10].       Somers et al., supra note 9, at 333–34.

      [11].       Ashley Ham Pong, Humanitarian Protections and the Need for Appointed Counsel for Unaccompanied Immigrant Children Facing Deportation, 21 Wash. & Lee J. C.R. & Soc. Just. 68, 74 (2014).

      [12].       Ming H. Chen, Administrator-in-Chief: The President and Executive Action in Immigration Law, 69 Admin. L. Rev. 347, 379 (2017). The Attorney General heads the Executive Office of Immigration Review and appoints administrative law judges to serve as immigration judges. Id. at 402; see also § 1101(b)(4) (defining the term “immigration judge” as an attorney appointed by and subject to the supervision of the Attorney General). This can create a conflict of interest for immigration judges, who serve at the discretion of the Attorney General. See Leonard Birdsong, Reforming the Immigration Courts of the United States: Why Is There No Will To Make It an Article I Court?, 19 Barry L. Rev. 17, 19–20 (2013) (arguing that administrative immigration courts cannot provide the kind of judicial independence necessary to conduct a fair and impartial trial).

      [13].       Chen, supra note 13, at 379. The Homeland Security Act divided immigration enforcement responsibilities to three agencies within DHS. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (codified as amended in scattered sections of 6 U.S.C.); Chen, supra note 13, at 379. First, the Homeland Security Act created U.S. Citizenship and Immigration Services (“USCIS”), which handles immigration service functions, such as processing immigration benefits, refugee applications, and issuing green cards. Our History, U.S. Citizenship & Immigration Serv’s, https://www.uscis.gov/about-us/our-his tory (last updated May 25, 2011) [https://perma.cc/LD7X-P6Y3]; A Day in the Life of USCIS, U.S. Citizenship & Immigration Serv’s, https://www.uscis.gov/about-us/a-day-life-uscis (last updated Apr. 20, 2018) [https://perma.cc/VBB8-VBSF]. Second, it created Immigrations and Customs Enforcement (“ICE”), which is responsible for the internal enforcement of civil and criminal immigration law. History, U.S. Immigration & Customs Enforcement, https://www.ice.gov/history (last updated Mar. 4, 2019) [https://perma.cc/ SKQ6-LRSR]. Lastly, it created CBP, which patrols all U.S. borders and ports of entry. About CBP, U.S. Customs & Border Protection, https://www.cbp.gov/about (last updated Sept. 18, 2019) [https://perma.cc/MD24-LFZX].

      [14].       Somers et al., supra note 9, at 341. This responsibly is delegated to the Director of the Office of Refugee Resettlement (“ORR”) within HHS. Id.; see also 6 U.S.C. § 279(b)(1)(A) (2018) (“[T]he Director of [ORR] shall be responsible for . . . coordinating and implementing the care and placement of unaccompanied alien children who are in Federal custody by reason of their immigration status . . . .”).

      [15].       Pong, supra note 12, at 74.

      [16].       William A. Kandel, Cong. Research Serv., R43599, Unaccompanied Alien Children: An Overview 5 & n.24 (2017). Even if the child does not meet the statutory definition of a UAC, CBP must notify the HHS within forty-eight hours if the agency suspects that the child is under eighteen. 8 U.S.C. § 1232(b)(2) (2018). If the child is from a contiguous country, DHS must also determine, within forty-eight hours, whether the child has been a victim of trafficking or is at risk of becoming trafficked. § 1232(a)(2), (4). CBP must immediately transfer the child to HHS if the child meets these criteria. § 1232(a)(4).

      [17].       Kandel, supra note 17, at 6. A child is deemed to be a UAC if the child (1) is under eighteen, (2) “has no lawful immigration status in the United States,” and (3) has “no parent or legal guardian in the United States” or “no parent or legal guardian in the United States is available to provide care and physical custody.” 6 U.S.C. § 279(g)(2)(A)–(C) (2018). Usually, CBP also provides the UAC with a Notice to Appear, a document that the government files with the immigration court to commence civil removal proceedings against the child. Pong, supra note 12, at 74.

      [18].       8 U.S.C. § 1232(b)(3) (2018). UACs are subject to formal removal proceedings regardless of whether the child is already in the United States. Hillel R. Smith, Cong. Research Serv., LSB10150, An Overview of U.S. Immigration Laws Regulating the Admission and Exclusion of Aliens at the Border 4 (2018). Formal removal proceedings mean that the noncitizen is given the opportunity to appear before an immigration judge. Id. at 2. Detention pending formal removal proceedings is usually permissible; the noncitizen may be released on bond or be granted parole. Id. Generally, UACs are not subject to expedited removal proceedings, but their noncitizen parent may be. Id. at 2–4. Noncitizens may be subject to expedited removal proceedings if they arrive at the United States border, or other port of entry, without valid entry documents. Id. at 2. Expedited removal proceedings allow the noncitizen to be removed from the United States without a hearing or further review by an immigration judge. § 1225(b)(1)(A)(i). Detention is mandatory pending expedited removal proceedings. § 1225(b)(1)(B)(iii)(IV).

      [19].       § 1232(b)(3). CBP facilities are not meant to hold children long term and have been criticized for their gruesome conditions. See, e.g., Sheri Fink & Caitlin Dickerson, Border Patrol Facilities Put Detainees with Medical Conditions at Risk, N.Y. Times (Mar. 5, 2019), https://www.nytimes.com/2019/03/05/us/border-patrol-deaths-migrant-children.html (alleging that a woman in a CBP facility was sexually assaulted, endured heavy vaginal bleeding, and was not provided medical attention) [https://perma.cc/UT6Q-FJVR].

      [20].       Kandel, supra note 17, at 4–5. ICE is responsible for transporting UACs from CBP to ORR custody. Id. at 4.

      [21].       § 1232(c)(2)(A). Generally, the best interest of the child means placement with a sponsor, not detention. See Saravia v. Sessions, 905 F.3d 1137, 1143 (9th Cir. 2018) (“ORR has already determined that the ‘least restrictive setting that is in the best interest of the child’ is placement with a sponsor.”).

      [22].       § 1232(c)(3)(A).

      [23].       U.S. Dep’t of Health And Human Servs., Unaccompanied Alien Children Program 2 [hereinafter UAC Program], https://www.hhs.gov/sites/default/files/Unaccom panied-Alien-Children-Program-Fact-Sheet.pdf (last updated Aug. 2019) [https://perma. cc/Y5NL-MPLY]. ORR also requires a home study before releasing the child in certain circumstances. Id. at 3. A home study is mandatory for a child who (1) is the victim of sex trafficking, (2) has a disability, and (3) has been a victim of physical or sexual abuse where the child’s health or welfare has been significantly harmed. Id. If the potential sponsor lives with other household members, those members are no longer required to submit background checks before a potential sponsor is approved. Id. ORR still performs a public-records check on all adult household members. Id.

      [24].       § 1232(c)(2)(A). ORR is also responsible for creating a plan to ensure timely appointment of legal counsel for each child, determining whether the child is a victim of human trafficking, and whether the child has a possible claim to asylum. Kandel, supra note 17, at 8.

      [25].       Sarah Herman Peck & Ben Harrington, Cong. Research Serv., RG5297, The “Flores Settlement” and Alien Families Apprehended at the U.S. Border: Frequently Asked Questions 1 (2018); Stipulated Settlement Agreement, ¶ 12A Flores v. Reno, No. CV 85-4544-RJK(Px) (C.D. Cal. Jan. 17, 1997) [hereinafter FloresSettlement Agreement]. Situations where a child may be detained for longer than five days are discussed further, infra Section I.B.

      [26].       Rebeca M. López, Comment, Codifying the Flores Settlement Agreement: Seeking To Protect Immigrant Children in U.S. Custody, 95 Marquette L. Rev. 1635, 1642 (2012). Prior to the enactment of the Homeland Security Act of 2002, INS was responsible for the detention of immigrant children. Id.; see also 6 U.S.C. § 279 (2006) (transferring responsibility of the detention of immigrant children from INS to ORR).

      [27].       López, supra note 27, at 1647. The litigation is named after Jenny Lisette Flores, a fifteen-year-old El Salvadorian girl who came to the United States in 1985 to live with her aunt, an American citizen. Lisa Rodriguez Navarro, Comment, An Analysis of Treatment of Unaccompanied Immigrant and Refugee Children in INS Detention and Other Forms of Institutionalized Custody, 19 Chicano-Latino L. Rev. 589, 596 (1998). Jenny never made it to her aunt. Id. She was arrested at the border, strip searched, and placed in a juvenile detention center for two months. Id. Jenny could not be released into her aunt’s custody because, even though her aunt was a blood relative, regulations at the time only allowed children to be released to third-party adults under “unusual and extraordinary” circumstances. Id. at 596 n.47.

      [28].       Flores Settlement Agreement, supra note 26, ¶ 9. A 2001 Stipulation and Order amended the Flores Settlement Agreement so that it would remain in effect until forty-five days after INS passed final regulations ensuring its compliance with the Agreement. López, supra note 27, at 1650. However, neither INS nor DHS ever passed final regulations, meaning the Agreement is still in effect. Id.

      [29].       Flores v. Lynch, 828 F.3d 898, 905 (9th Cir. 2016) (“We agree with the district court that the ‘plain language of the Agreement clearly encompasses accompanied minors.’”). While the Flores Settlement Agreement applies equally to all children, Congress passed the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA”), which only applies to the treatment of UACs. Pub. L. No. 110-457, 122 Stat. 5047 (codified as amended in scattered sections of 8 U.S.C.). TVPRA preserves the Flores Settlement Agreement but does not supersede its requirements. Flores v. Sessions, 862 F.3d 863, 870–71 (9th Cir. 2017).

      [30].       Flores Settlement Agreement, supra note 26, ¶ 11.

      [31].    Id. ¶ 14. Releasing a child to a parent or legal guardian is the preferred method of release; however, release to an adult relative, a third-party adult, or a licensed program willing to accept custody, is permissible. Id. Additionally, the Flores Settlement Agreement requires a “prompt and continuous effort” toward family reunification. Id. ¶ 18.

      [32].    Id. ¶ 12A.

      [33].       Peck & Harrington, supra note 26, at 1. Normally, the child must be transferred to such a facility within five days, except in the event of an emergency, in which case children should be placed in state-licensed facilities “as expeditiously as possible.” Flores Settlement Agreement, supra note 26, ¶ 12A.

      [34].       Flores Settlement Agreement, supra note 26, ¶¶ 12A, 19. Under these circumstances, courts have held that the government may not indefinitely detain children, but courts have not clearly identified how long children may be detained in nonqualifying facilities before being transferred to nonsecure, state-licensed facilities. Flores v. Sessions, No. 2:85-CV-04544, 2017 U.S. Dist. LEXIS 224718, at *62 (C.D. Cal. 2017) (“[T]he Flores Agreement creates an affirmative obligation on the part of Defendants to individually assess each class members’ release . . . .”); Peck & Harrington, supra note 26, at 9. For example, DHS was in substantial noncompliance with the Flores Settlement Agreement when children were detained for periods ranging from five weeks to thirteen months. Flores, 2017 U.S. Dist. LEXIS 224718, at *53.

      [35].       Flores, 2017 U.S. Dist. LEXIS 224718, at *63. Because the Flores Settlement Agreement requires individualized determinations for release, detention for twenty days may not always be reasonable. Id. Conversely, courts have held that detention in unlicensed facilities in excess of twenty days may be reasonable under certain individualized circumstances. See, e.g., Flores v. Lynch, 212 F. Supp. 3d 907, 914 (C.D. Cal. 2015) (“[I]f 20 days is as fast as Defendants, in good faith and in the exercise of due diligence, can possibly go . . . [the twenty day policy] may fall within the parameters of Paragraph 12A of the Agreement.”). There, the twenty-day limitation was permissible when children were detained pending reasonable or credible fear determinations to see if the child could make an asylum claim. Id.

      [36].       ORR reports show that between 2008 and 2010, the average length of ORR custody was sixty-one days and the total time in custody ranged from less than one day to 710 days. Kandel, supra note 17, at 10. In 2019, the average length of ORR custody is sixty-six days. UAC Program, supra note 24, at 2.

      [37].       Flores Settlement Agreement, supra note 26, at Ex. 1 ¶ A.1.

      [38].       Id. at Ex. 1 ¶¶A.2, 4–5.

      [39].       Id. ¶ 24.A. Children must also be given an explanation of the right to judicial review and a list of free legal services available. Id. ¶ 24.D. Given the civil nature of immigration law, children do not have to be provided a lawyer. See, e.g., Christina Jewett & Shefali Luthra, Immigrant Toddlers Ordered To Appear in Court Alone, Tex. Trib.(June 27, 2018, 9:00 PM), https://www.texastribune.org/2018/06/27/immigrant-toddlers-ordered-appear- court-alone/ (explaining that some children as young as three are being ordered to appear in immigration court for deportation proceedings, often without a lawyer) [https: //perma.cc/73RY-V9KL].

      [40].       Flores Settlement Agreement, supra note 26, at Ex. 1 ¶¶ A.6–7.

      [41].    Id. at Ex. 1 ¶¶ A.10–11.

      [42].       Id. ¶ 12.A.

      [43].       See e.g., 8 U.S.C. § 1158(b)(1)(A) (2018) (“The Secretary of Homeland Security or the Attorney General may grant asylum to an alien who has applied for asylum . . . .” (emphasis added)); § 1229b(a) (“The Attorney General may cancel removal . . . .” (emphasis added)); § 1229c(a)(1) (“The Attorney General may permit an alien voluntarily to depart the United States . . . .” (emphasis added)).

      [44].       Arizona v. United States, 567 U.S. 387, 396 (2012) (holding that, when considering a discretionary decision regarding removal, “[u]nauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime”).

      [45].    For example, President Obama implemented a system wherein the administration prioritized the enforcement of immigration laws against migrants convicted of certain crimes. Dep’t of Homeland Sec., Policies for the Apprehension, Detention and Removal of Undocumented Immigrants 3–4 (Nov. 2014); see also William A. Kandel, Cong. Research Serv., R45266, The Trump Administration’s “Zero Tolerance” Immigration Enforcement Policy, Cong. Research Serv. 6–7 (2019).

      [46].       Presidential Memorandum on Ending “Catch and Release” at the Border of the U.S. and Directing Other Enhancements to Immigration Enf’t (Apr. 6, 2018). Under President Obama’s policy, certain noncitizens suspected of violating immigration laws were allowed to leave the United States before the resolution of their civil immigration proceedings or criminal case. Office of Inspector Gen., OIG-18-84, Special Review-Initial Observations Regarding Family Separation Issues Under the Zero Tolerance Policy 2 (Sept. 27, 2018) [hereinafter OIG Special Review]. Additionally, undocumented persons were arrested for immigration violations, but were released from custody pending their civil immigration proceedings. Marc Rod, Border Patrol Union President on Catch and Release: ‘No Way It Can Stop’, CNN (June 22, 2018, 11:42 AM ET), https://www.cnn.com /2018/06/21/politics/border-patrol-immigration-trump-catch-release-stop-cnntv/index.html [https://perma.cc/VV4Y-3HN7]. In addition to catch and release, President Obama continued a practice that began under President Bush, called “Operation Streamline,” that operated in three border states. Fernanda Santos, Detainees Sentenced in Seconds in ‘Streamline’ Justice on Border, N.Y. Times (Feb. 11, 2014), https://www.nytimes.com/2014/02/12/us /split-second-justice-as-us-cracks-down-on-border-crossers.html [https://perma.cc/72D4-R482]. Under that policy, noncitizens are charged criminally, either with illegal entry or illegal re-entry, and are tried and sentenced in large groups during the same proceeding. Id.

      [47].       Office of the Attorney Gen., Memorandum for Federal Prosecutors Along the Southwest Border: Zero Tolerance for Offenses Under 8 U.S.C. § 1325(a)  (2018) (emphasis added). This policy included fully prosecuting asylum seekers and families. Kandel, supra note 46, at 7–8.

      [48].    § 1325(a).

      [49].       Office of the Attorney Gen., supra note 48, at 7–8. Sessions argued that taking a hardline stance on immigration was necessary to prevent “increased crossings” which occur because of “loopholes in our laws being exploited by illegal aliens and open border radicals.” Jefferson Sessions, Attorney General, Remarks on Immigration Enforcement, (Apr. 11, 2018), https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-immigration-enforcement [https://perma.cc/9X3A-C5EG]. As a result of this policy, in Fiscal Year 2018, fifty-seven percent of all federal criminal charges filed were for illegal entry or reentry. “Zero Tolerance” Policy Greatly Accelerates Migrant Criminalization Through End of 2018, Grassroots Leadership (Mar. 18, 2019), https://grassrootsleadership.org/releases /2019/03/zero-tolerance-policy-greatly-accelerates-migrant-criminalization-through-end-20 18 [https://perma.cc/EK8E-ZPTS].

      [50].    § 1325(a). Improper entry is a felony for each subsequent offense, punishable by not more than two years imprisonment. Id.

      [51].       OIG Special Review, supra note 47, at 2. Under Bush and Obama, prosecutors often did not pursue charges for improper entry, in part because DOJ did not want to waste significant resources on misdemeanor offenses. Kandel, supra note 46, at 1.

      [52].       OIG Special Review, supra note 47, at 2.

      [53].       Id.

      [54].    Kandel, supra note 46, at 8.

      [55].       OIG Special Review, supra note 47, at 3.

      [56].       Id. at 3 & n.4; see also Homeland Security Act of 2002, 6 U.S.C. § 279(g)(2)(C) (2018)  (defining the term unaccompanied alien child as a child with “no parent or legal guardian in the United States . . . available to provide care and physical custody”).

      [57].    Kandel, supra note 46, Summary.

      [58].       Sarah Herman Peck, Cong. Research Serv., LSB10180, Family Separation at the Border and the Ms. L. Litigation 2 (2018).

      [59].       Id.

      [60].       See id. Families seeking asylum are not required to be detained together in immigration detention facilities. Id.

      [61].       Id.

      [62].       See, e.g., Rafael Carranza, Are Migrant Parents Being Deported Without Their Kids?, Azcentral (June 9, 2018, 5:30 AM MST), https://www.azcentral.com/story/news/pol itics/immigration/2018/06/09/migrant-parents-being-deported-without-kids-immigration-border/683483002/ (describing the parents of an eleven-month-old and a nineteen-month-old who were deported back to Guatemala while their children remained in U.S. custody; this occurred even before the implementation of the Zero Tolerance policy) [https://perma. cc/V4BE-SZ24].

      [63].       See Executive Order Affording Congress an Opportunity to Address Family Separation, 83 Fed. Reg. 29435 (June 25, 2018) (“It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources.”). In effect, the executive order still allows for family separation in instances where detaining families together is not appropriate or consistent with law and available resources. Currently, there are no family detention centers capable of lawfully detaining families together. See Peck & Harrington, supra note 26, at 8. ICE operates three family detention facilities, none of which are state licensed as required by the Flores Settlement Agreement. Id. at 8 & n.64. See infra Section III.A.2.

      [64].       Kandel, supra 46, at 10. The Trump Administration reserves the right to reinstate the policy once family detention space is available. Id.

      [65].       Ron Nixon et al., Border Officials Suspend Handing Over Migrant Families to Prosecutors, N.Y. Times (June 25, 2018), https://www.nytimes.com/2018/06/25/us/politics/bord er-officials-suspend-handing-over-migrant-families-to-prosecutors.html [https://perma.cc/ 959P-WJCZ].

      [66].       See infra note 142 and accompanying text.

      [67].       Separated Children in ORR Care, supra note 3, at 1–5.

      [68].       See Priscilla Alvarez, At Least 245 Children Separated from Families Since Trump Admin Said It Would Stop Doing So, CNN (Feb. 22, 2019, 11:12 AM), https://www.cnn.com /2019/02/21/politics/separations-status-report/index.html [https://perma.cc/LQU9-PGU3].

      [69].       See infra Section III.A.

      [70].       Child Refugees and Migrants, UNICEF, https://www.unicefusa.org/mission/emer gencies/child-refugees-and-migrants [https://perma.cc/7X6S-QWMR].

      [71].       Tara Dooley & Timothy Ledwith, UNICEF, A Right to be Heard: Listening to Children and Young People on the Move 8 (2018), https://data.unicef.org/wp-cont ent/uploads/2018/12/A_right_to_be_heard_youthpoll.pdf [https://perma.cc/LW8X-QYRT].

      [72].    Help Children on the Move, UNICEF, https://www.unicefusa.org/help-children-move [https://perma.cc/X3MU-X8JE].

      [73].       Eugeen Verhellen, The Convention on the Rights of the Child: Reflections from a Historical, Social Policy and Educational Perspective, in Routledge International Handbook of Children’s Rights Studies 43, 49 (Wouter Vandenhole et al. eds., 2015).

      [74].       See David B. Thronson, Kids Will Be Kids? Reconsidering Conceptions of Children’s Rights Underlying Immigration Law, 63 Ohio St. L.J. 979, 990–91 (2002) (arguing that children’s rights come second to immigration law and that UACs are subject to the same procedural complexities as adults); see also Olga Byrne, Promoting a Child Rights-Based Approach to Immigration in the United States, 32 Geo. Immigr. L.J. 59, 68 (2017) (noting that because migrant children do not have the same set of legal rights under United States law as citizens, migrant children are not fully recognized as active bearers of rights).

      [75].       Verhellen, supra note 74, at 50.

      [76].       Byrne, supra note 75, at 77; see also, Convention on the Rights of the Child arts. 2, 3, 6, 12, Nov. 20, 1989, 28 I.L.M. 1456, 1577 U.N.T.S. 3.

      [77].       Convention on the Rights of the Child, supra note 77, art. 2. In the immigration context, this means that “the child is a child first and an asylum seeker second.” Byrne, supra note 75, at 78.

      [78].       Byrne, supra note 75, at 84. In deciding the best interest of the child, the State must consider the rights and duties of the parent or legal guardian who is legally responsible for the child. Convention on the Rights of the Child, supra note 77, art. 3. The State must also ensure that the “institutions, services and facilities responsible for the care or protection of children . . . conform with the standards established by competent authorities,” especially standards meant to protect the safety, health, and competent supervision of children. Id.

      [79].       Convention on the Rights of the Child, supra note 77, art. 3.

      [80].       Byrne, supra note 75, at 84.

      [81].    Id. at 92–93.

      [82].       Id.

      [83].       Convention on the Rights of the Child, supra note 77, art. 12. A child’s age and maturity should be given “due weight” when considering the ability of a child to express those views. Id. In the context of children’s asylum, this principle acknowledges that young people may need to seek asylum for their political opinions. Byrne, supra note 75, at 93–94. However, children who seek asylum based on their own political opinions may face skepticism from government officials who incorrectly assume that children are unable to form their own political views. Id. at 94.

      [84].       Convention on the Rights of the Child, supra note 77, art. 6.

      [85].       Comm. on the Rights of the Child, General Comment No. 5 of Its Thirty-Fourth Session, 4 U.N. Doc. CRC/GC/2003/5 (2003). To comply with this requirement, states must ensure equal opportunity, access to services, and the chance for all children to thrive and reach their full potential. Byrne, supra note 75, at 89.

      [86].       Byrne, supra note 75, at 68.

      [87].       Douglas Lee Donoho with James Wilets, International Human Rights Law 19 (2017).

      [88].       Id. (emphasis omitted).

      [89].       Paolo Palchetti, Article 18 of the 1969 Vienna Convention: A Vague and Ineffective Obligation or a Useful Means for Strengthening Legal Cooperation?, in The Law of Treaties Beyond the Vienna Convention 25, 25 (Enzo Cannizzaro ed., 2011); see also Vienna Convention on the Law of Treaties art. 18, May 23, 1969, 1155 U.N.T.S. 331. This means that a nation-state may not “violate the central purposes of the treaty . . . unless and until it expresses clear intent to not become a party.” Donoho, supra note 88, at 19.

      [90].       Megan Smith-Pastrana, Note, In Search of Refuge: The United States’ Domestic and International Obligations To Protect Unaccompanied Immigrant Children, 26 Ind. Int’l & Comp. L. Rev. 251, 264 (2016); see also Donoho, supra note 88, at 19. In the United States, ratification by the Senate is necessary for the treaty to become enforceable domestic law. Id. at 71. The Constitution seems to imply that treaties, like the Constitution itself, are the “supreme law of the land.”  U.S. Const. art. VI (“This Constitution . . . and all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land.”). However, treaties are equivalent to Congressional legislation and require passage in the Senate before becoming domestically enforceable. Donoho, supra note 88, at 71. Congress has only passed legislation making a treaty domestically enforceable in a few instances. Id. at 75. For example, Congress has enacted legislation relating to the Convention against Torture and the Genocide Convention. See generally 18 U.S.C. §§ 1091–93 (2018) (making genocide a federal crime); § 2340 (making torture a federal crime).

      [91].       Smith-Pastrana, supra note 91, at 265.

      [92].       Donoho, supra note 88, at 35. Universal acceptance of a given rule is not required for it to become customary international law. Ted L. Stein, The Approach of the Different Drummer: The Principle of the Persistent Objector in International Law, 26 Harv. Int’l L.J. 457, 458 (1985). It is not always easy to determine how much international participation is required for customary law to develop. Id. However, in the case of the CRC, only one country in the world, the United States, has not signed and ratified the treaty. Byrne supra note 75, at 68.

      [93].       Donoho, supra note 88, at 35; see also Stein, supra note 93, at 458 (“In order for a rule to become part of customary international law, it must be supported by the widespread and uniform practice of states acting on the conviction that the practice is obligatory.”).

      [94].       Donoho, supra note 88, at 35.

      [95].       A State may be a persistent objector if it “manifestly and continuously refuse[s] to accept” the rule. Stein, supra note 93, at 459; see also Curtis A. Bradley, The Juvenile Death Penalty and International Law, 52 Duke L.J. 485, 516 (2002) (“The ‘persistent objector’ rule stems from the proposition that, in a world of diverse sovereign nations lacking a central decisionmaker, customary international law draws its legitimacy from national consent.”).

      [96].       Cynthia Price Cohen, The Role of the United States in the Drafting of the Convention on the Rights of the Child, 20 Emory Int’l L. Rev. 185, 185, 195 (2006).

      [97].       See S. Res. 99, 112th Cong. (2011) (introduced). Some organizations were also concerned that ratification of the CRC would force the United States to “recognize rights of same-sex parents, provide teens access to reproductive-health services, and override parental desire to use corporal punishment.” Amy Rothschild, Is America Holding Out on Protecting Children’s Rights?, Atlantic (May 2, 2017), https://www.theatlantic.com/education/ar chive/2017/05/holding-out-on-childrens-rights/524652/ [https://perma.cc/Z3JU-88KQ].

      [98].       Convention on the Rights of the Child, supra note 77, at art. 3; see also 8 U.S.C. § 1232(c)(2)(A) (2012) (“[A]n unaccompanied alien child in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child.”).

      [99].       Convention on the Rights of the Child, United Nations Human Rights Office of the High Comm’r, http://indicators.ohchr.org/ [https://perma.cc/UN27-RTTL]; seeOptional Protocol to the Convention the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, ratified on Jan. 23, 2003, S. Treaty Doc. No.  106-37(B), 2171 U.N.T.S. 227; Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, ratified on Jan. 23, 2003, S. Treaty Doc. No. 106-37(A), 2173 U.N.T.S. 222. The United States adopted both protocols, provided that they could be ratified without ratification of the underlying CRC. Bernardine Dohrn, United States: The Surprising Role of the CRC in a Non-State-Party, in Litigating the Rights of the Child: The UN Convention on the Rights of the Child in Domestic and International Jurisprudence 71, 74 (Ton Liefaard & Jaap E. Doek eds., 2015). As a result, the United States submits periodic reports to the Committee on the Rights of the Child to comply with the two optional protocols. Id. at 74.

    [100].       See supra Section II.B.

    [101].       OIG Special Review, supra note 47, at 4. Under the Zero Tolerance Policy, the government encouraged asylum seekers to come to United States ports of entry, which led to overcrowding. Id. at 5–6. CBP had to limit the number of people that could enter the United States due to overcrowding, which could have led asylum seekers to attempt illegal border crossings instead. Id. at 5. The Trump Administration later forced non-Mexican migrants seeking asylum at the United States-Mexico Border to remain in Mexico pending immigration proceedings. Innovation Law Lab v. Nielsen, 366 F. Supp. 3d 1110, 1114 (N.D. Cal. 2019) (granting preliminary injunction). While a federal district court judge granted a preliminary injunction halting the practice in April 2019, that injunction was stayed pending an appeal just one month later. Innovation Law Lab v. McAleenan, 924 F.3d 503 (9th Cir. 2019).

    [102].       John Burnett, Almost 15,000 Migrant Children Now Held at Nearly Full Shelters, NPR (Dec. 13, 2018 5:00 AM ET), https://www.npr.org/2018/12/13/676300525/almost-15-000 -migrant-children-now-held-at-nearly-full-shelters [https://perma.cc/UX9R-SQZX].

    [103].       Separated Children in ORR Care, supra note 3, at 13. While the total number of separated children is unclear, HHS attempted to define a class of children who may have been separated from their parents in response to a class action lawsuit. Id. at 4; see infra Section III.A.3. For the purposes of the Ms. L. Litigation, HHS certified a class of 2816 children, 2737 of which were separated from a parent. Separated Children in Orr Care, supra note 3, at 11.

    [104].       The general rule is that CBP must transfer a UAC to ORR custody within seventy-two hours of determining UAC status except for in “exceptional circumstances.” 8 U.S.C. § 1232(b)(3) (2012); see supra Section I.A.

    [105].       Alan Taylor, Photos: A Tent City for Detained Children in Texas, Atlantic (June 19, 2018), https://www.theatlantic.com/photo/2018/06/photos-a-tent-city-for-detained-child ren-in-texas/563147/ (photographing life at the Tornillo, Texas facility) [https://perma.cc/ WH5Y-5HBA].

    [106].    Executive Order Affording Congress an Opportunity to Address Family Separation, 3 C.F.R. 13841, § 1 (2018) (announcing policy of family unity on June 20, 2018); Tanvi Misra, The Life and Death of an American Tent City, City Lab (Jan. 15, 2019), https://www.city lab.com/equity/2019/01/border-crisis-migrant-children-detention-tornillo-tent-city/578557 /?utm_source=twb [https://perma.cc/A9EW-U8AH].

    [107].    Misra, supra note 107 (providing a graphic of the facility’s rapid expansion). Initially, the detention center was only supposed to be open for one month, but the facility remained open as the influx of UACs increased. Id. With other facilities at capacity, children were transported to the Tornillo Tent City in the middle of the night. Id.

    [108].       OIG Special Review, supra note 47, at 8, 17.

    [109].       Id. at 8. The report also notes that these numbers may be higher than reported because the data OIG received does not list the specific hour when the child was apprehended. Id. at 8 & n.18.

    [110].       Id. at 8–9. This may have been due, in part, to CBP officials inadvertently omitting critical information necessary to place children in ORR custody. Id. at 9.

    [111].       Id. at 9. In addition to violations of the seventy-two-hour rule, the Tornillo facility did not conduct required FBI fingerprint background checks for approximately 1300 members of its staff. Office of the Inspector Gen., Dep’t of Health & Human Servs. A-12-19-20000, The Tornillo Influx Care Facility: Concerns About Staff Background Checks and Number of Clinicians on Staff 1, 6 (2018). Tornillo instead used a private vendor to perform nonfingerprint background checks, which were not as extensive as the FBI fingerprint background checks. Id. Tornillo also did not employ enough clinicians necessary to provide adequate mental healthcare for UACs in its custody. Id. at 7. ORR regulations generally require one clinician for every twelve children, but Tornillo operated with one clinician for every fifty-five children. Id.

    [112].       8 U.S.C. § 1232(b)(3) (2012).

    [113].       See supra Section I.B.

    [114].       Julie M. Linton et al., Policy Statement, Detention of Immigrant Children, 139 Pediatrics, Mar. 13, 2017, at 6; see also Office of the Inspector Gen., Dep’t of Health & Human Servs., Care Provider Facilities Described Challenges Addressing Mental Health Needs of Children in HHS Custody, OEI-09-18-00431, https://oig. hhs.gov/oei/reports/oei-09-18-00431.pdf (describing the challenges HHS facilities faced in addressing the mental health needs of children in its custody) [https://perma.cc/S9F2-LDLS].

    [115].       Amanda Arnold, What To Know About the Detention Centers for Immigrant Children Along the U.S.-Mexico Border, Cut (June 21, 2018), https://www.thecut.com/2018 /06/immigrant-children-detention-center-separated-parents.html [https://perma.cc/MW7J-LER2]. The Ursula facility is CBP’s largest immigration processing center. Lisa Ryan, Inside 3 Detention Centers Where Immigrant Children Are Kept from Their Parents, Cut (June 18, 2018), https://www.thecut.com/2018/06/inside-ursula-border-patrol-center-family-sepa ration.html [https://perma.cc/9GAU-WFRD].

    [116].       Office of Inspector Gen., OIG-18-87, Results of Unannounced Inspections of Conditions for Unaccompanied Alien Children in CBP Custody 3 (2018) [hereinafter Unannounced Inspections]. OIG assessed CBP’s compliance with the 2015 National Standards on Transport, Escort, Detention, and Search, which differs from the standards required under the Flores Settlement Agreement. Id.

    [117].       Id. at 4–6.

    [118].       See supra Section I.B.

    [119].       The Department of Homeland Security’s Family Separation Policy: Perspectives from the Border Hearing Before the Subcomm. on Border Security, Facilitation, and Operations of the H. Comm. on Homeland Security, 116th Cong. 26 (Mar. 26, 2019) (statement of Michelle Brané, Director, Migrant Rights and Justice Program Women’s Refugee Commission) [hereinafter Brané Testimony].

    [120].       Id. at 26–28.

    [121].       See supra Section I.B.

    [122].       Brané Testimony, supra note 120, at 26. When Brané brought this situation to CBP’s attention, the officials discovered that the toddler was separated from her aunt four days prior. Id. Apparently, the child’s aunt was also detained in the Ursula facility, but officials failed to realize this until Brané asked the CBP officials to look into the matter. Id. at 26–27. CBP also incorrectly listed the toddler’s name and date of birth; the toddler was listed as being two years old, but was actually almost four. Id. at 27.

    [123].       The amount of trauma imposed on detained children by the United States government has raised the attention of doctors who urge that separating children from their families can cause “toxic stress” that disrupts brain development and negatively impacts long-term health. Joel Rose, Doctors Concerned About ‘Irreparable Harm’ to Separated Migrant Children, NPR (June 15, 2018), https://www.npr.org/2018/06/15/620254326/doctors-warn- about-dangers-of-child-separations [https://perma.cc/VHN3-97W5].

    [124].       See Geneva Sands, Border Patrol Facility over Capacity as Government Struggles to Keep Pace in the Rio Grande Valley, CNN (Mar. 22, 2019, 9:38 AM), https://www.cnn. com/2019/03/20/politics/border-patrol-facility-overcapacity-rio-grande-valley/index.html [https://perma.cc/4ETP-VA43].

    [125].       This is especially pronounced in El Paso where CBP agents are apprehending more migrants than it has space to detain, resulting in a makeshift detention encampment under a bridge. Simone Romero, Migrants Are Detained Under a Bridge in El Paso. What Happened?, N.Y. Times (Mar. 29, 2019), https://www.nytimes.com/2019/03/29/us/el-paso-immig ration-photo.html [https://perma.cc/U47V-ELWK]. Some detainees sleep inside a large military tent under the bridge, while others sleep on the ground outside the tent. Id.; see also Robert Moore, “They Treated Us like We Are Animals”: Holding Pen for Migrant Families in El Paso Shut Down, Tex. Monthly (Mar. 31, 2019), https://www.texasmonthly.com/ news/holding-pen-migrant-families-shut-down-el-paso/ [https://perma.cc/NY6E-KFLR].

    [126].    The number of families apprehended at the southwestern border has increased by 406% in the last year, between August 2018 and August 2019. U.S. Border Patrol Southwest Border Apprehensions by Sector Fiscal Year 2019,  U.S. Customs & Border Prot., https:// www.cbp.gov/newsroom/stats/sw-border-migration/usbp-sw-border-apprehensions (last updated Sept. 9, 2019) [https://perma.cc/M7K5-U6ZE].

    [127].       Joel Rose, Fact Check: Migrants Are Not Overwhelming the Southwest Border, NPR (Nov. 2, 2018 6:28 PM ET), https://www.npr.org/2018/11/02/663532238/fact-check-migrants-are-not-overwhelming-the-southwest-border [https://perma.cc/8QJC-N23R].

    [128].       Miriam Jordan, More Migrants Are Crossing the Border This Year. What’s Changed?, N.Y. Times (Mar. 5, 2019), https://www.nytimes.com/2019/03/05/us/crossing-the-border-statistics.html?module=inline [https://perma.cc/GLAT-D48C].

    [129].       As the number of children at the border increases, CBP is expanding its facilities to detain the apprehended children. Manny Fernandez, Two New Tent Cities Will Be Built in Texas To Hold Migrants, N.Y. Times (Apr. 17, 2019), https://www.nytimes.com/ 2019/04/17/ us/mcaleenan-migrants-border-texas.html [https://perma.cc/8A57-UJVE]. Additionally, ORR awards million dollar contracts each year to private prison companies to detain children in its care. U.S. Gov’t Accountability Office, GAO-18-343, Immigration Detention: Opportunities Exist to Improve Cost Estimates 18 (2018).

    [130].    Flores v. Sessions, 394 F. Supp. 3d 1041, 1070 (C.D. Cal. 2017);            see supra note 35 and accompanying text.

    [131].       The system-wide length of care for a UAC in ORR custody was forty-seven days at the end of July 2019, down from ninety-three days of the end of 2018. U.S. Dep’t of Health And Human Servs., Unaccompanied Alien Children Program, https://www.hhs.gov/ sites/default/files/Unaccompanied-Alien-Children-Program-Fact-Sheet.pdf (last updated Aug. 2019) [https://perma.cc/4CNC-JHAC].

    [132].       Texas Dep’t of Family & Protective Servs. v. Grassroots Leadership, Inc., No. 03-18-00261-CV, 2018 Tex. App. LEXIS 9643, at *2 (Tex. App. Nov. 28, 2018). In 2017, seventy-three percent of all persons in immigration detention were detained in facilities operated by private prison companies. Kara Gotsch & Vinay Basti, The Sentencing Project, Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons 5 (2018), https: //www.sentencingproject.org/wp-content/uploads/2018/07/Capitalizing-on-Mass-Incarcerat ion.pdf [https://perma.cc/GK3J-9V8H]. In comparison, in 2016, 8.5% of incarcerated persons in federal or state prisons were incarcerated in private prisons. Id. From 2000 to 2016, the population of persons incarcerated in private federal prisons increased by 120%. Id. Over the same time period, the number of persons detained in private immigration detention facilities increased by 442%. Id.

    [133].       David Mekeel & Karen Shuey, Numbers Shrink at Immigration Facility in Bern Township, Reading Eagle (Apr. 15, 2019, 7:45 AM), https://www.readingeagle.com/news /article/numbers-shrink-at-immigration-facility-in-bern-township [https://perma.cc/9F4A-PH2G]. Berks County receives $1.3 million in annual revenue from ICE to run the facility. Id.

    [134].       Peck & Harrington, supra note 26, at 8 & n.64. The Berks facility is the only facility that was ever state licensed, but its license was revoked in 2016. Id. Litigation is still ongoing regarding the Berks facility’s license. Mekeel & Shuey, supra note 134. The Karnes and Dilley facilities sought, but did not obtain, licensing after the Texas Department of Family and Protective Services issued an emergency rule. Texas Dep’t of Family & Protective Servs., 2018 Tex. App. LEXIS 9643, at *2. A Texas court issued a temporary injunction prohibiting the issuance of that emergency rule, but on appeal that case was dismissed with prejudice for lack of standing, so the rule went into effect. Id. at *2–3. Under the emergency rule, Karnes and Dilley could apply for licenses in Texas as childcare facilities despite being operated by private prison companies. Teo Armus, A Court Ruling May Allow Migrant Families To Be Held Indefinitely. These Families Know What That Could Be Like., Tex. Trib. (Dec. 10, 2018, 12:00 AM), https://www.texastribune.org/2018/12/10/migrant-families-indef inite-detention-in-dilley/ [https://perma.cc/3K7F-974R].

    [135].       Peck & Harrington, supra note 26, at 8.

    [136].       Mark Noferi, Note, Making Civil Immigration Detention “Civil,” and Examining the Emerging U.S. Civil Detention Paradigm, 27 J. C.R. & Econ. Dev. 533, 553–54 (2014). The goals of civil and criminal detention are also similar in that both are meant to prevent flight before proceedings and protect public safety. Id. at 548. Despite these similarities, there may be better ways to achieve the goals of civil immigration detention that do not involve indefinite detention, particularly when children are detained. For example, one option would be to allow families detained together to leave these residential facilities for specified periods of time.

    [137].       ICE has allegedly told attorneys who visited the Berks County facility that detainees would be criminally charged if they left the facility. Jacob Pramuk, A Controversial Detention Center in Pennsylvania Could Be a Model as Trump Looks To Detain Migrant Families Together, CNBC Pol. (July 17, 2018, 11:43 AM ET), https://www.cnbc.com/2018/07/17/ berks-county-pennsylvania-detention-center-could-be-model-for-trump.html [https://perm a.cc/AP75-G6LJ].

    [138].       Office of Inspector Gen., OIG-17-65, Results of Office of Inspector General FY 2016 Spot Inspections of U.S. Immigration and Customs Enforcement Family Detention Facilities 5 (2017).

    [139].       Molly Hennessy-Fiske & Molly O’Toole, Border Patrol Says Detention Centers Are Full—And Starts Releasing Migrants, L.A. Times (Mar. 20, 2019, 3:40 PM), https://www. latimes.com/nation/la-na-texas-border-migrants-released-20190319-story.html [https://per ma.cc/UU2E-4D4J].

    [140].       See supra note 125 and accompanying text.

    [141].       Ms. L. v. U.S. Immigration & Customs Enf’t, 310 F. Supp. 3d 1133, 1136–37 (S.D. Cal. 2018). Specifically, the class of persons that this injunction applies to are

[a]ll adult parents who enter the United States at or between designated ports of entry who (1) have been, are, or will be detained in immigration custody by the [DHS], and (2) have a minor child who is or will be separated from them by DHS and detained in ORR custody, ORR foster care, or DHS custody absent a determination that the parent is unfit or presents a danger to the child.

Id. at 1139 n.5 (alteration in original) (quoting Order Granting in part Plaintiff’s Motion for Class Certification, Ms. L. v. U.S. Immigration & Customs Enf’t, No. 3:18-cv-0428-DMS-MDD, 17 (S.D. Cal. June 26, 2018)). Children under the age of five were to be reunited  with their families within fourteen days and children five and older were to be reunited within thirty days of the entry of the Order. Id. at 1149.

    [142].       Separated Children in ORR Care, supra note 3, at 11.

    [143].       Order Granting Plaintiffs’ Motion to Modify Class Definition, Ms. L. v. U.S. Immigration & Customs Enf’t, No. 3:18-cv-0428-DMS-MDD, 3 (S.D. Cal. Mar. 8, 2019).

    [144].       Id. at 3. The motion to modify the class definition did not require the Trump Administration to actually reunite those children; it only required identification of the class. Id. at 14. To identify the expanded class, the government stated that it would need to manually review the case records of about 47,000 children referred to ORR, which could possibly take two years. Julia Jacobs, U.S. Says It Could Take 2 Years To Identify up to Thousands of Separated Immigrant Families, N.Y. Times (Apr. 6, 2019), https://www.nytimes.com/20 19/04/06/us/family-separation-trump-administration.html [https://perma.cc/7RA2-H5AA].

    [145].       Separated Children in ORR Care, supra note 3, at 13. The uncertainty is due to several factors. Neither DHS nor HHS officials were aware of the family separation policy until it was publicly announced. U.S. Gov’t Accountability Office, GAO-19-163, Unaccompanied Children: Agency Efforts to Reunify Children Separated from Parents at the Border 12 (2018) [hereinafter Efforts to Reunify Children]. Prior to the family separation policy, there was no integrated data system between HHS and DHS to track the identity and status of separated children. Separated Children in ORR Care, supra note 3, at 13. DHS made changes to its data system to better indicate which children were separated after the implementation of the Family Separation policy, but ORR officials were unaware that DHS made these changes. Efforts to Reunify Children supra, at 16. The number of children identified for the purposes of the Ms. L. litigation did not include the estimated thousands of children who were separated beginning in 2017 up until the date that the lawsuit was brought. Separated Children in ORR Care, supra note 3, at 14.

    [146].       The court order was entered into on June 26, 2018, but HHS did not approve reunification procedures until July 10, 2018. Efforts to Reunify Children, supra note 146, at 26–27. One ORR staff member reported that “there were times when she would be following one process in the morning but a different one in the afternoon.” Id. at 27. The approved reunification procedures were twofold: (1) determine parentage, and (2) determine whether the parent presents any danger to the child and whether the parent is fit to care for the child. Id. First, HHS initially sought to use DNA swabs to determine parentage, but the court only approved DNA testing “when necessary to verify a legitimate, good-faith concern about parentage or to meet a reunification deadline.” Id. at 27–28. Second, HHS determined fitness to care for the child by relying on the fingerprints and criminal background checks performed by DHS when the adult was first taken into DHS custody. Id. at 28. It also reviewed the child’s case file for any indication of safety concern. Id.

    [147].       Families may still be separated if DHS determines that the parent is unfit or present a danger to the child. See infra Section III.B.1. The court in the Ms. L. case did not specify what qualified as being an unfit parent or presenting a danger to the child. Ms. L. v. U.S. Immigration & Customs Enf’t, 310 F. Supp. 3d 1133, 1149 (S.D. Cal. 2018). Immigration attorneys claim the Trump Administration is taking advantage of this exception by coming up with “anything . . . to say that the separation is for the health and welfare of the child, then they’ll separate them.” Ginger Thompson, Families Still Being Separated at Border—Months After Trump’s ‘Zero Tolerance’ Policy Reversed, USA Today (Nov. 27 2018, 9:26 PM ET), https://www.usatoday.com/story/news/politics/elections/2018/11/27/donald-trump-zero-tolerance-policy-border-migrants-families-separated-immigration/2132426002/ [https: //perma.cc/HBT8-BEG7]. The determination of whether the parent poses a present danger to the child is a discretionary decision made by the CBP agent alone; it cannot be appealed. Alan Gomez, Despite Ban, Separating Migrant Families at the Border Continues in Some Cases, USA Today (Feb. 21, 2019, 6:00 AM ET), https://www.usatoday.com/story/news/poli tics/2019/02/21/trump-administration-breaks-up-some-migrant-families-heres-how-cbp-bor der-sabraw-separate/2836085002/ [https://perma.cc/6SM6-66WQ].

    [148].       Southwest Border Migration FY 2019, U.S. Customs & Border Prot., https:// www.cbp.gov/newsroom/stats/sw-border-migration [https://perma.cc/5Y73-UL3U].

    [149].       Southwest Border Migration FY 2018, U.S. Customs & Border Prot., https://www.cbp.gov/newsroom/stats/sw-border-migration/fy-2018 [https://perma.cc/U7QM-RH7B]; Southwest Border Migration FY 2017, U.S. Customs & Border Prot., https://www.cbp.gov/newsroom/stats/sw-border-migration-fy2017  [https://perma.cc/5K8S-2LRU].

[150].       For example, in April 2019, Attorney General William Barr overruled a 2005 decision from the Board of Immigration Appeals that allowed certain asylum seekers to be released on bond. Matter of M.S., 27 I. & N. Dec. 509, 509–10 (2019) (interim decision). Barr has instructed immigration judges to detain a migrant until her asylum claim is fully adjudicated, instead of permitting immigration judges to release the migrant on bond after she establishes a credible fear. Id. Viewing detention as deterrence is not unique to the Trump Administration. The Obama Administration announced a “No-Release Policy” wherein DHS detained families seeking asylum, even those found to have a credible fear of prosecution, and often refused to consider such families for bond, recognizance, or other conditions of release. Emily Ryo, Essay, Detention as Deterrence, 71 Stan. L. Rev. Online 237, 239 (2019). When Jeh Johnson, the Secretary of Homeland Security under Obama, announced this policy he stated, “Frankly, we want to send a message that our border is not open to illegal migration, and if you come here, you should not expect to simply be released.” Julia Preston, Detention Center Presented as Deterrent to Border Crossings, N.Y. Times (Dec. 15, 2014), https://www.nytimes.com/2014/12/16/us/homeland-security-chief-opens-largest-im migration-detention-center-in-us.html [https://perma.cc/98XJ-TUJE].

    [151].       Ryo, supra note 151, at 239; see also Adam Cox & Ryan Goodman, Detention of Migrant Families as “Deterrence”: Ethical Flaws and Empirical Doubts, Just Sec. (June 22, 2018), https://www.justsecurity.org/58354/detention-migrant-families-deterrence-ethical-flaws-empirical-doubts/ [https://perma.cc/J9F7-JP4M]; Tom K. Wong, Do Family Separation and Detention Deter Immigration?, Ctr. for Am. Progress (July 2018), https://cdn.americ anprogress.org/content/uploads/2018/07/23131244/FamilySeparation-brief1.pdf [https://pe rma.cc/3UBD-392M].

    [152].       Ms. L., 310 F. Supp. 3d at 1139 n.5.

    [153].       Gomez, supra note 148.

    [154].       Joint Status Report ¶¶ 7–10, Ms. L. v. U.S. Immigration & Customs Enf’t, 330 F.R.D. 284 (S.D. Cal. 2019) (No. 3:18-cv-00428 DMS (MDD)). CBP does not tell parents why they are being separated from their children if doing so “would create a risk to the child’s safety or would not otherwise be in the child’s best interests” or where CBP suspects fraud, smuggling, or trafficking. Id.

    [155].       This criterial should be objective, because as Judge Sabraw, the judge overseeing the litigation, noted, “Objective standards are necessary, not subjective ones, particularly in light of the history of this case.” Ms. L., 310 F. Supp. 3d at 1142.

    [156].       8 U.S.C. § 1325(a) (2018).

    [157].       In one case, DHS refused to reunite Hilario Maldonado with his six-year-old son because Maldonado had an outstanding warrant for a DUI from when he lived in Florida more than a decade ago. Eva Ruth Moravec & Ginger Thompson, A Defendant Shows up in Immigration Court by Himself. He’s 6., ProPublica (Nov. 27, 2018, 4:45 PM ET), https: //www.propublica.org/article/6-year-old-in-immigration-court-by-himself-zero-tolerance-family-separation [https://perma.cc/WU8F-WJQ3].

    [158].       An immigration judge may be in the best position to review this decision. However, review by an immigration judge may be difficult because of the massive backlog of immigration cases. In January 2019, it was estimated that 800,000 cases were being handled by around 400 immigration judges. Denise Lu & Derek Watkins, Court Backlog May Prove Bigger Barrier for Migrants Than Any Wall, N.Y. Times (Jan. 24, 2019), https://www.ny times.com/interactive/2019/01/24/us/migrants-border-immigration-court.html [https://per ma.cc/YS6T-85RR]. The alternative would be to allow DHS to review its own decisions. An immigration judge could at least provide neutral review, whereas DHS could not.

    [159].    Joint Status Report, supra note 155, ¶ 14.

    [160].       Of course, family separation also harms the parents. See, e.g., Molly Hennessy-Fiske, Honduran Migrant Who Was Separated From Family Is Found Dead in Texas Jail in an Apparent Suicide, L.A. Times (June 9, 2018, 5:55 PM), https://www.latimes.com/nation /la-na-border-patrol-suicide-20180609-story.html [https://perma.cc/8K5R-HFX4] (describing a situation where a father apparently committed suicide while in custody after being separated his wife and three-year-old child).

    [161].       Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 83 Fed. Reg. 45,486 (proposed Sept. 7, 2018). Since writing this Comment, the final rule has been issued. See Apprehension, Processing, Care, and Custody of Alien Minors and Unaccompanied Alien Children, 84 Fed. Reg. 44,392 (codified at 8 C.F.R. pts. 212, 236, 45 C.F.R. pt. 410) (effective Oct. 22, 2019). With respect to federal licensing, the final rule is largely the same as the proposed rule. Id. at 44,394.

    [162].       Apprehension, Processing, Care, and Custody of Alien Minors & Unaccompanied Alien Children, 83 Fed. Reg. at 45,488. It would also define “non-secure.” Id. at 45,497 (“a facility will be deemed non-secure if it meets its state’s or locality’s definition, but if no such definition is provided by the state or locality, the proposed rule provides that a facility will be deemed non-secure if it meets an alternative definition derived from Pennsylvania’s definition of secure care”). DHS relied on 55 Pa. Code § 3800.5 because the Berk County family detention center is the longest operating family detention center. Id. at 45,497 n.14. DHS does not define its “alternate definition” of the Pennsylvania Code in the regulations.

    [163].       See supra note 36 and accompanying text.

    [164].       This statement is only true in theory since the government detains children in excess of twenty days in the three existing family detention facilities anyway. See supra Section III.A.2.

    [165].       Apprehension, Processing, Care, and Custody of Alien Minors & Unaccompanied Alien Children, 83 Fed. Reg. at 45,497. DHS proposes that a detention facility would be federally licensed “if DHS employs an outside entity to ensure that the facility complies with family residential standards established by ICE.” Id. It urges adoption of an “alternative licensing process [that] would mirror analogous state licensure processes for detention centers.” Id. However, the proposed rule also notes that, while all states have licensing schemes for unaccompanied juveniles, states “generally do not have licensing schemes for facilities to hold minors who are together with their parents or legal guardians.” Id. at 45,488. Therefore, the proposed rule does not provide an alternative licensing process mirroring analogous state licensure processes because states generally do not have such licensure processes for detaining accompanied children. The proposed rule attempts to take advantage of states’ lack of licensing processes for accompanied children by creating a vague federal licensing process that would allow DHS and HHS to detain accompanied children in excess of twenty days. This is contrary, not consistent with, the Flores Settlement Agreement, which prefers release.

    [166].       See infra Part IV.

    [167].       Byrne, supra note 75, at 65.

    [168].       Id.

    [169].       8 U.S.C. § 1232(c)(2)(A) (2018) (“[A]n unaccompanied alien child in the custody of [HHS] shall be promptly placed in the least restrictive setting that is in the best interest of the child.”).

    [170].       See supra Section II.A.

    [171].    Comm. on the Rights of the Child, Report of the 2012 Day of General Discussion: The Rights of All Children in the Context of International Migration ¶ 32 (2012), https://www.ohchr.org/Documents/HRBodies/CRC/Discussions/2012/DGD2012 ReportAndRecommendations.pdf [https://perma.cc/C9EM-64HG].

    [172].       This principle only applies to placement of unaccompanied children in ORR custody. See 8 U.S.C. § 1232(c)(2)(A) (2012 & Supp. V 2018) (“[A]n unaccompanied alien child in the custody of the Secretary of Health and Human Services shall be promptly placed in the least restrictive setting that is in the best interest of the child.”).

    [173].       Unlike unaccompanied children, accompanied children may be placed in expedited removal proceedings. Smith, supra note 19, at 5. Expedited removal proceedings allow an accompanied child to be removed from the United States without a hearing or further review if the child lacks valid entry documents. See § 1225(b)(1)(A)(i) (stating that an immigrant arriving to the United States without valid entry documents shall be removed “without further hearing or review” unless the immigrant intends to apply for asylum or has a fear of persecution).

    [174].       Comm. on the Rights of the Child, supra note 172,  ¶ 73.

    [175].       See supra Section III.A.

    [176].       ORR has signed an agreement with ICE to share the legal status of a child’s sponsor with ICE. Jonathan Blitzer, To Free Detained Children, Immigrant Families Are Forced To Risk Everything, New Yorker (Oct. 16, 2018), https://www.newyorker.com/news/dispatch /to-free-detained-children-immigrant-families-are-forced-to-risk-everything [https://perma. cc/3MER-FPU9]. This creates a dilemma wherein undocumented families may want to care for an unaccompanied child, perhaps a niece, cousin, or other family member, but may face immigration consequences for doing so. Placing a child with a sponsor, instead of detaining her, is often in the child’s best interest. It is also in the child’s best interest if her sponsor is not deported. ORR should stop sharing the legal status of a child’s sponsor with ICE, or ICE should not refer these people for prosecution to reduce the number of children in ORR custody.

    [177].       For example, the nation’s largest facility for unaccompanied children, Homestead, is operated by a private company, Comprehensive Health Services. Graham Kates, Nation’s Largest Holding Facility for Migrant Children Expands Again, CBS News (Apr. 4, 2019, 11:33 AM), https://www.cbsnews.com/news/homestead-nations-largest-holding-facility-for-migrant-children-expands-again/ [https://perma.cc/8RPE-VALR]. The facility is the nation’s only site that is not subject to routine inspections by state child welfare experts. Id. Children have a very strict schedule that begins at 6:00 a.m. every morning and includes education not monitored or certified by local public schools. Id. Children have one hour of daily outdoor recreation in a field surrounded by a tall fence. Id. This prison-like environment is not appropriate for children who were not found guilty of any crime.

    [178].       The TVPRA permitted HHS to “appoint independent child advocates for child trafficking victims and other vulnerable unaccompanied alien children.” § 1232(c)(6) (2012 & Supp. V 2018). TVPRA does not require appointment of a child advocate nor does it define “vulnerable.” However, children, especially unaccompanied children, are almost always vulnerable.

    [179].       Comm. on the Rights of the Child, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, ¶ 33, U.N. Doc. CRC /GC/2005/6 (2005).

    [180].       See § 1362 (2018) (“[T]he person concerned shall have the privilege of being represented (at no expense to the Government) by such counsel.”) (emphasis added).

    [181].       See generally, Benjamin Good, A Child’s Right to Counsel in Removal Proceedings, 10 Stan. J. C.R. & C.L. 109, 148–56 (2014).

    [182].       For example, in El Salvador, boys and girls older than twelve are prime targets for gang recruitment. Sofia Martinez, Today’s Migrant Flow Is Different, Atlantic(June 26, 2018), https://www.theatlantic.com/international/archive/2018/06/central-america-border-immigration/563744/ [https://perma.cc/67KT-T57C]. A United Nations High Commissioner for Refugees report notes that of the 104 Salvadoran children it interviewed, sixty-nine children stated that they left El Salvador because of organized violence or lack of state protection from such violence. U.N. High Comm’r for Refugees, Reg’l Office for the U.S. and the Caribbean, Children on the Run: Unaccompanied Children Leaving Central America and Mexico and the Need for International Protection 31 (May 2014),  [hereinafter Children on the Run] https://www.unhcr.org/en-us/about-us/background/56fc266f4/children-on-the-run-full-report.html [https://perma.cc/S72E-Z57V].

    [183].    Children on the Run, supra note 183, at 24.

    [184].       Phil Helsel et al., Trump Administration Says It Will Cut Foreign Aid for Guatemala, Honduras, El Salvador, NBC News (Mar. 30, 2019, 7:43 PM ET), https://www.nbc news.com/politics/politics-news/trump-administration-says-it-will-cut-foreign-aid-guatema la-honduras-n989246 [https://perma.cc/6BLL-YALM].

    [185].       Elisabeth Malkin, Where Does Aid to Central America Go? Police Officers, Farmers and NGOs, N.Y. Times (Apr. 1, 2019), https://www.nytimes.com/2019/04/01/world/americas /trump-central-america-aid.html [https://perma.cc/NC7G-WFQB].

    [186].       Id.

    [187].       Children on the Run, supra note 183, at 34.

    [188].       Id. at 35.

    [189].       Id. at 26.

    [190].       President Trump described the border as being “like Disneyland” since formally ending his family separation policy because there is no longer a strong deterrent stopping families from seeking asylum. Nicholas Wu, Trump Calls for Changes to Immigration Laws, Says the Border Is ‘Like Disneyland’, USA Today (Apr. 28, 2019, 11:32 AM ET), https://www. usatoday.com/story/news/politics/2019/04/28/donald-trump-border-like-disneyland/360827 4002/ [https://perma.cc/6CFA-QJJZ].

 *  J.D. Candidate, 2020, University of Richmond School of Law; B.A., 2017, Virginia Commonwealth University. I am forever grateful for the love and encouragement of my family and friends who provide continuous support, no matter what. I would also like to thank my fellow members of the University of Richmond Law Review for their excellent editing and assistance with this Comment.

Excessive Force: A Feasible Proximate Cause Approach

Excessive Force: A Feasible Proximate Cause Approach

Latasha M. James, Comment, Excessive Force: A Feasible Proximate Cause Approach, 54 U. Rich. L. Rev. 605 (2020).

Click here to download PDF.


You shot me.

“I don’t have a gun. STOP!”

“I can’t breathe.”

“Officers why do you have your guns out?”[1]

Introduction

These are the last words of four men whose deaths at the hands of police officers stirred the public and created concern about police use of excessive force and a failure of the justice system to vindicate these civil rights violations. Unfortunately, even in the face of such publicity, excessive force cases continue to surface while the results in the courtroom remain the same.[2] This raises concerns as to both preventing the use of excessive force and ensuring justice is adequately served when such claims arise. There is no question that the substance and enforcement of the law act together to deter unwanted societal behavior. So, why do the laws against excessive force fail to act as deterrents? Many of these concerns stem from the application of the “objective reasonableness” standard used to analyze these types of cases. Some courts use only the moments immediately preceding the use of force to determine if the officer’s actions were reasonable, while other courts may choose to look at actions the officer took leading up to the use of excessive force. This variance in interpretation has led to inconsistent results and a failure to deter.

The Supreme Court provided a potential solution to this issue in its recent decision, County of Los Angeles v. Mendez­­­. In the Mendez case, the Supreme Court struck down one use of the officer’s prior conduct to determine reasonableness while opening the door for an opportunity to use proximate cause to analyze how this behavior may have led to the use of excessive force. This Comment uses the Mendez case to propose a framework for using the tort concept of proximate cause in the objective analysis of excessive force cases.

Consider for a moment the following scenarios:

Scenario A. Officers stop a man walking down the street heading to work. The officers are in full uniform and in their police car. They incorrectly identify the male as a suspected robber. As the officers tell the suspect that he is under arrest and attempt to detain the suspect by grabbing his arm, the suspect decides to run. The officers chase the suspect and tackle him, breaking his collarbone in the process.

Scenario B. Plainclothes officers in an unmarked vehicle spot a robbery suspect running down the street. The officers, with their guns drawn, approach the suspect and try to grab the suspect by the arm to arrest him. At the same time that the officers grab the suspect’s arm, the officers begin to tell the suspect he is under arrest. Before the officers can complete the arrest, the suspect responds by punching one of the officers. The two engage in a scuffle, and one of the officers shoots the suspect.

Scenario C. It is after midnight, and uniformed officers armed with a search warrant knock on a suspect’s door. Unbeknownst to the officers, they are at the wrong house. The homeowner answers the door holding a gun not initially visible to the officers. The homeowner refuses to let the officers in after he surveys the warrant and realizes it is not his address. The officers enter the residence by force and upon seeing that the homeowner has a gun, fatally shoot him.

Scenario D. Undercover officers in an unmarked car, riding through a neighborhood known for drug dealing, see what they believe is a drug sale going on at the door of a home. The officers approach the home, and as they enter the residence, yell “police.” Someone in the home fires at the officers who fire back, wounding a child in the next room. The witnesses in the home later testify that from the front window, they saw two people approaching their home. Per the witnesses, those two people entered the home without knocking, and the homeowner fired shots at the supposed trespassers.

In each of these scenarios, the officers used force in response to the citizen’s actions. As discussed through the cases used in this Comment, courts generally apply the excessive force standard without considering whether law enforcements’ pre-seizure conduct led to the citizen’s response. Because of this failure to consistently use officers’ pre-seizure actions in the excessive force evaluation, court decisions throughout the country have been inconsistent and, at times, unfair. This Comment seeks to provide a standard for determining when a citizen’s response to police action is reasonable and how that correlates to a finding that law enforcement has used excessive force and proximately caused the citizen’s injuries.

Through an analysis of the statutory and case law surrounding the use of excessive force, this Comment will review how differentiating applications of the law have led to varying and sometimes unjust results. Jurisdictions differ regarding what pre-shooting conduct can be considered, what the “objective reasonableness” standard encompasses, and how tort law should impact this analysis. Therefore, this Comment works to provide a framework for the consistent application of the objective reasonableness standard. Part I reviews the proscribed levels of force, noting when the use of force becomes excessive, and discusses the tort concept of proximate cause and how the Ninth Circuit applied proximate cause in an excessive force case that ultimately held that an officer’s pre-shooting conduct proximately caused the citizen’s injuries. Part II provides a solution for the inconsistent way courts address officers’ pre-shooting behavior by including proximate cause as part of the objective reasonableness analysis in determining whether officers’ pre-shooting conduct proximately caused the use of the excessive force, leading to the citizen’s injuries. The Comment concludes with an application of the suggested standard to the scenarios detailed above.

I. The Issue

A. Excessive Force

  1. Levels of Force

There is no question that an officer’s job can be demanding and dangerous. In the quest to serve and protect, officers often find themselves in situations requiring the use of force. While there is a universal understanding of the need for officers to use force, much debate exists as to the timeliness and extent of force used and under what circumstances force is reasonable. Most police departments evaluate force along a use-of-force continuum.[3] “A use-of-force continuum is a model by which an officer can choose verbal and physical reactions to a subject’s behavior from a range of options and adequately stop the subject’s hostile behavior and establish command and control of the subject.”[4] While these continuums may vary from department to department, they are generally composed of five stages and based on the continuum developed by the Federal Law Enforcement Training Center (“FLETC”).[5]

The continuum ranges from a base level of mere presence to a maximum level of deadly force.[6] At level one (mere presence), the use of “body language and gestures” such as the presence of a uniformed officer and/or a marked police car should be used to deter the suspect.[7] Level two includes verbal commands such as “don’t move,” “you’re under arrest,” or “stop.”[8] Which verbal cues the officer chooses and the intensity with which they are conveyed varies depending on the level of threat the officer perceives; however, the officer should make these choices based on the intent to de-escalate the situation.[9] Level three consists of empty-hand control, which involves hand-to-hand combat.[10] Level four details the use of “more extreme, but non-deadly measures” to get the suspect under control and can include the use of tasers, pepper spray, and the baton.[11] Level five is the use of  less-lethal  devices  such as “tear gas, . . . vehicle-stopping technology, and distractions.”[12] The final level—level six—is labeled deadly force, which is “force which a reasonable person would consider likely to cause death or serious bodily harm.”[13]While the continuum appears to provide bright-lined rules, it allows for fluidity such that officers may move between levels as a suspect’s response escalates.[14]

  1. When Is Force Excessive?

Generally, an officer has the option to use the amount of force necessary to bring the suspect into submission. Just because an officer uses deadly force does not necessarily mean that the officer has used excessive force. As such, the use of force does not become a legal issue until it violates a citizen’s constitutional right. Plaintiffs may establish that an officer violated their constitutional rights by showing the officer acted under the color of law and “depriv[ed] [the plaintiff] of any rights, privileges, or immunities secured by the Constitution”[15] to be free from unreasonable searches and seizures.[16] Title 42 U.S.C. § 1983 provides the remedy for this violation. The rest of this section looks at how courts have applied § 1983, specifically focusing on the legal foundation for analyzing excessive force cases that arise in an arrest per Graham v. Connor.

It is long established that excessive force claims that arise “in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen” are evaluated under the “objective reasonableness” totality of the circumstances structure laid out by the Supreme Court in Graham v. Connor.[17] “The application of physical force by an officer constitutes a seizure,”[18] and according to Graham, all claims of excessive force by law enforcement should be evaluated under the Fourth Amendment which protects against “unreasonable searches and seizures.”[19]

There are a number of factors to consider while determining the reasonableness of a search. Graham calls for a totality of the circumstances evaluation, focusing on the objective-reasonable balancing of the nature and quality of the intrusion on the suspect with countervailing government interests.[20] The Court provides three factors to consider when evaluating the totality of the circumstances: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether [the suspect] is actively resisting arrest or attempting to evade arrest by flight.”[21]

Although Graham considers reasonableness under the totality of the circumstances, the analysis focuses on the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”[22] The test is therefore “whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them,” excluding the officers’ subjective intent.[23] Courts will also consider how the seizure was made. “To determine the constitutionality of a seizure, ‘[the courts] must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’”[24] The Court further developed this concept in Tennessee v. Garner.

In Garner, a Tennessee police officer shot and killed an unarmed black teenager who was fleeing the scene of a suspected burglary.[25] The officer argued that his use of deadly force was constitutional because he acted in accordance with Tennessee’s statute that provided, if “after notice of the intention to arrest the defendant, he either flee[s] or forcibly resist[s],” the officer may “use all the necessary means to effect the arrest.”[26] The Court found the Tennessee statute unconstitutional, holding that “[w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.”[27] Here, Garner paved the way for the use of the proportionality doctrine in excessive force.[28]

Courts have since held force to be excessive where an officer’s force is unreasonable and not proportionate to the threat. To illustrate, the Ninth Circuit held that an officer used excessive force when he used a taser (considered to be intermediate force) on Carl Bryan, who was pulled over for failing to wear a seatbelt.[29] Bryan was facing away from the officer, unarmed, and not attempting to flee the scene when the officer tased him without warning.[30] Likewise, in Marsall v. City of Portland, officers shot Daman Lowery, who took hallucinogenic mushrooms and then either jumped or fell out of a second-story window, with four or five “less lethal shots” and “emptied their entire canisters of pepper spray in his face” before he could get up off of the ground.[31] The Oregon District Court found that the officers used excessive force, “given that Lowery was severely injured, unarmed, emotionally or mentally disturbed, and had not attacked or even verbally threatened [the] defendants.”[32]

In contrast, when civilians employ force to which officers respond with proportional force, courts typically do not find that the officers employed excessive force. For example, the court in Estate of Williams v. Indiana State Police Department found that the officer’s use of deadly force did not constitute excessive force when the decedent approached the officer with a raised knife.[33]Similarly, in Williams v. Deal, the officer did not use excessive force by pushing the decedent back into the car when he disobeyed a command by attempting to exit the vehicle.[34] Neither did that same officer use excessive force when he shot and killed the suspect, who attempted to take his gun and advanced toward him.[35]

In all of the preceding cases providing the historical context for analyzing excessive force claims, none of the courts applied a proximate cause approach. Before addressing how proximate cause plays into the excessive force context, the next section provides an explanation of proximate cause and how proximate cause has been sparingly used in excessive force cases historically. It begins with an analysis of proximate cause generally and moves on to discuss the lack of proximate cause analysis in excessive force cases.

B. The Intersection of Excessive Force and Tort Law

  1. Proximate Cause

Tort liability holds individuals responsible for the natural consequences of their actions. This analysis encompasses finding cause in fact and proximate cause. Cause in fact (or the “but for” test) requires a showing that but for the plaintiff’s act or omission, the defendant would not have sustained damages.[36] The but for test functions to exclude those damages unrelated to the act or omission in question.[37] If it can be shown that “the damage would not have occurred but for the defendant’s act, the defendant’s act is a cause in fact of the plaintiff’s damage.”[38] Cause in fact is generally not at issue in excessive force cases. It is generally obvious if an officer shoots and injures or fatally wounds a citizen, that the shooting is the cause in fact of the citizen’s damages. However, analyzing proximate cause is not quite so straightforward.

Proximate cause requires a “direct relation between the injury asserted and the injurious conduct alleged.”[39] Proximate cause focuses on issues regarding the scope of the risk and foreseeability.[40] Scope of the risk confines the defendant’s liability to the kinds of harms expected from the defendant’s predicate conduct.[41] For example, P causes a car accident and injures X; X’s injury from the accident requires surgery. X undergoes surgery, and surgeon Y operates on the wrong part of X’s body. P cannot be held liable for surgeon Y’s negligent operation because the actions fall outside of the scope of the risk of P negligently causing the accident.

Proximate cause also requires an injury to be foreseeable.[42] Liability flows from the defendant’s ability to foresee a risk of harm to the plaintiff.[43] It is not fair from a policy or legal perspective to hold someone liable for damages he could not reasonably see occurring from his behavior.[44] For example, in Ross v. Nut, a passerby stole a vehicle (it was alleged that the owner left the keys in the car) and later caused an accident, injuring the plaintiffs.[45] The plaintiffs sued the owner of the vehicle for negligence.[46] The Supreme Court of Ohio determined that to be liable, the owner would have to have reasonably foreseen not only the theft of his vehicle, but also the reckless driving of the thief and the injuries to the plaintiffs.[47] The court held that such a series of events was not reasonably foreseeable; and therefore, the owner was not liable.[48]

When an injury is foreseeable but the causal link between the predicate act and the damages is either attenuated or broken by a superseding event, proximate cause is not present.[49] On the other hand, if the defendant negligently creates the risk and another person or incident negligently triggers the risk, then both actors are liable.[50] It is only when the interceding cause is so unforeseeable that it is outside the scope of the risk originally created by the first that the interceding cause becomes a superseding cause and the original actor is not liable.[51] Consider, for example, the vehicle owner at issue in the Ross case who left his keys in the car. In this case, the thief’s reckless driving acted as a superseding cause,[52] breaking the chain of events and thus absolving the vehicle owner of liability to the plaintiffs.

  1. Proximate Cause in Excessive Force Claims

Precedent shows that tort principles are applicable to constitutional violations and to § 1983 claims specifically.[53]Unfortunately, due to the Graham Court’s failure to explain what should be considered under the “totality of the circumstances,” neither reasonable care nor pre-shooting behavior has played a substantial role in the excessive force evaluation or been consistently applied. Most applications of the test focus only on the moments immediately preceding the shooting, leaving out the officers’ actions prior to the use of force.[54] This section reviews how different jurisdictions have applied the test, concluding with a case analysis of Mendez and how that case pushed the proximate cause concept to the forefront of the excessive force debate.

a. Jurisdictional Application of Pre-Seizure Conduct Under Graham

The Graham Court provided that “hindsight” should not be used in analyzing excessive force claims but failed to provide context for ruling out hindsight. As a result, courts employ various methods when applying the objective reasonableness standard. The applications generally fall into one of three categories identified by Cara McClellan: (1) courts that exclude all pre-seizure conduct, (2) courts that apply a segmented approach, (3) and courts that consider pre-seizure conduct.[55]

Courts that exclude all pre-seizure conduct give a narrow reading to Graham and confine the totality of the circumstances to the application of force alone.[56] This very restrictive view typically leads to the kind of unexpected results we have seen in cases like that of Philando Castile, in which the officer was found not guilty for shooting a legally armed citizen.[57] Courts that apply the segmented approach divide the entire event, including the pre-seizure actions, into temporal segments and from there determine which events are relevant to the use of force.[58] Specifically, these courts “‘carve up’ the events surrounding the challenged police action and evaluate the reasonableness of the force by looking only at the moments immediately preceding the officer’s use of force.”[59] Because no set structure exists to break the events surrounding the use of force into segments, the results vary.[60] The final approach involves the use of the pre-seizure conduct to evaluate the reasonableness aspect of the officer’s use of force.[61] These courts interpret Graham’s totality of the circumstances more broadly and consider Graham’s “at the moment” language as “prohibit[ing] judges from imposing their own perspective, and not from considering any pre-seizure police conduct.”[62]

b. The “Provocation Doctrine”

Prior to the Supreme Court striking down the principle, the Ninth Circuit applied a pre-seizure conduct approach called the provocation doctrine.[63] According to the provocation doctrine, “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”[64] The officer’s provocation “render[s] the officer’s otherwise reasonable defensive use of force unreasonable as a matter of law.”[65]

For example, in Alexander v. City & County of San Francisco, the police shot and killed Henry Quade after entering his home with an inspection warrant.[66] As officers entered the home, Quade fired a shot at them from the stairwell.[67] The officers fired back, killing Quade.[68] Although all parties agreed that the officers’ return fire was not excessive, the decedent’s estate argued that because the officers entered the house with the “intent to arrest” Quade beyond their authority to simply inspect the premises per the inspection warrant, the entry violated Quade’s Fourth Amendment right.[69] The court shaped the issue as “whether the [officers] did something wrong that resulted in Quade’s death” and then determined that the wrongful entry and Fourth Amendment violation caused Quade to take escalating action.[70] Therefore, under the provocation doctrine, the wrongful entry could be the basis of an excessive force claim against the officers.[71] In the 2017 case County of Los Angeles v. Mendez, the Supreme Court struck down the provocation doctrine while opening the door for a consistent use of proximate cause to analyze officers’ pre-seizure conduct.[72]

c. Mendez Clears the Way for a Proximate Cause Analysis

In Mendez, the Los Angeles County Sheriff’s Department received notice that someone saw parolee-at-large Ronnie O’Dell on a bicycle at a home.[73] While reviewing the plan to search the residence for the suspect, the officers were advised that Angel Mendez and Jennifer Garcia lived in the backyard of the suspect’s home.[74] Mendez and Garcia lived inside of a one-room shack in the back of the property.[75] While three officers approached the front door, Deputies Conley and Pederson proceeded to search the rear of the property with their guns drawn.[76] The deputies entered the shack without either a search warrant or knocking and announcing.[77] At the time, Mendez and Garcia were in their home napping.[78] As the officers entered, Mendez picked up a BB gun beside his futon to help him stand up.[79] Seeing the gun, the deputies opened fire, shooting Mendez and Garcia several times.[80]

Among other claims, the victims filed an excessive force claim under § 1983.[81] The district court held a bench trial and found the use of force reasonable under Graham but found the deputies liable for excessive force through the provocation doctrine.[82]The Ninth Circuit determined that qualified immunity applied to the knock and announce claim but upheld the excessive force application of the provocation doctrine and confirmed the officers’ liability “on the theory that they had intentionally and recklessly brought about the shooting by entering the shack without a warrant in violation of clearly established law.”[83] The appeals court also determined that the officers would be liable even if the provocation doctrine did not apply because under “basic notions of proximate cause,” it is reasonably foreseeable that when officers enter a home without announcing, the homeowner could have a gun with the intent to protect himself.[84]

The Supreme Court found the provocation doctrine incompatible with the Fourth Amendment, noting that “[a] different Fourth Amendment violation cannot transform a later, reasonable use of force into an unreasonable seizure.”[85] The Court also vacated the proximate cause decision because the Ninth Circuit “did not identify the foreseeable risks associated with the relevant constitutional violation (the warrantless entry); nor did it explain how, on these facts, respondents’ injuries were proximately caused by the warrantless entry.”[86] The Court determined that the Ninth Circuit muddied the proximate cause analysis with the provocation doctrine and remanded the case.

The Mendez case ruled out the provocation doctrine, solidifying the use of proximate cause analysis in excessive force cases. While the provocation doctrine used a prior constitutional violation to make an otherwise reasonable use of force excessive, proximate cause evaluates the officers’ actions in terms of an objective standard of reasonable care, with the goal of determining if the officers’ prior actions made the use of force foreseeable.

On remand, the Ninth Circuit held that the deputies’ warrantless entrance into the residence without consent or exigent circumstances proximately caused the shooting and Mendez’s injuries.[87] Per the court, from the failure to secure a warrant arose the duty to not enter the home.[88] Regardless of whether the officers knocked and announced, the shooting would not have occurred if they had not entered the home.[89] This case was again appealed, and the Supreme Court refused to grant certiorari.[90]

In addition to using proximate cause to find that the officers’ pre-seizure conduct led to the use of force, the Ninth Circuit also indirectly considered the well-established principle that officers are liable for the “natural consequences of [their] actions.”[91] In this respect, the “natural consequences” are determined using the “reasonable care” standard of negligence, which would be the care of a reasonable police officer, as opposed to the more limited reasonableness Graham standard normally applied in excessive force cases.[92] In A Tactical Fourth Amendment, Professors Brandon Garrett and Seth Stoughton argue that under the Fourth Amendment inquiry, officers should be evaluated from the perspective of a “reasonably trained” police officer and not as the “hypothetical ‘reasonable man,’ a civilian but for the uniform, untrained in tactics and the use of force.”[93] A proximate cause analysis automatically applies the “reasonable man” rule, and the evaluation immediately becomes a “reasonable officer” with consideration of all of their training and experience.[94] From this, it would reasonably follow that if the use of force is a natural consequence of the officer’s actions from the perspective of a “reasonable officer” of like quality, skill, and training, whether those actions are immediately before the seizure or minutes before the seizure, then that action is the proximate cause of the use of force and the officer should be held liable. The Ninth Circuit made just this decision in the Mendez case on remand.[95]

The next Part uses the Supreme Court decision with the Ninth Circuit’s application to provide a solution for applying proximate cause to excessive force cases moving forward.

II. The Solution

Although the Mendez case provided the basis for using proximate cause in excessive force cases, the Supreme Court’s analysis failed to explicitly detail how proximate cause should apply in these types of situations, and while the Ninth Circuit applied the doctrine on remand, it failed to provide insight as to the weight of proximate cause in analyzing an excessive force claim. Therefore, the question remains: should pre-shooting conduct matter; and if so, how much? This Part recommends a standard to fill these gaps and appropriately employ proximate cause to analyze pre-shooting conduct.

As previously stated, excessive force cases generally do not turn on a cause in fact analysis; the issue typically lies in determining whether an act was foreseeable. This Comment argues that when a citizen responds to an officer’s actions with reasonable defensive measures, which then lead to the officer employing force against the citizen, the officer proximately causes the citizen’s injuries. Within officers’ duty to act reasonably lies an obligation to not engage in conduct that will precipitate reasonable defensive measures requiring the use of force.[96] Thus, when officers breach this duty, they should be held liable for excessive force.

Whether a citizen has used reasonable defensive measures should arguably depend on (1) whether officers are reasonably identifiable as such and (2) the nature of the officers’ actions. Each of these elements, when standing alone, could potentially create liability for the officer, but this Comment contends that every time an unidentified officer behaves in a manner that triggers a reasonable response from the citizen in an excessive force case, the officer’s actions will be the proximate cause of the citizen’s injuries.

A. Reasonably Identifiable Officer

Law enforcement authority results in part from the respect that citizens give them simply due to their roles as officers. This premise is reflected in the mere presence (Level 1) aspect of the use-of-force continuum as well as the common law right to resist an unlawful arrest. At common law, citizens have a foundational right to resist an unlawful arrest. Most states have modified this rule to prohibit the use of the force to resist a peaceful arrest by someone who knows or has reason to know the individuals are law enforcement officers engaged in their duty, regardless of the legality of the arrest.[97] However, when an officer cannot reasonably be identified as such, the likelihood of a citizen acquiescing to his demands goes down significantly.

It is essential to understand what is meant by “reasonably identifiable.” As used in this Comment, the public can reasonably identify officers as law enforcement when an ordinarily reasonable person would perceive them as such. Typically, officers are identified by their uniform, vehicle, or both. Behind the wheel of an unmarked car, officers are harder to identify, as is likely their intent; however, when their lights are turned on or they exit the vehicle in uniform, officers are then reasonably identifiable as law enforcement. An issue with excessive force arises when the officers are not reasonably identified as such. The rest of this section focuses on the foreseeability of the use of force when an officer is not reasonably identifiable.

Consider, for example, Mendez, where the officers were not reasonably identifiable even though they were in uniform.[98]They failed to knock and announce and did not present a warrant to enter the shack. Mendez and Garcia were asleep and unaware of the armed officers searching the backyard. Mendez indicated that he thought the officers were the homeowner.[99] It is not farfetched to think that Mendez’s response to the officers would have been different if Mendez had known they were law enforcement. If this were the case, it is likely he would not have reached for the BB gun to help him get up, specifically to avoid the situation that then occurred.

As stated above, officers’ uniforms and vehicles are their primary sources of identification. In Mendez, the officers were in uniform but other circumstances made them unidentifiable. When officers are not in uniform and marked vehicles, violent interactions are foreseeable. Robinson v. Rankin provides an example of a case in which the officers were in plainclothes in an unmarked vehicle when a fatal shooting resulted. Calvin Jr. rode as a passenger in Brown’s vehicle when Brown drove up “driver to driver” with another vehicle and made a “hand-to-hand” drug exchange.[100] Lieutenant Rankin and Officer Easterwood observed the alleged exchange while riding in “an unmarked silver Chevrolet Malibu equipped with blue lights and sirens” and dressed in plainclothes.[101] Perceiving this exchange to be a drug deal, the officers blocked Brown at an intersection and exited their Malibu with weapons drawn without announcing that they were police officers.[102] Brown described his response:

All I seen was two—it was two white boys jumped out both of them got pistols out and everything. The one on the driver’s side was running to my car. . . . First thing in my mind was, “Oh, Lord, we are fixing to get robbed” or something like that. . . . [A]nd my first thought was “go, go, go.” . . . So my first—mind, is smashed [sic] the gas and go.[103]

As Brown began to go, Officer Easterwood believed Brown was trying to hit him with the car.[104] Feeling threatened, he fired six shots at the car, injuring Brown and killing Calvin Jr.[105] Analyzing the case under Graham’s totality of the circumstances without any consideration for proximate causation, the court held that all six shots fired “were constitutionally permissible.”[106]Had the court applied a proximate cause approach to determine if the citizen’s response was reasonable, a different result could have been very likely.[107] Unlike the provocation doctrine, which looks for a prior constitutional violation, proximate cause would evaluate the officers’ pre-seizure actions, such as jumping out of an unmarked vehicle in plainclothes, to determine whether the officers could foresee that their actions would lead to the citizen’s reasonable response, proximately causing the officers to use excessive force.

The officers’ failure to identify themselves proximately caused the use of force that resulted in Calvin Jr.’s death and Brown’s injury. One can reasonably foresee that a driver who sees an individual running at the vehicle with a gun would take some type of defensive measure, such as attempting to flee the scene or even attempting to hit the person with the gun. These actions become even more likely in the case of a drug dealer, who is apt to think exactly what Brown thought—that someone was trying to rob him. In fact, the level of force used to flee would likely increase in circumstances that implicate illegal activity, such as drug dealing. Importantly, both officers in the Rankin case were assigned to the United Narcotics Investigation Task Force and were in the area “following up on drug-related complaints.”[108] As such, a reasonable officer with their training and skill would foresee that an alleged drug dealer who sees two people running towards him with guns would fear that he was being robbed.

No one can say for certain that Brown’s response would have been different if the officers were in uniform or turned the lights and sirens on when they cut off Brown’s vehicle. Still, the chances of the civilian’s response differing increases if the officers are easily identifiable as law enforcement. In this situation, the officers breached their duty not to engage in conduct that would precipitate reasonable defensive measures requiring the use of force.

Although the Rankin case involved officers not reasonably identifiable by their clothes or their vehicle, the circumstances could be the same if just one of those elements were present: plainclothes officers or officers in unmarked vehicle without lights and sirens who never exit the vehicle before the use of force begins. Take, for example, the case of King v. United States, in which FBI agents were looking for Aaron Davison, a home invasion suspect.[109] They had previously received information that Davison visited a certain gas station between 2:00 p.m. and 4:00 p.m. every day.[110] Around 2:30 p.m., the agents spotted King walking down the street near, but several blocks from, the gas station.[111] Believing that King was the suspect, the agents exited an unmarked vehicle and proceeded to walk toward him.[112] The agents dressed in plainclothes but wore lanyards displaying their badges.[113]

The agents asked King for his name and his identification, to which King complied but explained he did not have identification.[114] The agents told King to “put his hands on his head and to face their vehicle.”[115] King later testified that he complied because the agents “had small badges around their chest, and [he] assumed [they had] some sort of authority.”[116] Upon discovering that King was carrying a pocketknife, one of the agents removed the knife, and in the process, “commented on the size of [King’s] wallet,” removing it from King’s pocket as well.[117] After asking if the officers were mugging him, King attempted to run.[118] The agents gave chase, and a fight ensued.[119] Throughout the process, King screamed for help and “begged passersby to call the police.”[120]

Even though a debate exists as to whether the agents were reasonably identifiable in this case more so than in Rankin, the issue still revolves around King’s lack of knowledge as to the identity of the officers.[121] King immediately cooperated when he thought he was dealing with law enforcement of some type. However, when the officer took King’s wallet, leading him to suspect these individuals were imposters, King then began to defend himself against what he believed to be a mugging.[122]

In addition, this case raises the concern regarding whether a lanyard is enough to make officers reasonably identifiable as such. Standing alone, a lanyard is potentially not enough, especially considering lanyards are worn by officers who wish to not be identified. A lanyard may not be visible immediately to the citizen or to a good Samaritan who decides to help a person he perceives as being assaulted by another citizen. Not only did King question whether these were cops, but so did a bystander who called 9-1-1 and stated, “I understand they have badges on, but I don’t see no undercover police cars, no other—backup, no nothing.”[123] As evidenced by the bystander’s comment that there were no undercover police cars or backup, a lanyard is not the standard item civilians look for when trying to identify a police officer.

Sometimes lanyards are not even enough for other officers to identify each other. In 2011, when a plainclothes Baltimore police officer was accidentally shot and killed by officers of the same district, the police spokesperson confirmed that there needs to be some way for officers to identify other plainclothes officers in the area, and “[i]t has to be something more than a badge hanging from a neck.”[124] Maybe a lanyard and a verbal statement that the person is law enforcement will suffice, but a lanyard alone creates at least enough of an issue for this to be a jury question.

While this may not always be the case, the fact that the officer is reasonably identifiable makes it more likely that a citizen will not only comply with the officer’s demands but also respond reasonably.

B. Nature of Officer’s Action

As persons of authority and peace officers, law enforcement is expected to behave in a way that does not escalate a situation to the point that a citizen will engage in a reasonable defensive measure. It is understood that officers cannot control another person’s behavior, but officers can control their behavior in performing their duties. In doing so, they owe an obligation to the public to do so in a manner consistent with police policies and the law.[125] There are a number of behaviors an officer can engage in that will create a situation in which the officer can reasonably foresee a defensive measure from the citizen. The behaviors reviewed are not meant to be exhaustive, only illustrative, as there are a number of actions officers can engage in that can illicit reasonable defensive measures.

Because officers face situations that can be extremely stressful and