Underdeveloped and Over-Sentenced: Why Eighteen- to Twenty-Year-Olds Should Be Exempt from Life Without Parole

Emily Powell, Underdeveloped and Over-Sentenced: Why Eighteen- to Twenty-Year-Olds Should Be Exempt from Life Without Parole, 52 U. Rich. L. Rev. Online 83 (2018).

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Emily Powell *

Reynolds Wintersmith was just twenty years old when he learned he may spend the rest of his life in prison.[1] In 1994, he was sentenced to life without the possibility of parole for a nonviolent drug crime.[2] It was his first conviction.[3]

When United States District Judge Philip Reinhard was sentencing Reynolds, he struggled with the mandatory minimum requirements:[4]

Under the federal law I have no discretion in my sentencing. Usually a life sentence is imposed in state courts when somebody has been killed or severely hurt, or you got a recidivist . . . . [T]his is your first conviction, and here you face life imprisonment . . . . [I]t gives me pause to think that that was the intent of Congress, to put somebody away for the rest of their life.[5]

This comment contends that Reynolds Wintersmith belonged to a class of offenders who should be categorically exempt from sentences of life imprisonment without the possibility of parole. Sentencing eighteen- to twenty-year-olds to life without parole should be considered cruel and unusual because it is disproportionate to this class of offenders’ culpability.

The United States Supreme Court has categorically exempted classes of offenders from punishment before.[6] In Roper v. Simmons, the Court held that sentencing juveniles to death violated the Eighth Amendment’s ban on cruel and unusual punishment.[7] The Court also held in Graham v. Florida that juveniles were categorically exempted from life imprisonment without the possibility of parole for non-homicide offenses.[8] In coming to these decisions, the Court has given the same two reasons for categorically banning particular sentences for classes of offenders: (1) a national consensus has formed against the sentence for the class of offenders, and (2) the sentence is disproportionate to the culpability of the class of offenders.[9]

This comment argues that eighteen- to twenty-year-olds should be categorically spared from life without parole for these same two reasons.[10] First, sentencing data suggests only a small portion of those sentenced to life without parole were between eighteen and twenty years old at the time of their crimes.[11] This low rate illustrates that the country appears to oppose sentencing eighteen- to twenty-year-olds to prison for the rest of their lives without any opportunities for release. Second, sentencing eighteen- to twenty-year-olds to life without parole is a disproportionate punishment because scientific research shows that this class of individuals shares the same mitigating characteristics as juvenile offenders.[12] These characteristics diminish culpability and thus make life without parole a disproportionate sentence for these offenders.

Part I of this comment describes the legal foundation for establishing categorical sentencing exemptions for classes of offenders, discussing the Supreme Court’s decisions in Roper,[13] Graham,[14] and Miller v. Alabama.[15] Part II outlines the behavioral, psychological, and neurological research surrounding the culpability of eighteen- to twenty-year-olds, arguing that there is scientific confirmation that eighteen- to twenty-year-olds’ brains are similar to those of juveniles. Part III applies the Court’s categorical exemption test and concludes that eighteen- to twenty-year-olds should be exempt from life without parole.[16] In the end, eighteen- to twenty-year-olds have more to offer the world in the long lives they have ahead of them.

I.  The Supreme Court’s Categorical Exemption Jurisprudence

The Supreme Court created a test to categorically exempt offenders from sentences,[17] and has applied this test to the death penalty with regard to mentally disabled offenders and defendants under eighteen years of age at the time of their crimes.[18] The Court has also applied the test to life without parole for non-homicide juvenile offenders.[19] While the Court held it is unconstitutional to sentence juveniles to mandatory life without parole in homicide cases, it bypassed the categorical exemption test because it was not necessary to decide the case in question.[20] This part discusses the Court’s categorical exemption test and the relevant cases in which it has been implemented.

A.  Atkins and Roper: The Supreme Court’s Two-Part Categorical Exemption Test

In 2002, the Supreme Court held in Atkins v. Virginia that the execution of defendants with mental disabilities violated the Eighth Amendment.[21] To support its holding, it engaged in a two-part analysis.[22] First, the Court recognized that numerous states were no longer executing those with mental disabilities, and “even in those [s]tates that allow the execution of mentally [disabled] offenders, the practice is uncommon.”[23] The Court found that because the practice had become so unusual, “a national consensus [had] developed against it.”[24]

Second, the Court engaged in an independent proportionality inquiry and held that executing those with mental disabilities “will [not] measurably advance the deterrent or the retributive purpose of the death penalty.”[25] The Court recognized that those with mental disabilities “do not act with the level of moral culpability that characterizes the most serious adult criminal conduct.”[26] People with mental disabilities are less likely to be deterred by capital punishment because of “their disabilities in areas of reasoning, judgment, and control of their impulses.”[27] Therefore, the Court found capital punishment was “excessive” after “[c]onstruing and applying the Eighth Amendment in the light of our ‘evolving standards of decency.’”[28]

Three years later, in Roper v. Simmons, the Court held that the execution of defendants younger than eighteen years of age at the time of their crimes violated the Eighth Amendment.[29] In reaching its decision, the Court engaged in its two-part analysis from Atkins.[30] It held that a national consensus had formed in opposition to executing juveniles, which was evidence that society views juveniles as “categorically less culpable than the average criminal.”[31]

The Court then engaged in its independent proportionality inquiry and held the death penalty was an excessive punishment for juveniles under the Eighth Amendment.[32] The Court reasoned that “[c]apital punishment must be limited to those offenders who commit ‘a narrow category of the most serious crimes’ and whose extreme culpability makes them ‘the most deserving of execution.’”[33] It reasoned that juveniles cannot be classified among the worst of offenders because they differ from adults in three meaningful ways: (1) they lack maturity and a developed sense of responsibility; (2) they are “susceptible to negative influences and outside pressures, including peer pressure;” and (3) their character is not as well-formed.[34] The Court concluded these characteristics diminished culpability, and the two clear social purposes served by the death penalty—retribution and deterrence—were therefore not as adequate of justifications with regard to juveniles as they are with adults.[35]

While the Court acknowledged that “[t]he qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” it decided that a bright line needed to be drawn.[36] After recognizing that logic previously used to exclude offenders under age sixteen from the death penalty[37] could be extended to those under eighteen, the Court concluded that because eighteen years of age was “where society draws the line for many purposes between childhood and adulthood,” this is also where “the line for death eligibility ought to rest.”[38] As the risk of executing juvenile offenders with diminished culpability could not be remedied by an individualized sentencing regime, offenders under eighteen years old are categorically exempt from the death penalty.[39]

B.  Graham: Analyzing Actual Sentencing Practices to Find a National Consensus Against a Punishment

While Atkins and Roper provided the two-part categorical exemption test,[40] Graham clarified the first prong of the test in 2010.[41] In Graham, the Court applied the two-part test and held that juveniles were categorically exempted from life without parole for non-homicide offenses.[42] It found that a national consensus existed against this punishment even though the majority of states permitted it.[43] After considering the practices of states where the sentence was permitted, the Court found the punishment was rarely utilized.[44] For this reason, “an examination of actual sentencing practices . . . discloses a consensus against its use.”[45] The Court went on to note that only one state imposed the “significant majority” of the sentences, and only ten states imposed the remainder.[46] Graham therefore clarified that a national consensus against a practice can be established by the mere infrequency of the particular sentence.[47]

When applying the second prong of the categorical exemption test, the Court held that life without parole is a violation of the Eighth Amendment when imposed on juvenile offenders for non-homicide offenses for three reasons: (1) the offender’s lessened culpability;[48] (2) the severity of life without parole;[49] and (3) the lack of any legitimate penological justification—such as retribution, deterrence, incapacitation, or rehabilitation—to justify the sentence.[50]

For the first concern, the Court reiterated the same three mitigating characteristics outlined in Roper.[51] It also emphasized that “[a] sentence lacking any legitimate penological justification is by its nature disproportionate to the offense.”[52] The Court continued to recognize that “because juveniles have lessened culpability they are less deserving of the most severe punishments.”[53] Furthermore, the Court pointed out that “developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds,”[54] including that “parts of the brain involved in behavior control continue to mature through late adolescence.”[55]

When discussing its second concern—the severity of life without parole—the Court noted the sentence shares characteristics with the death penalty that other sentences do not.[56] For instance, the Court recognized the only hope offenders have in the restoration of their most basic liberties is the remote chance of executive clemency, “which does not mitigate the harshness of the sentence.”[57] Furthermore, the Court emphasized the importance of time when it reasoned that after imposition of this sentence, “a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender.”[58] Therefore, imposing life without parole on juvenile offenders was especially severe.[59]

Finally, the Court examined four penological justifications for sentencing juveniles to life without parole for non-homicide offenses and found that none of them adequately justified the sentence.[60] The Court ruled out (1) retribution because of juvenile offenders’ lessened culpability,[61] (2) deterrence because of juveniles’ impulsiveness,[62] (3) incapacitation because of their capacity for change,[63] and (4) rehabilitation because the sentence itself is contradictory to the rehabilitative ideal.[64] Due to the lack of legitimate justification for sentencing juveniles to life without parole for non-homicide offenses, the Court held the sentence was disproportionate and therefore violated the Eighth Amendment.[65]

C.  Miller: Bypassing the Categorical Exemption Test

The Supreme Court continued to rely on juvenile development as a justification for exempting categories of juvenile offenders when it decided Miller v. Alabama in 2012.[66] The Court held it is unconstitutional to sentence juveniles to mandatory life without parole for homicide cases because mandatory sentencing schemes do not allow judges or juries to consider the characteristics of youth as mitigating factors.[67] According to the Court, this mandatory sentencing scheme posed “too great a risk of disproportionate punishment” because it made “youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence.”[68]

The Court did not rely on the two-part categorical exemption test in its holding.[69] Rather, it combined its reasoning in Roper and Graham regarding juvenile culpability with precedent requiring individualized sentencing when imposing capital punishment.[70] The Court noted that life without parole should be treated similarly to capital punishment when the offenders are juveniles because it is such a severe sentence.[71] Therefore, because youth is significant in sentencing, the Court held that “a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for juveniles.”[72]

II.  Scientific Findings Surrounding the Culpability of Young Adults

This Part outlines the behavioral, psychological, and neurological research surrounding the culpability of eighteen- to twenty-year-olds. As it will show, eighteen- to twenty-year-olds’ brains are similar to those of juveniles. Therefore, they should be viewed similarly to adolescents in terms of culpability due to the seriousness of life without parole.[73]

A.  Behavioral and Psychological Research

Behavioral and psychological research reveal eighteen- to twenty-year-olds are more similar to adolescents than older adults.[74] For example, research shows impulsiveness increases until early adulthood and subsequently declines.[75] Eighteen- to twenty-year-olds score lower than older adults on a test measuring the anticipation of consequences,[76] and those under twenty-one years of age are more likely to engage in risky behavior and less likely to be sensitive to negative consequences than those between twenty-two and thirty years of age.[77] One study showed college-aged adults had a lesser ability to evaluate a situation before acting when compared to older adults, but there was no statistically significant difference in this ability when college-aged adults were compared to adolescents.[78] In regards to delinquency, there was no statistically significant difference in rates of offenses between college-aged adults and adolescents, but there was a difference between college-aged adults and older adults.[79] Furthermore, eighteen- to twenty-one-year-olds were more similar to ten- to seventeen-year-olds in a study measuring psychosocial maturity than they were to those who were at least twenty-six years old.[80]

Research suggests eighteen- to twenty-year-olds are also highly susceptible to peer pressure.[81] One study of 380 eighteen- to twenty-five-year-olds, with a mean age of twenty,[82] found that “antisocial peer pressure was a highly significant (p < 0.001) predictor of reckless substance use and total recklessness . . . [and] . . . a more marginally significant (p < 0.05) predictor of reckless driving and sexual behaviors.”[83] This indicates that “the reputedly ‘adolescent’ characteristic of peer pressure towards antisocial behavior continues to have an important influence into emerging adulthood” and thus “[p]eer pressure would . . . appear to be a suitable target for intervention for all youth, at least until the early-twenties age group.”[84]

B.  Neurological Research

Neurological research also highlights how eighteen- to twenty-year-olds differ from older adults. Research has shown that human brains are not fully mature until at least the age of twenty-five.[85] It has been recognized that “college-aged individuals may have yet to fully develop neurologically . . . and thus may not be equipped for mature judgment,”[86] and that “[h]igher-order executive function, emotional regulation, and impulse control also improve through the mid-twenties.”[87]

The prefrontal cortex, which is the area of the brain “associated with voluntary behavior control and inhibition such as risk assessment, evaluation of reward and punishment, and impulse control,” is “one of the last brain regions to mature.”[88] Eighteen- to twenty-year-olds’ prefrontal cortexes are undeveloped in two ways.[89] First, the gray matter of the brain has not fully matured until after age twenty.[90] Through a process called pruning, gray matter decreases as the brain matures.[91] Pruning is a process that enhances overall brain function because it “leads to greater efficiency of neural processing and strengthens the brain’s ability to reason and consistently exercise good judgment.”[92] The prefrontal cortex is “one of the last regions where pruning is complete and this region continues to thin past adolescence.”[93] Therefore, “one of the last areas of the brain to reach full maturity . . . is the region most closely associated with . . . the ability to reliably and voluntarily control behavior.”[94]

Second, the white matter of the brain does not fully mature until after age twenty.[95] White matter facilitates communication between different parts of the brain in a fast and reliable manner.[96] According to the American Medical Association, “resistance to peer influence . . . may be linked to the development of greater connectivity between brain regions,” and “the development of improved self-regulatory abilities during and after adolescence is positively correlated with white matter maturation through the process of myelination.”[97]

The underdevelopment of gray and white matter also impacts the brain’s reward system, which makes eighteen- to twenty-year-olds more susceptible to outside pressures than older adults.[98] According to one neuroscientist, “[t]he brain’s reward system becomes highly active right around the time of puberty and then gradually goes back to an adult level, which it reaches around age 25.”[99] Due to these changes, “young adults become much more sensitive to peer pressure than they were earlier or will be as adults. . . . [A] 20 year old is 50 percent more likely to do something risky if two friends are watching than if he’s alone.”[100] This neurological research, in addition to the behavioral and psychological research discussed above, supports the conclusion that eighteen- to twenty-year-olds lack the culpability for their crimes necessary to sentence them to life without parole.

III. Application of the Court’s Two-Part Categorical Exemption Test

This Part argues that the categorical exemption test should be extended to eighteen- to twenty-year-olds for life without parole.[101] If there is a national consensus against this sentencing practice, and if such a sentence is disproportionate to the culpability of this class of offenders, then the Court should hold that the Eighth Amendment categorically bans the sentencing of eighteen- to twenty-year-olds to life without parole.[102] Applying the Court’s categorical exemption test leads to the conclusion that eighteen- to twenty-year-olds should be excluded from life without parole sentences.

A.  Part One: There is a National Consensus Against Sentencing Eighteen- to Twenty-Year-Olds to Life Without Parole

The first part of the Court’s categorical exemption analysis requires determining whether a national consensus against the sentencing practice exists.[103] In doing so, the Court first considers “objective indicia of society’s standards, as expressed in legislative enactments and state practice.”[104] However, the Court has recognized “actual sentencing practices” are also integral when inquiring into national consensus.[105] A review of sentencing practices suggest there is a national consensus opposed to sentencing eighteen- to twenty-year-olds to life without parole.

Few statistics exist on the subject,[106] but it is clear the imposition of life imprisonment in the federal criminal justice system[107] is rare, regardless of age.[108] In 2013, only 153 offenders were sentenced to life imprisonment in the federal system.[109] There are at least 45 federal statutes requiring life imprisonment as a minimum sentence, and 69 of those 153 offenders were subject to this mandatory minimum.[110] Of the remaining 84 cases, 79.8% were subjected to guidelines where a life sentence was the only term of imprisonment provided.[111] The United States Sentencing Commission (the “Commission”) specifically provides for life imprisonment in only four of the over 150 guidelines in the Commission’s Guidelines Manual.[112] Even though life imprisonment is possible at the high end of sentencing ranges for other offenses, life sentences “generally occur only in cases where multiple sentencing enhancements in the guidelines had applied and where the offender had a significant prior criminal record.”[113] As of January 2015, there were 4436 federal prisoners serving life sentences, which is only 2.5% of the offenders in the Federal Bureau of Prisons’ system.[114]

Statistics specifically involving eighteen- to twenty-year-olds suggest that sentencing this class of offenders to life without parole is uncommon. The ages of the 153 federal offenders sentenced to life imprisonment in 2013 ranged between twenty- and eighty-years-old, with an average age of thirty-seven.[115] This means that of the few people sentenced to life in prison in federal court, no eighteen- or nineteen-year-olds were sentenced to federal life imprisonment in 2013.[116]

Even studies broadly examining the ages of offenders suggest that young adults are rarely sentenced to life without parole. A Bureau of Justice Statistics study concluded that in 2013, only one percent of eighteen- to thirty-nine-year-olds were sentenced to life, life without parole, life plus additional years, or death.[117] While this study examined an extremely large age bracket that included four different types of sentences, this data supports the notion that there is a national consensus against sentencing eighteen- to twenty-year-olds to life without parole. If only one percent of offenders in an age bracket spanning twenty-one years was sentenced to the harshest punishments in the criminal justice system, then it is likely that only a tiny portion of this already small statistic was between eighteen and twenty years old when they were sentenced to life without parole in 2013.[118]

Reading these Bureau of Justice statistics alongside a smaller, sentence-specific study further supports the idea that there is a national consensus against this sentencing practice. Out of 355 prisoners ranging from eighteen to fifty-seven years old at the time of arrest, who were sentenced to life without parole for nonviolent offenses, only 5.4% were twenty years old or younger.[119] If the American Civil Liberties Union’s data is an accurate reflection of the entire prison population serving life without parole sentences for nonviolent crimes, then only roughly 5.4% of these prisoners were between eighteen and twenty years old when they committed their crimes.[120]

While sentencing eighteen- to twenty-year-olds to life without parole is not statutorily barred, “those sentences are most infrequent” according to the few statistics that exist.[121] The Graham Court concluded there was a national consensus against imposing life without parole on juvenile nonviolent offenders because the sentence was so rare, despite the numerous opportunities to administer it.[122] Similarly, the infrequency of sentencing eighteen- to twenty-year-olds to life without parole does not stem from a lack of opportunity, as this age group is statistically the most violent.[123] The top four individual age groups arrested for murder and non-negligent manslaughter in 2010 were nineteen-year-olds, eighteen-year-olds, twenty-one-year-olds, and twenty-year-olds, respectively.[124] While eighteen- to twenty-year-olds—along with twenty-one-year-olds—are statistically the most violent,[125] only one percent of eighteen- to thirty-nine-year-olds were sentenced to life, life without parole, life plus years, or death in 2013.[126]

Even though sentencing this class of offenders to life without parole is rare, so long as it is legally permissible, there is an intolerable risk of sentencing an eighteen- to twenty-year-old to life without parole when he or she lacks the culpability to deserve such an extreme sentence. While the statistics cited above are not conclusive, they facially satisfy the first of the Court’s two necessary conditions for categorical exemption because there appears to be a national consensus against sentencing eighteen- to twenty-year-olds to life without parole.

B.  Part Two: Life Without Parole is a Disproportionate Punishment for Eighteen- to Twenty-Year-Olds

The second prong of the Court’s categorical exemption test requires determining whether sentencing eighteen- to twenty-year-olds to life without parole violates the Eighth Amendment.[127] This analysis requires “consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question” and whether the practice serves legitimate penological goals.[128] Using the Court’s logic, sentencing eighteen- to twenty-year-olds to life without parole is a disproportionate punishment, regardless of the crime, and the three mitigating characteristics recognized of juveniles negate the penological justifications for sentencing eighteen- to twenty-year-olds to life without parole.[129]

1. The Lack of Culpability of Eighteen- to Twenty-Year-Olds

As discussed above, eighteen- to twenty-year-olds are similar to juveniles in that they are prone to risky behavior[130] and susceptible to negative outside influences.[131] According to the Court, “[t]he relevance of youth as a mitigating factor derives from the fact that the signature qualities of youth are transient; as individuals mature, the impetuousness and recklessness that may dominate in younger years can subside.”[132] However, the mitigating qualities the Court was referring to have not yet subsided by age eighteen, and even the Court has recognized this.[133] The Court has also acknowledged that “[f]rom a moral standpoint it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor’s character deficiencies will be reformed.”[134] For this same reason, the criminal justice system should not hold psychologically and neurologically immature eighteen- to twenty-year-olds to the same standard of culpability as thirty-year-olds.

2. The Severity of Life Without Parole

The Court recognized that “life without parole is ‘the second most severe penalty permitted by law.’”[135] Life without parole “deprives the convict of the most basic liberties without giving hope of restoration.”[136] It stands for a “denial of hope; it means that good behavior and character improvement are immaterial; it means that whatever the future might hold in store for the mind and spirit of [the convict], he will remain in prison for the rest of his days.”[137] The Court acknowledged that life without parole is an especially severe punishment for juveniles because “a juvenile offender will on average serve more years and a greater percentage of his life in prison than an adult offender. A 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.”[138]

Similarly, an eighteen- to twenty-year-old and a seventy-five-year-old would receive the same punishment in name only. There is little difference between sixteen years of age and twenty years of age when one is framing the discussion around the years of life ahead of them. Eighteen- to twenty-year-olds still have numerous years and a greater percentage of their lives ahead of them than older offenders. For this reason, life without parole is equally severe for eighteen- to twenty-year-olds as it is for juveniles.

3. The Inadequacy of Penological Justifications for Life Without Parole

The Court has considered each traditional penological justification and held that they are inadequate to support sentencing juvenile non-homicide offenders to life without parole.[139] The Court’s reasoning for each penological justification applies to eighteen- to twenty-year-olds. The first justification, retribution, is “an attempt to express the community’s moral outrage or . . . an attempt to right the balance for the wrong to the victim.”[140] However, while retribution is a legitimate penological justification for punishment, “‘[t]he heart of the retribution rationale is that a criminal sentence must be directly related to the personal culpability of the criminal offender.’”[141] Behavioral, psychological, and neurological research indicate eighteen- to twenty-year-olds are more similar to juveniles than to older adults in regards to traits that influence culpability, including risk-taking,[142] temperance,[143] and susceptibility to peer pressure.[144] Just as “retribution does not justify imposing the second most severe penalty on the less culpable juvenile nonhomicide offender,”[145] it does not justify imposing this sentence on eighteen- to twenty-year-olds who lack the culpability of older adults.

The second justification, deterrence, should also be discounted. The Graham Court noted that “‘the same characteristics that render juveniles less culpable than adults suggest . . . that juveniles will be less susceptible to deterrence.’”[146] Similarly, eighteen- to twenty-year-olds are less likely to be deterred because they lack culpability. They lack the ability to anticipate future consequences,[147] have lower levels of temperance,[148] and are more likely to engage in risky behavior.[149]

Third, incapacitation does not justify sentencing eighteen- to twenty-year-olds to life without parole. Just as “[a] life without parole sentence improperly denies the juvenile offender a chance to demonstrate growth and maturity,”[150] it also disregards eighteen- to twenty-year-olds. The neurological processes that lead to the maturation of the brain have not yet matured by eighteen years old,[151] and “[h]igher-order executive function, emotional regulation, and impulse control . . . improve through the mid-twenties.”[152] Life without parole sentences impair eighteen- to twenty-year-olds’ abilities to demonstrate they will not be risks to society for the rest of their lives.[153]

The fourth and final justification, rehabilitation, was discounted by the Court because “[t]he penalty forswears altogether the rehabilitative ideal.”[154] Denying an eighteen- to twenty-year-old’s “right to reenter the community . . . makes an irrecoverable judgment about that person’s value and place in society.”[155] As discussed above, these offenders’ brains still need time to mature.[156] Life without parole assumes eighteen- to twenty-year olds are irredeemable, and therefore does not give them the chance to reenter society and prove they are rehabilitated. Consequently, following the Court’s proportionality analysis in Graham,[157] there is no penological theory that justifies life without parole for eighteen- to twenty-year-olds.

4. The Risks of Discretionary Life Without Parole

The Court has also addressed individualized sentencing of juveniles.[158] The Graham Court held that “‘[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive’ a sentence of life without parole for a nonhomicide crime ‘despite insufficient culpability.’”[159] Similarly, the psychological and neurological predispositions of eighteen- to twenty-year-olds are too well known to ignore. There is too great a risk that “the brutality or cold-blooded nature of any particular crime would overpower mitigating arguments based on youth as a matter of course, even where the . . . offender’s objective immaturity, vulnerability, and lack of true depravity should require a sentence less severe” than life without parole.[160] Due to these risks, individualized sentencing is insufficient for a class of individuals who lack the culpability to warrant such a harsh sentence.[161] The Court should go as far as holding that life without parole is a disproportionate sentence for eighteen- to twenty-year-olds under the Eighth Amendment.

Conclusion

Reynolds Wintersmith did not think he would die in prison, but rather thought his sentence was so unjust that it would inevitably be corrected.[162] He decided to take the advice of a fellow inmate: “You can do prison two ways. You can come here and die mentally or physically—you can make it your graveyard. Or, you can use it as a school and you can learn things that you could never learn anywhere else that will help you better your life.”[163] While Reynolds was incarcerated, he completed a 4100-hour teaching apprenticeship program in order to gain the necessary qualifications to teach.[164] He also counseled fellow inmates who struggled emotionally with their incarceration.[165] Even though he was sentenced to life without parole, he led a re-entry program that helped inmates prepare for their release from prison.[166]

President Obama commuted Reynolds’s sentence on December 19, 2013, and Reynolds was released on April 17, 2014.[167] He had served more than twenty years of his life sentence for a nonviolent crime.[168] Now, Reynolds has found a career as a counselor at an alternative Chicago high school.[169] He counsels students who face significant barriers, such as working, paying rent, and raising children, while trying to finish high school.[170]

Reynolds is a success story. A mandatory sentence wrote Reynolds off as irredeemable without giving him the chance to show he would not always be a risk to society.[171] He is able to prove himself now that he is free, but there are others still in prison who, under the current doctrine, will never get the chance to redeem themselves. The current doctrine does not reflect the value of rehabilitating offenders so they can once again be productive members of society. If offenders are imprisoned for lacking the requisite culpability for one of the harshest sentences available, the public could lose faith in the legitimacy of the criminal justice system.

The Supreme Court should interpret the Eighth Amendment to categorically exempt eighteen- to twenty-year-olds from life without parole. While the statistics addressed in this comment were not conclusive, they did suggest there is a national consensus against sentencing eighteen- to twenty-year-olds to life without parole. Furthermore, behavioral, psychological, and neurological research indicate eighteen- to twenty-year-olds lack the requisite culpability to be sentenced to such an extreme punishment. The Court should therefore apply its categorical exemption test and hold that the Eighth Amendment categorically bans the imposition of life without parole on eighteen- to twenty-year-old offenders.

*  J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2015, University of Virginia. I wish to express my sincere gratitude to Professors Mary Kelly Tate and Corinna Barrett Lain for their guidance and expertise. I would also like to thank the University of Richmond Law Review staff and editors for their assistance in preparing this comment for publication. I also wish to thank my parents, Michael and Kathleen Powell, for their unconditional love and support. Finally, I wish to convey appreciation for my fiancé, Chris Plavcan, for his unending love and encouragement; without him, I would still be without a title for this piece.

        [1].    Reynolds Wintersmith, FAMM, http://famm.org/reynolds-wintersmith/ (last visited Mar. 1, 2018) [hereinafter FAMM].

        [2].    Id.

        [3].    Id. Reynolds’s involvement with drugs was unsurprising, given his childhood. As a child, Reynolds was surrounded by drugs. John Kuhn, From the War on Drugs, a Story of Redemption, Chi. Rep. (Aug. 19, 2014), http://chicagoreporter.com/war-drugs-story-redemp tion/. When he was eleven years old, he watched his mother die of a heroin overdose. Id. After her death, he lived with his drug-dealing grandmother and was constantly amid gang violence. Id.; Annie Sweeney, Year After Obama-Ordered Prison Release, Ex-Drug Dealer Finds Career, Chi. Trib. (Jan. 1, 2015), http://chicagotribune.com/news/ct-life-after-prison-met-20141229-story.html. After his grandmother was sent to prison, Reynolds began to sell drugs to provide for his younger siblings when he was seventeen years old. Kuhn, supra; Sweeney, supra. It was not long before the adults in the gang brought him further into the drug ring as a leader. Kuhn, supra; FAMM, supra note 1. He was arrested when he was nineteen years old and convicted on four counts as part of a conspiracy to possess crack cocaine with intent to distribute. Am. Civil Liberties Union, A Living Death: Life Without Parole for Nonviolent Offenses 67 (2013), https://www.aclu.org/files/assets /111813-lwop-complete-report.pdf; Kuhn, supra.

        [4].    Kuhn, supra note 3. To calculate his sentence, Reynolds’s crimes were run through a formula that considered several factors, which resulted in a sentence of life plus forty years in federal prison. Id. Reynolds was effectively sentenced to life without parole because the federal government abolished parole in the 1980s. See infra note 107.

        [5].    FAMM, supra note 1.

        [6].    See, e.g., Graham v. Florida, 560 U.S. 48, 74 (2010); Roper v. Simmons, 543 U.S. 551, 578 (2005).

        [7].    See Roper, 543 U.S. at 578.

        [8].    Graham, 560 U.S. at 74–75.

        [9].    See id. at 60–61; Roper, 543 U.S. at 564–68.

      [10].    Though beyond the scope of this comment, this class of offenders should also be categorically spared from the death penalty. See generally Andrew Michaels, A Decent Proposal: Exempting Eighteen- to Twenty-Year-Olds From the Death Penalty, 40 N.Y.U. L. & Soc. Change 139 (2016).

      [11].    See Am. Civil Liberties Union, supra note 3, at 26 tbl.7; E. Ann Carson & William J. Sabol, U.S. Dep’t of Justice, Aging of the State Prison Population, 1993–2013, at 21 tbl.15 (2016) (basing data on prisoners sentenced to more than one year in state prison on new court commitments).

      [12].    See, e.g., Jeffrey Arnett, Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental Rev. 339, 343 (1992) [hereinafter Arnett, Reckless Behavior] (reckless behavior); Graham Bradley & Karen Wildman, Psychosocial Predictors of Emerging Adults’ Risk and Reckless Behaviors, 31 J. Youth & Adolescence 253, 253–54, 263 (2002) (peer pressure).

      [13].    Roper, 543 U.S. 551.

      [14].    Graham, 560 U.S. 48.

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

      [16].    While exempting twenty-four- and twenty-five-year-olds from life without parole would be ideal, this paper posits that our country is much more likely to accept the categorical exemption of eighteen- to twenty-year-olds than of eighteen- to twenty-five-year-olds. Twenty-one years of age is already a culturally significant marker of maturity. See Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat. 1213 (codified at 18 U.S.C. § 922(b)(1), (c)(1) (2012)) (prohibiting anyone under twenty-one years of age from purchasing handguns from Federal Firearms Licensees); National Minimum Drinking Age Act of 1984, Pub. L. No. 98-363, 98 Stat. 437 (codified at 23 U.S.C. § 158 (2012)) (prohibiting anyone under twenty-one years of age from purchasing alcohol); Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. No. 110-351, § 201, 122 Stat. 3949 (2008) (providing states with financial incentives to extend the age of eligibility for foster care services to twenty-one years of age). Twenty-two, twenty-three, twenty-four, and twenty-five are not culturally significant ages. Until twenty-five years of age reaches the same cultural significance as twenty-one, society will likely be less willing to support the categorical exemption of twenty-one to twenty-five-year-olds.

      [17].    See, e.g., Atkins v. Virginia, 536 U.S. 304, 312–13 (2002) (describing the categorical tests).

      [18].    Id. at 321 (mentally disabled offenders); Roper, 543 U.S. at 578 (juvenile offenders).

      [19].    Graham, 560 U.S. at 74–75.

      [20].    Miller, 567 U.S. at 479.

      [21].    Atkins, 536 U.S. at 321. The Court emphasized it had repeatedly held that “it is a precept of justice that punishment for crime should be graduated and proportioned to [the] offense.” Id. at 311 (quoting Weems v. United States, 217 U.S. 349, 367 (1910)). The Eighth Amendment states, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII.

      [22].    Atkins, 536 U.S. at 312–13.

      [23].    Id. at 314–16.

      [24].    Id. at 316.

      [25].    Id. at 321. The second prong of this test invokes what is known as the proportionality principle. See id. at 311 (“We have repeatedly applied this proportionality precept in later cases interpreting the Eighth Amendment.”).

      [26].    Id. at 306.

      [27].    Id. at 306, 319–20.

      [28].    Id. at 321 (quoting Ford v. Wainwright, 477 U.S. 399, 406 (1986)).

      [29].    Roper v. Simmons, 543 U.S. 551, 578 (2005). Roper extended the protection to sixteen- and seventeen-year-olds as the Court had already provided for those under sixteen years of age. Id. at 570–71; see Thompson v. Oklahoma, 487 U.S. 815, 838 (1988).

      [30].    Roper, 543 U.S. at 564.

      [31].    Id. at 567–68. The Court even recognized that “the United States is the only country in the world that continues to give official sanction to the juvenile death penalty.” Id. at 575.

      [32].    Id. at 568–75.

      [33].    Id. at 568 (quoting Atkins, 536 U.S. at 319).

      [34].    Id. at 569–70. The Court cited Arnett, Reckless Behavior, supra note 12, for the first finding; Laurence Steinberg & Elizabeth S. Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am. Psychol. 1009, 1014 (2003), for the second finding; and Erik H. Erikson, Identity: Youth and Crisis 26–28 (1968), for the third finding. The Court noted these differences reflected both what “any parent knows” and what scientific and sociological studies tend to confirm. Roper, 543 U.S. at 569.

      [35].    Roper, 543 U.S. at 571.

      [36].    Id. at 574.

      [37].    Thompson v. Oklahoma held that offenders under sixteen years of age could not be sentenced to the death penalty. 487 U.S. 815, 838 (1988).

      [38].    Roper, 543 U.S. at 574.

      [39].    Id. at 572–73. There is an American Psychiatric Association rule forbidding psychiatrists from diagnosing juveniles with antisocial personality disorder, otherwise known as psychopathy or sociopathy. Id. at 573 (citing Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 701–06 (4th ed. text rev. 2000)). The Court argued that “[i]f trained psychiatrists with the advantage of clinical testing and observation refrain, despite diagnostic expertise, from assessing any juvenile under 18 as having antisocial personality disorder, . . . [s]tates should refrain from asking jurors to issue a far graver condemnation—that a juvenile offender merits the death penalty.” Id.

      [40].    Id. at 564; Atkins v. Virginia, 536 U.S. 304, 312–13 (2002).

      [41].    Graham v. Florida, 560 U.S. 48, 61–62 (2010).

      [42].    Id. at 74–75.

      [43].    Id. at 62.

      [44].    Id.

      [45].    Id.

      [46].    Id. at 64. Florida imposed the significant majority of sentences, and California, Delaware, Iowa, Louisiana, Mississippi, Nebraska, Nevada, Oklahoma, South Carolina, and Virginia imposed the remainder. Id. at 63–65 (citations omitted).

      [47].    See id. at 62.

      [48].    Id. at 68–69.

      [49].    Id. at 69–71.

      [50].    Id. at 71–74.

      [51].    Id. at 68 (citing Roper v. Simmons, 543 U.S. 551, 569–70 (2005)). The Court cited juveniles’ (1) “lack of maturity and . . . underdeveloped sense of responsibility”; (2) vulnerability “to negative influences and outside pressures, including peer pressure”; and (3) character being “not as well formed” as adults’ character. Id. (quoting Roper, 543 U.S. at 569–70).

      [52].    Id. at 71.

      [53].    Id. at 68 (citing Roper, 543 U.S. at 569).

      [54].    Id.

      [55].    Id. (citing Brief for the American Medical Ass’n et al. as Amici Curiae in Support of Neither Party at 16–24, Graham, 560 U.S. 48 (Nos. 08-7412, 08-7621) [hereinafter Brief for the AMA]; Brief for the American Psychological Ass’n et al. as Amici Curiae Supporting Petitioners at 22–27, Graham, 560 U.S. 48 (Nos. 08-7412, 08-7621)).

      [56].    Id. at 69.

      [57].    Id. at 69–70.

      [58].    Id. at 70. The Court reasoned that “[a] 16-year-old and a 75-year-old each sentenced to life without parole receive the same punishment in name only.” Id. (citation omitted).

      [59].    Id.

      [60].    Id. at 71–74.

      [61].    Id. at 71–72.

      [62].    Id. at 72.

      [63].    Id. at 72–73.

      [64].    Id. at 73–74.

      [65].    Id. at 74.

      [66].    See Miller v. Alabama, 567 U.S. 460, 471–73, 477, 479 (2012).

      [67].    Id. at 474. The Court reasoned that precedent had established that “children are constitutionally different from adults for purposes of sentencing.” Id. at 471.

      [68].    Id. at 479.

      [69].    See id. at 480, 482–83. Although the Court discussed “objective indicia” in regards to the first prong of the categorical exemption test, id. at 482–83, the crux of the holding relied on a line of precedent mandating individualized sentencing, id. at 483, 485 n.11.

      [70].    See id. at 470–71.

      [71].    See id. at 474.

      [72].    Id. at 489. The Court pointed out that the “distinctive (and transitory) mental traits and environmental vulnerabilities” of juveniles are not crime-specific. Id. at 473. However, the Court still limited its holding to juveniles convicted of homicide offenses. Id. at 479–80. One of the petitioners’ arguments was that the Eighth Amendment requires a categorical ban on life without parole for all juveniles, regardless of the crime, at least for those under fourteen years old. Id. at 479. The Court declined to consider the argument because it reasoned it could sufficiently decide Miller by holding that life without parole cannot be mandatory for juvenile homicide offenders. Id. at 479–80.

      [73].    This comment posits that our country is much more likely to accept the categorical exemption of eighteen- to twenty-year-olds than of eighteen- to twenty-five-year-olds. See supra note 16.

      [74].    See, e.g., Jeffrey Jensen Arnett, Emerging Adulthood: A Theory of Development from the Late Teens Through the Twenties, 55 Am. Psychologist 469, 469 (2000); Bradley & Wildman, supra note 12, at 253–54, 263; Kathryn L. Modecki, Addressing Gaps in the Maturity of Judgment Literature: Age Differences and Delinquency, 32 Law & Hum. Behav. 78, 85 tbl.3 (2007) (reporting a distinct difference between college-aged and older adult participants on measures of temperance).

      [75].    Steinberg & Scott, supra note 34, at 1013 (citing Laurence Steinberg & Elizabeth Cauffman, Maturity of Judgment in Adolescence: Psychosocial Factors in Adolescent Decision Making, 20 Law & Hum. Behav. 249, 260 (1996)) (“[I]mpulsivity increases between middle adolescence and early adulthood and declines thereafter . . . .”).

      [76].    Laurence Steinberg et al., Age Differences in Future Orientation and Delay Discounting, 80 Child Dev. 28, 35 tbl.1 (2009) [hereinafter Steinberg et al., Age Differences].

      [77].    See Elizabeth Cauffman et al., Age Differences in Affective Decision Making as Indexed by Performance on the Iowa Gambling Task, 46 Developmental Psychol. 193, 203–04 (2010).

      [78].    Modecki, supra note 74, at 85 (“[O]n measures of temperance, adults were significantly more mature than young-adults, college students, and adolescents.”). While this study recognizes that young adults, who are between the ages of twenty-two and twenty-seven, scored similarly to college-aged adults, this simply reinforces the claim that full maturity, both psychological and neurological, is not attained until the mid- to late-twenties. Id. at 89 (“[E]motional temperance may continue to improve through the mid to late twenties.”).

      [79].    See id. at 86 (“[A]dults showed less delinquency than the adolescent, college student, and young-adult samples, whereas young-adults showed less delinquency than adolescents or college students.”). Modecki examined three different areas of delinquency in her research: “stealing offenses, property offenses, and assault offenses.” Id. at 84.

      [80].    See Laurence Steinberg et al., Are Adolescents Less Mature Than Adults?: Minors’ Access to Abortion, the Juvenile Death Penalty, and the Alleged APA “Flip Flop,” 64 Am. Psychologist 583, 591 fig.3 (2009).

      [81].    See, e.g., Bradley & Wildman, supra note 12, at 263.

      [82].    Id. at 257.

      [83].    Id. at 263.

      [84].    Id.

      [85].    See, e.g., Barbara L. Atwell, Rethinking the Childhood-Adult Divide: Meeting the Mental Health Needs of Emerging Adults, 25 Alb. L.J. Sci. & Tech. 1, 20 (2015) (“One way to best serve emerging adults is to recognize that their brain development continues until the age of twenty-five.”); Nico U.F. Dosenbach et al., Prediction of Individual Brain Maturity Using fMRI, 329 Sci. 1358, 1359 fig.1 (2010) (reporting that functional brain maturity levels out around twenty-five years of age); Robin Marantz Henig, What Is It About 20-Somethings?, N.Y. Times (Aug. 18, 2010), http://www.nytimes.com/2010/08/22/magazine /22Adulthood-t.html (“This new understanding comes largely from a longitudinal study of brain development sponsored by the National Institute of Mental Health, which started following nearly 5,000 children at ages 3 to 16 . . . . The scientists found the children’s brains were not fully mature until at least 25.”).

      [86].    Modecki, supra note 74, at 79.

      [87].    Vivian E. Hamilton, Immature Citizens and the State, 2010 B.Y.U. L. Rev. 1055, 1115 (2010).

      [88].    Brief for the AMA, supra note 55, at 16–18 (citations omitted).

      [89].    Id. at 18.

      [90].    See id. at 20. Gray matter is comprised of “neurons that perform the brain’s tasks, such as the higher functions that are carried out in the prefrontal cortex.” Id. at 19.

      [91].    Id.

      [92].    Id.

      [93].    Id. at 21.

      [94].    Id.

      [95].    Catherine Lebel & Christian Beaulieu, Longitudinal Development of Human Brain Wiring Continues from Childhood into Adulthood, 31 J. Neuroscience 10937, 10939 fig.2 (2011) (reporting a statistically significant increase in white brain matter volume for subjects between twenty and twenty-five years old); Adolf Pfefferbaum et al., A Quantitative Magnetic Resonance Imaging Study of Changes in Brain Morphology from Infancy to Late Adulthood, 51 Archives Neurology 874, 885 (1994) (reporting that after age twenty, white matter volume did not change until about approximately age seventy).

      [96].    Brief for the AMA, supra note 55, at 21–22, 22 n.67.

      [97].    Id. at 24. Myelin, a fatty white substance, insulates the pathways in which neural signals travel. Id. at 21–22. Myelination is the process by which these pathways are coated with myelin, and this process “continues through adolescence and into adulthood.” Id. at 22.

      [98].    See Brain Maturity Extends Well Beyond Teen Years, NPR (Oct. 10, 2011, 12:00 PM), http://www.npr.org/templates/story/story.php?storyId=141164708.

      [99].    Id.

    [100].    Id.

    [101].    While the Supreme Court has held that juveniles are categorically exempt from life without parole, mandatory or discretionary, for non-homicide offenses, Graham v. Florida, 560 U.S. 48, 74–75 (2010), it has declined to rule on whether juveniles should be categorically exempt from life without parole for all crimes, Miller v. Alabama, 567 U.S. 460, 479–80 (2012). Others have argued the Eighth Amendment should be interpreted to categorically exempt all juveniles from life without parole, whether mandatory or discretionary. See generally Mary Berkheiser, Developmental Detour: How the Minimalism of Miller v. Alabama Led the Court’s “Kids Are Different” Eighth Amendment Jurisprudence Down a Blind Alley, 46 Akron L. Rev. 489 (2013) (criticizing Miller for failing to hold that the Eighth Amendment categorically bans the imposition of life without parole on juveniles, regardless of the crime). While it is beyond the scope of this comment, it is the author’s position that the Eighth Amendment should in fact be interpreted to require a categorical ban on life without parole for juvenile offenders, regardless of the crime or whether the sentence is mandatory. This Part therefore assumes the categorical exemption test is extended to all juveniles with regard to life without parole and to eighteen- to twenty-year-olds with regard to the death penalty. See generally Michaels, supra note 10.

    [102].    See, e.g., Roper v. Simmons, 543 U.S. 551, 567–75 (2005).

    [103].    Graham, 560 U.S. at 61.

    [104].    Roper, 543 U.S. at 563.

    [105].    Graham, 560 U.S. at 62.

    [106].    While it is beyond the scope of this paper, further scholarly study should address why there is a lack of information regarding sentencing practices unless they involve juveniles or the death penalty, and how this lack of transparency could potentially decrease the public’s confidence in the criminal justice system.

    [107].    Federal life imprisonment is effectively “life without parole” because federal parole was abolished in the 1980s. See U.S. Sentencing Comm’n, Guidelines Manual 2016, at 2 (2016), http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2016/GLMFull.pdf.

    [108].    Glenn R. Schmitt & Hyun J. Konfrst, U.S. Sentencing Comm’n, Life Sentences in the Federal System, at 1 (2015), http://www.ussc.gov/sites/default/files/pdf/ research-and-publications/research-projects-and-surveys/miscellaneous/20150226_Life_Se ntences.pdf.

    [109].    Id.

    [110].    Id.

    [111].    Id. at 9.

    [112].    Id. at 3. These guidelines are for offenses involving “murder, treason, certain drug trafficking offenses, and certain firearms offenses committed by career offenders.” Id.

    [113].    Id. at 3–4.

    [114].    Id. at 4.

    [115].    Id. at 7.

    [116].    See id.

    [117].    Carson & Sabol, supra note 11, at 21 tbl.15.

    [118].    The author recognizes that this conclusion is based on inferences. However, because of the lack of data on this subject, these are some of the only viable statistics available that contribute to the national consensus discussion required by the first part of the Court’s categorical exemption test. See supra note 106.

    [119].    Am. Civil Liberties Union, supra note 3, at 26 tbl.7.

    [120].    Again, the author recognizes this is far too small of a sample size to conclusively claim that the ACLU’s data is reflective of the entire prison population. See supra note 106.

    [121].    See Graham v. Florida, 560 U.S. 48, 62 (2010).

    [122].    Id. at 67.

    [123].    See Howard N. Snyder, U.S. Dep’t of Justice, Arrest in the United States, 1990–2010, at 17–18 tbl.3 (2012), https://www.bjs.gov/content/pub/pdf/aus9010.pdf.

    [124].    Id.

    [125].    See id.

    [126].    Carson & Sabol, supra note 11, at 21 tbl.15.

    [127].    See Graham, 560 U.S. at 61.

    [128].    Id. at 67.

    [129].    See id. at 68, 74, 77–78 (holding that juveniles’ mitigating characteristics rendered penological justifications inadequate to justify the severity of life without parole for juvenile non-homicide offenders, and discretionary sentencing of juveniles to life without parole was too dangerous of a risk to allow).

    [130].    See, e.g., Cauffman et al., supra note 77, at 203–04.

    [131].    See, e.g., Bradley & Wildman, supra note 12, at 263.

    [132].    Roper v. Simmons, 543 U.S. 551, 570 (2005) (quoting Johnson v. Texas, 509 U.S. 350, 368 (1993)).

    [133].    Id. at 574 (“The qualities that distinguish juveniles from adults do not disappear when an individual turns 18.”).

    [134].    Id. at 570.

    [135].    Graham v. Florida, 560 U.S. 48, 69 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J., concurring)).

    [136].    Id. at 69–70.

    [137].    Id. at 70 (citation omitted).

    [138].    Id.

    [139].    Id. at 74.

    [140].    Roper v. Simmons, 543 U.S. 551, 571 (2005).

    [141].    Graham, 560 U.S. at 71 (quoting Tison v. Arizona, 481 U.S. 137, 149 (1987)) (alteration in original).

    [142].    Cauffman et al., supra note 77, at 204.

    [143].    Modecki, supra note 74, at 85.

    [144].    Bradley & Wildman, supra note 12, at 263.

    [145].    Graham, 560 U.S. at 72.

    [146].    Id. (quoting Roper v. Simmons, 543 U.S. 551, 571 (2005)).

    [147].    Steinberg et al., Age Differences, supra note 76, at 35 & tbl.1.

    [148].    Modecki, supra note 74, at 85.

    [149].    Cauffman et al., supra note 77, at 204.

    [150].    Graham, 560 U.S. at 73.

    [151].    See Brief for the AMA, supra note 55, at 16–24.

    [152].    Hamilton, supra note 87, at 1115.

    [153].    See Graham, 560 U.S. at 73.

    [154].    Id. at 74.

    [155].    See id.

    [156].    See Brief for the AMA, supra note 55, at 16–24.

    [157].    Graham, 560 U.S. at 74.

    [158].    Id. at 77–79.

    [159].    Id. at 78 (quoting Roper v. Simmons, 543 U.S. 551, 572–73 (2005)).

    [160].    See Roper, 543 U.S. at 573.

    [161].    Again, while it is beyond the scope of this comment, the Court should apply this same logic to juvenile homicide offenders. See supra note 101.

    [162].    See Sweeney, supra note 3.

    [163].    Kuhn, supra note 3.

    [164].    Id.

    [165].    Id.

    [166].    FAMM, supra note 1.

    [167].    Id.

    [168].    Kuhn, supra note 3.

    [169].    Sweeney, supra note 3.

    [170].    Id.

    [171].    See Kuhn, supra note 3.

The Invisible Minority: Discrimination Against Bisexuals in the Workplace

Elizabeth Childress Burneson, The Invisible Minority: Discrimination Against Bisexuals in the Workplace, 52 U. Rich. L. Rev. Online 63 (2018).

Click here to download PDF.

Elizabeth Childress Burneson  *

Introduction

The Lesbian, Gay, Bisexual, Transgender, and Queer (“LGBTQ+”) community has won major legal victories in the last twenty years, but at least one group remains left behind in those victories. The bisexual population is often ignored, erased, and discriminated against by both homosexual and heterosexual individuals and communities.[1] This is true despite the fact that bisexuals outnumber both lesbian women and gay men.[2]

This erasure and discrimination affects bisexuals in different areas of life and the law, including the employment context. Title VII of the Civil Rights Act of 1964 (“Title VII”), which protects against employment discrimination on the basis of sex, has long been used as a tool for legal activists to protect the LGBTQ+ community from employment discrimination. For years, this strategy had mixed success in lower courts and no success in circuit courts or with the Equal Employment Opportunity Commission (“EEOC”).[3]

Then, in 2015, the EEOC reversed its long-held position that claims of sexual orientation discrimination are not actionable under Title VII in David Baldwin.[4] Two years after Baldwin, in 2017, the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana became the first circuit court to declare that sexual orientation discrimination is actionable discrimination under Title VII.[5]

Both the Baldwin and Hively opinions endorsed or discussed three legal theories to support their holdings: an expansive statutory interpretation of Title VII, the affiliate discrimination theory, and the sex stereotyping theory.[6] However, all three of these theories suffer serious flaws and fail to protect bisexual employees. These theories fail to take notice of how discrimination against bisexuals differs from discrimination against homosexuals and other key differences between bisexuals and monosexuals.

To ensure full protection of the law for bisexuals, LGBTQ+ advocates must urge Congress to amend Title VII to explicitly prohibit discrimination based on sexual orientation. The LGBTQ+ community and the legal community must also acknowledge the bisexual population in their legal analyses and advocacy.

I.  Background

A.  Bisexuality Defined

Defining bisexuality is an important and challenging task; appropriate naming is a matter of substance and not merely style.[7] The simplest way to define bisexuality is in contrast to monosexuality;[8] that is, an attraction to more than one gender, sex, or gender identity. There are various axes upon which to define sexual orientation. Kenji Yoshino, in his seminal work on bisexual erasure, describes three different axes on which one can define sexual orientation: desire, conduct, and self-identification.[9] Yoshino explains that a desire-based definition is the best definition for discussing bi erasure because it includes individuals with desires that they have not yet acted upon, likely because of stigma.[10] Another way to conceptualize bisexuality is by reference to Alfred Kinsey’s sexual orientation spectrum.[11]

The term “bisexual,” as used here, applies to any person that does not define himself or herself as monosexual. For the purposes of this paper, the term “bisexual” includes those identifying as pansexual, polysexual, omnisexual, or fluid.[12] The English language, while on the one hand vast and ever changing, is on the other hand not entirely accurate in describing the complex nature of human relationships.[13]

B.  Bisexual Population

Virtually all reliable studies of sexual orientation populations have found that the population of bisexual individuals is equal to or greater than the population of gay men or lesbians.[14] This is true despite the fact that researchers are concerned that bisexuals are underreported in studies on sexual orientation.[15]

Nearly all sexual orientation studies conducted have found that “the incidence of nonexclusive orientation toward members of the same sex was ‘greater than or comparable to the incidence of homosexuality’”[16]—starting as early as Kinsey’s studies in 1948 and 1953.[17] Kinsey found that the percentage of the population that was bisexual was one-and-one-half times the percentage of the population that is homosexual.[18] Subsequent studies all found the same—that the population of bisexuals was equal to or greater than the gay or lesbian population.[19] Bisexual individuals represent a significant segment of the population, yet have been largely ignored in legal scholarship and the court system.

C.  Bi Discrimination and Erasure

Bisexual individuals face unique challenges and varied forms of discrimination and erasure. While bisexuals face many of the same hardships that gays and lesbians encounter, bisexuals face the additional burden of “double discrimination”: they face discrimination by both heterosexuals and homosexuals.[20] Bisexual people are often seen by monosexuals (both straight and gay) as “greedy” and “promiscuous,” as having not “picked a side,” or as just “going through a phase.”[21] Some people refuse to believe that bisexuality exists at all.[22]

Bisexuals are relatively invisible because most people have a tendency to presume that all individuals are either gay or straight, depending on the gender of their current partner.[23] Bisexuals are also less visible because they are less likely than their gay and lesbian peers to come out: overall, bisexuals are “less than half as likely as gays and lesbians to have told most or all of the important people in their lives about their sexual orientations.”[24] This invisibility is especially evident in the fact that only twenty-nine percent of respondents to a 2017 GLAAD survey reported knowing someone that is bisexual.[25]

In addition to invisibility and “double discrimination,” Yoshino explains that bisexuals also face erasure from heterosexuals and homosexuals.[26] Heterosexuals seek to erase same-sex desire and keep it silenced, but homosexuals also have an interest in “privileg[ing] the straight/‌gay binary.”[27]

Fritz Klein states that one reason that bisexuals are discriminated against by both heterosexuals and homosexuals is that “the bisexual . . . opens up the possibility of their own sexual ambiguity. They cannot understand the bisexual’s ability to share their own preferences but not their own aversions.”[28] Further, bisexuals face distinct discrimination from homosexuals. One reason for this, Robyn Ochs theorizes, is that homosexuals may see bisexuals as possessing a form of privilege not afforded to homosexuals because of their ability to “pass” as straight.[29]

In 2000, Yoshino demonstrated the extent of bi erasure by showing the “striking discrepancy” in the mentions of homosexuality and bisexuality in major newspapers.[30] An updated version of Yoshino’s media experiment shows that between January 1, 2010, and December 31, 2016: the Los Angeles Times had 694 documents mentioning the term “homosexuality,” and 29 mentioning “bisexuality;”[31] and the Wall Street Journal had 306 documents mentioning “homosexuality,” and 8 mentioning “bisexuality.”[32] While one may be led to believe things have improved since 2000, the striking discrepancy still exists.

Bi discrimination and erasure have a significant impact on the bi community. Recent data shows that bisexual men and women face more mental and physical health problems than gay men or lesbians: bisexuals have a higher rate of suicide ideation and bisexual women are more likely to “experience frequent mental distress” and have “poorer general health” than lesbians.[33]

D.  Bisexual Individuals in the Workplace

A majority of bisexual individuals face discrimination and harassment in the workplace because of their sexual orientation.[34] One United Kingdom study found that bisexuals reported they “endure more scrutiny about their relationships from their colleagues” than their homosexual colleagues do.[35] Twenty-five percent of heterosexual respondents in a 2016 study said they were uncomfortable seeing a LGBTQ+ coworker’s wedding picture.[36]

Bi invisibility and erasure are also present in the workplace. A recent study found that bisexuals are “less likely to self-report their sexual orientation in [a] confidential human resource survey than their gay and lesbian peers” by eighteen to twenty percent.[37] Another study found that bisexual individuals are “roughly one third as likely as gays and lesbians to feel comfortable being out in the workplace.”[38] For bisexual employees, not being out in the workplace undermines their “engagement and retention” and leads to lower levels of satisfaction with their workplace.[39]

A recent study by Ann Tweedy and Karen Yescavage found that bisexuals face significant levels of discrimination in the workplace.[40] Their study revealed that 51.7% of bisexual respondents reported experiencing employment discrimination, and the number was even higher for bisexual respondents of color, at 68.8%.[41] Their study revealed that 12.8% of bisexual respondents felt they had not been hired for a position because of their sexual orientation, and 7.7% of respondents reported being terminated because of their sexual orientation.[42] Other reported forms of discrimination included verbal sexual harassment (experienced by 30.8% of bisexuals) and unfair access to fringe benefits (experienced by 27.4% of bisexuals).[43]

Despite high instances of employment discrimination, bisexual plaintiffs bring very few employment discrimination cases, and succeed even more rarely.[44] Tweedy and Yescavage’s study included a survey of employment discrimination cases brought by bisexual plaintiffs, finding only eleven cases on WestLaw, four or five of which were based on state laws, and the only successful suit was out of the United Kingdom.[45]

E.  The Courts’ Treatment of Bisexuals

Discrimination and erasure follow bisexuals into the courtroom, where they are ignored, erased, or negatively stereotyped by the courts. One of the most prominent cases involving bisexual plaintiffs is Apilado v. North American Gay Amateur Athletic Alliance, in which a gay softball league discriminated against bisexual plaintiffs.[46] The league implemented a limit of two heterosexual members per team, and the league contested one team’s inclusion of bisexual players as contributing to their heterosexual player limit. Those players were subject to invasive questions about their sexual orientation.[47]

In the immigration context, bisexuals have fared no better. Just last year, the Seventh Circuit denied the claim of Ray Fuller, a bisexual asylum seeker who claimed he was persecuted for his sexual orientation in his home country of Jamaica.[48] The immigration judge expressed disbelief that bisexuals were persecuted, despite evidence that Fuller was the victim of extreme forms of sexual harassment and violence, including being stoned and stabbed.[49] The judge also refused to believe that Fuller was bisexual; Fuller provided letters from ex-boyfriends but the judge was concerned that he was once married to a woman.[50] As Judge Posner put it in his scathing dissent in the Seventh Circuit case, “[a]pparently the immigration judge does not know the meaning of bisexual.”[51]

In the employment law context, bisexuals are primarily visible as a hypothetical “bisexual harasser,” brought up to demonstrate the absurdity of the now-foregone requirement that harassment need be desire-based to be actionable under Title VII.[52] Even cases that have extended rights to the LGBTQ+ community ignore and erase bisexuals. In the landmark case challenging California’s Proposition 8, Plaintiff’s attorney, Ted Olson, pressed his client, Sandy Stier—a woman seeking to marry her female partner—because she had previously been married to a man.[53] Olson questioned his client, saying, “Some people might say, ‘Well, it’s this and then it’s that and it could be this again.’ Answer that.”[54] Olson’s comments implied that it was impossible for Stier to be attracted to both men and women and still deserve recognition for her marriage.

One possible reason for bisexual erasure is the strategies adopted by the LGBTQ+ legal community. The LGBTQ+ community, in the fight to obtain rights for sexual orientation minorities, has adopted a model referred to as the “homo kinship” model.[55] The homo kinship, or “like straight,” model has been employed by advocates to show that “but for gays’ and lesbians’ differences, they are just like” straight people.[56] This strategy attempts to normalize the LGBTQ+ community so that heterosexuals are more likely to accept them.[57] However, this model has left behind bisexuals, because bisexuals are not “like straight,” in that they are attracted to more than one sex. Bisexuals challenge the monosexual paradigm on which our society insists. In this way, the LGBTQ+ community has left bisexuals behind in their legal strategy.

F.  Changing Tides: EEOC Recognition and an Emerging Circuit Split

In 2015, the EEOC changed its longstanding practice of not recognizing sexual orientation discrimination under Title VII.[58] In David Baldwin, Baldwin, a male air traffic controller, filed an EEOC complaint alleging that he was discriminated against on the basis of his sexual orientation.[59] Baldwin alleged that he was not selected for a position because he was homosexual and that his supervisor made negative comments regarding his homosexuality.[60] The EEOC held that Baldwin’s allegations of discrimination were actionable claims under Title VII’s prohibition of sex discrimination.[61]

The EEOC gave three reasons to support its assertion that sexual orientation discrimination is sex discrimination: (1) sexual orientation “cannot be defined or understood without reference to sex,”[62] (2) it is associational discrimination on the basis of sex,[63] and (3) it involves sex-stereotyping.[64]

The first reason supporting the EEOC’s conclusion is that sexual orientation is “inherently a ‘sex-based consideration’” and that discrimination based on sexual orientation “necessarily alleges” that the complainant’s sex was taken into account.[65] The EEOC stated that the connection between “sex” and sexual orientation is an “inescapable link.”[66] Second, the EEOC endorsed the affiliative theory of sexual orientation discrimination, following court decisions regarding racial affiliations.[67] Third, the EEOC relied on the Supreme Court’s decision in Price Waterhouse v. Hopkins in holding that sexual orientation discrimination is a form of sex-stereotyping.[68]

Two years later, in April 2017, the Seventh Circuit reviewed Kimberly Hively’s case and came to the same conclusion as the EEOC.[69] Hively was a lesbian adjunct professor at Ivy Tech Community College who was “out” to her colleagues.[70] After working at the college for fourteen years, her contract was not renewed; she alleged that it was due to her sexual orientation.[71] The eight-judge majority cited the same three arguments cited by the EEOC in Baldwin: statutory interpretation, affiliative discrimination, and sex-stereotyping.[72]

While Baldwin and Hively represent a victory for sexual orientation minorities, the theories they rely upon are flawed in several ways, and all fail to account for the existence of bisexuals.

II.  Theories Supporting Prohibition of Sexual Orientation Discrimination Under Title VII

A.  Statutory Interpretation and the Comparative Method

One argument in favor of interpreting “sex” to include sexual orientation comes from the history of the statute and its later interpretations. Proponents such as Judge Posner argue that the role of the court is to “mak[e] old law satisfy modern needs and understandings.”[73] The argument is that we often interpret statutes to mean something that the drafters of the statute did not intend, and that courts have done so with Title VII repeatedly.[74]

The dearth of legislative history on the definition of “sex” in Title VII fuels these claims.[75] The history of the addition of “sex” to Title VII is strange and virtually unparalleled in modern legislative history, and leaves behind interpretive questions: how does one interpret a term in a statute, knowing that the term was introduced with the expectation that the term would cause the statute to fail?[76] Because there is so little guidance from the legislative history, the argument goes, one can look at the history of interpreting the term “sex.” The court’s interpretation of “sex” over the years has stretched far beyond adverse employment actions because of gender to include hostile workplace claims, sexual harassment claims by individuals of the same sex, and even sex stereotyping claims.[77] This evolution shows a willingness on the part of the Supreme Court to extend Title VII beyond the drafters’ intentions, and some argue that this trend should continue to extend protection to sexual orientation minorities.

In Baldwin, the EEOC offered its own interpretation of Title VII, noting that the question is whether the employer “relied on sex-based considerations” and that sexual orientation “cannot be defined or understood without reference to sex.”[78] The EEOC held that sexual orientation discrimination “necessarily entails treating an employee less favorably because of the employee’s sex” and cited Heller v. Columbia Edgewater Country Club for the proposition that “[o]ne way . . . [to allege discrimination] is to inquire whether the harasser would have acted the same if the gender of the victim had been different.”[79] This method is referred to as the “comparative method.”[80]

To demonstrate the comparative method, the EEOC gave the following example: an employer suspended a female employee for displaying a photo of her wife but did not suspend a male employee for displaying a photo of his wife.[81] Because the first employee was only suspended because she was a woman, the discrimination was because of the employee’s sex.[82]

The majority in Hively also discussed the comparative method and insisted that the critical step in comparing employees is that all variables but the employee’s sex remain the same, especially the sex of the employee’s partner.[83] The proper test, the majority insisted, is how a female employee who has a wife fares compared to a male employee who has a wife.[84]

However, as the dissent in Hively pointed out, the majority “distorts” the comparative method: the appropriate comparison is between a female homosexual employee and a male homosexual employee.[85] According to the dissent, that is the only way to isolate the single characteristic (sex); otherwise, the comparison is between a gay woman and a straight man, which changes two variables at once (sex and sexual orientation).[86]

The comparative method has another serious flaw: it ignores the existence of bisexuals. When one applies the comparative method to bisexuals, it becomes clear that discrimination based on an employee’s sexual orientation is not “because of sex.” Presumably, a woman with female and male partners and a man with female and male partners would both be discriminated against. When the test is applied to bisexual employees, it becomes clear that the discrimination is truly because of sexual orientation and not sex.

Further, the comparative method puts the focus of analysis on the current partner of the employee, which may hurt bisexuals. A bisexual may be discriminated against even if their current partner is of a different sex. If a bisexual woman has both male and female partners, and is discriminated against while she has a male partner, this discrimination would “fail” the comparative method test.

The EEOC and the court in Hively ignored the possibility of discrimination against bisexual employees, and that is a fatal flaw in their analyses. Overall, the statutory interpretation adopted by the EEOC and the Hively majority falls short in serious ways, and fails to protect—or even recognize—bisexuals.[87]

B.  Associational Discrimination

Another theory advanced by both the EEOC and the Hively court is the associational discrimination theory, also referred to as “relational discrimination” or “affiliative discrimination.”[88] This theory posits that sexual orientation discrimination is prohibited under Title VII because it involves looking to the sex of the employee in relation to the sex of the individuals with whom that employee associates.[89]

This theory of protection stems from case law involving race and national origin discrimination under Title VII.[90] It has been suggested that because Title VII “treats each of the enumerated categories . . . exactly the same,” the same interpretation that applies to race and national origin should also apply to sex.[91]

The first case to apply this relational theory to race discrimination was Whitney v. Greater New York Corp. of Seventh-Day Adventists, in the Southern District of New York in 1975.[92] Plaintiff Whitney was discharged “because she, a white woman, associated with a black.”[93] The court in Whitney held that her discharge as a white woman, because of her association with a black man, fit within Title VII’s prohibition against discrimination “because of . . . race.”[94] Following Whitney, district courts in several other states began to accept the relational discrimination theory as to race, and now the Second, Sixth, and Eleventh Circuits have adopted this approach.[95] Only one district court has extended the relational theory to sex discrimination cases.[96]

One argument for viewing sexual orientation in a relational context is consistency; for example, it would be “structurally inconsistent” to treat some of the protected characteristics relationally, but not others.[97] Victoria Schwartz argues that one benefit to this interpretation is that it does not require the term “sex” to mean anything other than its intended meaning.[98] Sexual orientation discrimination, Schwartz posits, is discrimination on the basis of sex because one must look at an individual’s sex in relation to others.[99] Schwartz explains that “sexual orientation is an inherently relational concept” because the discrimination occurs where the individual “is of the wrong sex in relation to the sex of the people she generally associates with romantically.”[100]

Sexual orientation relates to an individual’s sex in relation to his or ‌her partner, but only if that individual is monosexual. Bisexuals are not the “wrong sex” in relation to their partners because their partners are not a single sex; this is especially true of a bisexual individual whose current partner is of a different sex. Further, for bisexuals, discrimination is not because of their sex vis-à-vis another person, but rather other persons.

Similarly, in Baldwin, the EEOC stated that Title VII prohibits sexual orientation discrimination based on the fact that “such individuals are in a same-sex marriage or because the employee has a personal association with someone of a particular sex.”[101] This analysis notably uses the terms “same-sex marriage” and “a particular sex” which narrows the scope of protected employees to exclude bisexual individuals in different-sex marriages and employees that do not associate with “a particular sex,” but rather with multiple sexes.

For bisexuals, discrimination is more complex than being the “wrong” sex in contrast to their partner. Bisexual discrimination is often due to failure to conform to monosexuality, rather than the sex of a current or future partner. A bisexual female employee may be discriminated against even if she has a male partner, the “right” sex. Schwartz and the EEOC describe the problem in a way that ignores bisexuals and ignores the ways that discrimination against bisexuals is different than discrimination against gays and lesbians.

C.  Sex Stereotyping

The third theory advanced by the EEOC and the Seventh Circuit is that sexual orientation discrimination is a form of sex stereotyping, based on the Supreme Court’s holding in Price Waterhouse v. Hopkins.[102] Price Waterhouse established that employees can bring Title VII claims for discrimination based on failure to conform to gender stereotypes.[103]

Ann Hopkins was a senior manager at Price Waterhouse who was proposed for partnership but was ultimately denied the position.[104] Hopkins received glowing references from some colleagues, yet reviews from other colleagues contained harsh personal critiques of Hopkins, saying she was “overly aggressive,” “macho,” and needed a “course at charm school.”[105]

The court held that Hopkins was discriminated against because of her sex, reasoning that Title VII’s prohibition of sex discrimination is a broad prohibition that “forbids employers [from even making] gender an indirect stumbling block to employment opportunities.”[106] The court framed the required analysis as: “if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman.”[107] Applying this analysis, the court found that a man would not have been discriminated against for exhibiting the same traits.[108]

Homosexual plaintiffs have used the sex-stereotyping theory to bring claims of harassment or discrimination under Title VII with limited success.[109] Plaintiffs advancing the sex-stereotyping theory allege that they were impermissibly “judged against the standard of how a stereotypical person of the same sex should look and act”[110] and discriminated against because of that judgment. For example, in a Massachusetts case, Stephen Centola, a homosexual man, brought a claim against his employer for discrimination based on sex stereotyping for harassment he experienced at work.[111] Applying the sex-stereotyping theory, the court held that Centola was “discriminated against . . . because he failed to meet their gender stereotypes of what a man should look like, or act like.”[112]

The court in Centola struggled with whether the harassment was because of Centola’s sexual orientation or his failure to conform to gender stereotypes.[113] The court illustrated the intertwined nature of sexual orientation discrimination and sex stereotyping:

The harasser may discriminate against an openly gay co-worker, or a co-worker that he perceives to be gay, whether effeminate or not, because he thinks, “real men don’t date men.” The gender stereotype at work here is that “real” men should date women, and not other men. Conceivably, a plaintiff who is perceived by his harassers as stereotypically masculine in every way except for his actual or perceived sexual orientation could maintain a Title VII cause of action alleging sexual harassment because of his sex due to his failure to conform with sexual stereotypes about what “real” men do or don’t do.[114]

The court’s analysis here suggests, although in dicta, one route to Title VII protection for gay men or lesbians who otherwise conform to gender stereotypes. This has given some scholars and proponents of LGBTQ+ rights reason to hope.[115]

In the wake of Price Waterhouse, some scholars have advanced a theory that would enable gay and lesbian employees—regardless of their gender conformity—to assert Title VII claims: the “ultimate gender stereotype” theory.[116] Proponents of the ultimate gender stereotyping theory argue that there is “a common gender stereotype in play for both gender-conforming and gender-non-conforming gays and lesbians,”[117] which is that “‘real’ men and women should not be attracted to a member of the same sex.”[118]

The first issue with this theory is that sexual orientation stereotyping is not gender stereotyping at all. Zachary Kramer, in his article on this theory, articulates the nature of masculine and feminine stereotypes: “[G]ender stereotyping relies on the existence of both a masculine and a feminine stereotype. These stereotypes are interrelated in that the purpose of either stereotype is to contrast with the other, rendering masculinity and femininity polar opposites on a gender continuum.”[119] To be a gender stereotype, the stereotype must be specific to one gender and be in contrast to the stereotype for the opposite gender.

Two examples help elucidate this point. First, it is a gender stereotype that “women should wear makeup at work,” but men should not. Those two stereotypes contrast each other and are polar opposites. However, it is not a gender stereotype that “women should dress professionally for work,” because men should do so also. Sexual orientation falls into the second category.

While Kramer and others have framed the stereotype in a way that makes the two stereotypes seem opposite (men only date women and women only date men),[120] the actual stereotype is “women and men should only be attracted to people of the opposite gender.” This is not a gender stereotype, but rather an expression of heterosexism, as it applies to both genders.[121] The dissent in Hively echoed this analysis, stating plainly: “heterosexuality is not a female stereotype; it is not a male stereotype; it is not a sex-specific stereotype at all.”[122]

Another issue with this theory is that it does not always work as applied to bisexuals. Another formulation of the ultimate gender stereotype is that “real men are and should be sexually attracted to women, and real women invite and enjoy that attraction.”[123] Under this formulation, bisexuals conform to the stereotype: bisexual men are attracted to women and bisexual women are attracted to men. This formulation of the stereotype would leave bisexuals unprotected, because they conform to their respective sex stereotypes. This highlights another issue with sex-stereotyping theory: clarifying what the stereotype actually is, and how it is to be framed.

Further, relying on the sex-stereotyping theory is demeaning to sexual orientation minorities and will likely be harmful to the LGBTQ+ movement. The cruel irony of using this theory to protect gays, lesbians, and bisexuals is that it forces them to advance the theory that they are not “real men” or “real women” and that they do not conform to gender stereotypes. It is also plausible that there will come a time when being a “real man” no longer means exclusive sexual attraction to women, and being a “real woman” means something far from the stereotype we now envision.

III.  Conclusion and a Possible Solution: Revising Title VII

Because all three of the legal theories discussed have fatal flaws and fail to adequately protect bisexual employees, LGBTQ+ advocates must push to protect the full spectrum of sexual orientation minorities by amending Title VII. But more than that, we must also be inclusive in all of our discussions of sexual orientation minorities, and we must recognize the largest sexual orientation minority, or else they will continue to face societal harms.

The legal theories that purport to extend protection to sexual orientation minorities under Title VII fall short in crucial ways, especially for bisexuals, so the LGBTQ+ community must demand amendment of Title VII to include them by name, or passage of the Employment Non-Discrimination Act (“ENDA”). Of the two, amending Title VII is the preferable path.[124]

First, Title VII protects more than just employment discrimination and cures more issues, while the ENDA would cover only employment discrimination.[125] The narrow scope of the ENDA leaves little room for legal protections to “migrate” to other areas of the law, such as education.[126] Further, the ENDA’s religious exception and lack of a bona fide occupational qualification exception make it more prone to exceptions and less favorable than amending Title VII.[127]

There is value in declaring that sexual orientation is a protected characteristic and that discrimination on such basis is abhorrent, and thus should be prohibited under the law—rather than piecing together several interpretive theories to provide protection. Congress took a bold stance in 1964 to declare that we as a nation will not tolerate sex, race, or national origin discrimination, and it is time we do the same for all forms of sexual orientation discrimination.

   *  J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2012, Lynchburg College. I wish to express my sincere gratitude to Professor Steve Allred for his mentorship, expertise, and wise counsel. I also wish to thank the members of the University of Richmond Law Review for their time and effort preparing this comment for publication. I also wish to thank Arianna Stelling, my sounding board, informal consultant, and best friend. Finally, I wish to give special thanks to my husband, Brandon Burneson, for his constant and unending support.

        [1].    See infra Part I.C.

        [2].    See infra Part I.B.

        [3].    See infra Part II.A.

        [4].    David Baldwin, EEOC Appeal No. 0120133080, at 15 (July 15, 2015), https://www. eeoc.gov/decisions/0120133080.pdf.

        [5].    Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 341 (7th Cir. 2017) (en banc).

        [6].    See id. at 341–44; Baldwin, EEOC Appeal No. 0120133080, at 8–10, 13.

        [7].    See, e.g., Elizabeth M. Glazer, Sexual Reorientation, 100 Geo. L.J. 997, 1062 (2012) (discussing the philosophers of language and the debate over the importance of naming). Conscientious language use is especially important in the context of LGBTQ+ scholarship and legal history, where the terms “gays and lesbians” and “homosexuals” are often used as shorthand for all sexual orientation minorities. While the use of these phrases may seem innocuous, they indicate the larger issue of bisexual erasure and invisibility. See id. at 1062–64.

        [8].    Monosexuality is defined as “[a]ttraction to a single gender.” Ashley Mardell, The ABC’s of LGBT+ 11 (2016).

        [9].    Kenji Yoshino, The Epistemic Contract of Bisexual Erasure, 52 Stan. L. Rev. 353, 371 (2000).

      [10].    Id. at 373. Yoshino also narrowly defines desire as sexual appetite or lust that is “more than incidental.” Id. at 373, 377.

      [11].    Id. at 380–81. Kinsey famously posited that rather than using strict dichotomies, sexual orientation is best explained as a continuum. Id. at 380. The Kinsey scale spans from zero to six, with zero representing heterosexuality (with no desire for the same sex), and six representing homosexuality (with no desire for the opposite sex). Id. For purposes of his research, Yoshino categorizes Kinsey scale numbers two, three, and four as individuals that would be bisexual: (2) “[m]ore than incidental homosexual contacts; but more frequent heterosexual contacts;” (3) “[e]qual homosexual and heterosexual contacts;” and (4) “[m]ore than incidental heterosexual contacts; but more frequent homosexual contacts.” Id. at 380–81.

      [12].    See Mardell, supra note 8, at 8, 12, for definitions:

“Pansexual/romantic a.k.a. Omnisexual/romantic: Capable of being attracted to any or all gender(s).”

“Polysexual/romantic: Someone who experiences attraction to multiple, but not necessarily all, genders.”

“Fluid: Not fixed, able to change.”

      [13].    The term “bisexual” is used in this comment because it is the term used most often in research and legal scholarship, and is “widely understood as describing those whose attractions fall outside an either/or paradigm.” Lindasusan Ulrich, San Francisco Human Rights Comm’n, Bisexual Invisibility: Impacts and Recommendations, at iii (2011).

      [14].    See id. at 2–3 (providing a comprehensive review of recent studies showing population totals for gays, lesbians, and bisexuals).

     [15].    Yoshino, supra note 9, at 383. There is evidence to support underreporting, as studies have found that bisexuals are less likely to be “out” to important people in their lives and less likely to self-identify as bisexual on a confidential human resources survey. Human Rights Campaign Found., Bisexual Visibility in the Workplace (2016), http://assets. hrc.org//files/assets/resources/Bi_Inclusion_One_Sheet_FINAL_2016.pdf?_ga=1.92999320. 440168641.1486155417.

      [16].    Glazer, supra note 7, at 1008 & n.54; Yoshino, supra note 9, at 386.

      [17].    Yoshino, supra note 9, at 380–82.

      [18].    Id. at 382.

      [19].    E.g., id.

      [20].    Ann E. Tweedy & Karen Yescavage, Employment Discrimination Against Bisexuals: An Empirical Study, 21 Wm. & Mary J. of Women & L. 699, 702–03 (2015); Robyn Ochs, Biphobia: It Goes More Than Two Ways, in Bisexuality: The Psychology and Politics of an Invisible Minority 217, 217 (Beth A. Firestein ed., 1996).

      [21].    Yoshino, supra note 9, at 374, 391, 398.

      [22].    See, e.g., Benoit Denizet-Lewis, The Scientific Quest to Prove Bisexuality Exists, N.Y. Times, (Mar. 20, 2014), https://www.nytimes.com/2014/03/23/magazine/the-scientific-quest-to-prove-bisexuality-exists.html (“I can’t tell you how many people have told me, ‘Oh, I wouldn’t date a bisexual.’ Or, ‘Bisexuals aren’t real.’”); Loraine Hutchins, Bisexuality: Politics and Community, in Bisexuality: The Psychology and Politics of an Invisible Minority 240, 240–41 (Beth A. Firestein ed., 1996); Ochs, supra note 20, at 224 (“A primary manifestation of biphobia is the denial of the very existence of bisexual people.”).

      [23].    Ochs, supra note 20, at 225. For example, two women holding hands “read as gay,” while a man and a woman holding hands “read as straight,” but both or all of them could be bisexual. Ulrich, supra note 13, at 3.

      [24].    Tweedy & Yescavage, supra note 20, at 704. The stigma of bisexuality discourages people from coming out, which further contributes to their invisibility. See Human Rights Campaign Found., supra note 15.

      [25].    GLAAD, Accelerating Acceptance 4 (2017), https://www.glaad.org/files/aa/2017 _GLAAD_Accelerating_Acceptance.pdf.

      [26].    Yoshino, supra note 9, at 361.

      [27].    Id. at 367.

      [28].    Fritz Klein, The Bisexual Option 11 (2d ed. 2013).

      [29].    Ochs, supra note 20, at 217. Another reason that bisexuals face discrimination from the homosexual community is the HIV epidemic of the 1980s. Id. at 231. Many homosexuals, particularly lesbians, believed that bisexual women were the conduit from which HIV spread to lesbians from the heterosexual community. Id.

      [30].    Yoshino, supra note 9, at 368.

      [31].    Search of LexisNexis, https://www.lexisnexis.com (narrow search results to “News”; then search in search bar for “homosexuality”; then narrow by “sources > Los Angeles Times”; then narrow by “Timeline > 01/01/2010 to 12/31/2016”).

      [32].    Search of LexisNexis, https://www.lexisnexis.com (narrow search results to “News”; then search in search bar for “homosexuality”; then narrow by “sources > The Wall Street Journal”; then narrow by “Timeline > 01/01/2016 to 12/31/2016”).

      [33].    Tweedy & Yescavage, supra note 20, at 703–04.

      [34].    Id. at 724. The most common type of discrimination bisexual employees experience is inappropriate jokes or insults, with nearly sixty percent of bisexuals saying they have faced this sort of harassment. Id. at 727.

      [35].    Glazer, supra note 7, at 1001.

      [36].    GLAAD, supra note 25, at 6.

      [37].    Human Rights Campaign Found., supra note 15.

      [38].    Tweedy & Yescavage, supra note 20, at 704. A person who is “out” is “a person who is open about being bisexual, gay, lesbian, or transgender.” Further, “[c]oming out is a lifelong process of self-acceptance of one’s sexual orientation and/or gender identity.” Ulrich, supra note 13, at 38.

      [39].    See Human Rights Campaign Found., supra note 15.

      [40].    Tweedy & Yescavage, supra note 20, at 707.

      [41].    Id. at 724. Tweedy and Yescavage’s study is the “first descriptive, quantitative study designed to specifically measure the subjective experiences of bisexuals with employment discrimination.” Id. at 718.

      [42].    Id. at 725.

      [43].    Id. at 727–28.

      [44].    See id. at 709–10.

      [45].    Id. at 709–10, 710 nn.51–52.

      [46].    Apilado v. N. Am. Gay Amateur Athletic All., 792 F. Supp. 2d 1151, 1155–56 (W.D. Wash. 2011).

      [47].    Id. In response to one player’s admission that he was attracted to men and women, one committee member said, “this is not a bisexual world series—this is a gay world series.”  Tweedy & Yescavage, supra note 20, at 712. This case—and those statements—are indicative of the discrimination faced by bisexuals by the gay and lesbian community, despite the fact that the league’s mission statement “explicitly included promotion of the participation of bisexuals.” Id. The court ultimately focused on the league’s intrusive questions, and not on the discriminatory definition of “gay” or “straight” that excluded bisexuals, essentially ignoring the question of bisexual discrimination.  See Apilado, 792 F. Supp. 2d at 1156; Tweedy & Yescavage, supra note 20, at 712–13.

      [48].    Fuller v. Lynch, 833 F.3d 866, 867 (7th Cir. 2016).

      [49].    Id. at 872 (Posner, J., dissenting).

      [50].    Id. at 873–74.

      [51].    Id. at 879.

      [52].    See, e.g., Regina L. Stone-Harris, Same-Sex Harassment—The Next Step in the Evolution of Sexual Harassment Law Under Title VII, 28 St. Mary’s L.J. 269, 283–84 (1996).

      [53].    Glazer, supra note 7, at 1001 (referencing Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010)).

      [54].    Glazer, supra note 7, at 1001 (quoting Transcript of Record at 166–67, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. C 09-2292_VRW), http://www. afer.org/wp-content/uploads/2010/01/Perry-Vol-1-1-11-10.pdf).

      [55].    Id. at 1014.

      [56].    Id.

      [57].    Id. at 1016.

      [58].    David Baldwin, EEOC Appeal No. 0120133080, at 5–6, 14 (July 15, 2015), https:// www.eeoc.gov/decisions/0120133080.pdf.

      [59].    Id. at 1–2.

      [60].    Id. at 2. His supervisor commented about “that gay stuff,” and told Baldwin that he was causing “a distraction” any time he mentioned his partner. Id.

      [61].    Id. at 14.

      [62].    Id. at 6.

      [63].    Id. at 8.

      [64].    Id. at 9.

      [65].    Id. at 6.

      [66].    Id.

      [67].    Id. at 8.

      [68].    Id. at 9.

      [69].    Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 350, 359 (7th Cir. 2017) (en banc).

      [70].    Id. at 341.

      [71].    Id.

      [72].    Id. at 343, 345.

      [73].    Id. at 352 (Posner, J., concurring).

      [74].    See, e.g., id. at 352–53.

      [75].    Zachary A. Kramer, The Ultimate Gender Stereotype: Equalizing Gender-Conforming and Gender Non-Conforming Homosexuals Under Title VII, 2004 U. Ill. L. Rev. 465, 470 (2004); see, e.g., Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662 (9th Cir. 1977) (noting that “[t]here is a dearth of legislative history” regarding Title VII).

      [76].    See Kramer, supra note 75, at 469.

      [77].    See generally id. (discussing the history and development of sexual discrimination claims).

      [78].    David Baldwin, EEOC Appeal No. 0120133080, at 6 (July 15, 2015), https:// www.eeoc.gov/decisions/0120133080.pdf. This opinion provides definitions of “gay,” “lesbian,” and “heterosexual” to illustrate that point, but notably provides no definition of “bisexual.” Id.

      [79].    Id. at 7 (citing Heller v. Columbia Edgewater Country Club, 195 F. Supp. 2d 1212, 1223 (D. Or. 2002)).

      [80].    Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 345 (7th Cir. 2017) (en banc).

      [81].    Baldwin, EEOC Appeal No. 0120133080, at 7.

      [82].    Id.

      [83].    Hively, 853 F.3d at 345.

      [84].    See id.

      [85].    See id. at 366 (Sykes, J., dissenting).

      [86].    Id.

      [87].    But see id. at 355 (Posner, J., concurring) (mentioning bisexuals, but incorrectly defining bisexuality “as having both homosexual and heterosexual orientations”).

      [88].    See id. at 347, 349 (majority opinion); David Baldwin, EEOC Appeal No. 0120133080, at 8 (July 15, 2015), https://www.eeoc.gov/decisions/0120133080.pdf; Pierce G. Hand IV, Affiliative Discrimination Theory: Title VII Litigation Within the Sixth Circuit, 32 Ga. St. U. L. Rev. 541, 543–44 (2016); Victoria Schwartz, Title VII: A Shift from Sex to Relationships, 35 Harv. J.L. & Gender 209, 211 (2012).

      [89].    See, e.g., Baldwin, EEOC Appeal No. 0120133080, at 8.

      [90].    See Hively, 853 F.3d at 347–49; Schwartz, supra note 88, at 221–23.

      [91].    See, e.g., Baldwin, EEOC Appeal No. 0120133080, at 8–9 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 243 n.9 (1989)).

      [92].    Whitney v. Greater New York Corp. of Seventh-Day Adventists, 401 F. Supp. 1363, 1366 (S.D.N.Y. 1975); Schwartz, supra note 88, at 217.

      [93].    Whitney, 401 F. Supp. at 1366.

      [94].    Id.

      [95].    Schwartz, supra note 88, at 223–28.

      [96].    In the Hustedt Chevrolet cases, two male employees of a car dealership claimed that their supervisor harassed a female co-worker, and then harassed them “based on what can fairly be characterized as [the defendant’s] perception of his association with [the female co-worker].” The court reasoned that “but for his sex, male, his relationship with his coworker, female, . . . would not have been an issue.” Ventimiglia v. Hustedt Chevrolet, No. 05-4149, 2009 U.S. Dist. LEXIS 24834, at *28–33 (E.D.N.Y. Mar. 25, 2009); see also Weiss v. Hustedt Chevrolet, No. 05-4230, 2009 U.S. Dist. LEXIS 59408, at *28–34 (E.D.N.Y. July 13, 2009); Pratt v. Hustedt Chevrolet, No. 05-4148, 2009 U.S. Dist. LEXIS 26312, at *24–29 (E.D.N.Y. Mar. 27, 2009). This, of course, is only true if one assumes all parties are heterosexual.

      [97].    Schwartz, supra note 88, at 247.

      [98].    Id. at 248.

      [99].    See id.

    [100].    Id. at 248–49.

    [101].    David Baldwin, EEOC Appeal No. 0120133080, at 9 (July 15, 2015), https:// www.eeoc.gov/decisions/0120133080.pdf.

    [102].    Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 342 (7th Cir. 2017) (en banc) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)); Baldwin, EEOC Appeal No. 0120133080, at 5–6 (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)).

    [103].    Price Waterhouse v. Hopkins, 490 U.S. 228, 272–73 (1989). It is worth noting that the lead opinion in Price Waterhouse was not a majority, but a four-Justice plurality.

    [104].    Id. at 231–32.

    [105].    Id. at 235.

    [106].    Id. at 242. Price Waterhouse is also a formative case for its discussion of mixed-motive discrimination, like here, where the employer had both legitimate reasons and discriminatory reasons for the adverse employment decision. Id. at 252. Congress amended the statute later to reflect that but-for causation is not required when there is at least one discriminatory motive. Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071, sec. 107(a), § 703(m) (codified as amended at 42 U.S.C. § 2000e–2(m) (2012)).

    [107].    Price Waterhouse, 490 U.S. at 250.

    [108].    Id. at 258.

    [109].    See, e.g., Simonton v. Runyon, 232 F.3d 33, 34–35 (2d Cir. 2000) (holding that Title VII does not prohibit discrimination based on sexual orientation); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999) (holding that Title VII does not prohibit discrimination based on sexual orientation); Centola v. Potter, 183 F. Supp. 2d 403, 414 (D. Mass. 2002) (holding that Title VII does not prohibit discrimination based on sexual orientation).

    [110].    Kramer, supra note 75, at 485.

    [111].    Centola, 183 F. Supp. 2d at 406.

    [112].    Id. at 406, 409.

    [113].    See id. at 408.

    [114].    Id. at 410 (citation omitted).

    [115].    See, e.g., Mary Anne Case, Legal Protections for the “Personal Best” of Each Employee: Title VII’s Prohibition on Sex Discrimination, the Legacy of Price Waterhouse v. Hopkins, and the Prospect of ENDA, 66 Stan. L. Rev. 1333, 1353–54 (2014).

    [116].    See generally id.; Kramer, supra note 75, at 489.

    [117].    Kramer, supra note 75, at 489.

    [118].    Id. at 490.

    [119].    Id. at 483.

    [120].    See Centola v. Potter, 183 F. Supp. 2d 403, 410 (D. Mass. 2002); Kramer, supra note 75, at 496.

    [121].    See I. Bennett Capers, Sex(ual Orientation) and Title VII, 91 Colum. L. Rev. 1158, 1159 (1991) (discussing heterosexism as the “institutional valorization of heterosexual activity”).

    [122].    Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 370 (7th Cir. 2017) (Sykes, J., dissenting).

    [123].    Sylvia A. Law, Homosexuality and the Social Meaning of Gender, 1988 Wis. L. Rev. 187, 196 (1988).

    [124].    See, e.g., Case, supra note 115, at 1374–75 (offering a robust discussion of the ENDA’s shortfalls).

    [125].    Id. at 1373.

    [126].    Id.

    [127].    Id. at 1374–75.

   *  J.D. Candidate, 2018, University of Richmond School of Law. B.A., 2012, Lynchburg College. I wish to express my sincere gratitude to Professor Steve Allred for his mentorship, expertise, and wise counsel. I also wish to thank the members of the University of Richmond Law Review for their time and effort preparing this comment for publication. I also wish to thank Arianna Stelling, my sounding board, informal consultant, and best friend. Finally, I wish to give special thanks to my husband, Brandon Burneson, for his constant and unending support.

You Could Have Told Me That in the First Place: Five Tips that Might Have Saved a Young Lawyer a Lot of Trouble

Jay O’Keeffe, You Could Have Told Me That in the First Place: Five Tips that Might Have Saved a Young Lawyer a Lot of Trouble, 52 U. Rich. L. Rev. Online 53 (2017).

Click here to download PDF.

Jay O’Keeffe *

I will open with a confession: I have very, very little to contribute to legal scholarship. My day-to-day work as a lawyer and a parent keeps me busy. My career to date as a generalist has not led me to develop any great substantive expertise in a particular area of the law. Even my war stories are boring because they cluster around briefs, procedural defaults, and oral arguments.

But I do have one thing to offer. I have been lucky in my career to work in “Biglaw,” then at a medium-sized firm of about fifty lawyers, and most recently at a small firm of just three lawyers. I made my share of mistakes at each stop—some routine, some painful, and almost all avoidable. For the most part, I have been paying attention along the way. And so what I have to share with you is a set of five tips, in no particular order, that could have prevented about eighty percent of my missteps as a young lawyer.

1.  Learn to Write

In modern America, you will be able to distinguish yourself in most fields of endeavor just by being a decent technical writer. When I say “a decent technical writer,” I do not mean being technically good as a writer—that is, knowing and following the rules—but being competent in technical writing, the specialized genre of nonfiction writing required to communicate with others in your field. This is especially true for lawyers because we rely so much on written communication that we are basically professional writers.

But despite being professional writers, we often show little interest in our craft. Writing is a skill, and one that you can improve with careful practice. In my experience, improving your writing has the highest return on investment of anything you can do with your free time as a young lawyer. It does not just make you a more effective lawyer (although it does do that); it also opens up worlds of business development opportunities.

With that in mind, here is a simple, workable strategy to make yourself a better writer.

Read good writing. With a few notable exceptions, legal writing does not count. Instead, immerse yourself in nonfiction by talented writers. Michael Lewis, Malcolm Gladwell, and David Epstein are great role models. Note how they use concrete examples to illustrate abstract points (and, by extension, how they avoid meaningless formalisms). Pay attention to the way they engage contrary arguments, and compare it to the paranoid hysteria that you see in your average legal brief. Even the rhythm and beats of their writing are worth emulating. Try finding a page that you like and typing it into your laptop, just to get a better sense of how the writing flows.

Learn the rules. You will internalize most of the important rules just by reading good writers, but it never hurts to have a copy of The Redbook handy.[1] I know that everyone swears by Warriner[2] and Strunk and White,[3] but The Redbook has been my go-to source for years. A good usage guide and legal dictionary are also important.[4]

Do your homework. The world is not overflowing with good books about legal writing—but those that we have are quite helpful. When I worked at a mid-size firm, I gave every single new associate in our practice group copies of Making Your Case[5] and The Curmudgeon’s Guide to Practicing Law.[6] Both are outstanding; word for word, Herrmann’s “Memorandum from a Curmudgeon”[7] is the most useful legal-writing advice that I have ever received. The Winning Brief[8] is priceless; its suggestions about structuring the writing process alone justify its cost. Ross Guberman’s Point Made offers a bevy of actionable tips and actual examples from outstanding briefs.[9] Typography for Lawyers will open your eyes to a welter of persuasive tools hidden in your word-processing application.[10] On Writing,[11] On Writing Well,[12] and The Sense of Style[13] are not limited to legal writing, but also offer excellent advice.

Practice deliberately. If you are reading Gladwell and Epstein, then you will soon encounter the concept of deliberate practice: intentionally, thoughtfully, and painfully working to improve the weakest parts of your craft so that, over the course of years, you can improve your abilities. Apply those lessons to your writing. Identify your weaknesses and work consciously to improve them.

To further stand out, you can apply a similar method to improve your public speaking: (1) buy good books on public speaking and body language;[14] (2) study and model outstanding public speakers; and (3) identify and seize every opportunity for deliberate practice.

2.  Be Professional

During my time at large and mid-sized firms, I developed a theory about surviving in corporate legal environments: the trick is to make yourself indispensable to people who control your fate. I know that that sounds obvious and trite, but bear with me. A law firm works as a business only so long as clients hire partners to provide legal services. That is how a firm keeps the lights on; fees are the life blood of a firm. And those fees are paid by clients. This makes a partner’s relationships with her clients precious. Clients are her contribution to the firm’s continued vitality, and her most valuable currency vis-à-vis her peers. Her book of business largely determines her standing within the organization—and her ability to leave if the organization is not managed to her liking. That defines both her professional status and her ability to provide for her family. Client relationships are a huge deal.

But a profitable partner cannot do all the work necessary for clients herself. She needs junior lawyers to shoulder some of that burden. To some extent, every single assignment she delegates is a risk. Will the associate’s work be good enough? Will it be delivered in a way that satisfies the client? So when a partner delegates work to a junior lawyer, she is not acting out of laziness or malice. Instead, she is paying the associate her highest professional compliment: she is trusting him with her clients—her most valued professional assets—and relying on him to deliver the same quality of work that she would provide herself, if she had capacity.

Even after I figured that bit out, I still labored under the misapprehension that my job as a junior lawyer was simply to deliver the best possible work to the client. I was wrong. The trick to surviving in a corporate legal environment is realizing that you have two clients: the actual client, and the senior lawyer who controls the workflow. Your job is to keep both deliriously happy. And the trick to doing that is learning to instill confidence in both, so that they can relax and let you do your job. You do that not only by delivering excellent work, but by doing so in a way that telegraphs that you have things under control.

Let us go back to our hypothetical partner. Say that she has an important client who is involved in high-stakes litigation. She is looking to staff the matter. Two associates have capacity.

Associate One is a tortured genius. He joined the firm after a federal circuit clerkship. He rolls into the office around 11:00, works late, dresses on the shabby fringe of business casual, and waits until the last day of the month to enter his time. Everything about the way that Associate One treats his colleagues suggests that he is surrounded by imbeciles. He delivers outstanding work, but often at the last minute and with minimal communication ahead of time. He is heavily resistant—even resentful—when other lawyers offer criticism. But, to be fair, his work is brilliant and he may be smarter than the lawyers critiquing him. And he has not actually missed a deadline, at least not yet.

Associate Two shows up at work every day at 8:00 a.m., smartly dressed, as if she is ready to head to court. She is a rigorous scheduler, an energetic communicator, and a charming interlocutor. Associate Two calendars deadlines and reminders, and she shares them with the case team. When she is working on a matter, she regularly updates her team members on her progress. Associate Two maintains an upbeat demeanor around the office. She treats people with respect, and generally has a positive disposition. Her work is always good—polished, careful, and always on time—but it is rarely brilliant. She is responsive to constructive criticism.

Who is the partner going to pick for her project?

It is not a hard decision. Associate Two will make the partner’s life easier. She will accept guidance. She will do the work. Will it be brilliant? Maybe sometimes—but it will always be good enough to impress the client and protect its interests. And it will be delivered in a way that lets her supervisor sleep at night.

This type of professionalism is a crucial and underrated skill. It can make up for a significant talent gap between two associates in a cohort. It is also a skill that is easy to master if you approach it consciously. Here are some tips:[15]

If the junior lawyer and the senior lawyer can both perform a task, then it is the junior lawyer’s job. This saves the client money and takes an item off the senior lawyer’s plate. It also further entrenches the junior lawyer in the project, helping to make her indispensable.

Actively seek opportunities to take a larger role in the project. The more that you are doing on a project—and the more burdens that you shoulder on the senior partner’s behalf—the closer you are to being indispensable.

There is no such thing as a draft. Every document submitted to a senior lawyer or client should be as close to perfect as you can make it. If you have questions, include them in brackets or comments. But do not leave gaps in the document or obvious further work to be done.

When setting deadlines, the schedules of the client and senior lawyer always get priority. If a brief is due on Monday, the draft cannot be delivered on Friday afternoon. If either a junior lawyer or a senior lawyer has to work on a weekend, it is the junior lawyer’s job to take the hit. That is unfair, of course. But taking one for the team builds goodwill and helps ensure that you will get future work from the senior lawyer.

Calendar every deadline, along with a reminder. Send invites to the senior lawyer. Let her know that you are on top of things.

Return calls the same day, if not sooner.

Smile, and at least pretend that you are having fun. That goes a surprisingly long way.

One more point: at a law firm, you are always “on”—that is, everything that you do is being noticed and evaluated by senior lawyers. There is no such thing as a quick-and-dirty project. As far as the organization is concerned, everything that you do is a reflection on your quality as a lawyer.

3.  Learn Things Once, the Hard Way

An early mentor of mine, Greg Haley, gave me this advice. One of the blessings of being a junior lawyer is that you actually get to dig into the law. You can use this to your advantage. And you should, as often as possible.

For example, much of the routine work in law firms is done by pulling a template document and modifying it to fit the facts of a current case. That is fine, as far as it goes, and it is often efficient. But there is no rule that says that you have to do things that way. The first time a partner asks you to prepare a rote document, do the actual work, whether you can bill the client for it or not. Read the rules. Read what Wright and Miller[16] or Sinclair and Middleditch[17] have to say. Pull the leading cases. You will gain useful context for the current project, but more importantly, you will build a knowledge base that you can carry with you for the rest of your career. Over time, you will distinguish yourself from your peer group.

4.  Take Yourself (and Your Career) Seriously

This is a tip that I picked up from another mentor, Cordell Parvin. There are 168 hours in a week. Assume that you owe about sixty hours of work per week to your employer—that is, about forty billable hours, which will take an estimated sixty hours to accomplish.[18] Say that you also need to sleep eight hours per night. That is another fifty-six hours. This still leaves fifty-two waking hours.

Here is Cordell’s observation: the way that you spend the sixty hours will determine the quality of your career. The way that you spend the fifty-two hours will determine the quality of your life.

Consider those sixty hours of work. You can spend them just accepting every assignment that comes your way. That is what I did at the start of my career. I thought that I was being a team player, but really I was being a chump. A wiser approach would have been to approach those sixty hours strategically. I will only get about 80,000 hours to spend on my entire career,[19] with more annual hours at the beginning and fewer—not to mention less energy—at the end. So how could I have made the most of those sixty hours in the context of a finite 80,000-hour career?

For starters, I could have begun with the end in mind. What was I trying to accomplish over those 80,000 hours? In other words, where did I want to be at the end of my career, and what did I want my colleagues to say at my retirement party? Once I set those goals, I should have analyzed how to get there, and what benchmarks I needed to hit along the way. Where did I need to be in twenty years? In ten years? In five years? Next year? Next month? Next week?

To maximize my time as an associate, I should have allocated each block of sixty hours accordingly. An example may help to make this all a little more concrete. Say that I am a second-year associate, and my long-term goal is to become the best appellate lawyer in Virginia. I have decided that I will need a statewide reputation and fifty good appeals under my belt by the twenty-year mark. Within five years, I want to have argued five cases before the Fourth Circuit. My job as a second-year associate is to figure out what I can do this year—and this week—to get there.

To begin with, I can critically evaluate my current job and the opportunities that it presents. Is this where I need to be? Should I pursue a clerkship instead? Would I get better experience working for the government? If I am in the right place, what should I be doing? Who are the potential referral sources for the type of work that I want to get, both inside and outside the firm? What am I doing to get in front of those people? Am I making the most of speaking and writing opportunities? What about social media? Should I be doing a blog or podcast? Will the firm sponsor pro bono opportunities that will let me get the type of experience that I want?

Once I have identified the steps to take, my next move is easy. I just need to take them.

A few more thoughts: if a lawyer in the firm controls the type of work that you want to do, approach her and tell her that you would like to work with her. You have absolutely nothing to lose. When presented with new assignments, weigh them against your business plan. Your time and energy are both limited; every time that you say “yes” to a new project, you are also saying “no” to something else. So make sure that you are saying “yes” to the right projects. But do so, obviously, with an eye to your standing in the firm; you cannot very well bill ten hours per week and turn down projects because they are inconsistent with your personal goals.

5.  Protect Yourself While Solving Ethical Problems

Just like everyone else, I took an ethics class in law school. I passed the Multistate Professional Responsibility Examination. I took (and even later taught) the Virginia State Bar’s Harry L. Carrico Professionalism Course. None of that prepared me to resolve ethical problems in the real world. There is a lot more to managing these issues than just doing the research. True, you must get the right answer, but you also have to do so in a way that protects both yourself and your law firm, while preserving the relationships (and sanity) of all involved. I stumbled around in the dark for years before I figured this out. Here is what I came up with:

First, run a thought experiment. If there were no rules of professional conduct or professionalism guidelines, what would you do? If the answer is that you would err on the side of caution—that is, you would not do what you are being asked to do—then that is the end of the analysis. Nobody says that you have to do anything that makes you uncomfortable just because it is allowed by the Rules of Professional Conduct.[20] Those rules set minimum requirements—the ethical floor, not the ceiling. If a course of action that is technically permissible would keep you up at night anyway, do not do it.

Second, do your research. Check the Rules of Professional Conduct[21] and the Legal Ethics Opinions.[22] Run a Google search or two. Figure out the doctrinally correct answer.

Third, if it is possible to do so consistent with your duty of confidentiality, run the scenario by a trusted mentor. Consider not only the strict ethical implications of the proposed course of action, but also its potential reputational effects, both for you and for your firm.

Fourth, if you are still inclined to go forward, contact the Virginia State Bar’s ethics hotline. They accept inquiries by phone or email.[23] Send them an email outlining your situation and your assessment based on the research that you conducted in step two. The Ethics Counsel will either confirm your analysis (in writing), amplify it (suggesting additional possible ways to safeguard yourself and your client), or point out an error in your reasoning.[24] Do what they say, and save that email. It documents your good-faith efforts, and it may come in handy if you ever face a bar complaint.

And there, dear reader, you have it: five simple tips that would have spared me most of the pain that I experienced as a young lawyer. I hope that they serve you well.

     *  Partner, Johnson Rosen & O’Keeffe, LLC. Earlier in the author’s career he practiced with Gentry Locke LLP and Skadden, Arps, Slate Meagher & Flom LLP. J.D., 2002, Harvard Law School; B.A., 1999, College of William & Mary.

        [1].    Bryan A. Garner, The Redbook: A Manual on Legal Style (3d ed. 2013). While The Redbook is essential, The Bluebook is an abomination for all of the reasons that Judge Posner pointed out years ago. See Richard A. Posner, The Bluebook Blues, 120 Yale L.J. 850 (2011). I have been using a version of Judge Posner’s simplified citation system for years, see id. at 854–57, and I have never been called on it.

        [2].    John E. Warriner, English Composition and Grammar: Complete Course (Benchmark ed. 1988).

        [3].    William Strunk, Jr. with E.B. White, The Elements of Style (4th ed. 2000).

        [4].    See, e.g., H.W. Fowler, A Dictionary of Modern English Usage (2d ed. 1965) (a usage guide); Black’s Law Dictionary (Bryan A. Garner ed. 10th ed., 2014) (a legal dictionary).

        [5].    Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).

        [6].    Mark Herrmann, The Curmudgeon’s Guide to Practicing Law (2006).

        [7].    Mark Herrmann, How to Write: A Memorandum from a Curmudgeon, in The Curmudgeon’s Guide to Practicing Law, supra note 6, at 1–8.

        [8].    Bryan A. Garner, The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts (3d ed. 2014).

        [9].    Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates (2d ed. 2014).

      [10].    Matthew Butterick, Typography for Lawyers (2010).

      [11].    Stephen King, On Writing: A Memoir of the Craft (2000).

      [12].    William Zinsser, On Writing Well: The Classic Guide to Writing Nonfiction (2006).

      [13].    Steven Pinker, The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century (2014).

      [14].    See, e.g., Brian K. Johnson & Marsha Hunter, The Articulate Advocate: New Techniques of Persuasion for Trial Lawyers (2010) (giving advice on improving one’s public speaking).

      [15].    Again, I do not make any claim to original thought here. I just do not remember where along the way I picked these up.

      [16].    E.g., 6 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure (2010).

      [17].    Kent Sinclair & Leigh B. Middleditch, Virginia Civil Procedure (6th ed. 2014).

      [18].    These numbers are absurd and inhumane, but that is a topic for another piece.

      [19].    This is not a remotely original observation. See, e.g., 80,000 Hours, https://80000 hours.org (last visited Nov. 2, 2017).

      [20].    See, e.g., Preamble: A Lawyer’s Responsibilities, Rules of Prof’l Conduct, Va. State Bar, http://www.vsb.org/pro-guidelines/index.php/rules/preamble/ (last visited Nov. 2, 2017) (explaining that while “[m]any of a lawyer’s professional responsibilities are prescribed in the Rules of Professional Conduct, . . . a lawyer is also guided by personal conscience and the approbation of professional peers”).

      [21].    Rules of Prof’l Conduct, Va. State Bar, http://www.vsb.org/pro-guidelines/in dex.php/ (follow “Rules of Professional Conduct” hyperlink; then follow hyperlink to appropriate rule) (last visited Nov. 2, 2017).

      [22].    Legal Ethics Opinions Online, Va. State Bar, https://www.vsb.org/site/regulat ion/leos (last visited Nov. 2, 2017).

      [23].    Professional Regulation: Ethics Questions and Opinions, Va. State Bar, https:// www.vsb.org/site/regulation/ethics (last visited Nov. 2, 2017).

      [24].    See id.

Judge Merhige’s Environmental Decisions: Expert Handling of Groundbreaking Environmental Rulings and Complex Federal Jurisdictional Questions

Jim Vines, Judge Merhige’s Environmental Decisions: Expert Handling of Groundbreaking Environmental Rulings and Complex Federal Jurisdictional Questions, 52 U. Rich. L. Rev. Online 39 (2017).

Click here to download PDF.

Jim Vines *

It is a special privilege for me to contribute to this edition of the University of Richmond Law Review honoring Judge Robert R. Merhige, Jr. Here, I seek to highlight his contributions to United States environmental law. In 1988 and 1989, I was one of two recent law school graduates who clerked for Judge Merhige (“please call me by my first name; it’s ‘Judge’”). The Judge was a larger than life figure. As a federal trial judge, historically important and intellectually challenging cases seemed to find their way into his court in a volume not matched in many other federal district courts. Not surprisingly, his environmental cases were “big” and his rulings reflected his uncommon grasp of the whole of the law.

There is simply no way to talk about Judge Merhige without including anecdotes and typically, some humor. Here is my “environmental” anecdote.

Environmental practitioners who have worked under the federal “Superfund” law or Resource Conservation and Recovery Act[1] (or their State counterparts) on cleanups of land or groundwater contaminated with gasoline residues are aware of the significance of BTEX detected in site samples. Some seasoned environmental lawyers even know what the acronym BTEX means.[2]

Early one morning during my clerkship with the Judge, he brought up the topic of BTEX contamination sua sponte. He was a bit late getting to his chambers, meaning after 7:30 AM, which would have been the “afternoon” if it had been one of us. He came through the door loudly asking if anyone knew how to get gasoline out of a neck tie. He had stopped on the way to work to help a stranded motorist and had splashed fuel on himself after he fetched it for her at a gas station and insisted on pouring it in the tank of her car. As for his soiled necktie, one of us commented that it was a bit early in the day for Molotov cocktails, and that was the end of it. I do hope he disposed of the ruined tie in a responsible way.

I really regret that this episode was as close as I came to working with the Judge on an environmental case. He certainly left his mark on the development of federal environmental jurisprudence in the 1970s, 1980s, and into the early 1990s, but chance made it so that during my year with him, no environmental case came across his docket—unless my co-clerk handled it. The Judge and my co-clerk both knew that I planned on becoming an environmental lawyer, so this would have been very wicked of them.

I first came across Judge Merhige and his environmental jurisprudence during my first year of law school, though in a class not typically thought of as having anything to do with environmental law. My Civil Procedure casebook contained one of the Judge’s rulings in the well-known Kepone litigation. Overall, the Kepone cases were a much publicized group of related criminal and civil lawsuits against a chemical manufacturer in Virginia—Allied Chemical—and a spinoff entity. The Judge imposed a $13,200,000 fine against Allied Chemical for violating the federal Clean Water Act, though he reduced the fine to $5,000,000 after the company agreed to donate $8,000,000 to the Virginia Environmental Endowment Fund—an organization whose purpose is to improve the quality of Virginia’s environment.[3] The settlement produced ancillary litigation over whether the donation was tax deductible, and the Third Circuit ultimately held that it was not.[4]

But my introduction to Kepone was a case addressing class certification under the then (c. 1985) Federal Rules of Civil Procedure governing class action litigation in the federal courts. In Pruitt v. Allied Chemical Corp., watermen from Maryland and Virginia sued Allied Chemical for harm to their livelihood from the environmental contamination of the Chesapeake Bay.[5] Judge Merhige declined to certify these groups of watermen from the two states into a single class.[6] Class certification rulings, save for the lawyers directly involved, are usually not historically significant and can be grounded in fairly prosaic reasoning. But the Judge’s reason for denying to certify this particular class in Pruitt was fairly head-turning—he took judicial notice of the fact that the Maryland and Virginia watermen had been engaged in armed disputes for centuries, including an episode known as the Oyster War of 1785.[7]

A broad survey of Judge Merhige’s environmental jurisprudence reveals interesting jurisprudential aspects apart from his particular rulings on questions of environmental law. For instance, the Judge’s environmental caseload was heavily weighted with federal Clean Water Act (“CWA”) matters. The Judge’s CWA opinions, including their ultimate consideration by the United States Supreme Court, have had a profound impact on the law’s development, interpretation, and, especially, its enforcement.[8]

Perhaps most importantly among his CWA rulings, the Judge held that the CWA did not imply a cause of action for citizens to sue state governments over provisions in their National Pollutant Discharge Elimination System (“NPDES”) (federally authorized effluent discharge) permits, and that 28 U.S.C. § 1983 could not be used to enforce the CWA.[9] The Supreme Court agreed with Judge Merhige on both issues, and, in doing so, significantly impacted citizens’ ability to enforce the CWA’s provisions.[10] On the flip side, Judge Merhige held as a matter of first impression that the CWA permitted citizen suits for wholly past violations of NPDES permits, a position the Supreme Court ultimately reversed.[11]

Perhaps unexpectedly, in light of Judge Merhige’s reputation as the federal judge who desegregated Virginia’s schools, his environmental decisions reflect a strong respect for states’ rights. The Judge was very circumspect with respect to various issues that implicated federalism, including abrogating state sovereign immunity, implying private causes of action in federal statutes like the CWA, allowing § 1983 claims against states to enforce federal laws, interfering with ongoing state proceedings (Younger abstention), finding federal question jurisdiction in mixed claims, and allowing supplemental jurisdiction over state law claims.

On the other hand, the Judge was extremely unsympathetic to individual polluters. The Kepone litigation is a case in point. Another good example is State Water Control Board v. Train, where Judge Merhige held that municipal wastewater treatment works would not be exempt from complying with deadlines for effluent limitations imposed by the CWA even when the Environmental Protection Agency (“EPA”) admitted that many municipalities would be completely unable to comply due to federal funding shortfalls and administrative delays.[12]

Perhaps not unexpectedly, Judge Merhige’s environmental decisions addressed a rather bewildering array of federal jurisdictional and jurisprudential issues in addition to addressing a number of nationally important environmental principles and issues of first impression. The following sections explore this daunting array of interconnected issues sorted out by the Judge over the years.

A.  Younger Abstention

In Kim-Stan, Inc. v. Department of Waste Management, a sanitary landfill operator sued to enjoin Virginia officials from enforcing an emergency special order revoking Kim-Stan’s permit and prohibiting it from accepting waste from out of state.[13] Judge Merhige granted the State officials’ motion to dismiss on Younger abstention grounds. Because there were ongoing State proceedings that implicated important State interests and could have resolved the federal claims, the court abstained from exercising jurisdiction over the case.[14]

B.  Federal Bankruptcy Code Preemption of Environmental Laws

In In re Smith-Douglass, Inc., Judge Merhige, sitting on the Fourth Circuit by designation, addressed the interesting question of when the Bankruptcy Code preempts State environmental laws.[15] Section 554(a) of the Bankruptcy Code allows trustees to abandon income-draining property, but the Supreme Court in Midlantic National Bank v. New Jersey Department of Environmental Protection recognized an exception that trustees “may not abandon property in contravention of a state statute or regulation that is reasonably designed to protect the public health or safety from identified hazards.”[16] In holding that the Midlantic exception should be narrowly construed, Judge Merhige reasoned that the purpose of the Bankruptcy Code is “the expeditious and equitable distribution of the assets,” and the Code preempts state laws that evince contrary policies.[17] Accordingly, the Judge held that the exception only applied where the public health or safety is threatened with imminent and identifiable harm.[18] In the case at hand, the Judge held that the State had not demonstrated an immediate and identifiable harm, and, therefore, § 554(a) preempted the contrary state law provisions, and the trustee was entitled to abandon the property.[19] (It is worth noting that at the time of this ruling, Judge Merhige was deeply immersed in the Bankruptcy Code while jointly presiding with Richmond, Virginia, Bankruptcy Judge Blackwell Shelley over the A.H. Robbins bankruptcy. This bankruptcy resulted from the multitude of tort claims against A.H. Robbins related to the “Dalkon Shield” IUD. I clerked for the Judge shortly after the In re Smith-Douglass, Inc. ruling and enjoyed the incredible learning experience of working closely with him on the Robbins bankruptcy case).

C.  CWA Citizen Suit Provisions

In Chesapeake Bay Foundation v. Gwaltney of Smithfield, Ltd.,[20] Judge Merhige made the initial ruling in a case that has dramatically impacted citizen enforcement of the CWA. The case addressed the important issue of whether the CWA’s citizen suit provision permits suits for wholly past violations. Judge Merhige held that it did,[21] and the Fourth Circuit affirmed.[22] The United States Supreme Court, resolving a circuit split, held that § 1365 of the CWA does not permit citizen suits for wholly past violations.[23] The Court remanded the case to the Fourth Circuit to consider whether the plaintiffs had also alleged ongoing violations sufficient to confer subject matter-jurisdiction.[24] The Fourth Circuit held that the plaintiffs adequately alleged ongoing violations sufficient for standing purposes, but remanded to the district court to consider whether ongoing violations were proven at trial.[25] Judge Merhige held that they were and reinstated the initial penalty.[26] The Fourth Circuit affirmed that there were ongoing violations but reversed Judge Merhige’s reinstatement of the original penalty because it was based on both past and ongoing violations.[27]

D.  Multiplicitous Counts in Criminal Indictment

In United States v. Allied Chemical Corp., Judge Merhige rejected Allied Chemical’s request that the United States Department of Justice elect which of the 456 counts of the indictment it intended to prosecute, or, in the alternative, that all counts be consolidated on the grounds that they were “multiplicitous.”[28] The Judge held that there was insufficient information to rule that the counts were multiplicitous.[29]

E.  Press Confidentiality

In Gilbert v. Allied Chemical Corp., the defendant subpoenaed a radio station seeking unpublished and unaired information it had on the Kepone cases.[30] Judge Merhige held that the confidential information was privileged and therefore exempt from disclosure, but the non-confidential information was exempt only if it would lead directly to the disclosure of confidences.[31] In the much later case of Stickels v. General Rental Co., the Judge abrogated this approach and adopted a qualified privilege for non-confidential materials acquired by the press in the course of their newsgathering process.[32]

F.  Class Certification in Class Action Litigation

As noted above, in Pruitt v. Allied Chemical Corp., the Judge declined to certify a class of Maryland and Virginia watermen because of the fact that the two groups engaged in armed violence with one another. To the Judge, it seemed clear that the named plaintiffs could not “adequately represent” the interests of all of the putative class members.[33]

G.  Ancillary Jurisdiction

In Adams v. Allied Chemical Corp., Judge Merhige addressed an attorney fee dispute, which arose during the course of a diversity lawsuit. The Judge held that the fee dispute was not sufficiently connected to the diversity suit to justify ancillary jurisdiction and that there was no basis for federal question jurisdiction.[34]

H.  State Tort Law and Economic Damages/‌Implied Cause of Action in Federal Statute

In Pruitt v. Allied Chemical Corp., plaintiffs, who made their livings from the Chesapeake Bay, sued Allied Chemical for its pollution of the Bay with Kepone, and Allied Chemical moved to dismiss for failure to state a claim.[35] Judge Merhige considered whether Virginia tort law imposes liability for indirect economic harm, a question which had apparently never been addressed by the Virginia courts. In a candid, introspective opinion, Judge Merhige held that “indirect” economic damages were not recoverable, but acknowledged the difficult line drawing involved in determining what level of commercial activity was too indirect for recovery.[36] Applying a balancing test of the economic aims of tort liability with other countervailing considerations, like the principle in admiralty law that defendants only pay once for damages inflicted, the court held that boat, tackle and bait shop owners who lost business stated cognizable claims, but the plaintiffs who merely purchased and marketed seafood for commercial fishermen did not.[37] In addition, the court held that admiralty law dictated the same result.[38] The Judge also ruled that the Rivers and Harbors Appropriation Act and the Federal Water Pollution Control Act did not imply private causes of action.[39]

I.  Broad Spectrum of Jurisdictional and Procedural Issues

In James River v. Richmond Metropolitan Authority, a nonprofit corporation sued federal and state officials and agencies seeking injunctive and declaratory relief enjoining the construction of an expressway in Richmond.[40] The plaintiffs alleged violations under the United States and Virginia constitutions and the federal Rivers and Harbors Act (“RHA”), National Environmental Policy Act (“NEPA”), Federal-Aid Highways Act (“FAHA”), National Historic Preservation Act (“NHPA”), the Department of Transportation Act (“DOTA”), and the Administrative Procedure Act (“APA”).[41] Judge Merhige’s opinion reads something like a federal courts and civil procedure treatise, addressing pendant jurisdiction, sovereign immunity, organizational standing, the laches doctrine, the extent of federal involvement in the project, and what makes a water “navigable” for the purposes of the RHA. Ultimately, the Judge refused to hear the defendants’ State constitutional claim, summarily rejected the Fifth, Ninth, and Fourteenth Amendment claims, found that the RHA did not apply because the water body at issue was not navigable, and that the other statutory claims did not apply because there was not sufficient federal action.[42] For a judge considered “activist” by many, Judge Merhige’s reasoning in this emotionally charged case is the picture of judicial restraint:

The protection of our environment and of our places of historical interest are of the utmost importance, yet, the decision as to how to protect them must come from the Congress of the United States and the legislatures of the various states. Where, as here, highway planners meet all of the requirements of law applicable to them nothing further is required.[43]

J.  A Highway Case with a Different Outcome

In Thompson v. Fugate, Judge Merhige enjoined the Virginia State Highway Commission and Secretary of Transportation from constructing a highway through a portion of the plaintiff’s property.[44] The property was a registered historic landmark and had connections to Thomas Jefferson, John Marshall, and other historical figures in Virginia. The Judge held that the project could be enjoined until the defendants demonstrated compliance with NEPA, DOTA, FAHA and NHPA even though the highway was nearly complete.[45] This opinion came after the Fourth Circuit’s holding that the Judge had abused his discretion in failing to enter a preliminary injunction against the condemnation of the property prior to trial.[46]

K.  Federal Common Law, Sovereign Immunity, Pendent Jurisdiction, Tucker Act, Parens Patriae, and the United States Constitution

In Board of Supervisors v. United States, the County of Fairfax, Virginia sued the District of Columbia and certain officials for creating a public nuisance by improperly maintaining the District’s Lorton prison complex in Fairfax.[47] (Judge Merhige heard this case in the Alexandria Division of the Eastern District of Virginia, illustrating his penchant for covering cases in a number of other federal court venues outside of Richmond). First, the court considered whether D.C. was entitled to sovereign immunity, holding that it was not because it was alleged to be exceeding its statutory authority.[48] Second, the court held that, at the motion to dismiss stage, the defendants had not met their burden of showing that the federal common law of nuisance was preempted by federal environmental statutes.[49] Next, the court held that the plaintiff could amend its complaint to show the interstate nature of the alleged pollution stemming from the prison complex, which would be sufficient to give rise to a federal nuisance claim.[50] But the other claim, which concerned local security risks, was based in state common law nuisance, and the Judge doubted that the court should exercise pendent jurisdiction over it.[51] Fourth, the court held that the county could not assert constitutional claims of its residents under the parens patriae doctrine.[52] Finally, the court held that the plaintiff’s Tucker Act claim should be dismissed because there was no implied contract, but that it still could be made out as an element of damages should the plaintiff succeed on its nuisance claim.[53]

L.  Implied Causes of Action in Federal Statutes

In Chesapeake Bay Foundation v. Virginia State Water Control Board, Judge Merhige considered whether the CWA implied a private cause of action.[54] Applying Justice Brennan’s four-factor test in Cort v. Ash, Judge Merhige held it did not and dismissed the action, principally because it would be extremely intrusive into the State administrative process.[55] Notably, Judge Merhige’s restrictiveness in this area parallels the Rehnquist Court’s later signifi-cant tightening of recognition of implied causes of action after Cort.[56]

M.  Section 1983 as the Basis for Suing the State for Violations of CWA

In a subsequent case, Chesapeake Bay Foundation v. Virginia State Water Control Board, the nonprofit plaintiffs sought to amend their complaint following the earlier dismissal, adding the Chairman of the Board as a defendant and asserting 42 U.S.C. § 1983 as the basis for their cause of action.[57] Judge Merhige rejected the plaintiffs’ motion but grappled with an issue of first impression: whether § 1983 can be a cause of action to sue a state for alleged violations of the CWA.[58] In Maine v. Thiboutot, the Supreme Court had given an expansive reading to § 1983 and seemingly sanctioned using the provision as a hook to sue state officials for violations of any federal law.[59] Judge Merhige, however, found that § 1983 could not be used to sue state officials for CWA violations because of the significant federalism issues and judicial burdens it would create.[60] One year later, in Middlesex County Sewerage Authority v. National Sea Clammers Ass’n, the Supreme Court agreed with Judge Merhige and cited his opinion favorably.[61] Later Supreme Court decisions mirrored this narrowing of Thiboutot.[62]

N.  Tension Between NEPA and Law Enforcement Policy

Ely v. Velde was a series of cases addressing the tension between the policies of preservation and conservation in NEPA and NHPA on the one hand, and congressional policies favoring state autonomy in the use of federal funds for law enforcement purposes on the other.[63] Judge Merhige found for the defendant-government officials, holding that officials had reasonably approved grants to a state to fund construction of a penal facility without first completing an Environmental Impact Statement or considering provisions of the NHPA related to federal activity on property listed on the National Register for Historic Places.[64] The Fourth Circuit disagreed and reversed.[65]

O.  Statutory Policy Versus the White House

In Campaign Clean Water, Inc. v. Ruckelshaus, Judge Merhige addressed a provision in the 1972 CWA amendments strongly opposed by President Nixon. Congress passed a water pollution appropriation bill over the President’s veto which allotted $11,000,000,000 for waste treatment plant construction grants for fiscal years 1973 and 1974.[66] But the EPA Administrator announced that, pursuant to the President’s direction, he was only allotting $5,000,000,000 out of the $11,000,000,000.[67] The Judge held that the EPA had abused its discretion and entered a declaratory judgment that the policy was null and void.[68] After the case reached the Supreme Court, the Court agreed that the EPA did not have discretion to allocate less than all the sums authorized by the 1972 CWA amendments.[69]

P.  State Non-Compliance with Federal Environmental Law Due to Lack of Funds

In State Water Control Board v. Train, Virginia’s Water Control Board sued the EPA to obtain relief from compliance with an effluent limitation for publicly owned treatment works imposed by the CWA 1972 amendments.[70] The Board argued that it was not required to comply with the limitation until federal grants were available to underwrite seventy-five percent of the costs.[71] Many municipalities had not received the funds guaranteed to them by the CWA, in part because of administrative delays, but also due to the EPA’s withholding of $6,000,000,000 of funds discussed in Campaign Clean Water, Inc. v. Ruckelshaus.[72] Consequently, the EPA acknowledged that many of the municipalities would not be able to comply with the effluent limitations by the deadline imposed under the CWA. Despite the harsh result, Judge Merhige held that the statute was clear and that the municipalities’ compliance was required regardless of whether the funds were available.[73] As to the Board’s contention that it could be held liable for failing to comply with a standard it could not possibly meet, the court noted that the issue was not currently before the court, but indicated that that might be the unfortunate result, suggesting that “[s]hould this result in fact come about, the fault, if any, lies with Congress.”[74]

Conclusion

Since the emergence of the era of federal environmental regulation, federal district judges have been charged with interpreting the application of federal statutes to a variety of industrial and other activities affecting the environment and human health. Judge Merhige played his role in deciphering these emerging federal laws, but he appears to have handled a disproportionate share of associated issues involving federal jurisdiction, states’ rights, and constitutional issues. Against the notably low statistical odds for Supreme Court grants of certiorari in general, his rulings underwent an almost astonishing level of High Court review. In many instances, the highest court agreed with Judge Merhige’s conclusions. As with many other aspects of his judicial tenure, Judge Merhige’s environmental decisions were extraordinary.

* Partner and Member, King & Spalding LLP, Environmental, Health and Safety practice team. I am substantially indebted to and grateful for the work of Zachary Hennessee, a third-year law student at the Duke University School of Law and future federal judicial law clerk, who compiled an extremely thorough catalogue of Judge Merhige’s environmental cases and articulated numerous fine insights about these rulings and their import.

        [1].    Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795 (1976).

        [2].    “When gasoline is in contact with water, benzene, toluene, ethylbenzene and the xylene isomers (BTEX) account for as much as 90% of the gasoline components that are found in the water-soluble fraction.” F.X. Prenafeta-Boldú et al., Substrate Interactions During the Biodegradation of Benzene, Toluene, Ethylbenzene, and Xylene (BTEX) Hydrocarbons by the Fungus Cladophialophora sp. Strain T1, 68 Applied & Envtl. Microbiology 2660, 2660 (2002) (citations omitted). “BTEX is not one chemical, but are a group of the following chemical compounds: Benzene, Toluene, Ethylbenzene and Xylenes. BTEX are made up of naturally-occurring chemicals that are found mainly in petroleum products such as gasoline.” Bureau of Envtl. Health and Radiation Prot., Ohio Dep’t of Health, BTEX 1 (2016).

        [3].    See Allied-Signal, Inc. v. Comm’r, 63 T.C.M. (CCH) 2672, 2678–79 (T.C. 1992) (describing Allied Chemical’s penalty).

        [4].    Allied-Signal, Inc. v. Comm’r, No. 94-7336, 1995 U.S. App. LEXIS 41283, *26 (3d Cir. 1995).

        [5].    Pruitt v. Allied Chem. Corp., 85 F.R.D. 100, 103 (E.D. Va. 1980).

        [6].    Id. at 104.

        [7].    Id. at 106, 106 n.3.

        [8].    See, e.g., Wiliam Goldfarb, Changes in the Clean Water Act Since Kepone: Would They Have Made a Difference?, 29 U. Rich. L. Rev. 603, 613–32 (1995).

        [9].    See Chesapeake Bay Found. v. Gwaltney of Smithfield, Ltd., 611 F. Supp. 1542, 1545, 1550 (E.D. Va. 1985), aff’d, 791 F.2d 304 (4th Cir. 1986), vacated, 484 U.S. 49 (1987).

      [10].    Gwaltney of Smithfield, Ltd., 484 U.S. at 65.

      [11].    Gwaltney of Smithfield, Ltd., 611 F. Supp. at 1548; see Gwaltney of Smithfield, Ltd., 484 U.S. at 64.

      [12].    State Water Control Bd. v. Train, 424 F. Supp. 146, 155 (E.D. Va. 1976).

      [13].    Kim-Stan, Inc. v. Dep’t of Waste Mgmt., 732 F. Supp. 646, 648 (E.D. Va. 1990).

      [14].    Id. at 652–53 (applying Younger v. Harris, 401 U.S. 37, 53–54 (1970)).

      [15].    In re Smith-Douglass, Inc., 856 F.2d 12, 15–16 (4th Cir. 1988).

      [16].    Midlantic Nat’l Bank v. N.J. Dep’t of Envtl. Prot., 474 U.S. 494, 507 (1986).

      [17].    In re Smith-Douglass, Inc., 856 F.2d at 15.

      [18].    Id. at 16.

      [19].    See id. at 16–17.

      [20].    611 F. Supp. 1542 (E.D. Va. 1985), aff’d, 791 F.2d 304 (4th Cir. 1986), vacated, 484 U.S. 49 (1987).

      [21].    Id. at 1548.

      [22].    Gwaltney of Smithfield, Ltd., 791 F.2d at 306.

      [23].    Gwaltney of Smithfield, Ltd., 484 U.S. at 58–59.

      [24].    Id. at 69.

      [25].    Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 844 F.2d 170, 170 (4th Cir. 1988).

      [26].    Chesapeake Bay Found., Inc. v. Gwaltney of Smithfield, Ltd., 688 F. Supp. 1078, 1080 (E.D. Va. 1988) aff’d in part, rev’d in part, 890 F.2d 690 (4th Cir. 1989).

      [27].    Gwaltney of Smithfield, Ltd., 890 F.2d at 695, 697.

      [28].    420 F. Supp. 122, 123–24 (E.D. Va. 1976).

      [29].    Id. at 124.

      [30].    411 F. Supp. 505, 507 (E.D. Va. 1976), abrogated by Stickels v. Gen. Rental Co., 750 F. Supp. 729 (E.D. Va. 1990).

      [31].    See id. at 510–11.

      [32].    See 750 F. Supp. at 732.

      [33].    Pruitt v. Allied Chem. Corp., 85 F.R.D. 100, 106 (E.D. Va. 1990).

      [34].    Adams v. Allied Chem. Corp., 503 F. Supp. 253, 255–56 (E.D. Va. 1980).

      [35].    523 F. Supp. 975, 976 (E.D. Va. 1981).

      [36].    See id. at 979–80.

      [37].    See id. at 979–82.

      [38].    Id. at 980–82.

      [39].    Id. at 982.

      [40].    359 F. Supp. 611, 615–16 (E.D. Va.), aff’d, 481 F.2d 1280 (4th Cir. 1973).

      [41].    Id. at 616–18, 622.

      [42].    Id. at 623, 628, 636, 640–41.

      [43].    Id. at 641.

      [44].    347 F. Supp. 120, 121, 128 (E.D. Va. 1972).

      [45].    Id. at 125–28.

      [46].    Thompson v. Fugate, 452 F.2d 57, 58 (4th Cir. 1971).

      [47].    408 F. Supp. 556, 559 (E.D. Va. 1976), appeal dismissed without opinion, 551 F.2d 305 (4th Cir. 1977).

      [48].    See id. at 561.

      [49].    Id. at 561–62.

      [50].    Id. at 562.

      [51].    Id. at 565.

      [52].    See id. at 566–67.

      [53].    Id. at 567.

      [54].    495 F. Supp. 1229, 1234 (E.D. Va. 1980).

      [55].    Id. at 1234, 1237–38 (citing Cort v. Ash, 422 U.S. 66, 78 (1975)).

      [56].    See, e.g., Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (holding that no private right of action exists under Title VI to enforce regulations promulgated under § 602 of Title VI).

      [57].    501 F. Supp. 821, 823 (E.D. Va. 1980).

      [58].    See id. at 825, 830.

      [59].    See 448 U.S. 1, 9 (1980).

      [60].    Chesapeake Bay Found., Inc., 501 F. Supp. at 826–28.

      [61].    453 U.S. 1, 20–21 (1981).

      [62].    See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002).

      [63].    See Ely v. Velde, 321 F. Supp. 1088, 1090, 1094–95 (E.D. Va.), aff’d in part, rev’d in part, 451 F.2d 1130 (4th Cir. 1971); Ely v. Velde, 363 F. Supp. 277, 278–79 (E.D. Va. 1973).

      [64].    Ely, 321 F. Supp. at 1090–91, 1094–95.

      [65].    Ely, 451 F.2d at 1139.

      [66].    Campaign Clean Water, Inc. v. Ruckelshaus, 361 F. Supp. 689, 692 (E.D. Va. 1973).

      [67].    Id.

      [68].    Id. at 700.

      [69].    See Train v. Campaign Clean Water, Inc., 420 U.S. 136, 137–38 (1975).

      [70].    424 F. Supp. 146, 147 (E.D. Va. 1976).

      [71].    Id.

      [72].    See Campaign Clean Water, 361 F. Supp. at 692.

      [73].    State Water Control Bd., 424 F. Supp. at 156.

      [74].    Id. at 156 & n.13.

The Conscience of Virginia: Judge Robert R. Merhige, Jr., and the Politics of School Desegregation

Robert A. Pratt, The Conscience of Virginia: Judge Robert R. Merhige, Jr., and the Politics of School Desegregation, 52 U. Rich. L. Rev. Online 29 (2017).

Click here to download PDF.

Robert A. Pratt *

The United States Supreme Court’s 1954 landmark decision in Brown v. Board of Education declared that segregation in public education violated the Fourteenth Amendment to the United States Constitution.[1] For the millions of African Americans who had endured decades of separate and unequal schooling, this decision was a resounding reaffirmation of the nation’s commitment to equal justice under the law. But those who expected segregated schools to end overnight were in for a rude awakening. The National Association for the Advancement of Colored People (“NAACP”), which had led the legal assault against segregation since its founding in 1909, was encouraged by the Court’s ruling. But its attorneys would soon realize that their initial optimism had been premature and that they had greatly underestimated white southern resistance. Perhaps few could have predicted that it would take nearly twenty years before school desegregation would begin in earnest in the states of the former Confederacy—and only then because of the determined actions of a few courageous judges willing to place principle above prejudice. Judge Robert R. Merhige, Jr., of Virginia was one of them.

A native of New York, Judge Merhige studied at High Point College in North Carolina before attending the University of Richmond’s T.C. Williams School of Law in 1942. After serving in the Army Air Corps during World War II, Judge Merhige returned to Richmond where he began practicing criminal law. On July 17, 1967, President Lyndon B. Johnson appointed Judge Merhige to the United States District Court for the Eastern District of Virginia. Judge Merhige would be involved with many cases during his more than thirty years on the bench, but it was his controversial rulings on school desegregation that would come to define his career and shape his judicial legacy.[2]

For most of the Deep South, the Supreme Court’s ruling in the Brown decision had not only been ignored, but had been met with fierce and determined opposition that became known as “Massive Resistance,” in which Virginia had taken the lead.[3] In his fiery editorials, James J. Kilpatrick of the Richmond News Leader constantly railed against the evils of integrated classrooms, a position strongly reinforced by the Commonwealth’s powerful political establishment often referred to as the “Byrd Organization.”[4] Yet, the steely determination of Virginia’s NAACP attorneys, led by Oliver W. Hill, Samuel W. Tucker, and Henry L. Marsh, meant that the issue of school desegregation would continue to be pressed in the federal courts, forcing some judges, such as Judge C. Sterling Hutcheson, to resign from the bench rather than enforce the Brown decision.[5] Even after “Massive Resistance” had ended, southern school districts continued to resist, substituting token compliance for outright resistance. By creating such schemes as pupil placement boards and freedom of choice plans, southern school districts gave the appearance of acting in good faith when in reality, school segregation remained as firmly entrenched as ever. By the mid-1960s, Virginia’s Pupil Placement Board, which had assigned only a handful of black students to white schools and no white students to black schools, had finally been exposed for what it was.

In 1968, the United States Supreme Court ruled in Green v. New Kent County that the county’s freedom of choice plan did not constitute adequate compliance with the school board’s responsibility to end segregated schools and that the school board would have to devise other plans that would produce meaningful desegregation.[6] During the era of “Massive Resistance,” rural Farmville, Virginia in Prince Edward County had gained national attention by closing its schools for nearly five years rather than integrate.[7] By the early 1970s, however, the focus would shift to Richmond’s public schools, which symbolized one of Virginia’s best examples of the failures of token compliance.

The public schools in the City of Richmond (the “City”) were among the most segregated in the Commonwealth of Virginia, and the school board had been under court order to create a unitary school system since the early 1960s.[8] On March 10, 1970, attorneys for the African-American plaintiffs in Richmond’s ongoing lawsuit filed a motion for further relief in light of the Supreme Court’s recent opinion in Green.[9] They argued that the City’s freedom of choice plan, in effect for four years, had failed to convert the public schools into a non-segregated, unitary system.[10] Enrollment figures validated their assertion: As of May 1, 1970, Richmond’s public school system enrolled approximately 52,000 students. Of the seven high schools, three were 100% black; one was 99.3% white; one was 92% white; one was 81% white; and one was 68% black. Of the nine middle schools, two were 100% black, one was 99.9% black, and three ranged from 88% black to 69% black. Three other middle schools were 91%, 97%, and 98% white. In forty-four elementary schools, seventeen were 100% black; four others were over 99% black; one was 78% black; two were 100% white; thirteen others were at least 90% white; two were roughly 86% white; and five were between 53% and 70% white. The figures for faculty and staff showed even less integration.[11] The evidence was compelling: freedom of choice had failed to produce a unitary school system in Richmond.[12] United States District Court Judge Robert R. Merhige, Jr., would have to rule on the feasibility of any future desegregation plans offered by the school board.

The Richmond School Board responded by proposing a couple of new plans that it claimed would produce better results, but Judge Merhige rejected the plans, saying in effect that Richmond’s history of residential segregation would make it difficult, if not impossible, to achieve acceptable levels of desegregation.[13] Judge Merhige wrote that:

[I]n spite of the lifting of public discriminatory practices as a result of the repeal of White supremacy laws, congressional action and judicial pronouncements, no real hope for the dismantling of dual school systems appears to be in the offing unless and until there is a dismantling of the all Black residential areas.[14]

Judge Merhige reasoned that if residential segregation was the major impediment to school desegregation, only a plan that could bridge the neighborhood gap would have any chance of success.[15] Searching for some viable alternatives to the City’s failed plans of the past, Judge Merhige was keenly aware of a school desegregation case in North Carolina that was currently before the United States Supreme Court.

On April 20, 1971, in the case of Swann v. Charlotte-Mecklenburg Board of Education, the United States Supreme Court ruled unanimously that school districts could use busing to help achieve desegregation.[16] The Court’s rationale, which mirrored Judge Merhige’s own thinking, was that given the nation’s long history of residential segregation, busing was an appropriate remedy for the problem of racial imbalance in the public schools.[17] As early as January 1971, Judge Merhige had ruled that the level of desegregation achieved in Richmond’s schools was “less than remarkable” and that “further delays in affording the plaintiffs what these defendants owe them under the Constitution . . . cannot be justified either by precedent or by practicality.”[18] Judge Merhige continued, “The Constitution is satisfied only when an integration plan ‘works’ in practice and not merely on paper.”[19]

On April 5, 1971, fifteen days before the Supreme Court’s decision in Swann, Judge Merhige ordered into effect a new desegregation plan that provided for pupil and faculty reassignments and free city-wide transportation in the City of Richmond.[20] The new plan stipulated that the school board would have to assign pupils so that the ratio of black to white in each school would be based on the city-wide ratio for the groups; teacher assignments were to be made in a similar manner.[21] Of far greater significance, though, was Judge Merhige’s decision to extend busing to all pupils within the City, including kindergarten and elementary school students.[22] Judge Merhige’s decision had effectively ended seventeen years of legal maneuvers and shenanigans, and the City was now on the fast track to end its segregated school system. But while many applauded Judge Merhige’s decision, not everyone saw this as a time for celebration.

Judge Merhige’s desegregation plan set off an immediate series of protests by white parents and parent-teacher associations across the City.[23] For example, the day after Judge Merhige announced his busing plan, nearly two hundred parents and area residents met to express their desire to return to freedom of choice, withdraw their children from the schools in protest, and even amend the United States Constitution to curb federal judicial power. Others suggested contacting their elected state and federal representatives to urge the removal of those officials who “do not meet the needs and wishes of the people.”[24] Even the Supreme Court’s affirmation of Judge Merhige’s decision did little to quiet the City’s anti-busing forces who were determined that their children would not be bused.[25]

In addition to the negative views expressed by many white parents on the subject of busing (perceptions that were stoked by two of Richmond’s daily newspapers which frequently printed articles and letters citing the alleged genetic inferiority and immorality of blacks), demographics further complicated Judge Merhige’s busing plan. Decades of white migration to the suburbs and black migration to the City had produced what some began to refer to as the “chocolate city vanilla suburbs” phenomenon, as the City of Richmond was surrounded by the overwhelming white Counties of Chesterfield and Henrico.[26] And while the desire for better economic opportunities was perhaps a primary motivation for both migrations, it is apparent that the furor over the City’s busing plan clearly served as a catalyst for white residents leaving the City, especially as the earlier trickle turned into a fast-flowing stream in the early 1970s.[27] In a 1975 article, two University of Richmond professors noted the extent to which “white flight” had contributed to resegregation within the Richmond metropolitan area:

While the overall population figures have decreased in Richmond and increased in the counties, the percentage of blacks in each jurisdiction has changed inversely. Containment of blacks within Richmond, rather than significant black immigration, accounted for the increased percentage of blacks in the city. Although black immigration exceeds emigration . . . the primary factor responsible for the increased proportion of blacks [within the city] is continual white emigration.”[28]

With fewer white students in Richmond’s public schools, Judge Merhige’s desegregation plan for the City would yield few positive results.

Within six months of Judge Merhige’s busing decree, black plaintiffs and their attorneys were back in court to demand that Richmond’s school system be merged with those of Chesterfield and Henrico counties.[29] Arguing that the Commonwealth had an obligation to eliminate school segregation, and that desegregation could never happen so long as the city schools remained predominantly black and the county schools overwhelmingly white, the plaintiffs proposed a city-county merger where Richmond’s public schools, a 43,000-pupil system that was seventy percent black, would be consolidated with Chesterfield and Henrico, each of which had a student population that was over ninety percent white.[30] The result would be a single 104,000-pupil unit that would be one-third black.[31]

On January 10, 1972, Judge Merhige handed down his opinion agreeing with the plaintiffs and ordering the merger.[32] Judge Merhige noted the Commonwealth’s long history of residential segregation, as well as its complicity in maintaining and perpetuating segregated schools; therefore, the Commonwealth was obliged to create the remedy.[33] As for the actual merger itself, Judge Merhige opined:

The proof here overwhelmingly establishes that the school division lines between Richmond and the counties here coincide with no natural obstacles to speak of and do in fact work to confine blacks on a consistent, wholesale basis within the city . . . . For [these] reasons . . . it is adjudged and ordered that [the governing bodies of Henrico, Chesterfield, and Richmond] . . . take all steps and perform all acts necessary to create a single school division.[34]

Judge Merhige’s decision sent shock waves throughout the entire metropolitan area and across the Commonwealth. As expected, officials and residents of both counties were outraged and vowed to appeal the ruling. Some referred to the decision as “personal opinions disguised as law,” while others threatened to abandon the public schools entirely if the decision was not overturned.[35] Both of Richmond’s major dailies also denounced the ruling, with the Richmond Times-Dispatch calling it “the pernicious gibberish of those social engineers who argue . . . that a school system’s primary function is to promote racial togetherness. . . .”[36] Thousands of white students took to the streets, waving anti-busing signs in protest, while many teachers threatened to resign.[37] A week after Judge Merhige’s decision, several thousand county residents, riding in a 3261-car motorcade traveled from Richmond to Washington, D.C., to denounce the ruling.[38] Not surprisingly, the battle lines had formed mainly along racial lines, with most blacks supporting the ruling and most whites in fierce opposition.[39]

The personal repercussions for the judge were immediate. Overnight, a once venerated jurist had become persona non grata, and for the next few years, Judge Merhige and his family endured what seemed like a never-ending nightmare. As hostility to the merger intensified, Judge Merhige became a prime target of abuse. He received a barrage of hate mail, obscene phone calls, and life insurance policies.[40] Threats to his and his family’s lives were constant and common, which prompted authorities to station federal marshals at his home for almost two years.[41] The following note sent to the judge was typical:

Look—You Dirty Bastard, We are sick of you Federal Judges playing God. Your knowledge of the law is zero minus a million—your left-wing ideology aid [sic] the malcontents to bring this country into revolution. It would be a good idea to look under [the] hood of your car before starting it. Think about it. You son of a bitch.[42]

In a 1987 interview, Judge Merhige became emotional when discussing what he and his family had to endure during that time.

My family and I went through hell. . . . I remember that at one time there were eleven [federal marshals] living on my property, twenty-four hours a day. They went to school with my son, went to the grocery store with my wife, and they went everywhere with me. The marshals were truly afraid for me, although I was always more concerned about my family. My dog was shot. Our guesthouse, where my then seventy-five year old mother-in-law lived, was burned to the ground. Every other week or so we received a cryptic letter warning that our son Mark would never live to see age twenty-one. I was burned in effigy, spat upon, and occasionally insulted by people who would deliberately walk out of restaurants whenever my wife and I entered. At times it got awfully depressing. But I did what I did not only because it was the law, but also because I believed it was right. And for that, I have no regrets.[43]

The furor over Judge Merhige’s controversial desegregation plan proved to be short-lived. On June 5, 1972, the Fourth Circuit Court of Appeals, in a 5-1 decision, overturned Judge Merhige’s ruling, holding in effect that a district judge did not have the authority to compel any state or locality to rearrange its political boundaries to help facilitate school desegregation.[44] On appeal, the United States Supreme Court split 4-4 on whether to review the case (with Justice Powell recusing himself),[45] thereby leaving the Fourth Circuit’s ruling in effect.[46] In 1974, the United States Supreme Court would settle the issue definitively in a similar case in Michigan, where a federal judge had ordered the heavily black schools of Detroit to merge with the surrounding white suburban schools.[47] In a 5-4 decision (this time, Justice Powell in the majority), the Court reached the same conclusion that the Fourth Circuit had in the Richmond case.[48] Coming twenty years after Brown, the case of Milliken v. Bradley marked the Court’s first major retreat from school desegregation.[49]

In his long and distinguished career on the federal bench, Judge Robert R. Merhige, Jr., rendered many important decisions on a wide range of issues. Yet, he will always be best remembered for his rulings on school desegregation in Richmond, Virginia. Indeed, as the years have passed and anger has abated, some of his staunchest critics have come to respect his courage and determination in the face of persistent hostility and threats to his and his family’s personal safety. During the early 1970s, Judge Merhige was perhaps the most hated man in Virginia, but his commitment to equal justice under the law has earned him a place alongside the likes of Judges J. Waties Waring, John Minor Wisdom, Richard Taylor Rives, and Frank M. Johnson, who placed dedication to the United States Constitution above politics, popular sentiment, or “southern tradition.” For most of the 1970s, Judge Merhige was a prophet without honor in his own country, but during a critical time in our nation’s history, he was, in a true sense, the conscience of Virginia.

    *     Robert A. Pratt is Professor of History at the University of Georgia. He is the author of The Color of Their Skin: Education and Race in Richmond, Virginia, 1954–89; We Shall Not be Moved: The Desegregation of the University of Georgia; and Selma’s Bloody Sunday: Protest, Voting Rights, and the Struggle for Racial Equality.

        [1]. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954).

        [2].    See generally Ronald J. Bacigal, May It Please the Court: A Biography of Judge Robert R. Merhige, Jr. (1992) (giving a detailed discussion of the life of Judge Merhige).

        [3].    Brown at 60: The Southern Manifesto and “Massive Resistance” to Brown, NAACP Legal Defense Fund, www.naacpldf.org/brown-at-60-southern-manifesto-and-massive-resistance-brown (last visited Sept. 27, 2017).

        [4].    Adam Bernstein, James J. Kilpatrick, 89, Dies; Conservative Columnist Formerly on ‘60 Minutes’, Wash. Post (Aug. 17, 2010), www.washingtonpost.com/wp-dyn/content/ article/2010/08/16/AR2010081602555.html; Byrd Organization, Encyclopedia Va., https: //www.encyclopediavirginia.org/Byrd_Organization (last visited Sept. 27, 2017).

        [5].    See Robert R. Merhige, Jr., A Judge Remembers Richmond in the Post-Brown Years, 49 Wash. & Lee L. Rev. 23, 24 (1992).

        [6].    Green v. Cty. Sch. Bd. of New Kent, 391 U.S. 430, 441–42 (1968).

        [7].    The Closing of Prince Edward County’s Schools, Va. Hist. Soc’y, http://www.va historical.org/collections-and-resources/virginia-history-explorer/civil-rights-movement-vir ginia/closing-prince (last visited Sept. 27, 2017).

        [8].    See generally Green, 391 U.S. 430 (recounting the history of noncompliance to desegregate Virginia schools).

        [9].    Gary C. Leedes & James M. O’Fallon, School Desegregation in Richmond: A Case History, 10 U. Rich. L. Rev. 1, 15 (1975).

      [10].    See Bradley v. Sch. Bd. of Richmond, 317 F. Supp. 555, 558 (E.D. Va. 1970).

      [11].    Id. at 560 (providing all of the above statistics).

      [12].    See generally Robert A. Pratt, The Color of Their Skin: Education and Race in Richmond, Virginia 1954–89 (1992) (describing the history of school segregation in Richmond).

      [13].    Bradley, 317 F. Supp. at 566.

      [14].    Id.

      [15].    See id.

      [16].    Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 30 (1971).

      [17].    Id. at 14, 29–30.

      [18].    Bradley v. Sch. Bd. of Richmond, 325 F. Supp. 828, 831, 834 (E.D. Va. 1971).

      [19].    Id. at 847.

      [20].    Leedes & O’Fallon, supra note 9, at 18–20, 34.

      [21].    Id. at 19–20.

      [22].    See id. at 20.

      [23].    Pratt, supra note 12, at 57–58.

      [24].    Id.

      [25].    Id. at 58.

      [26].    See Reynolds Farley et al., “Chocolate City, Vanilla Suburbs:” Will the Trend Toward Racially Separate Communities Continue?, 7 Soc. Sci. Res. 319, 320 (1978); Leedes & O’Fallon, supra note 9, at 22–23.

      [27].    See Leedes & O’Fallon, supra note 9, at 23.

      [28].    Id. at 22 (emphasis added); see also John V. Moeser & Rutledge M. Dennis, The Politics of Annexation: Oligarchic Power in a Southern City (1982) (discussing Richmond’s 1970 annexation of portions of Chesterfield County); James A. Sartain & Rutledge M. Dennis, Richmond, Virginia: Massive Resistance Without Violence, in Community Politics and Educational Change: Ten School Systems Under Court Order 208-36 (Charles V. Willie & Susan L. Greenblatt eds., 1981) (discussing the desegregation process in Richmond, Virginia); Leedes & O’Fallon, supra note 9, at 29.

      [29].    See Bradley v. Sch. Bd. of City of Richmond, 338 F. Supp. 67 (E.D. Va. 1972); Pratt, supra note 12, at 64.

      [30].    Pratt, supra note 12, at 64–65.

      [31].    Id.

      [32].    Bradley, 338 F. Supp. at 244–45.

      [33].    Id. at 94–96.

      [34].    Id. at 84, 244, 245.

      [35].    See Pratt, supra note 12, at 67.

      [36].    Id. at 68.

      [37].    Id. at 67.

      [38].    Id. at 68.

      [39].    See id. at 71.

      [40].    Id. at 69.

      [41].    Id.

      [42].    Id.

      [43].    Id. (quoting an April 1987 interview with Judge Merhige).

      [44].    See Bradley v. Sch. Bd. of Richmond, 462 F.2d 1058, 1060 (4th Cir. 1972).

      [45].    Justice Lewis F. Powell was a native Virginian and had served as chairman of Richmond’s School Board from 1952 until 1961. See Linda Greenhouse, Lewis Powell, Crucial Centrist Justice, Dies at 90, N.Y. Times (Aug. 26, 1998), http://www.nytimes.com/1998 /08/26/us/lewis-powell-crucial-centrist-justice-dies-at-90.html?mcubz=0.

      [46].    See Sch. Bd. of Richmond v. State Bd. of Educ. of Va., 414 U.S. 884 (1973).

      [47].    See Milliken v. Bradley, 418 U.S. 717 (1974); Pratt, supra note 12, at 83.

      [48].    See Milliken, 418 U.S. at 721-22, 752-53.

      [49].    See id. at 752-53.

The Honorable Robert R. Merhige, Jr.: A Judge Ahead of His Time

Wayne A. Logan, The Honorable Robert R. Merhige, Jr.: A Judge Ahead of His Time, 52 U. Rich. L. Rev. Online 23 (2017).

Click here to download PDF.

Wayne A. Logan *

When one thinks about it, it is really quite incredible: a Brooklyn-born son of Lebanese and Irish immigrants with a distinct New York accent, standing well under six feet tall, attends a small North Carolina college on a basketball scholarship; serves with distinction in a bombing squadron in World War II; graduates from the University of Richmond School of Law (paying his way by serving as a night librarian); excels at the practice of law in a city (Richmond) not renowned for its receptivity to Yankees; wins election as president of the city’s Bar; and upon being appointed to the federal bench, serves with distinction for thirty-one years, addressing some of the most controversial legal issues of his time with a skill, energy, and workhorse determination unknown to most mortals.[1]

During his time on the bench, of course, Judge Robert R. Merhige, Jr., (“The Judge” to his clerks and extended court family) came to enjoy considerable national renown, not only for being a progenitor of the Eastern District of Virginia’s “rocket docket” and his expeditious resolution of cases when sitting on assignment,[2] but also for landmark litigation, including the antitrust case involving Westinghouse uranium price-fixing litigation, the Dalkon Shield settlement, and events such as the Wounded Knee uprising, Watergate, the Klan/‌Nazi-Communist Party violence in Greensboro, North Carolina, and the desegregation of Virginia’s public schools.

Here, however, I would like to address a perhaps lesser-known and lower-profile aspect of the Judge’s illustrious tenure on the bench: his criminal case docket. During his thirty-one years on the bench, Judge Merhige handled countless criminal matters. Using dispensed justice as a measure of the magnitude of his work, my instinct is that criminal cases, more than civil, constituted the lion’s share of the Judge’s direct human impact. Indeed, the Judge’s frequent sitting-by-designation was often fueled by the need to redress massively backlogged federal criminal dockets. Moreover, it is often overlooked that the Judge, before his appointment to the federal bench by President Johnson in 1967, was regarded as one of Virginia’s premier criminal defense lawyers, handling over two hundred homicide cases during his twenty-one years as a lawyer, with none of his clients receiving the death penalty.[3] He was, by dint of his extensive trial experience, known by counsel coming before him as a “lawyer’s judge,” sensitized to the demands, constraints, and strategies of trial lawyers. And he did his job with a wit and charm that kept lawyers on their toes and provided many with stories they would later recount with relish.[4]

The Judge’s criminal cases encompassed a broad range of varied matters, including prison reform litigation and substantive law. In those realms, the Judge made significant jurisprudential contributions.[5] In preparing this essay, I spent considerable time on Westlaw reviewing cases involving the Judge. Of course, the work of a federal trial judge overwhelmingly involves orders and memoranda that, despite being the grist and substance of justice dispensed, typically do not make their way into the published or reported oeuvre of the federal judiciary.

One particular case reported in Westlaw did, however, catch my attention. Although the Judge, when sitting by designation on an appellate court, often shied away from fracturing a panel otherwise consisting of resident judges or writing separately to make a point, United States v. Kyllo[6] was an exception. In Kyllo, federal agents, acting without a search warrant, used a thermal imager to scan the exterior of Kyllo’s home, which revealed differential heat patterns that possibly indicated high intensity interior lights used to grow marijuana. The readings, along with other information secured by law enforcement, were used to obtain a search warrant of Kyllo’s house, which revealed a marijuana growing operation.[7]

After some procedural wrangling, the trial court eventually backed the government’s warrantless thermal scan, which presented the Judge’s panel (also consisting of Judges Hawkins and Noonan) with a question of first impression in the Ninth Circuit: whether a thermal scan qualifies as a search under the Fourth Amendment, requiring a search warrant.[8] Applying the Katz two-part test,[9] Judge Merhige, writing for himself and Judge Noonan, concluded that Kyllo possessed “a subjective expectation of privacy that activities conducted within his home would be private.”[10] In doing so, the Judge rejected the position of four other circuits that held that the scan simply revealed non-private “waste heat” emanating from the house.[11] With regard to the second part of the Katz test, again rejecting the position of other circuits,[12] the Judge wrote that Kyllo’s subjective expectation of privacy was objectively reasonable because the imager revealed details “sufficiently ‘intimate’ to give rise to a Fourth Amendment violation.”[13] Citing a prior Tenth Circuit decision on the question (later vacated on other grounds),[14] Judge Merhige concluded that:

It is not disputed whether the [imager] could reveal details such as intimate activities in a bedroom. . . . Even assuming that the [imager used], apparently a relatively unsophisticated thermal imager, is unable to reveal such intimate details, technology improves at a rapid pace, and much more powerful and sophisticated thermal imagers are being developed which are increasingly able to reveal the intimacies that we have heretofore trusted take place in private absent a valid search warrant legitimizing their observation.[15]

Moreover, even if the imager did not reveal intimate details such as sexual activity, the Judge reasoned that it could reveal a range of other activities such as the “use of showers and bathtubs, ovens, washers and dryers, and any other household appliance that emits heat. . . . Even the routine and trivial activities conducted in our homes are sufficiently ‘intimate’ as to give rise to Fourth Amendment violation if observed by law enforcement without a warrant.”[16] Because use of the imager by law enforcement qualified as a search, the matter was remanded to determine whether other information, exclusive of the improperly obtained thermal images, established probable cause to issue a warrant.[17]

Judge Hawkins dissented, concluding that “the thermal imaging device employed . . . intruded into nothing,” and urged the panel to “follow the lead of our sister circuits and hold that the use of thermal imaging technology does not constitute a search under contemporary Fourth Amendment standards.”[18]

The government thereafter successfully petitioned for rehearing, Judge Merhige’s opinion was withdrawn, and in its place came a decision reaching the opposite result, authored by Judge Hawkins.[19] Siding with all other circuits that to that point had definitively resolved the question,[20] Judge Hawkins, writing for himself and Judge Brunetti[21] (Judge Noonan, siding with Judge Merhige’s opinion in the earlier iteration, was on the new panel but dissented),[22] concluded that “[w]hatever the ‘Star Wars’ capabilities this technology may possess in the abstract, the thermal imaging device employed here intruded into nothing.”[23]

Certiorari was thereafter successfully sought, and the Supreme Court ultimately reversed by a 5-4 vote.[24] In a clear vindication of Judge Merhige’s original opinion, using strikingly similar language, Justice Scalia wrote for the majority that Kyllo possessed a reasonable expectation of privacy regarding “the interior of [his] home” because “[i]n the home, . . . all details are intimate details, because the entire area is held safe from prying government eyes.”[25] Taking the “long view,” similar to Judge Merhige, the Kyllo majority opinion expressed concern that citizens would otherwise be placed “at the mercy of advancing technology—including imaging technology that could discern all human activity in the home. While the technology used in the present case was relatively crude, the rule we adopt must take account of more sophisticated systems that are already in use or in development.”[26] The majority, however, closed by adding an additional requirement that the device in question must not be in “general public use” for Fourth Amendment privacy protection to attach,[27] a highly problematic standard justifiably condemned by the four-member dissenting opinion authored by Justice Stevens. As noted by the dissent, the protection “dissipates as soon as the relevant technology is ‘in general public use’ . . . ,” a standard that “is somewhat perverse because it seems likely that the threat to privacy will grow, rather than recede, as the use of intrusive equipment becomes more readily available.”[28] Indeed, today, Kyllo likely would come out differently because of the widespread public use of thermal imaging devices.[29]

If only the Supreme Court had left well enough alone and followed Judge Merhige’s simpler and more constrained view. That the Judge should opine in such enlightened fashion on a matter involving technological advancement is a rich irony: I recall many times when he expressed frustration and wonder at not being able to operate devices (a deficiency I share). The larger point, however, is that the Judge in Kyllo, as he did so many other times in his illustrious career on the bench, sagely anticipated the future arc of justice. On critically important issues such as workers’ rights,[30] gender discrimination,[31] consensual homosexual sodomy,[32] as well as the difficulties presented by excess prosecutorial authority vis-à-vis plea bargaining[33] and the life-altering effect of collateral consequences,[34] he was a jurist ahead of his time. And for that, the nation’s jurisprudence—and the citizens that secure liberty and protection from it—are in Judge Merhige’s debt.

*   Gary & Sallyn Pajcic Professor of Law, Florida State University College of Law. Law Clerk to the Honorable Robert R. Merhige, Jr., 1992–1993. Thanks to Barbara Kaplan for her able research assistance and Anna Logan for her expert editorial help.

        [1].    See generally Ronald J. Bacigal, May It Please the Court: A Biography of Judge Robert R. Merhige, Jr. (1992) (describing the life and accomplishments of Judge Merhige).

        [2].    Unlike many colleagues on the bench who relished assignments in pleasure spots such as the Virgin Islands, Judge Merhige took all comers in need of help, including, during my clerkship, the Northern District of Iowa (Cedar Rapids in February!) and the Northern District of West Virginia (Martinsburg). For me, the judicial forays, which could last for weeks at a time, were especially enjoyable, as they allowed for extended time with the Judge (and of course with court reporter Gil Halasz and clerk of court Rob Walker) after hours.

        [3].    Bacigal, supra note 1, at 24.

        [4].    I was on the receiving end of this on my first day on the job when one of the parties in a case asked in open court for a continuance. The Judge, without missing a beat, feigned ignorance about the term’s definition and directed me to retrieve a Black’s Law Dictionary. After I quickly located a copy in chambers, I returned to the courtroom to see a twinkle in the Judge’s eye indicating that I had joined the ranks of prior neophyte clerks by being the target of one of his favorite jokes. See also, e.g., Michael W. Smith, Remembering Judge Merhige, 40 U. Rich. L. Rev. 29, 31 (2005) (recounting the story of a young lawyer appearing before the Judge, who “[r]ather than cut [the attorney] off, belittle him, or shatter his confidence . . . remarked: ‘I know you think that I am missing your point, but for $54,000 a year, you don’t get John Marshall’”).

        [5].    See, e.g., United States v. Baird, 29 F.3d 647, 654 (D.C. Cir. 1994) (citing United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976) (Merhige, J., sitting by designation) (articulating influential standard regarding defense of official misstatement of the law)); Giarratano v. Murray, 668 F. Supp. 511, 517 (E.D. Va. 1986), rev’d, 836 F.2d 1421 (4th Cir.), aff’d on reh’g, 847 F.2d 1118 (4th Cir. 1988) (en banc), rev’d, 492 U.S. 1 (1989) (holding that the Commonwealth of Virginia must provide its death row inmates counsel in habeas corpus proceedings); Landman v. Royster, 333 F. Supp. 621, 647 (E.D. Va. 1971) (holding unconstitutional, on Eighth Amendment grounds, the treatment of inmates in a Virginia prison system). The Judge also presided over the criminal trial of Allied Chemical Corporation (“Allied”) for the extensive environmental damage to the James River caused by its pesticide Kepone, resulting in what was then the largest criminal fine for water pollution ever assessed. The Judge, after imposing the maximum penalty, offered Allied a creative alternative to simple payment of the fine to the federal treasury: he allowed a reduction in the fine if Allied agreed to fund an $8 million endowment to improve the environment. Bacigal, supra note 1, at 116.

        [6].    140 F.3d 1249 (9th Cir. 1998), withdrawn, 184 F.3d 1059 (9th Cir. 1999).

        [7].    Id. at 1251.

        [8].    Id. at 1252.

        [9].    Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

      [10].    Kyllo, 140 F.3d at 1253.

      [11].    Id. The cases were: United States v. Robinson, 62 F.3d 1325, 1328–29 (11th Cir. 1995); United States v. Ishmael, 48 F.3d 850, 854, 857 (5th Cir.), petition for reh’g denied, 53 F.3d 1283 (5th Cir. 1995), cert. denied, 516 U.S. 818 (1995); United States v. Myers, 46 F.3d 668, 669–70 (7th Cir. 1995); United States v. Pinson, 24 F.3d 1056, 1058 (8th Cir. 1994). But see United States v. Cusumano, 67 F.3d 1497, 1502 (10th Cir. 1995), vacated on other grounds, 83 F.3d 1247 (10th Cir. 1996).

      [12].    Kyllo, 140 F.3d at 1253–54 (citing Robinson, 62 F.3d at 1330; Ishmael, 48 F.3d at 855–56; Myers, 46 F.3d at 669–70; Pinson, 24 F.3d at 1059).

      [13].    Id. at 1254.

      [14].    Id. (citing Cusumano, 67 F.3d at 1504).

      [15].    Id.

      [16].    Id. at 1255.

      [17].    See id.

      [18].    Id. (Hawkins, J., dissenting).

      [19].    See United States v. Kyllo, 190 F.3d 1041, 1045 n.6 (9th Cir. 1999) (panel consisting of Hawkins, Noonan, and Brunetti, J.J.) (“We note that a previously filed disposition of this appeal was withdrawn.”).

      [20].    As noted above, the Tenth Circuit in United States v. Cusumano, 67 F.3d 1497 (10th Cir. 1995), concluded that use of a thermal imager constituted a search, but the decision was vacated on rehearing en banc on another basis without reaching the question. See United States v. Cusumano, 83 F.3d 1247 (10th Cir. 1996) (en banc).

      [21].    See Kyllo, 190 F.3d at 1043 n.1 (“Judge Brunetti has been drawn to replace the Honorable Robert R. Merhige, Jr., Senior United States District Judge for the Eastern District of Virginia, in this case.”).

      [22].    See id. at 1047 (Noonan, J., dissenting).

      [23].    Id. at 1046.

      [24].    Kyllo v. United States, 533 U.S. 27, 41 (2001).

      [25].    Id. at 34, 37. With characteristically colorful language, Justice Scalia offered that the thermal imager “might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath—a detail that many would consider ‘intimate’ . . . .” Id. at 38.

      [26].    Id. at 35–36, 40.

      [27].    Id. at 40.

      [28].    Id. at 47 (Stevens, J., dissenting).

      [29].    This is evidenced by a simple query of “thermal imaging device” on Amazon.com.

      [30].    See Cohen v. Chesterfield Cty. Sch. Bd., 326 F. Supp. 1159 (E.D. Va. 1971) (holding unconstitutional a Chesterfield County school policy prohibiting teachers from working past their fifth month of pregnancy).

      [31].    See Gilbert v. Gen. Elec. Co., 375 F. Supp. 367 (E.D. Va. 1974) (holding that an employer’s practice of excluding sickness and accident benefits from pregnancy related disabilities was unlawful sex discrimination).

      [32].    Doe v. Commonwealth’s Attorney for City of Richmond, 403 F. Supp. 1199 (E.D. Va. 1975) (Merhige, J., dissenting) (disagreeing with the majority opinion’s view that a statute making sodomy a crime was constitutional).

      [33].    See National College of Criminal Defense Lawyers Holds First Institute, 14 Crim. L. Rep. (BNA) 2001, 2326 (1973) (citing the Honorable Robert R. Merhige, Jr.) (“[M]any federal charges are multiplied for bargaining purposes. For instance . . . one bad social security check can lead to 10 federal counts.”).

      [34].    See Marston v. Oliver, 324 F. Supp. 691 (E.D. Va. 1971), rev’d, 485 F.2d 705 (4th Cir. 1973).