Volume 41, Issue 2

Article

Decarbonizing Constitutions

Quinn Yeargain

The threat of climate change demands far-reaching, systematic changes to the global economy—and similar changes to how governments around the world set environmental policies. In recent years, many environmental policymakers have developed plans to “decarbonize” the economy. These plans provide detailed, sector-specific plans for how the latest scientific consensus on climate change can be incorporated into the policymaking process and for how the Sustainable Development Goals can be achieved. But articulating the policies is one thing—actually setting them is another.

Frequently absent from this conversation is the role that American constitutions can play in averting climate change. Other countries, however, do not have this problem. Around the world, many countries’ supreme courts have issued bold and far-reaching decisions in the climate change arena. Many of these decisions have forced governments to comply with their commitments under the Paris Agreement; others have recognized environmental “rights,” possessed either by individual people or even by nature itself. And many of these decisions have been predicated on supportive language in national constitutions. In the United States, however, no court has issued a similarly sweeping ruling—and few constitutions contain provisions that are meant to systematically address climate change or other environmental crises.

Accordingly, in this Article, I argue that state constitutions could serve a vital role in decarbonizing the American economy. I conduct a comprehensive survey of provisions in nineteenth-century state constitutions that affected the environment—through resource allocation, land management, water rights, eminent domain, and so on—and argue that many of the principles underlying these provisions could be adapted to contemporary constitutional drafting. I also critically survey the handful of environmental “bills of rights” in state constitutions and explore why these provisions have been largely ineffective so far. Ultimately, I argue for the ratification of state constitutional amendments that set environmental policies to decarbonize the American economy—and outline what these amendments might look like in practice.

Article

Locking Down “Reasonable” Cybersecurity Duty

Charlotte A. Tschider

Following a data breach or other cyberattack, the concept of “reasonable” duty, broadly construed, is essential to a plaintiff’s potential causes of action, such as negligence, negligence per se, breach of contract, breach of fiduciary duty, and any number of statutory claims. The impact of an organization’s discretionary choices, such as whether to take specific security steps for a system, may result in potential risk to an individual, another organization, or the organization itself. Although organizations regularly engage in cybersecurity risk analysis, they may not understand what practices will be considered reasonable in a court of law and are therefore unable to anticipate downstream legal issues. Attorneys are likewise unable to confidently advise their clients on how to best avoid liability. This Article examines, in detail, potential sources for reasonably defining duty, and how organizations and attorneys might consider legal duty through the lens of cybersecurity risk management.

Specifically, I call for a two-part cybersecurity duty analytic model: static, or objective duty informed by industry practices, and dynamic, or subjective duty informed by situational risk. For some doctrinal areas, this may work primarily as an analytic model, while for others, such as negligence, this could be formalized as a test. By offering a model for analyzing what cybersecurity duty ought to be, organizations can adequately understand how potential legal risk might be evaluated in order to implement practices that protect would-be plaintiffs and avoid liability.

Moreover, courts can use this model to determine whether organizations have made decisions that avoid real, foreseeable risk to the plaintiff. Indeed, amidst an increasing frequency and diversity of cyberliability claims, legal analysis informed by actual risk analysis ensures that reasonable, rather than perfect, cybersecurity practices can be developed precedentially over time.

Article

Do Fraternities Violate the Fair Housing Act? An Empirical Study of Segregation in the Greek Organizations

Stephen Clowney

The American Greek system has long been the site of fierce resistance to integration.  Until quite recently, African Americans, Jews, Asians, and other ethnic and religious minorities found themselves excluded from the bonds of membership.  Sororities at the University of Arkansas, for instance, remained entirely segregated until 2004,  while the Greek system at the University of Alabama did not begin to desegregate until 2013.  It is little wonder that students around the country increasingly view the Greek system as a deep cavity of racial isolation on otherwise diverse campuses. 

But can anything be done? Many observers remain skeptical that universities will adopt meaningful reform.  They argue that administrators resist cracking down on segregated Greek organizations because the schools have become “bedeviling[ly]” dependent on the fraternities and sororities.  The Greek system, for example, provides thousands of students with on-campus housing,  Greek alumni donate generous sums during fundraising campaigns,  and fraternities provide a kind of social programming that is “highly attractive to legions of potential students.”  It takes little imagination to see how these entanglements might encourage universities to overlook the troubling racial composition of the Greek organizations.

This Article argues that, if colleges will not act, civil rights law can serve as a pressure point and a site of intervention. Specifically, I contend that fraternity and sorority housing violates the Fair Housing Act (FHA).  The consequences of this argument are significant. Across the country, there are thousands of buildings on university campuses dedicated to Greek life. In the SEC alone, there are almost 200 sorority houses. “A conservative estimate of the collective value of [the nation’s Greek] houses … is $3 billion.”  If my argument holds, universities will need to integrate or shutter many of these stately homes, or else sever them from their campuses.

Note

Administrative Aggregation Applied: Theorizing Class Motions in EOIR Adjudication

Kayla Crowell

The Executive Office for Immigration Review (EOIR) is an agency in need of structural intervention. Its failure to ensure due process for noncitizens in removal proceedings has grave consequences for those individuals, their families, and their communities. Despite the high human stakes of its decisions, EOIR’s adjudications are plagued by a lack of access to meaningful participation, extreme backlog, and inconsistent application of the law. Ensuring respondents’ ability to participate in their defense is especially fraught: a lack of guaranteed legal representation, scarce pro bono resources, language barriers, unfamiliarity with the U.S. legal system, detention, and untreated trauma are among the myriad factors that impede legal access.

For agencies like EOIR that are tasked with determining individuals’ rights through high-volume adjudications, aggregating similar procedural parts of claims across many cases is one way to make adjudication both faster and fairer. I argue that partial, representative aggregation in the form of respondent-initiated class motions could help make EOIR adjudications accessible, efficient, and consistent. Due-process concerns would arise, however, from giving one individual’s eligibility for immigration relief preclusive effect in another’s proceedings. This problem counsels tailoring EOIR’s aggregation mechanism to serve a narrower function than the resolution of whole cases. Smaller issues—especially procedural ones—frequently recur across cases. This commonality is particularly likely in the wake of law or policy changes that affect many cases in the same way. Limiting aggregation to procedural motions could mitigate the risk of overemphasizing efficiency at the expense of procedural protections while still bringing significant benefits. Aggregate motions to reopen or reconsider, for example, could allow similarly situated noncitizens to benefit from a change without litigating redundant individual motions. And if the agency were to lay the requisite groundwork in its regulations, motions for administrative closure corresponding to announced enforcement priorities could also potentially be adjudicated on a class-wide basis.

Several factors present barriers to EOIR’s use of aggregation mechanisms that group entire claims, such as class actions. In particular, the individualized eligibility criteria for immigration relief limit aggregation’s potential role in removal cases, as does the centrality of adjudicators’ discretion to grant or deny relief. The fact that noncitizens in removal proceedings are respondents, rather than petitioners seeking an affirmative benefit, is a further complication. The class-motion approach would accommodate these realities while reducing the procedural and practical barriers facing respondents, who might otherwise be unable to meaningfully pursue relief. In addition, it would relieve the agency of the need to adjudicate thousands of equivalent motions across similar cases.

Note

If You’re a Minister and You Know It, Clap Your Hands: Contract Nondiscrimination Clauses as a Voluntary Waiver of the Ministerial Exception

Jacquelyn Oesterblad

Looking back, I’m not sure if I ever had any employment protections or whether I was, legally, a minister. Yes, I was a “secular studies” teacher, but I also led lower-school tefillah after lunch two days a week. I was expected to plan and lead lessons every month for our character development (tikkun middot) curriculum, which included values like “Torah,” “faith,” “joy,” and “gratitude.” On Fridays, I had to sit at a table with students and celebrate an early Shabbat—we’d light candles, cover our eyes, sing prayers, and pass around a loaf of challah. I folded Jewish and Israeli history into our curriculum, painstakingly pulling passages from the Torah and prophets to lay side-by-side with excerpts from Gilgamesh, or Assyrian relief sculptures, or the Qur’an, or whatever else we were studying.

I was a gentile teacher of secular history, but I was also expected to be invested in the building of Jewish community and Jewish citizens—and I was. Under the test expanded and articulated by the Supreme Court in 2020,  I would have been a close case. I don’t know what my school would have argued. I don’t know how a court would have ruled. And I’m someone with an expensive legal education who is supposed to know my professional status under the law.

So how was Agnes Morrissey-Berru, an elementary teacher at Our Lady of Guadalupe School in Hermosa Beach, California, expected to know?

Lay readers of a contract tend to believe the text to be enforceable and binding, even when it is not.  They believe contract language. Imagine Morrissey-Berru’s confusion, then, when the plain text of her contract turned out to be a lie.

Morrissey-Berru’s contract listed the circumstances under which she could be fired: She was subject to a six-month probationary period and, later, could be fired immediately for cause or with thirty-days’ notice without cause.  That is not language that would lead a person to believe that they have no legally cognizable employment claims at all. Moreover, her contract directed her to the faculty handbook,  and that handbook promised, “Employment decisions will not be made on the basis of race, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, sex, age, pregnancy, veteran status or political affiliation.”  The handbook included a standard reference to the fact that religious institutions are exempt from the Title VII provision barring discrimination on the basis of religion,  but it did not mention or suggest that the school believed it could discriminate against her for nonreligious reasons and on the basis of the other listed characteristics. 

When Morrissey-Berru filed suit against the school for age-based discrimination, however, the school argued just that. It said that courts were forbidden from enforcing antidiscrimination law to interfere in the school’s relationship with its teachers, and the Supreme Court agreed.  In Our Lady of Guadalupe School v. Morrissey-Berru, the Court reaffirmed and broadened the constitutional right of religious employers to hire and fire ministers without state intervention. Whatever Ms. Morrisey-Berru believed about her employment protections based on what she read in her contract and handbook, the Court found that she was a minister in a religious enterprise. She therefore had no protections.

The ministerial exception to employment-discrimination law is rooted in the First Amendment rights of religious organizations to be free from state interference in matters of faith, doctrine, and church governance. This Note begins from the presumption that the exemption is good law and plays a necessary role in First Amendment jurisprudence. It does not seek to overturn the exemption, either directly or through bad-faith efforts to narrow the exemption beyond all recognition. Rather, this Note confronts a market failure—and a failure of fairness. Many employees affected by the exception have no way of knowing that their employer views them as a minister and that this view, if vindicated in court, will limit their legal rights. Thus, the goal of this Note is to identify a legal mechanism that can ensure disclosure and clarity in any written employment agreements exchanged at the time of contract formation.

That mechanism is the waiver of constitutional rights. This Note argues that where religious establishments have employee handbooks that (1) would otherwise qualify as binding contracts;  (2) clearly state that employees are protected against certain forms of employment discrimination; and (3) do not clearly state that certain employees are excepted from these protections, such handbook provisions should be construed by courts as waivers of the right to be excepted from antidiscrimination law.

This approach would fully respect religious establishments’ constitutional rights, would align with Supreme Court precedent, and would not require the judiciary to render decisions on any matter of religious doctrine. It would also, however, protect the interests of employees who may have reasonably relied on representations of nondiscrimination made when they accepted employment. Part I of this Note summarizes the current state of ministerial exception law. Part II summarizes the law of waiver of constitutional rights. Part III argues that the doctrine of waiver of constitutional rights should apply to the ministerial exception, and that handbook provisions of the kind described above satisfy the requirements of waiver.

Policy Article

Florida’s Bad Faith Prosecutions of Good Faith Voters

Angel E. Sanchez, Esq.

When I was a teenager, I was convicted of a felony in Florida and stripped of my right to vote before I was even old enough to cast a ballot.  I regained that right in 2018 when Florida voters approved the historic state constitutional amendment known as Florida’s “Amendment 4”.  Amendment 4 ended life disenfranchisement for many people with past felony convictions like me who had served their sentence. Lawmakers, however, reacted to this historic amendment with a law known as SB 7066, which requires people with past felony convictions to make payments of legal financial obligations (LFOs) in order to receive Amendment 4 restoration regardless of indigency or the state’s inability to properly implement this LFO system.

My case had been closed nearly a decade ago, so I thought that I did not have any outstanding issues to worry about under SB 7066. I proudly registered the day Amendment 4 went into effect and voted for the first time a year later during the 2020 primary elections. It was one of my greatest memories, until it became a near nightmare. Months after voting, I learned that I was apparently ineligible based on old court records showing I had unpaid court costs and fees from years earlier. I was in tears and afraid.   I had spent years trying to turn my life around and my efforts suddenly did not matter, simply because I voted. After weeks of searching, I discovered proof of payments showing that the court records were wrong.   I was one of the lucky ones.

Had I not found those proofs of payments from almost a decade prior, today I could be among the many returning citizen voters in Florida being subject to prosecution for mistakenly registering and voting while allegedly ineligible. Even if not prosecuted, I could be among the hundreds of thousands of returning citizens being threatened with arrest for any mistake in voting, whether that mistake is theirs or one in the state’s own records (like in my situation).  Florida’s leaders created this issue when they failed to create a centralized voter information system with SB 7066, almost certainly knowing that a failure to do so would leave election officials and voters guessing about their eligibility.  The state is now taking advantage of those voters that guessed wrong and is publicizing the arrests in ways that appear intended to intimidate the remaining tens of thousands of uncertain but otherwise eligible returning citizen-voters into not voting. 

Federal claims were filed against SB 7066 as soon as it went into law. In Jones I, the District Court entered a preliminary injunction against SB 7066 concluding that it was unconstitutional and the Eleventh Circuit applied heightened scrutiny affirming the preliminary injunction.  Thereafter the District Court held a six day trial on the merits and entered a permanent injunction against SB 7066.  The Eleventh Circuit Court of Appeals, heard the Jones II appeal en banc and overturned its prior ruling in Jones I and reversed the District Court’s opinion on the merits. 

The Jones II court ruled in favor of the State, finding SB 7066 constitutional. However, it did not do so without outlining certain protections for voters even under SB 7066. The Jones II court reasoned that good faith voters would not be prosecuted for mistakenly registering and that once placed on the rolls post-registration those voters would be entitled to vote until the state screened and removed them through the proper removal process.  During oral arguments, the State assured the Jones II court that it had “gotten its act together” and explained that post-registration the burden is on the State to find credible and reliable evidence of ineligibility, and until the State does, the voter remains eligible to vote.  It explained that the State was applying the rule of lenity on eligibility determinations by erring in favor of voter eligibility until the State identifies credible and reliable information to the contrary. 

Yet a review of the criminal investigations and prosecutions in Florida since Jones II indicates that the State is ignoring both its asserted policy and the court’s holding in Jones II. Rather, the State is scouring its records to go after those same voters it misleads. Instead of reviewing records on the front end to prevent ineligible voting, the State is neglecting its self-imposed burden: it is approving registrations without screening voters, placing them on the rolls and leaving them there for years, sending them voter IDs leading them to believe they are eligible to vote, and then prosecuting them for mistakenly voting in good faith.  Adding racial partisanship to injury, the majority of those targeted are Black voters from Democratic areas.  The Governor even held press conferences to publicize the arrests and intimidate other returning citizens from voting.  Florida’s disregard of Jones II in this way is proving the Jones II dissenters were correct when they warned the majority that SB 7066 is administratively irrational and would lead to these problems.  They prophetically warned that the State could not be trusted to provide good faith protections against prosecutions of mistaken voters, a failure that would in turn deter uncertain eligible voters from registering and voting. 

To properly fix Florida’s self-created broken system, the legislature must fund the creation of centralized voter information system that reliably and diligently gives election officials and returning citizens assurances of their eligibility and, in the case that they are ineligible, informs them of what they must do to become eligible. Such a system must be created with safeguards that err on the side of the voter, that allow returning citizens to challenge incorrect state records (like in my situation), and that provide legal protection for voters who rely on such system.   In the interim, the governor must use his executive powers to order—under penalties of removal—local and statewide law prosecutors to follow Jones II and the State’s rule of lenity policy and stop criminally arresting and prosecuting good faith mistaken voters under SB 7066. Florida’s Nobel Peace Prize-nominated voting rights organization, the Florida Rights Restoration Coalition (FRRC)—which itself is led by returning citizens—is demanding the same fixes on the ground as it leads efforts in assisting fellow returning citizens impacted by Florida’s broken system.  

In this essay, I discuss the rationales and assurances provided in Jones II, show how Florida is disregarding them, and provide policy recommendations for Florida to course correct. Part I provides the history of disenfranchisement in Florida, Amendment 4, SB 7066, and the Jones I and II litigation. It helps contextualize how the State’s actions in passing SB 7066 resulted in the broken restoration system we have today. It also records the important representations the State made to the Jones II court during oral arguments. These representations by the State are in essence publicly asserted state policies on SB 7066. They are favorable for returning citizens, but do not appear to have been transcribed and widely circulated so the excerpts are compiled here for the public. Part II shows how the State has acted in bad faith in criminalizing mistaken good faith voters contrary to Jones II and the State’s asserted rule of lenity policies discussed in Part I. Part III provides the steps the State must take to course correct, including the creation of a centralized voter information system with proper safeguards to eliminate confusion among returning citizen voters and election officials. The State must immediately stop arresting and prosecuting good faith voters who mistakenly voted due to the State’s broken system. Several recommendations are provided in this section to achieve these objectives in the most democratic-way possible.