In 1981, Arne Cheyenne Johnson stabbed his landlord to death and pleaded guilty by reason of demonic possession.[1] Prior to this, Johnson witnessed his future brother-in-law levitating, listing the names of forty-two demons in Latin, and possessing unusual strength.[2] After Johnson told the alleged demon to enter into his body instead, he began behaving strangely, committing acts such as putting his fist through a chest of drawers with no explanation and falling 100 feet without injury.[3]
Martin Minnella, Johnson’s lawyer, argued that demonic possession caused Johnson to kill his landlord, a defense that showed Johnson’s lack of intent.[4] Indeed, Johnson claimed that he completely blacked out and did not remember stabbing his landlord at all.[5]
A local news article covering Johnson’s trial cited the Connecticut Supreme Court Judge, Robert Callahan, as denying the defense of demonic possession because “[e]vidence of demonic possession is simply not relevant.”[6] Minnella hoped to call Catholic priests to the stand because, according to Catholic doctrine, demonic possession is a real occurrence.[7] Judge Callahan, however, considered this “incompetent evidence.”[8] If Judge Callahan had allowed this evidence, “legal observers predicted it would have set a precedent for others to use and would hamstring law enforcement.”[9]
Johnson was convicted of manslaughter and served five years of a ten- to twenty-year sentence.[10]
There are no provisions in U.S. law that cover demonic possession as a defense for any crime; in fact, such claims are often used to prove insanity.[11] However, the “Satan defense” often comes up in Texas courts—though it typically results in the defendant being found guilty or insane.[12] This defense is considered impractical because there is an inherent implication that someone blaming the devil for their crimes is not taking responsibility for their own actions.[13]
Even so, Johnson was not the first person to reference demonic possession during his murder trial. In England in 1974, Michael Taylor attacked a friend who claimed that Taylor was speaking in tongues and had a “bestial” look about him.[14] Like Johnson, Taylor claimed that he did not remember the attack—only that “he felt an evil force taking over.”[15] Taylor’s behavior transformed after that from a warm, gentle man to a violent person.[16] He was easily annoyed and destroyed all religious items in the house.[17]
The Catholic church performed a long and arduous exorcism on Taylor, allegedly casting out forty demons from his body.[18] However, the following day, Taylor violently murdered his wife, believing that she was possessed by Satan.[19] While Taylor did not claim personal demonic possession as a defense, a clinical psychologist testified that the trauma inflicted by the exorcism in combination with Taylor’s pre-existing mental health conditions pushed him to insanity.[20] No motive was established for the murder and Taylor was found not guilty by reason of insanity.[21]
David R. Berkowitz, also known as the “Son of Sam,” was charged with six counts of second degree murder in 1978, committed during a “yearlong shooting rampage” in New York City.[22] Berkowitz’s actions left six people dead and seven wounded.[23] Initially, at his trial, Berkowitz cited demons as the cause of his actions, claiming that they motivated him to kill and injure people throughout New York City.[24] Additionally, Berkowitz pointed to Sam Carr and Carr’s black Labrador retriever, claiming that they were the leaders of the demons and gave him the nickname “Son of Sam.”[25]
Prior to the trial, Berkowitz was examined by multiple psychiatrists to ensure that he was mentally fit to stand trial—which he was.[26] Instead of pleading insanity as he originally intended, Berkowitz pled guilty to the murders.[27] He was given six twenty-five-years-to-life sentences.[28]
A recent demonic defense claim occurred in England in 2011.[29] Nineteen-year-old Lorraine Mbulawa claimed possession by evil spirits to escape an attempted murder conviction.[30] Mbulawa stabbed her sleeping mother and claimed that she acted according to instructions from her deceased grandmother.[31] She “told police she had planned to kill herself after killing her mother.”[32] Mbulawa’s family believed in witchcraft and spirits, and accepted Mbulawa’s story, welcoming her with open arms after her hearing.[33]
A psychiatrist found that Mbulawa was of sound mind and, instead of being convicted for attempted murder, she was given the less severe sentence of unlawful wounding.[34] Mbulawa received a 12-month custodial sentence with an 18-month suspension and 120 hours of unpaid labor.[35] Justice Keith, who oversaw Mbulawa’s case, thought that Mbulawa’s conviction that she was obeying the spirits “reduced her culpability significantly.”[36] This, coupled with Mbulawa’s family’s support, likely aided the efficacy of her spiritual possession defense.[37]
In general, “the devil made me do it” does not appear to be a valid murder defense in a court of law. Certainly, it is not one that many people attempt, even if they are genuinely convinced that they are obeying an evil spiritual entity. Allowing such a claim would set a precedent for courts to allow lesser sentences for those who can convince the court that they were possessed. Without solid proof that spirits exist and can, in fact, possess people, the defense of demonic possession in court cases will likely remain ineffective.
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[1]Arne Cheyenne Johnson, UVA Law Special Collections (2022), https://archives.law.virginia.edu/dengrove/writeup/arne-cheyenne-johnson.
[2] Chris Eberhart, Real-Life ‘Devil Made Me Do It’ Case of Arne Cheyenne Johnson ‘Scared Us S—less’: Lawyer, Fox News (2023), https://www.foxnews.com/us/real-life-devil-made-me-do-it-case-arne-cheyenne-johnson-scared-us-lawyer.
[6] James V. Healion, A Judge Wednesday Threw Out the ‘Demonic Defense’ of…, UPI Archives (1981), https://www.upi.com/Archives/1981/10/28/A-judge-Wednesday-threw-out-the-demon-defense-of/2826373093200/.
[10] Charles Bramesco, ‘Something Went On in That House’: Did the Devil Drive a Teen to Murder?, The Guardian (2023), https://www.theguardian.com/film/2023/oct/18/netflix-documentary-devil-on-trial-murder-demon-possessed.
[11] L. Joe Dunman, The Devil in Recent American Law, 39 Pace L. Rev. 929, 965 (Sep. 2019).
[12] William Axford, Texas Crimes That Have Been Blamed on Satan and Satanic Rituals, CHRON (Dec. 12, 2017), https://www.chron.com/news/houston-texas/texas/article/Texas-crimes-blamed-on-Satan-devil-evil-12345521.php.
[13] Herb Silverman, A Few Kind Words for Satan, HUFFPOST (May 12, 2014), https://www.huffpost.com/entry/a-few-kind-words-for-sata_b_4941371.
[14]The Ossett Exorcism Murder (The Devil Made Me Do It) | England, Evidence Locker (2022), https://www.evidencelockerpodcast.com/transcripts/transcript-198-the-ossett-exorcism-murder-the-devil-made-me-do-it-england, (last visited Mar. 10, 2024).
[22] Anna Quindlen, Berkowitz Pleads Guilty to Six ‘Son of Sam’ Killings, The N.Y. Times (1978), https://www.nytimes.com/1978/05/09/archives/berkowitz-pleads-guilty-to-six-son-of-sam-killings-reference-to.html.
[25] Anna Quindlen, Berkowitz Pleads Guilty to Six ‘Son of Sam’ Killings, The N.Y. Times (1978), https://www.nytimes.com/1978/05/09/archives/berkowitz-pleads-guilty-to-six-son-of-sam-killings-reference-to.html; Son of Sam Serial Killer is Arrested, HISTORY (2010), https://www.history.com/this-day-in-history/son-of-sam-arrested.
[26] People v. Berkowitz, 93 Misc. 2d 873, 880 (1978).
[27]Son of Sam Serial Killer is Arrested, HISTORY (2010), https://www.history.com/this-day-in-history/son-of-sam-arrested.
[29]Mercy for Witchcraft Girl ‘Told to Stab Mother,’ The Telegraph (2011), https://www.telegraph.co.uk/news/uknews/law-and-order/8532833/Mercy-for-witchcraft-girl-told-to-stab-mother.html.
Vermont, like all states, uses the “best interest of the child” standard in child welfare cases.[1] Vermont’s “best interest of the child” statute also mandates that child welfare cases be heard in court.[2] However, in many child welfare cases, the adversarial nature of the court system works against the best interest of the child.[3] The court system pits parents and children against each other[4] and fails to offer holistic solutions.[5] Therefore, Vermont’s “best interest of the child” statute works against itself, and Vermont children, by requiring all child welfare cases proceed in court. To truly meet the best interests of its children, Vermont should look to restorative solutions.
Court processes are inherently adversarial, with each party presenting its case to win.[6] In child welfare cases, an adversarial setting may not be conducive to fostering cooperation and finding collaborative solutions centered on the well-being of the child.[7] Courts traditionally focus on determining guilt or innocence and administering punishment if necessary.[8] However, child welfare cases often require a more rehabilitative and restorative approach that addresses the underlying issues rather than simply punishing wrongdoing.[9] Additionally, courts often lack family-centered approaches.[10] Proceedings may not adequately prioritize the involvement of the child’s family and support networks. Family-centered approaches, emphasizing collaboration and the child’s connections to their community, are often more effective in addressing the problems underlying child welfare cases.[11] Furthermore, in a courtroom setting, individuals may feel stigmatized, and there is a risk of labeling that can have long-lasting consequences.[12] A more rehabilitative approach outside the court system may focus on support and addressing challenges without attaching negative labels to children or families.[13]
Restorative Justice is an alternative to the judicial system.[14] Rather than punishing the offender, it focuses on “restoring” the victim through offender accountability.[15] There is no definitive mechanism for determining guilt; to participate in a restorative process, offenders must first take accountability for the harm they have caused.[16] Any offender unwilling to take full accountability is not an appropriate restorative justice candidate.[17] Offenders choose to take part in restorative processes because it allows them to avoid costly, time-consuming litigation.[18] RJ also allows offenders and victims to decide together on appropriate consequences. Such consequences are generally less severe than those imposed by the court system, despite its inclusion of criminal penalties.[19]
Restorative Justice is a valuable alternative to courts in child welfare determinations for several reasons. Perhaps most importantly, it offers a more holistic and collaborative method compared to traditional punitive measures.[20] Restorative Justice emphasizes the well-being of the child and focuses on repairing harm rather than punitive measures.[21] This approach seeks to understand the root causes of the issues and address them to promote healing and rehabilitation. Restorative Justice involves the community in the resolution process.[22] In child welfare cases, this should mean engaging not only the child and their family but also relevant community members, social workers, and support networks.[23] This broader involvement helps create a sense of shared responsibility. Restorative justice empowers all parties involved, including the child, their family, and the community, to actively participate in finding solutions.[24] By taking responsibility for their actions and understanding the impact on others, children can develop a sense of accountability and empathy.[25]
Focusing on restoration rather than punishment can be more effective than punishment in preventing repeat offenses.[26] This is particularly important in the context of child welfare, where the goal is not only to address immediate concerns but also to support the child’s long-term well-being.[27] Traditional punitive measures can be traumatic for children and families.[28] Restorative Justice seeks to minimize additional trauma by providing a more supportive and collaborative environment.[29] This approach is particularly significant in cases where children have experienced trauma and need a more sensitive and understanding process.[30] Restorative Justice encourages open communication and dialogue between all parties involved.[31] This can lead to a better understanding of each other’s perspectives and foster empathy, contributing to more effective and sustainable solutions for children and families.
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[1] Stephanie Tang, Best Interests of the Child and the Expanding Family, 14 U.C. Irvine L. Rev. (2024).
[3] Lauren van Schilfgaarde, Brett Lee Shelton, Using Peacemaking Circles to Indigenize Tribal Child Welfare, 11 Colum. J. Race & L. 681, 699 (2021).
[4] Randy Balko, Is an adversarial justice system compatible with good science?, Washington Post (Aug. 7, 2019, 10:00 AM), https://www.washingtonpost.com/opinions/2019/08/07/is-an-adversarial-justice-system-compatible-with-good-science/. /
[5] Tali Gal, Child Victims and Restorative Justice: A Needs-Rights Model 27 (Oxford University Press ed., 2001).
[12] Miguel Clemente & Dolores Padillo-Racero, The effects of the justice system on mental health, Nat’l Libr. Of Med. (May 5, 2020), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8009114/.
[14] Lindsay Pointer, What is “Restorative Justice” and How Does it Impact Individuals Involved in Crime?, Bureau of Justice Assistance U.S. Dept. of Justice (Aug. 5, 2021), https://bjatta.bja.ojp.gov/media/blog/what-restorative-justice-and-how-does-it-impact-individuals-involved-crime.
[25] Marieke van Wowekom, Building Community with Restorative Circles, edutopia: Restorative Practices, (Mar 12, 2018), https://www.edutopia.org/article/building-community-restorative-circles/; Dr. James Whithead, Restorative Practices: Seven Steps for Facilitators and Mediators.
[26]The Benefits of Restorative Justice for Victims and Offenders, Restorative Solutions,
To be transgender, non-binary, two-spirit, or any gender outside of the binary in the United States can be lonely and scary. It often feels like the other shoe will drop, and suddenly, our rights will be gone. There is an expectation that all will be lost; sometimes, there is nothing to hold on to. While this article will talk about what is gloom and doom-worthy, there are glimmers and sprinkles of light that we can hold on to within the law and outside of it.
The law often feels like it is not on the side of Trans folx, especially when it comes to our healthcare. 2023 brought a massive burst of anti-trans healthcare bills, with a whopping 185 bills, a jump from 35 bills in 2022.[1] As of March 2024, 132 bills have been proposed (and several passed) since the start of this year.[2] These health care bills sway from criminalizing parents of minors seeking gender-affirming care to restricting adults from getting the gender-affirming care they depend on.[3]
Take Florida’s 2023 healthcare bill, titled Treatment for Sex Reassignment, which restricts and overburdens trans adults seeking health care. The law requires transgender people seeking to get new prescriptions or to continue their gender-affirming care to meet with only doctors.[4] This excludes other health practitioners, including far more accessible nurse practitioners and physician’s assistants.[5] Clinics have stopped serving transgender patients seeking gender-affirming care due to these restrictions and the confusion that comes with them.[6]
Florida, luckily for those seeking to protect the right to healthcare for transgender people, has written itself into a corner, creating a potential dunk for a discriminatory challenge on the basis of sex, particularly for the prescription of Hormone Replacement Therapy (HRT) in transgender patients. Another Florida statute states that a nurse practitioner or physician assistant can prescribe any drug so long as they have submitted proof of license and operate under a physician.[7]
HRT is a common treatment used by transgender patients to replace the hormones of their gender assigned at birth with hormones of their actual gender, but trans people aren’t the only people who use HRT.[8] Cisgender women and men use HRT for common health ailments like menopause or hypogonadism.[9] There is no interference in the prescription of HRT to cisgender patients in the Florida Statute. That same statute puts a significant burden on trans folx seeking HRT.[10] Nurse practitioners and physician assistants can still prescribe HRT for cis patients.
With hope and logic, this cannot fly under a Court’s review. In Bostock v. Clayton County, the Supreme Court held that discrimination against transgender people falls under Title VII sex discrimination, which is subject to intermediate scrutiny.[11] Further, the Court defined discrimination as “treating that individual worse than someone similarly situated.”[12] Here, indeed, transgender folks are being treated far worse than their cisgender counterparts, who do not have to jump through hoops to get HRT. Applying Bostock to this context, there is distinct, disparate treatment set out specifically for transgender people.
To pass muster under intermediate scrutiny, Florida’s law must serve important governmental objectives, and the discriminatory means employed must be substantially related to achieving those objectives.[13] As the Florida legislation states no reason for the discriminatory nature of the law or any explanation for why the Florida Legislature specifically decided to change how transgender people (specifically transgender adults) can get prescribed HRT, it is likely to fail when held under intermediate scrutiny.[14]
There are small glimmers where, when challenged in court, this discrimination can be overturned. There is hope that this horrific trend of criminalizing our gender-nonconforming bodies will come to an end. When I look around at my trans friends, I still see hope: two are slated to get top surgery this spring, and I can’t wait to see the queer joy this brings them. I have hope for the future. As more queer lawyers come of age, I know we will give the judiciary hell for trying to erase our bodies. Above all, we will dance, sing, and bring lawsuits to protect each other.
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[1]Tracking the Rise of Anti-Trans Bills in the U.S., Trans Legislation Tracker, https://translegislation.com/learn (last visited Mar. 15, 2024).
[3] Minami Funakoshi and Disha Raychaudhuri, The Rise of Anti-Trans Bills in the U.S., REUTERS (Aug. 19, 2023), https://www.reuters.com/graphics/USA-HEALTHCARE/TRANS-BILLS/zgvorreyapd/.
[4] Treatment for Sex Reassignment, ch. 2023-90, 2023 Fla. Laws 254.
[5]See Id. (showing that Florida’s law only allows physicians to prescribe gender-affirming care); see also Jake Miller, A Fourth of U.S. Health Visits Now Delivered by Non-Physicians, HARVARD MEDICAL SCHOOL (Sept. 14, 2023), https://hms.harvard.edu/news/fourth-us-health-visits-now-delivered-non-physicians.
[6] Thalia Beaty et al., Transgender Adults in Florida Are Blindsided That A New Law Also Limits Their Access To Health Care, AP (Jun. 4, 2023), https://apnews.com/article/florida-transgender-health-care-adults-e7ae55eec634923e6593a4c0685969b2.
[8] Cécile A. Unger, Hormone Therapy for Transgender Patients, Translational Andrology & Urology (Dec. 2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5182227/.
[9] Mayo Clinic Staff, Hormone Therapy: Is It Right For You?, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/menopause/in-depth/hormone-therapy/art-20046372 (last visited Oct. 25, 2023); Mayo Clinic Staff, Testosterone Therapy: Potential Benefits And Risks As You Age, Mayo Clinic, https://www.mayoclinic.org/healthy-lifestyle/sexual-health/in-depth/testosterone-therapy/art-20045728 (last visited Oct. 25, 2023).
[10]See Treatment for Sex Reassignment, ch. 2023-90, 2023 Fla. Laws 254 (showing there is no mention of cisgender patient’s access to HRT).
[11] Bostock v. Clayton Cty. 140 S. Ct. 1731, 1745 (2020).
When Nicol Harness returned home from a hospital in Florida after treatment for congestive heart failure, she was surprised by a $250,000 bill. It wasn’t for surgery: it was a judgment for trademark infringement.[1] Along with dozens of other defendants, Harness now owed a fortune to Luke Combs, the country music superstar known for his recent cover of “Fast Car” and other songs like “Beautiful Crazy.” Harness, a mom, designer, and small online merchant, had no idea that her online store could expose her to massive liability.[2] Prior to her unrelated hospitalization, she had designed and sold 18 drink tumblers themed around Combs’s trademarked name and likeness. The lawsuit filed by Combs resulted in a default judgment against each merchant for $250,000 in statutory damages each under 15 U.S.C. § 1117, finding that each product sold was a willful counterfeit.[3]
After a beautifully crazy social media fracas, Combs personally apologized to Harness, promised to stop pursuing the debt, and cut her a check for $11,000.[4] The hundreds of other defendants sued by Combs in similar lawsuits since 2021 presumably still owe him money.[5] Nor is Combs alone in pursuing this type of bulk intellectual property litigation: since 2021, approximately 600,000 merchants may have been sued in similar lawsuits.[6] This is usually called a “Schedule A” case after the exhibit that this type of plaintiff typically attaches listing the sealed names of each defendant.[7] These mass lawsuits typically follow three stages. First, the plaintiff sues a mass of dozens or hundreds of defendants joined together in the same case under seal under Rule 20.[8] Second, the plaintiffs freeze the assets with a temporary restraining order under Rule 65 before they are served with a complaint.[9] Third, because most of the defendants are small merchants or individuals who may struggle to react with the dispatch that federal courts expect, the plaintiff extracts default judgments against any defendants who haven’t settled yet.[10] From the perspective of small merchants like Harness, their assets will be frozen before they have even been served, and they may not come to grips with what has happened until they miss the deadline to file an answer and default.[11]
These abuses of Rule 65 injunctions go against precedent set by Judge Richard Posner, who created a balancing test for the application of this Rule. [12] The test requires a comparison of likely harms to both parties to the plaintiff’s ikelihood of winning at trial.[13] Typical Schedule A practices may also run afoul of the concern expressed by Judge Frank Easterbrook that motions for Rule 65 injunctions in trademark cases must be accompanied by strong showings of success on the merits.[14] Easterbrook’s concerns that trademark plaintiffs could use Rule 65 injunctions under the Lanham Act for abusive, unfair, and anticompetitive practices is relevant to Schedule A cases.[15] Although courts have frequently elided these standards in Schedule A cases, some judges are beginning to demand more detailed showings from plaintiffs.[16] In Schedule A cases involving trademark issues, this means that to properly satisfy the standard set by the statute, plaintiffs need to provide a strong showing of likelihood to succeed on the merits not just with respect to one defendant, but to each defendant.[17] When some defendants challenged these injunctions in Schedule A cases, some courts noticed the flimsiness of some of the arguments supporting injunctions.[18]
Preliminary injunctions are supposed to be an extraordinary form of relief only warranted when permanent harm is highly probable, but they have become a nearly automatic remedy in Schedule A cases.[19] Applying the careful analytical formulae designed by the courts for litigation between a handful of parties would probably be unworkable in Schedule A cases involving dozens or hundreds of defendants.[20] Some districts and many judges have local rules that require that the parties meet and confer before filing for either a temporary restraining order or a preliminary injunction.[21] Notwithstanding the other legal arguments that can be brought to bear against Rule 65 injunctions, courts should also be solicitous to pro se defendants who appear at preliminary injunction hearings.
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[1] Shannon Behnken, Pinellas woman who sold Luke Combs- themed tumblers owes country star $250,000, judge rules, WFLA.com (Dec. 12, 2023, 05:50 pm ET), https://www.wfla.com/8-on-your-side/better-call-behnken/pinellas-woman-who-sold-luke-combs-themed-tumblers-owes-country-star-250000-judge-rules/.
[2] Chris Willman, How Does a Mom Get Slapped With a $250,000 Judgment Over $380 of Homemade Luke Combs Merch? Experts Cite ‘Cottage Industry’ of Mass Counterfeit Suits in Illinois, Variety (Dec. 15, 2023, 3:47 pm PT) https://variety.com/2023/music/news/mass-lawsuits-luke-combs-tumblers-legal-experts-counterfeit-illinois-cottage-industry-1235841650/.
[3]See Default Judgment Order, Luke Combs v. The Partnerships and Unincorporated Associations Identified on Schedule “A”, No. 23-cv-14485 (N. D. Ill. Nov. 15, 2023); 15 U.S.C. § 1117(c)(2).
[4]See Chris Willman, Luke Combs ‘Sick to My Stomach’ to Learn He Won $250K Judgment Against Convalescing Fan Who Made Tumblers; Says He Will Raise Funds for Her, Variety (Dec. 13, 2023, 11:30 am PT) https://variety.com/2023/music/news/luke-combs-dismayed-250k-judgment-lawsuit-fan-homemade-tumblers-1235836617/.
[5]See e.g. Complaint, Luke Combs v. The Partnerships and Unincorporated Associations Identified on Schedule A, No. 21-cv-02007 (N.D. Ill. Apr. 14, 2021); See e.g. Complaint, Luke Combs v. The Partnerships and Unincorporated Associations Identified on Schedule A, No. 21-cv-02246 (N.D. Ill. Apr. 27, 2021); See e.g. Complaint, Luke Combs v. The Partnerships and Unincorporated Associations Identified on Schedule A, No. 21-cv-02373 (N.D. Ill. May. 3, 2021)
[6] Eric Goldman, A SAD New Category of Abusive Intellectual Property Litigation, 123 Colum. L. Rev. Forum 183, 196 (2023).
[12] Am. Hosp. Supply Corp. v. Hosp. Prod. Ltd., 780 F.2d 589, 593 (7th Cir. 1986) (comparing this formula directly to the formula proposed by J. Learned Hand for negligence cases.).
[16]See e.g. Notification of Docket Entry, Hexin Holding Limited v. Parties Identified on Schedule A, No. 24-cv-01460 (N. D. Ill. Feb. 27, 2024) (denying the plaintiff’s TRO motion because it contains no detailed description of how each copyright was allegedly infringed by each defendant along with information about the copyrights underlying the action).
[18]See e.g. Order Responsive to Motion to Dissolve the Preliminary Injunction, Emoji Co. GmbH v. Schedule A, No. 22-cv-2378 (N.D. Ill., Sept. 29, 2023) Judge Tharp stated:
The Court is therefore satisfied that [defendant] has shown that Emoji Company is unlikely to overcome its fair use defense or to prove likelihood of confusion. As a result, Emoji Copmany has not established a strong likelihood of success on the merits of its infringement claim. The order issuing a preliminary injunction and asset restraint against [defendant] is therefore vacated.
[21]See e.g. C.D. Cal. Loc. R. 7-3 (“[C]ounsel contemplating filing the filing of any motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the substance of the contemplated motion and any potential resolution . . . seven days prior the filing of the motion.”).
Consider the scenario of a property owner, facing a mosquito infestation on their land, who decides to drain stagnant water by diverting it onto a neighboring property. This seemingly practical solution for one landowner, eager to address their immediate concern, creates a mosquito-free haven for themselves but inundates their neighbor with unwanted water and potential flooding issues.
The Virginia Marine Resources Commission (VMRC) acknowledged 27 years ago that hardened shorelines while addressing immediate erosion issues, harm water quality, exacerbate flooding, and diminish commercial marine stocks.[1] Like the above scenario, although the hardened structures are immediate solutions for shoreline erosion on waterfront property, they cause more harm in the long run.
Since then, the Virginia Assembly has been strengthening the language in the Virginia Tidal Wetlands Act (VTWA) to increase the implementation of living shorelines. Living shorelines are a shoreline stabilization method that involves the strategic placement of natural materials to “enhance coastal resilience and attenuation of wave energy and storm surge.”[2] The VTWA is the first statutory language linked living shorelines to coastal resilience goals.[3]
Beyond their ecological benefits, living shorelines play a pivotal role in water quality by filtering nutrients and pollutants.[4] Acting as effective absorbers of storm surges and floodwaters, they provide a natural defense mechanism against extreme weather events.[5] Additionally, living shorelines act as carbon sinks, mitigating climate change by sequestering carbon in coastal ecosystems.[6] Beyond environmental benefits, living shorelines have broader social and economic impacts, supporting diverse fish and wildlife populations, enhancing property values, and fostering community enjoyment through recreational activities.[7] As holistic alternatives to conventional stabilization methods, living shorelines are a sustainable and community-enriching approach to coastal management.
The VTWA was created in 1972 to preserve wetlands while accommodating economic development.[8] In 2011, the VTWA established living shorelines as the “preferred” shoreline stabilization method in hopes of incentivizing property owners to choose them when determining their stabilization strategy.[9] However, a study from 2016 identified that 74% of permitted projects on unaltered shorelines failed to embrace living shorelines.[10] To increase the implementation of green shoreline stabilization methods, VTWA required stronger language to effectively change landowner’s behavior. The statute was amended in 2022, requiring the Commission to “permit only living shoreline approaches to shoreline management unless the best available science shows that such approaches are not suitable.”[11] The statute even requires the integration of non-structural elements into hard-structuring projects.[12] Another shoreline resilience win for Virginia!
However, the “best available science” standard is subjective.[13] The lack of clear criteria within the statute defining “best available science” could lead to inconsistent application of the law. The burden of proof for what type of stabilization structure is most suitable due to the “best available science” belongs to the waterfront property owner, who, most of the time, does not know the difference between sustainable shoreline stabilization mechanisms and traditional hard armoring practices.[14] Frequently, property owners implement shoreline stabilization strategies uniform to their neighbors—causing a ripple effect of a quick-fix stabilization method that does more harm to the shoreline and water system in the long run.[15] The burden of proof being on the property owner could lead to VMRC and Local Wetlands Boards having waterfront property owners demanding a permit for a hardened shoreline, even if it is not the best approach. [16]
Maryland’s shoreline stabilization statute includes a list of factors a property owner must consider to waive the requirement to implement living shorelines.[17] Some of these factors include the width of the waterway, the bottom substrate, the regularity of tides, and the degree of erosion.[18] Virginia’s statute, alongside the “best available science” standard[19], should include criteria similar to Maryland’s for property owners to consider when determining the most suitable shoreline stabilization method. The incorporation of clear criteria would make the permit process more straightforward for property owners and limit diverse interpretations among stakeholders and regulatory bodies—resulting in increased implementation of sustainable shoreline stabilization methods.
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[1] Jim Lang, SB776 Requires Proof for Hardened Shoreline Installation, Jim Lang Waterfront Law, (Nov. 6, 2020), https://www.waterfrontpropertylaw.com/blog/posts/sb776-requires-proof-for-hardened-shorelines/.
[14] § 2.2-4020 (2016)(“The burden of proof shall be upon the proponent or applicant.”).
[15] Jim Lang, supra note 1.; Christopher Antoine, Increasing Living Shoreline Implementation in Virginia: Legal and Policy Recommendations, 41 (2018).
“To be a person, one has to be seen as human. Put differently, animal personhood is an oxymoron in anthropocentric legal systems.”[1]The legal status of animals as property is a death sentence for billions of animals trapped in animal agriculture and aquaculture industries around the world.[2] Based on conservative estimates, approximately 65 billion land animals are raised annually for farming, while the oceans yield between 2 and 3 trillion creatures for human consumption.[3] Under property law, humans are entitled to exercise dominion over animals, denoting the way legal systems enable exploitation of nonhumans.[4]
The concept of legal animal personhood is an alternative legal status proposed by the Nonhuman Rights Project (“NhRP”). The NhRP argues that certain animals should be granted legal rights and protections like those afforded to human beings.[5] Legal personhood is significant because it implies that certain “intelligent” animals are entitled to live life outside of captivity because of their cognitive capacity.[6] In 2018, the NhRP sued the Bronx Zoo on behalf of Happy the elephant.[7]
In Breheny, the NhRP sought a writ of habeas corpus for Happy.[8] A writ of habeas corpus[9] has historically protected the right of humans to be free of unlawful confinement.[10] To extend the applicability of habeas corpus to nonhumans would be an unprecedented recognition of the right of certain animals to liberty and a life free of confinement. Although the Court of Appeals did not hold Happy to be a “person,” Breheny highlights the legal issues facing courts and advocates on the road to achieving legal recognition for animals.
Judge Wilson dissented from the majority’s holding that habeas corpus only belongs to “humans because they are humans.”[11] He argued that there is no precedent preventing the application of habeas corpus to an owned subject.[12] Furthermore, Wilson disagreed with the majority’s suggestion that the question of whether animals qualify for the writ of habeas corpus should be left to the legislatures.[13]
While the majority argued that questions of animal welfare should be directed to the legislature, precedent shows that the “writ cannot be abrogated…by legislative action.”[14] Thus, it is incorrect to defer to the legislature for matters involving habeas proceedings. Wilson accused the New York Court of Appeals of erroneously limiting liberty rights to humans and inappropriately deferring to the legislature on a question meant for the courts.[15]
Courts have been quick to punt to legislatures on the question of animals’ ability to bring suits[16] However, such a novel question may only be suited for the judiciary because of the influence of industrial agriculture on legislatures.[17] The lack of external industry pressure on Courts suggest that it is imperative for animals that the judiciary take animal suffering seriously. While personhood may be a long way off for animals, the sheer magnitude of animal suffering in industrial agriculture demands an answer.[18]
[7] Nonhuman Rights Project, Inc. v. Breheny, 38 N.Y.3d 555, 566 (2022).
[8] In 2018, the NhRP commenced the habeas proceeding against James Breheny, Director of the Bronx Zoo, in the Supreme Court. Breheny, 38 N.Y.3d 555, 566 (2022). The Supreme Court dismissed the petition and the Appellate Division unanimously affirmed. Id. at 568. The Court of Appeals granted the NhRP leave to appeal. Id. at 569.
[9] “’Habeas corpus’ is a suit wherein probable cause therefor being shown, a writ is issued which challenges the right of one to hold another in custody or restraint.” State ex rel. Phalen v. Roberts, 858 S.E.2d 936, 941 (2021).
[16]See also Mosiman ex rel. Just. v. Vercher, 321 Or. App. 439, 456 (2022).
[17]Big Money, the Farm Bill and Family Farms vs. Industrial Agriculture, American Promise (June 18, 2019), https://americanpromise.net/big-money-the-farm-bill-and-family-farms-vs-industrial-agriculture/ (stating that the Farm Bill was influenced by corporate interest).
Artificial intelligence (AI) is in its infancy—not in our Constitution, a historical analog, or rooted in tradition. AI is a relatively new field that is constantly evolving, making it difficult to define. Essentially, AI is a tool that uses algorithmic data to calculate behavior and outcomes.[1] There are many forms of AI, including deepfakes, which are synthetic media applications that use technology to swap biometric features such as faces and voices.[2] As a result, it is crucial to understand the potential risks associated with AI, as it continues to play an increasingly important role in our lives.
Deepfakes are frequently employed to deceive the public. The tampered media can be utilized for a range of purposes, including the creation of simulated recordings of individuals and the dissemination of false recordings of speeches.[3] However, a significant concern about deepfakes pertains to explicit images generated by an algorithm.[4]
12-time Grammy Award-winning musician Taylor Swift is the latest victim of deepfaked media, with explicit images and videos of her circling the internet.[5] Gaining national attention, the White House released a statement in January highlighting the alarming nature of explicit ai-generated media.[6]
Examining deepfakes, especially explicit images, is a social and legal concern. Deepfakes are a privacy issue, and the explicit photos of Taylor Swift could be likened to revenge porn, which in most states correlates to criminal sexual abuse.[7] Recent research has shown that 96 percent of deepfaked videos include nonconsensual pornography.[8] Taylor Swift is not the only individual whom explicit deepfakes have targeted. Her exposure is the most recent of the attacks. Alexandria Ocasio-Cortez and Nancy Pelosi have been targeted politically and sexually in deepfaked media.[9]
The Biden-Harris Administration has made regulating AI a priority in recent months, with President Biden working on protecting citizens from the potential harms presented by the widespread use of AI.[10]
On October 2, 2022, the White House released a Blueprint for an AI Bill of Rights.[11] This document provides a set of five principles to navigate the design and deployment of AI.[12] This executive order aims to protect the American public’s existing rights in the AI age. Although the Biden-Harris Administration has focused on research on AI, the moves made by the White House are not legally binding.
Congress has plans outside of blueprints, with a new bipartisan bill being introduced by Senators Dick Durbin, Lindsey Graham, and Josh Hawley.[13] The Disrupt Explicit Forged Images and Nonconsensual Edits Act would allow citizens to sue the creators and distributors of sexually explicit deepfake images.[14]
The bipartisan bill is not the first Act to be introduced, with the DEEPFAKES Accountability Act being introduced in 2023 by Congresswoman Yvette Clarke.[15] The Act would also provide “legal recourse” for victims of nonconsensual distribution of intimate imagery.[16]
While the United States works to enact regulations for deepfake media, other countries have enacted their own protections. Canada recently passed the Intimate Images Protection Act on January 29, 2024.[17] With the rapid growth of AI in every aspect of everyday life, the harm of deepfakes has become a global issue.
The DEEPFAKES Accountability Act and the Disrupt Explicit Forged Images and Nonconsensual Edits Act will provide civil protections for citizens, allowing victims to bring claims against those who create and distribute deepfakes. However, both Acts leave expectations for parody, common for bills that may impact First Amendment rights. Creating art is mostly protected by the First Amendment. Pornography is protected because it is labeled as a parody.[18] There is nothing theatrical about using nonconsensual intimate images of unwilling parties, whether that is Taylor Swift or an average citizen.
As AI is a novel product, the benefits and disadvantages are still being examined. There are no benefits, only disparate impacts regarding the impacts of falsified media. As AI gains widespread use, the need for regulations in the US becomes more pressing.
—
[1] Yongjun Xu et al., Artificial Intelligence: A Powerful Paradigm for Scientific Research, Innovation, Nov. 2021, at 1, 1.
[2] Meredith Somers, Deepfakes, Explained, MIT (Jul. 21, 2020), https://mitsloan.mit.edu/ideas-made-to-matter/deepfakes-explained.
[5] Lauren Berg, White House Calls Explicit AI Photos of Taylor Swift ‘Alarming’, Law360 (Jan. 26, 2024), https://www.law360.com/articles/1790815; Geoff Mulvihill, What to Know About How Lawmakers Are Addressing Deepfakes Like the Ones That Victimized Taylor Swift, AP (Jan. 31, 2024), https://apnews.com/article/deepfake-images-taylor-swift-state-legislation-bffbc274dd178ab054426ee7d691df7e.
[9] Reuters Fact Check, Video Features Deepfakes of Nancy Pelosi, Alexandria Ocasio-Cortez and Joe Biden, Reuters (Apr. 28, 2023), https://www.reuters.com/article/idUSL1N36V2E0/.
[10]See Statements and Releases, White House, FACT SHEET: Biden-Harris Administration Secures Voluntary Commitments from Leading Artificial Intelligence Companies to Manage the Risks Posed by AI (Jul. 21, 2023).
[11]Blueprint for an AI Bill of Rights, The White House (Oct. 2022), https://www.whitehouse.gov/wp-content/uploads/2022/10/Blueprint-for-an-AI-Bill-of-Rights.pdf.
[13] Kat Tenbarge, Deepfake Bill Would Open Door for Victims to Sue Creators, NBC News (Jan. 30, 2024), https://www.nbcnews.com/tech/tech-news/deepfake-bill-open-door-victims-sue-creators-rcna136434.
[17] Intimate Images Protection Act, RSNL 2018, c I-22 (Can.).
[18] Kristen Dold, Geoffrey R. Stone on Faked Videos and the First Amendment, Univ. Chi. L. Sch. (Apr. 17, 2018), https://www.law.uchicago.edu/news/geoffrey-r-stone-faked-videos-and-first-amendment.
When Justin Pearlman overdosed on heroin, he managed to call 911 before losing consciousness.[1] Paramedics saved his life, but when the police found his remaining heroin, Justin was sentenced to six months in prison.[2] After being released, he said, “I don’t think I would ever call 911 on myself or another person . . . it’s so horrible to go to jail.”[3] Justin battled his addiction for another decade, but was killed by an overdose in 2021.[4] This time, he did not call 911.[5]
The United States officially declared the opioid epidemic a public health emergency in 2017,[6] but we are still not effectively addressing it. Good Samaritan Overdose Laws (GSOLs) are a promising strategy that protects people from being criminally punished for calling 911 during a drug overdose.[7] However, because there is no federal GSOL, the extent of the protection offered varies based on the state where the overdose occurred. States should amend their GSOL to remove unnecessary barriers that prevent people from calling 911 during an overdose.
Over 100,000 people in the United States were killed by a drug-involved overdose in 2022.[8] Substance use disorders are complex and difficult to address, and criminal punishment is not an appropriate or effective solution. The most common reason that people decide not to call 911 during an overdose is the fear of legal consequences.[9] GSOLs alleviate this fear so that people feel confident that they can safely call 911. Opioid overdoses usually take between 1–3 hours from the moment of consumption to the moment of death,[10] so there is enough time to call 911, but not enough to delay.[11] GSOLs maximize this window of opportunity by prioritizing the life-saving call for medical assistance.
Critics of GSOLs often cite a desire to control crime or make drugs less accessible, which are commendable goals. However, a more commendable goal is keeping people alive regardless of their mental health needs. All current GSOLs include a “good faith” requirement to discourage any abuse of their protection,[12] so the caller must be motivated by the desire to save a life and not just to avoid punishment. Overdoses should be treated as medical emergencies, not crime scenes.
Each state[13] has a unique GSOL, but the protection offered in each state varies dramatically. Some restrict which stages of the criminal process are protected, which can confuse people without a legal background.[14] Other states limit who is protected by the GSOL.[15] If the caller is not protected, then they may not feel safe calling 911. If the patient experiencing the overdose is not protected, the caller is forced to guess whether the patient would rather risk incarceration or risk death. These dilemmas become even more complicated for people with a special legal status like terms of parole, probation, or immigration.
States also vary drastically on the types of offenses that are protected under their GSOL. Most states cover the use and/or possession of controlled substances, but people can still be punished for other crimes in connection to the overdose.[16] A more efficient approach would be to include all crimes related to the overdose so that people are not delayed by any confusion over their protection. The goal of an effective GSOL is to be so clear and inclusive that people can confidently save lives during an overdose.
Many states have unnecessary barriers that prevent their GSOL from being effective. Some require the caller to identify themselves to the police,[17] which is likely to scare off potential callers who do not fully trust the protection of the GSOL. Texas only allows a person to use GSOL protection once,[18] which forces potential callers to choose which overdose is sufficiently fatal. These kinds of limitations can render the GSOL essentially useless, as the GSOL becomes inaccessible to the people who are likely to need it most.
GSOLs are a promising solution to address the opioid crisis, but our current approach to these laws can be improved. States should prioritize saving lives and amend their GSOL to lower the barriers to accessing medical care during an overdose.
[1] John Rensten, ‘Good Samaritan’ Laws and Drug-Overdose Victims, Newsweek (July 6, 2010), https://www.newsweek.com/good-samaritan-laws-and-drug-overdose-victims-74625.
[7] Kayleen Egan, The Overdose Prevention Act: A Small Step When New Jersey Needs A Giant Leap, 12 Rutgers J.L. & Pub. Pol’y 1, 4 (2014) (explaining what GSOLs are and how they are intended to work).
[9] Jennie M. Miller, Save a Friend’s Life or Risk Your Freedom: The Dilemma Too Many People Face When Witnessing an Overdose, 34 J. Civ. Rts. & Econ. Dev. 351, 372 (2021) (describing common reasons that people decide not to call 911 while experiencing or witnessing an overdose).
[10]Opioid Overdose Basics, Nat’l Harm Reduction Coal., https://harmreduction.org/issues/overdose-prevention/overview/overdose-basics/what-is-an-overdose/ (last updated Sept. 1, 2020); Will Dane et al., The Solution to Opioids is Treatment, Brain Inj. Ass’n of Am., https://www.biausa.org/public-affairs/media/the-solution-to-opioids-is-treatment (last visited Feb. 22, 2024).
[11] Daniel Rees et al., With a Little Help from My Friends: The Effects of Naloxone Access and Good Samaritan Laws on Opioid-Related Deaths, 78 Rsch. Briefs Econ. Pol’y, 1, 7 (2017) (describing the timeline of an overdose and when medical intervention becomes necessary).
[12]See Alaska Stat. § 11.71.311; Del. Code Ann. tit. 16, § 4769; N.Y. Penal Law § 220.78 (McKinney 2021) (each requiring that the protected person acts in good faith to save a life).
[13] Excluding Kansas and Wyoming, which do not have any GSOL protections.
[14]See Idaho Code § 37-2739C (allowing the protected person to be arrested but not charged); Ala. Act No. 2015-364 (allowing arrest and charging, but not prosecution); N.J. Stat. Ann. § 2C:35-30 (allowing the protected person to be arrested, charged, and prosecuted but not convicted.
[15]See Ind. Code Ann. § 16-42-27-2 (protecting only the caller); N.C. Gen. Stat. § 90-96.2 (protecting the person experiencing the overdose and the first person to call 911); S.D. Codified Laws § 34-20A-111 (protecting only the person experiencing the overdose and no one else).
[16] Samantha Kopf, Slaying the Dragon: How the Law Can Help Rehab a Country in Crisis, 35 Pace L. Rev. 739, 752 (2014) (describing the different offenses covered by each state’s GSOL).
Imagine you’re working in an office and a supervisor asks you to copy a report. You have expertise when it comes to this type of job and are specifically trained to perform tasks such as this. Your expertise is to the point that no one else in the entire office is capable of doing this. Even your supervisor is completely oblivious when it comes to copying. Like most people you would likely take the report, go to the copying machine, and make the photocopy. Sounds easy enough, right? Imagine next that a third party comes in and says you’re not allowed to use that machine. This individual has never used a copying machine, doesn’t have the expertise you have, and has never stepped foot in your office building until now. You are told that you can’t use the copier because your supervisor didn’t explicitly tell you to use it, or any specific method to make the copy. Or worse, someone said all copies should be done by hand thirty years ago, so you must follow that. You look to your supervisor for permission but they’re too busy handling other issues to do anything. Your supervisor trusted you to use the method you felt was best to make the copy, but now that this third party is here you are left feeling unable to do your job in the best way.
The above scenario sounds extreme, right? It certainly doesn’t sound like an efficient workplace. Now imagine that instead of making a copy, your job is to develop a management plan for herring-fishing operations in the Northeast United States. That seems a bit more complicated. This is what NOAA and the New England Fishery Management Council face before the Supreme Court, and what could become a common occurrence for agencies in the environmental field.
For the second time in American history, the Supreme Court may limit agency authority over the protection of a fish.[1] In two disputes involving a management plan in the Atlantic Herring Fishery, the Court considers whether to overrule the longstanding Chevron doctrine.[2] In a secondary question, the Court considers how to treat agency authority that is derived from statutory silence.[3] Assuming the Court upholds Chevron, the Court may take this opportunity to limit agency authority, specifically by stating silence cannot constitute a grant of authority.
Beginning in the New-Deal Era, Congress entered a new area of “public interest” legislation tackling new challenges facing the country in highly complex fields.[4] As Congress realized the issues in these fields could not be solved by legislation alone, it began to delegate more authority to agencies causing the “administrative state” to grow.[5] Arguably the most complex field of law Congress entered during the New Deal was environmental protection. In 1970, Congress created the EPA to be an agency designed to protect human health and the environment.[6]
Environmental issues have characteristics which make them more difficult for Congress to solve, increasing the reliance on agency enforcement.[7] Because of this, Congress created a system involving broad delegations of authority to agencies such as the EPA. Congress also enacts legislation allowing agencies to further their expertise and develop on-the-ground solutions to these environmental problems.[8] Arguably the most important thing Congress does to allow this is remain silent on specific issues in a statute, allowing an agency to further its expertise and find the best method to implement a regulatory scheme.
Agency authority stemming from silence formed the basis of the Court’s holding in Chevron.[9] Despite this fact, opponents of Chevron and agency-based problem solving see authority based in silence as a formula for agency aggrandizement.[10] This fails to recognize the importance of—and actual use of authority in silence—specifically in the environmental field. Congress relies on authority in silence, and a total failure to recognize authority in these cases would have detrimental effects on environmental law and agencies’ ability to solve environmental problems.
The Court can draw from various sources to develop a method to recognize agency authority in statutory silence. By considering past precedent[11] and writings by former and current justices[12], the Court can employ workable tests to recognize this authority without upsetting constitutional principles. Doing this would allow Congress to continue its use of silence in environmental legislation so agencies––such as the EPA––can further expertise and remain flexible in the environmental field. The Court should adopt a method to allow this, avoiding the detrimental impacts to the environment that would result if it invalidated the prevalent use of agency authority in silence.
[1]See Tenn. Valley Auth. v. Hill, 436 U.S. 153 (1978) (strengthening the Endangered Species Act and preventing a project by the TVA to protect the snail darter).
[2] Chevron, U.S.A., Inc. v. Nat. Res. Def. Couns., Inc., 467 U.S. 837 (1984).
[3]E.g., Loper Bright Enters., Inc. v. Raimondo, 143 S. Ct. 2429 (2023).
[5]Id.; Columbian College of Arts & Sciences Regulatory Studies Center, Reg Stats, Geo. Wash. Univ., https://regulatorystudies.columbian.gwu.edu/reg-stats (last visited Jan. 20, 2024) (showing a chart of the growth of the Code of Federal Regulations from 1950 to 2021).
[10]See Thomas W. Merrill, Re-reading Chevron, 70 Duke L.J. 1152, 1192–93 (2021).
[11] Edwards’ Lessee v. Darby, 25 U.S. (1 Wheat.) 206 (1827); Kisor v. Wilkie, 139 S. Ct. 2400 (2019).
[12] Stephen Breyer, Judicial Review of Questions of Law and Policy, 38 Admin. L. Rev. 363–72 (1986); Brett M. Kavanaugh, Two Challenges for the Judge as Umpire: Statutory Ambiguity and Constitutional Exceptions, 92 Notre Dame L. Rev 1907 (2017); Antonin Scalia, Judicial Deference to Administrative Interpretation of Law, 1989 Duke L.J. 511 (1989).
“Counsel did not get the point.”[1] “[Classifying a business] does not get any easier when we turn to foreign business entities.”[2] “We have dodged a problem today, but it will recur.”[3]
All three quotes are responses from federal judges describing the jurisdictional mayhem caused by improperly classifying a business entity.
The mayhem this niche problem stems from is access to the federal court system. An American corporation is domiciled in two places: its state of incorporation and principal place of business.[4] Meanwhile, a non-corporate business entity—such as limited liability company—has its domicile determined by each partner or member.[5] The domicile(s) of a company helps determine if the company will be permitted into the federal courts under diversity jurisdiction.[6] Simple enough.
Now, what about trying to determine the domicile of foreign business entities? Furthermore, what about trying to determine the domicile of foreign business entities, where a carbon copy of an American corporation does not exist?[7] Even further, what about trying to determine the domicile of foreign business entities, where a carbon copy of an American corporation does not exist, and there are markedly different and competing approaches?[8] This is the unenviable task that federal court judges are left with.
This unique situation has led to a decades-long circuit split. Judges are left with two competing approaches—the “juridical entity approach”[9] stemming from interpreting People of Puerto Rico v. Russell & Co., Sucesores En C.,[10] and the “features approach.”[11] The juridical entity approach holds that if a foreign business entity is classified as a juridical person under the laws of that foreign nation, then it will be determined as such in the American federal court system.[12] As a juridical person, its single domicile under diversity jurisdiction will be applied under 28 U.S.C. § 1332(a).
Alternatively, there is the features approach. Spearheaded by Judge Frank Easterbrook and Judge Richard Posner, this approach determines the classification of a foreign, non-corporate business entity by looking at the features it has. Specifically, the Seventh Circuit’s legal luminaries look for certain traits: “a business with indefinite existence, personhood (the right to contract and litigate in its own name), limited liability for equity investors, and alienable shares, among other features.”[13] Despite how it may be organized under its foreign laws—whether it is the American equivalent of a limited liability company, general partnership, or other—if the non-corporate business entity bears the aforementioned features, then it will be treated like an American corporation, for diversity jurisdiction purposes.[14]
These two approaches greatly contrast. Worse, the lower courts have no guidance from the Supreme Court on this issue, as the Court is weary to jump into many jurisdictional issues.[15] So, with a decades-long circuit split coming to the fore as recently as May 2023,[16] it is time for action.
There is only one body that can resolve this issue: Congress. Specifically, Congress should adopt the features approach in full, either by (1) amending 28 U.S.C. § 1332(c) to explicitly incorporate the features approach for classifying foreign, non-corporate business entities; or (2) enacting a standalone piece of legislation for this issue. The former is sensible given that 28 U.S.C. § 1332(c) already discusses jurisdictional facets of American corporations.[17] The latter would be significant, as enacting a standalone piece of legislation signals the level of importance for this issue.
If adopted, the features approach may potentially see early legal challenges—primarily of statutory interpretation; however, it is likely that none will stick. Moreover, the features approach honors Supreme Court precedent and the Founding Father’s political and economic justifications for diversity and alienage jurisdiction, and it encompasses a “more holistic review”[18] overall.
Neither approach is perfect. Both approaches contain pros and cons. But Congress would be well-advised to adopt the features approach. This approach would provide the lower courts with a clear and repeatable analytical template and end this ongoing—and unnecessary—circuit split.
[1] Lear Corp. v. Johnson Elec. Holdings Ltd., 353 F.3d 580, 582 (7th Cir. 2003).
[7] White Pearl Inversiones S.A. (Uruguay) v. Cemusa, Inc., 647 F.3d 684, 686 (7th Cir. 2011) (“Yet, not even the United Kingdom has a business form that is exactly equal to that of a corporation.”).
[8]See People of Puerto Rico v. Russell & Co., Sucesores, S. En C., 288 U.S. 476 (1933); see also Stiftung v. Plains Mktg., 603 F.3d 295, 299 (5th Cir. 2010) (applying the “juridical entity approach”); cf. Fellowes, Inc. v. Changzhou Xinrui Fellowes Off. Equip. Co. Ltd., 759 F.3d 787, 788 (7th Cir. 2014) (applying the “features approach”).
[9]See Stiftung v. Plains Mktg., 603 F.3d 295, 299 (5th Cir. 2010) (applying the juridical entity approach).
[15] Carden v. Arkoma Assocs., 494 U.S. 185, 197 (1990) (“We have long since decided that, having established special treatment for corporations, we will leave the rest to Congress; we adhere to that decision.”).
[16]See generally Sunny Handicraft (H.K.), Ltd. v. Envision This! LLC, 66 F.4th 1094 (7th Cir. 2023).
[18] Elisabeth C. Butler, Diversity Jurisdiction and Juridical Persons: Determining the Citizenship of Foreign-Country Business Entities, 97 Tex. L. Rev. 193, 208 (2018).
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