American Journal of Trial Advocacy

Jason Doiy, Illustration of Social Media Jurors in Ben Hancock, Should You ‘Facebook’ the Jury? Yes. No. Probably, ALM (Apr. 26, 2017, 11:09 AM), https://www.law.com/therecorder/almID/1202784626601/.

Authored by: Harriet S. Shelly

In today’s digital media society, is it ever truly possible to ensure that jury trials are fair and impartial? Pursuant to the Sixth Amendment of the United States Constitution, criminal defendants are guaranteed specific rights, including the right to have their case heard by an impartial jury.[1] Furthermore, the Seventh Amendment also provides civil litigants with essentially the same rights.[2] Beginning with the pre-trial process of voir dire, judges and lawyers seek to uphold these constitutional rights by questioning potential jurors in order to identify whether the individuals can be fair and unbiased during trial.[3] If a potential juror demonstrates any bias that might unfairly impact the trial’s outcome, the juror may be eliminated from the jury selection process.[4] Although the concept of finding an impartial jury may seem straightforward, the emerging presence of social media has presented a few bumps in the road to a fair trial.[5]

With the increasing popularity of social media sites, it is of no surprise that most Americans utilize social media on a daily basis.[6]  Such individuals may use social media for different purposes, such as connecting with others, sharing information, receiving entertainment, or obtaining news.[7]  Furthermore, professionals in the legal sector may even use social media as a way to promote business or gain clientele. Although the widespread use of social media has perks, it nonetheless has complicated the Sixth and Seventh Amendment rights to an impartial jury.[8] More specifically, social media has created the risk that jurors may (1) use social media to communicate, research, and/or post about the trial,[9] or (2) become biased due to outside information from social media sources.[10] In efforts to avoid these potential issues, a federal judiciary committee updated its set of model jury instructions “to deter jurors from using social media to research or communicate about cases.”[11] Regardless of whether the courts strictly follow these instructions or merely utilize them for reference, jurors should be given explicit directions regarding their social media usage throughout the entire trial (even including voir dire).

However, are social media jury instructions actually realistic? For example, during the recent defamation case between Johnny Depp and his ex-wife, Amber Heard, social media sites were buzzing with daily updates of the trial.[12] As a result, experts worried that the tremendous amount of online attention surrounding the case would unfairly sway the jury.[13] One attorney, who was not involved in the case, stated that “[j]uries are only supposed to evaluate the evidence presented in court, but the . . . content online was so significant that it’s unlikely jurors weren’t exposed to it[.]”[14] Additionally, commentators of the trial recommended that when the jury was not in the courtroom, jurors should have been placed in hotel rooms with no access to television or social media.[15] But, was this a reasonable expectation of jurors involved in an extensive six-week-long trial? In other words, how can we protect jurors from outside influences without isolating them from society for prolonged periods of time? These are questions that judges and lawyers should keep in mind when conducting jury trials.

Another recent jury trial that was surrounded by online media included the cases involving Alex Murdaugh[16] Before Murdaugh’s murder case was even heard at trial, it had already been the subject of countless podcasts, documentaries, and news articles.[17] When it came time for his financial trial, which was scheduled after the murder trial, Murdaugh’s attorneys asked the court to delay the start date because of the social media attention from the previous trial.[18] More specifically, the attorneys argued the “publicity from the murder trial will make it difficult to find a fair and impartial jury in [the county] or any other courtroom in the circuit.”[19] So, is it possible that Alex Murdaugh was given fair and impartial jury trials? One attorney stated that although it was “inevitable that the jury pool [would] be familiar with [Murdaugh],” the judge and attorneys should instead focus on jurors who were able to put their preconceived notions aside.[20]

The cases discussed above are examples of high-profile cases which are more likely to receive media attention. However, even with smaller-scale cases, judges and lawyers nationwide should begin to think about how social media may impact all jury trials. As mentioned earlier, given this prevalent issue, trial courts may consider enhancing the voir dire process or giving special jury instructions.[21] Additionally, a change of venue may be another effective way to ensure a fair jury trial.[22] For example, if there is heavy social media coverage in the area of the original venue, the judge may remove the trial to a venue in an area that is not as familiar with the facts of the case.[23]

All in all, judges and lawyers must stay informed on the growth of social media and how it may impact their cases. The widespread use of social media is not expected to slow down with the continuing technological advances being made each day. Thus, in order to preserve the Sixth and Seventh Amendment rights guaranteed by the Constitution, it is vital that judges and lawyers continue to put forth their best efforts to prevent social media from obstructing fair and impartial jury trials.

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[1] U.S. Const. amend. VI; see Sixth Amendment – Right to Trial by Impartial Jury, Annenberg Classroom, https://www.annenbergclassroom.org/resource/right-trial-impartial-jury/ (last visited Feb. 21, 2024) (defining an impartial jury as “independent people from the surrounding community who are willing to decide the case based only on the evidence”).

[2] U.S. Const. amend VII.

[3] Impartial & Representative Juries, Strengthening the Sixth, https://www.strengthenthesixth.org/focus/Impartial-Representative-Jury (last visited Feb. 23, 2024); see Voir dire, Black’s Law Dictionary (11th ed. 2019) (defining “voir dire”as “[a] preliminary examination of a prospective juror by a judge or lawyer to decide whether the prospect is qualified and suitable to serve on a jury”).

[4] Id. (“If either party identifies potential biases, that juror may be eliminated ‘for cause’ meaning the challenging party can articulate a legitimate basis for eliminating that juror.”).

[5] See generally social media, Merriam-Webster, https://www.merriam-webster.com/dictionary/social%20media (last visited Feb. 21, 2024) (defining social media as “forms of electronic communication . . . through which users create online communities to share information, ideas, personal messages, or other content”).

[6] See Simon Kemp, Digital 2023: The United States of America, DataReportal (Feb. 9, 2023), https://datareportal.com/reports/digital-2023-united-states-of-america.

[7] See Social Media Fact Sheet, Pew Research Center (Jan. 31, 2024), https://www.pewresearch.org/internet/fact-sheet/social-media/.

[8] See Nicole L. Waters & Paula Hannaford-Agor, Jury Impartiality in the Modern Era, in Encyc. of Criminology and criminal justice 2735, 2735 (2014).

[9] See Dara Kam, Juror’s Social-Media Posts Roil Gillum Case, Tallahassee Reports (May 3, 2023) https://tallahasseereports.com/2023/05/03/jurors-social-media-posts-roil-gillum-case/; Dareh Gregorian, Oh, What a Twit!, New York Post (May 29, 2009, 5:52 AM), https://nypost.com/2009/05/29/oh-what-a-twit/.

[10] See Thaddeus Hoffmeister, Do Unbiased Jurors Exist to Serve at Trump’s 2020 Election Trials in the Age of Social Media?, PBS (Sept. 9, 2023, 3:04 AM), https://www.pbs.org/newshour/politics/do-unbiased-jurors-exist-to-serve-at-trumps-2020-election-trials-in-the-age-of-social-media.

[11] New Jury Instructions Strengthen Social Media Cautions, United States Courts (Oct. 1, 2020), https://www.uscourts.gov/news/2020/10/01/new-jury-instructions-strengthen-social-media-cautions (updating the previous 2012 version of the model jury instructions).

[12] See Anya Zoledziowski, Did Social Media Sway the Johnny Depp Jury?, VICE (June 3, 2022, 12:43 PM), https://www.vice.com/en/article/qjkd4q/johnny-depp-heard-trial-jury-social-media (describing the use of social media in the case as a “social media circus”).

[13] Id.

[14] Id.

[15] Id.

[16] See Thad Moore, The Alex Murdaugh Trial’s First Challenge: Finding 12 Jurors with Open Minds, The Post and Courier (Jan. 22, 2023), https://www.postandcourier.com/murdaugh-updates/the-alex-murdaugh-trial-s-first-challenge-finding-12-jurors-with-open-minds/article_36ed2c58-98de-11ed-99e0-b3abb9b2773f.html.

[17] Id.

[18] Steven Ardary & Anna Harris, Murdaugh Attorneys Argue Impartial Jury Won’t Be Found for Financial Trial, Live 5 News (Nov. 13, 2023, 11:10 AM), https://www.live5news.com/2023/11/13/murdaugh-attorneys-argue-impartial-jury-wont-be-found-financial-trial/.

[19] Id.

[20] Moore, supra note 16.

[21] See Is a Fair Trial Possible in the Age of Mass Media?, Teach Democracy, https://teachdemocracy.org/bill-of-rights-in-action/bria-11-1-a-is-a-fair-trial-possible-in-the-age-of-mass-media (last visited Feb. 24, 2023).

[22] Id.

[23] Id.

Photo Credit: BHPH Report Staff, Experts put 18% Annual Rise in Bankruptcies Into Context, BHPH, (Jan. 4, 2024), https://www.autoremarketing.com/bhph/experts-put-18-annual-rise-in-bankruptcies-into-context/.

Authored by Justin St. Amour

Most ordinary people have never had any experience within the realm of bankruptcy or never want to have any run ins with bankruptcy due to its negative connotation. However, bankruptcy provides a beneficial course of action for those in need of a fresh start in the form of debt relief. Just like the majority of the population with daily life activities, the parties participating in bankruptcy proceedings prefer to have the proceeding close as fast as possible as long as it serves their best interest. Permitting a trustee to sell preference actions as estate property is one solution that bankruptcy courts can provide to carry out the fundamental goals of bankruptcy effectively and efficiently.

Consumers and businesses looking for a fresh start may elect to file for bankruptcy under Chapter 7.[1] A Chapter 7 bankruptcy case is different than other forms of bankruptcy in that it does not consist of reorganization or the filing of a payment plan.[2] Instead, upon the filing of a Chapter 7 petition, a trustee is appointed and is immediately tasked with maximizing the value of the estate by identifying the debtor’s nonexempt property and using that property to pay the debtor’s creditors.[3] This is commonly known as “liquidation.”[4] Once a bankruptcy case has commenced, an “estate” consisting of all of the debtor’s property is created.[5] Any legal or equitable interest in property that the debtor possessed as of the commencement of the case is pulled into the bankruptcy estate.[6] To fulfill the primary goal of liquidating all of the debtor’s nonexempt assets to maximize recovery for creditors, a trustee will attempt to sell any nonexempt property for good value.[7] In doing so, the trustee is tasked with closing the estate “as expeditiously as is compatible with the best interest of [the] parties in interest.”[8]

The Bankruptcy Code grants a trustee certain rights and powers upon the filing of a Chapter 7 bankruptcy petition.[9] Among these powers lie the trustee’s ability to avoid and recover preferential transfers made by the debtor prior to the filing of the petition.[10] A preferential transfer is a pre-petition transfer made by an insolvent debtor to a creditor that favors one creditor over another.[11] In order for the trustee to be able to “claw back” transfers such as these, the transfer must be made either “90 days before the date of the filing of the petition” for non-insiders or “one year before the date of the filing of the petition” for insiders.[12] If a trustee determines that a preferential transfer exists, it may choose to pursue an action to recover those funds or “avoid” the transfer for the benefit of the estate.[13]

Historically, courts have held that a trustee is not permitted to sell preference actions.[14] This is largely because preference actions have never been viewed as property of the bankruptcy estate under section 541 of the Bankruptcy Code. Property under section § 541(a)(1) includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” To be considered estate property under that provision, the debtor itself must hold a legal or equitable interest in the action or asset prior to the filing of the bankruptcy petition.[15] State law generally governs a debtor’s property interest for the bankruptcy estate.[16] And courts have declined to find that preference actions are estate property because no state law gives a debtor itself a property interest in avoiding preferential transfers.[17]

Further, many have argued that a trustee’s ability to avoid and recover preferential transfers is one of many powers Congress granted to the trustee and that a statutorily created “power” is not something that can be sold as estate property.[18] The avoidance powers are specifically granted to a trustee under section 547 and do not arise until a debtor actually files for bankruptcy. Because Congress specifically tasked a trustee with the powers granted to it under section 547, and because this power does not arise until a debtor actually files for bankruptcy, many courts have consistently held that a preference action is simply not a legal or equitable interest that a debtor holds pre-petition and cannot be estate property under section 541(a)(1).

However, courts consistently and routinely find that causes of action belonging to the estate may be sold by the trustee.[19] The Supreme Court has also held that Chapter 5 actions (a.k.a preference action) are causes of action that the bankruptcy estate captures.[20] Putting this together, allowing a trustee to sell a preference action, a Chapter 5 cause of action, would substantially benefit the trustee as he attempts to expeditiously sell estate property to maximize the value of the estate.

The Eighth and Fifth Circuits recently addressed specifically whether a trustee may sell preference actions to third parties and held that a trustee’s avoidance powers are part of the bankruptcy estate and, therefore, can be sold under section 363.[21]

The Eighth Circuit in Simply Essentials was the first circuit court to explicitly hold that a preference action may be sold by the trustee. The court in Simply Essentials concluded that Chapter 5 avoidance actions are estate property and, therefore, may be sold by the trustee under section 363.[22] In reaching its decision, the court relied on a principle laid out by the Supreme Court that a debtor need not hold a possessory interest in property to be considered property of the bankruptcy estate.[23] Instead, the Eighth Circuit recognized that a debtor’s pre-petition “inchoate or contingent interests” are included as estate property.[24] Applying those principles, the Eighth Circuit determined that because a debtor has the right to file for bankruptcy, that right creates an inchoate interest in preference actions as of the commencement of the case and is property of the bankruptcy estate under section 541(a)(1).[25]

Importantly, the Eighth Circuit held that even if preference actions are not estate property under section 541(a)(1), they are property of the estate under section 541(a)(7).[26] Section 541(a)(7) includes as estate property “[a]ny interest in property that the estate acquires after the commencement of the case.”[27] Interpreting that provision, the court concluded that the Bankruptcy Code itself makes preference actions available to the estate post-petition and, therefore, captures preference actions as estate property.[28]

The Appellant in Simply Essentials raised two arguments against rendering preference actions as part of the bankruptcy estate.[29] The Appellant first argued that an interpretation including preference actions as estate property was not appropriate because it rendered section 541(a) redundant and superfluous.[30] The court acknowledged the possible surplusage in its interpretation but decided (1) that the “canon against surplusage is not an absolute rule[],”[31] and (2) that the provision’s legislative history coupled with the complexity of the Bankruptcy Code itself allowed for its conclusion even if it did create some surplusage.[32] The Appellant further argued that because a trustee acts on behalf of all creditors in a fiduciary capacity, allowing a trustee to sell preference actions would be a violation of that duty.[33] The Eighth Circuit rejected that argument by recognizing that a trustee’s fiduciary duties include maximizing the value of the estate and that the trustee, in some instances, cannot financially afford to pursue the action or does not have enough time to pursue the action. [34] Due to these concerns, the court found that allowing a trustee to sell a preference action may actually be the best and most efficient option for a trustee to fulfill his fiduciary obligations and maximize the value of the estate.[35]

Most recently, the Fifth Circuit in South Coast Supply Company echoed the reasoning of the Eighth Circuit and held that even though a trustee historically has been the only party permitted to bring a preference action, preference actions are causes of action that a debtor holds pre-petition and are thus property of the bankruptcy estate that may be sold.[36] In concluding that a trustee may sell a preference action to an outside creditor or third party, the Fifth Circuit specifically noted that section 541(a)(1) is to be read broadly and that “conditional, future, speculative, or equitable nature[s] of an interest [do] not prevent it from being property of the bankruptcy estate.”[37] Applying that principle and adopting the Eighth Circuit’s reasoning, the court in South Coast Supply Company found that a debtor holds a sufficient interest in claims to avoid preferential transfers as of the commencement of the case to be included as estate property under section 541(a)(1).[38]

To support its conclusion further, the Fifth Circuit noted that the Bankruptcy Code captures causes of action as estate property.[39] It  acknowledged, same as the Eighth Circuit did in Simply Essentials, that section 541(a)(1) includes as estate property any property “made available to the estate by other provisions of the Bankruptcy Code.”[40] The Fifth Circuit reasoned that (1) because the Bankruptcy Code captures causes of action that are made available by other provisions of the Code and that (2) because preference actions are created and lie solely within the Code itself, preference actions fit squarely within section 541(a)(1) and may be sold under section 363.[41]

Again, similar to the Eighth Circuit, the Fifth Circuit held that preference actions are also estate property under the reading of section 541(a)(7).[42] In justifying its conclusion, the court in South Coast Supply Company relied on its own precedent that explained section 541 to be an “all-embracing definition” that includes interests in property that are “created with or by property of the estate.”[43] Following this interpretation, the court held that because preference actions are clearly made available by the Bankruptcy Code after the commencement of the case, they are estate property under section 541(a)(7).[44]

Addressing policy concerns, the Fifth Circuit reiterated that the fundamental and core principle of bankruptcy is to maximize the value of assets and promote equal distribution.[45] To further those underlying policy goals, the court described a situation in which the estate may not have enough funds to pursue the action itself and explained that allowing the trustee to sell a preference action to a better-suited creditor would ultimately allow more flexibility for the bankruptcy court and can theoretically benefit all creditors.[46]

Bankruptcy practitioners, debtors, creditors, and trustees should all be aware of this recent development in preference actions. For a trustee, the ability to sell a preference action to a third party can drastically save valuable time and, in some instances, could inject more funds into the bankruptcy estate than would be if the trustee pursued the action himself.[47] For creditors, the opportunity to bid on preference actions allows them to use more discretion in determining whether they would be better served leaving the pursuit of preference actions in the trustee’s hands, or to take the action up on their own initiative. For practitioners, arguing that debtor’s hold an “inchoate or contingent” interest in preference actions pre-petition may provide the best argument that preference actions are property of the estate under section 541(a)(1). To establish that preference actions are estate property under section 541(a)(7), your best bet may be to follow the reasoning of the Fifth and Eighth Circuit and argue that the Bankruptcy Code itself makes preference actions available after the bankruptcy case commences which is sufficient to be estate property.

From a public policy standpoint, it makes perfect sense to allow a trustee to sell preference actions because doing so may substantially affect the efficiency in maximizing the value of the estate and distributing assets equally. On the other hand, a strict textualist may have a hard time coming to this conclusion given Congress has tasked a trustee with acting in a fiduciary capacity and has granted him with certain “powers” that state law fails to provide for. In sum, the push to allow trustees to sell preference actions has more positive consequences than negative and should continue to be analyzed.

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[1] See Bankruptcy, U.S. Courts, https://www.uscourts.gov/services-forms/bankruptcy#:~:text=Businesses%20may%20file%20bankruptcy%20under,are%20filed%20under%20Chapter%2015 (last visited Mar. 29, 2024) (explaining who may be qualified for certain chapters under the Bankruptcy Code and how bankruptcy may provide benefits).

[2] See Chapter 7 – Bankruptcy Basics, U.S. Courts, https://www.uscourts.gov/services-forms/bankruptcy/bankruptcy-basics/chapter-7-bankruptcy-basics (last visited Mar. 29, 2024).

[3] Id.

[4] Id.

[5] Id.

[6] 11 U.S.C. § 541(a)(1).

[7] Chapter 7 – Bankruptcy Basics, supra note 2; see 11 U.S.C. § 363(b)(1) (“The trustee . . . may use, sell, or lease . . . property of the estate . . . .”).

[8] 11 U.S.C. 704(a)(1).

[9] See Mission Prod. Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652, 1663 (explaining that sections 544-553 make up a trustee’s avoidance powers).

[10] 11 U.S.C. § 547.

[11] Id.

[12] Id.

[13] Id. §§ 547, 550(a) (“[T]o the extent that a transfer is avoided under section . . . 547 . . . the trustee may recover, for the benefit of the estate, the property transferred . . . .”).

[14] See generally In re Sapolin Paints, Inc., 11 B.R. 930, 937 (Bankr. E.D.N.Y. 1981) (collecting cases).

[15] In re Bracewell, 454 F.3d 1234, 1237 (11th Cir. 2006) (“That mean the property of the debtor’s estate is property the debtor had when the bankruptcy case commences . . . .”).

[16] Butner v. United States, 440 U.S. 48, 55 (1979).

[17] Brendan Gage, Is There a Statutory Basis For Selling Avoidance Actions, 22 J. Bankr. L. & Prac. 3 Art. 1 (2013).

[18] Id.; In re Teleservices Grp., Inc., 463 B.R. 28, 34 (Bankr. W.D. Mich. 2012) (“Although the recovery of an avoided transfer certainly augments the estate, the trustee’s ability to actually avoid the transfer is not an interest acquired from the debtor, but rather a power that derives from the Code itself.”); In re McGuirk, 414 B.R. 878, 879 (N.D. Ga. 2009) (“A trustee’s avoidance powers, including those under Section[] 547 . . . are unique statutory powers . . . . Standing to assert actions under Section[] 547 . . . is limited to the trustee . . . .”); In re Sweetwater, 55 B.R. 724, 731 (D. Utah 1985) (“The avoiding powers are not ‘property’ but a statutorily created power to recover property.”).

[19] See, e.g., In re Moore, 608 F.3d 253, 257-58 (5th Cir. 2010); In re Parker, 499 F.3d 616, 624 (6th Cir. 2007); In re Lahijani, 325 B.R. 282, 287 (9th Cir. B.A.P 2005).

[20] See United States v. Nordic Village Inc., 503 U.S. 30, 37 (1992) (“[T]he right to recover a post-petition transfer under [section] 550 is clearly a ‘claim’ . . . and is ‘property of the estate’ [under section 541].”); Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 53-54 (explaining that fraudulent conveyance actions under section 548(a)(2) are statutory causes of action).

[21] In re S. Coast Supply Co., 91 F.4th 376, 385 (5th Cir. 2024); Pitman Farms v. ARKK Food Co. (In re Simply Essentials, LLC), 78 F.4th 1006, 1011 (8th Cir. 2023).

[22] 78 F.4th at 1011.

[23] Simply Essentials, 78 F.4th at 1008-09 (quoting United States v. Whiting Pools, Inc., 462 U.S. 198, 206 (1983)).

[24] Id. at 1009 (citing Segal v. Rochelle, 382 U.S. 375, 379 (1966)).

[25] Id. (“Because debtors have the right to file for bankruptcy . . . the debtor has an inchoate interest in the avoidance actions prior to the commencement of the bankruptcy proceedings. Therefore, avoidance actions are property of the estate under § 541(a)(1).”).

[26] Id. (“Even if we were to conclude the debtor does not have an interest in the avoidance actions prior to the commencement of the bankruptcy proceeding, the avoidance actions clearly qualify as property of the estate under subsection (7) . . . .”).

[27] 11 U.S.C. § 541(a)(7) (emphasis added).

[28] Simply Essentials, 78 F.4th at 1009.

[29] Id.

[30] Id. (“Section 541(a)(6) specifies that proceeds from property of the estate are included in property of the estate. . . . Additionally, other subsections of § 541(a) specify that property from some avoidance actions are property of the estate. . . . Therefore—according to Pitman Farms—if avoidance actions are property of the estate, the Bankruptcy Code would not have to specify the proceeds of such actions are property of the estate.”).

[31] Id. (citing Marx v. Gen. Revenue Corp., 568 U.S. 371, 385 (2013)).

[32] Id. at 1009-10.

[33] Id. at 1010.

[34] Simply Essentials, 78 F. 4th at 1010.

[35] Id. (“When an estate cannot afford to pursue avoidance actions, the best way to maximize the value of the estate is to sell the actions. Our interpretation of the Bankruptcy Code . . . is consistent with the congressional intent behind including a fiduciary duty to maximize the value of the estate.”).

[36] 91 F.4th at 382.

[37] S. Coast Supply Co., 91 F.4th at 382 (citing In re Kemp, 52 F.3d 546, 550 (5th Cir. 1995)).

[38] Id. (citing Simply Essentials, 78 F.4th at 1006).

[39] Id. (citing In re Equinox Oil Co., 300 F.3d 614, 618 (5th Cir. 2002)).

[40] Id. at 381 (citing Whiting Pools, 462 U.S. at 205); Simply Essentials, 78 F.4th at 1008.

[41] Id. at 382.

[42] Id.

[43] S. Coast Supply Co., 91 F.4th at 382 (citing In re TMT Procurement Corp., 764 F.3d 512, 525 (5th Cir. 2014)).

[44] Id.

[45] Id. at 384 (“[B]ankruptcy courts must ensure that fundamental bankruptcy policies of asset value maximization and equal distribution are satisfied.”).

[46] Id.

[47] See id. (describing a situation where the estate was maximized by a preference action sale).

Photo Credit: ABC Amega, Picture of Arbitration Agreement, https://www.abc-amega.com/wp-content/uploads/2020/12/arbitration.jpg (last visited April 1, 2024).

Authored by Samuel David Dantone

In January, the U.S. Supreme Court granted certiorari in the case of Smith v. Spizzirri, with oral arguments to be heard on April 22, 2024.[1]  This case will be the third Federal Arbitration Act  (“FAA”) case the Supreme Court has heard this term, marking the Court’s recent interest in arbitration-related issues.[2]  The question presented on appeal is whether, under the FAA,  a district court has the discretion to dismiss a case when all claims are subject to arbitration or if a court must stay a case.[3]

In the case at bar, current and former delivery drivers sued their “on-demand delivery service” employer in Arizona state court, alleging that the employer violated federal and state employment laws by misclassifying them as independent contractors, failing to pay them required wages, and failing to provide them with paid sick leave.[4]  Defendants removed the case to federal court, and subsequently moved to compel arbitration and to dismiss the case.[5]  While the Plaintiffs agreed that their claims were subject to arbitration, they argued that the district court was required to stay the case pending arbitration under § 3 of the FAA.[6]  The district court disagreed with the Plaintiffs, and in doing so, granted the defendant’s motion to compel arbitration and dismissed the claims without prejudice.[7]  On appeal, the Ninth Circuit reviewed the district court’s interpretation of the FAA and the order compelling arbitration de novo.[8]  

The delivery drivers advanced four arguments in favor of staying the case, rather than dismissing them.  First, the plaintiffs distinguished their case from the Ninth Circuit’s precedent as a case where a party to the suit requested a stay, unlike the precedent,where a stay was never requested by either of the parties.[9]  The plaintiffs argued that this result is consistent with § 3 because the stay is only required “on application of one of the parties.”[10]  Second, the plaintiffs argued that the FAA’s plain text should control, even in light of the Ninth Circuit’s precedent to the contrary.[11]  Third, the plaintiffs argued that Badgerow v. Walters, a recent Supreme Court decision, abrogated Ninth Circuit precedent, permitting the court to look to the plain text of § 3 instead.[12]  Finally, the plaintiffs argued that the district court abused its discretion in disregarding the potential administrative benefits that would have come from the action being stayed rather than dismissed.[13] The Ninth Circuit admitted that “the plain text of the FAA appears to mandate a stay,” however the Ninth Circuit sided with its own binding precedent and the minority of circuit courts, establishing that district courts may dismiss suits when all claims are subject to arbitration.[14]  In affirming the district court below, the Ninth Circuit rejected all the plaintiff’s arguments.

Section three of the FAA provides that, if any issue is referable to arbitration, the court “shall on application of one of the parties stay the trial of the action” until such arbitration is completed.[15]  Statutory interpretation of § 3 has led to a close split among the circuits.  Indeed, the concurring opinion in Forrest v. Spizzirri, identifies the split in asking for the Supreme Court to take up the question.[16]  The majority of circuit courts interpret § 3 as mandating a stay of proceedings when the issues are arbitrable.[17]  The minority of circuit courts permit district courts to dismiss a case when all issues in the action are subject to arbitration.[18]  While characterized as a clean split, the question is not as simple as it may seem. Some courts that side with the majority mandatory-stay approach have stated that where no party has requested a stay, dismissal may be appropriate.[19]  Further, the Sixth Circuit recognized that “a situation in which both parties request a dismissal” may be another circumstance that permits the district court to stray away from the plain text of § 3.[20]  Thus, “on application of one of the parties” may become a necessary phrase to interpret § 3.  In granting certiorari, the Supreme Court will receive another opportunity to resolve the increasingly irreconcilable split in circuit precedent.  The Court will have to decide whether federal courts have discretion to dismiss an action or if they must stay an action when the claims are arbitrable, and if the former, in what circumstances a district court may dismiss the action.

How the Supreme Court interprets § 3 of the FAA has many legal and practical consequences for litigators navigating claims potentially subject to arbitration. First, a decision to adhere to either approach would affect cases’ appealability.  9 U.S.C. § 16 sets out the appeal structure for the FAA.[21]  Section 16 of the Act prohibits appeals of orders in favor of arbitration, such as an order granting a stay under § 3 and an order refusing to enjoin an arbitration.[22]  However, dismissal of an action would permit an objecting party to file an immediate appeal.  The Sixth Circuit in Arabian Motors Group. W.L.L. v. Ford Motor Co., shot down the discretion-to-dismiss approach as “undercut[ting] the pro-arbitration appellate-review provisions of the Act,” because allowing an immediate appeal would “sidestep the clear policy preference of the Act.”[23]  Despite that, commentators in opposition to the mandatory-stay approach have stated that allowing an appeal of an order to arbitrate would not be in contrast to the goals of the FAA.[24]  They state that allowing a party to appeal an order to arbitrate “will adequately protect the rights of the parties by not subjecting them to the arbitral forum if they should not be bound to do so.”[25]  Thus, should the district court have a requirement to stay when requested, a litigator would have to fight the arbitrability of the claims before an arbitration forum rather than before a federal appellate court.  However, whether or not the arbitration panel would be permitted to come to a different conclusion on arbitrability than the court is still a question left open.[26]  The FAA does not address whether the question of arbitrability should be decided by the arbitration panel rather than the court.

Additionally, issuing a stay rather than dismissal may allow the courts to be more effective in their ongoing involvement with the arbitration proceedings.[27]  The FAA contains several provisions that enable the court to assist in arbitration.  Section 5 of the Act allows district courts to appoint arbitrators.[28]  Another provision, § 7, allows district courts to compel the attendance of witnesses before arbitrators.[29]  Finally, the court may confirm, vacate, modify, or correct an award made pursuant to arbitration.[30]  When the case is stayed, jurisdiction is retained by the district court where the action was filed or removed.  A litigator seeking confirmation, vacatur, or modification of an award would need only file a petition in the stayed action, rather than needing a separate basis for subject-matter jurisdiction.  A dismissal, in contrast, would most likely require the parties to file a new action, potentially in front of a different judge unfamiliar with the case.[31]  Filing a new action could lead to increased costs due to the need to serve process again.

Third, and finally, dismissing a case, rather than issuing a stay, could toll the statute of limitations of the action. Staying the case generally will not toll the statute of limitations.[32]  If the action remains stayed in court, the claimant may return to court without the statute of limitations running if the arbitrator declines to hear the case.  However, if the action is dismissed, the arbitrators decline to hear the case, and the statute of limitations runs in that time, the claim may be barred completely if a new action is filed.  This consideration may not be as strong for litigators since courts may start to condition dismissal, assuming they have the discretion to do so, on the defendant waiving any statute of limitations defense.[33]

How the Supreme Court will navigate the interpretation of FAA § 3 remains a mystery, but there are many practical consequences for litigators to consider, whether courts are granted the discretion to dismiss or not.  Litigators should be aware of how the Supreme Court’s ruling will affect the appealability of their claims, the court’s involvement in the arbitration of their claims, and whether they will have statute of limitations issues arise.

---

[1] Forrest v. Spizzirri, 62 F.4th 1201 (9th Cir. 2023), cert. granted, Smith v. Spizzirri, No. 22-1218, 2024 WL 133822 (2024).

[2] See Bissonnette v. LePage Bakeries Park St., LLC, 49 F.4th 655 (2nd Cir. 2022), cert. granted, Bissonnette v. LePage Bakeries Park St., LLC., No. 23-51, 2023 WL 6319660 (U.S. 2023); Suski v. Coinbase, Inc., 55 F.4th 1227 (9th Cir. 2022), cert. granted, Coinbase, Inc. v. Suski, No. 23-3, 2023 WL 7266998 (U.S. 2023).

[3] See Forrest, 62 F.4th at 1206 (Graber, J., concurring) (“But I encourage the Supreme Court to take up this question, which it has sidestepped previously . . . .”).

[4] Id.at 1203-04.

[5] Id. at 1204.

[6] Id.; see 9 U.S.C. § 3.

[7] Forrest, 62 F.4th at 1204.

[8] Id.

[9] Id. at 1205.

[10] Id.; see 9 U.S.C. § 3.

[11] Forrest, 62 F.4th at 1205.

[12] Id.; see Badgerow v. Walters, 596 U.S. 1, 4 (2022).

[13] Forrest, 62 F.4th at 1206.

[14] Id. at 1203, 1204-05 (citing Johnmohammadi v. Bloomingdale’s, Inc., 755 F.3d 1072, 1074 (9th Cir. 2014) (“[T]his court has long carved an exception if all claims are subject to arbitration.”).

[15] 9 U.S.C. § 3. (emphasis added).

[16] Forrest, 62 F.4th at 1206 (Graber, J., concurring) (“[A]nd on which the courts of appeals are divided . . . .”).

[17] Id. at 1206 n. 4 (“[T]he Second, Third, Sixth, Seventh, Tenth, and Eleventh Circuits require a stay upon application of a party.”); see Katz v. Cellco P’ship, 794 F.3d 341, 345 (2nd Cir. 2015) (citing cases from both approaches).

[18] Forrest, 62 F.4th at 1206 n. 4 (“[T]he Ninth, First, Fifth, and Eighth Circuits permit district courts to dismiss actions subject to arbitration . . . .”); see also Choice Hotels Intern., Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir. 2001) (“Notwithstanding the terms of § 3, however, dismissal is a proper remedy when all of the issues presented in a lawsuit are arbitrable.”).

[19] Armijo v. Prudential Ins. Co. of Am., 72 F.3d 793, 797 (10th Cir. 1995) (“However, in the case before us [where no stay was requested by the parties], we are not faced with a district court’s erroneous failure to enter a requested stay.”); United Steel, Paper and Forestry, Rubber, Mfg., Energy, Allied Indus. v. Wise Alloys, LLC, 807 F.3d 1258, 1268 (11th Cir. 2015) (“The record here contains no indication that either party requested a stay of this action.”).

[20] Arabian Motors Group W.L.L. v. Ford Motor Co., 19 F.4th 938, 942 (6th Cir. 2021) (dicta) (“There may be situations in which a dismissal remains permissible . . . .”).

[21] See 9 U.S.C. § 16.

[22] Id. § 16(b).

[23] 19 F.4th at 942.

[24] Richard A. Bales & Melanie A. Goff, An Analysis of an Order to Compel Arbitration: To Dismiss or Stay?, 115 Penn St. L. Rev. 539, 556 (2011).

[25] Id. at 556-57 (“[A]llowing a party to appeal the order to arbitrate protects that party’s interest in the arbitral forum.”).

[26] See First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995) (“[T]he court should give considerable leeway to the arbitrator, setting aside his or her decision only in certain narrow circumstances.”).

[27] See Lloyd v. Hovensa, LLC, 369 F.3d 263, 270 (3d Cir. 2004) (“[T]he District Court has a significant role to play under the FAA even in those instances in which the District Court orders the arbitration of all claims.”).

[28] 9 U.S.C. § 5.

[29] Id. § 7.

[30] Id. §§ 9-11.

[31] Forrest, 62 F.4th at 1206 (“Plaintiffs could file a new action to confirm or vacate any arbitration award.”).

[32] See Zarecor v. Morgan Keegan & Co., Inc., 801 F.3d 882, 889 (8th Cir. 2015) (“We conclude that pursuit of arbitration did not toll the federal statute of limitations.”).

[33] Stewart v. Acer Inc., No. 22-CV-04684-VC, 2023 WL 1463413, at *1 (N.D. Cal. Feb. 1, 2023) (“[I]n an abundance of caution, the case will be stayed unless Acer files something on the docket within 7 days of this order waiving any statute of limitations defense . . . .”).

Photo Credit: u/Der_Ist, Terminator lawyer, Reddit (Dec. 6, 2023, 10:21 AM), https://www.reddit.com/r/Terminator/comments/18c7lqy/terminator_lawyer/.

Authored by Dorris (Trey) E. Jernigan III

A scene in the James Cameron 1991 classic, Terminator 2: Judgment Day, where the villain of the movie, an artificial intelligence named Skynet, drops a nuclear bomb over Los Angeles, eviscerating the entire city.[1] It is a fearful, awful (yet iconic) scene meant to show the dangers of AI if we allow it to go too far. Recently, as AI has advanced and become more prevalent in the legal community, that is how many attorneys have felt, fearing the possibility of AI taking over legal jobs. For over two centuries, litigators across America have been combing through cases in books and on the internet, looking to find that golden nugget, that crucial line from a case that could be the turning point in winning the case for their clients. These nuggets are notoriously tricky to find, with hours upon hours of research required to find some of the most on-point cases. As the years have passed, legal research has turned into an art form, with some of the most skilled researchers priding themselves on quick and accurate results. With the introduction of AI, these skills have been brought into the modern age, and many people have access to them through their computers. Whether we like it or not, the AI train is coming, and there is likely nothing that will derail it off the tracks. That is why attorneys and litigators alike must learn to embrace AI rather than fear it, as it brings many positives regarding legal research and writing, and its overall pros far outweigh the cons. Throughout the remainder of this article, I want to briefly mention the background of legal research technologies all the way through the implementation of AI in the legal community today. As the cliché goes, “you can’t know where you are going unless you know where you’ve been.”

The practice of legal research began back in 1765, with Blackstone’s publication of Commentaries on the Laws of England.[2] However, modern case law research did not begin for over one hundred years, when in 1876, John B. West published the Syllabi, which reported on all of the year’s Minnesota Supreme Court Rulings.[3] The publication quickly took off, with other states wanting a similar legal reporting system of their own. All of this commotion culminated in 1879 when West released two innovations that still have massive influence today: the National Reporter System and the Key Number System.[4] The National Reporter System introduced the first nationwide U.S. judicial decision reporting, which changed the game when compared to the often very slow state reporting system. The National Reporter System provided attorneys nationwide access to cases from all U.S. state and federal jurisdictions, allowing them to craft stronger arguments than ever before.[5] The Key Number System was the first indexing system introduced to the legal world. It organized cases by topics and subdivisions, allowing attorneys to access cases relevant to the issues they were facing quickly.[6] The Key Number System revolutionized the world of legal research and writing, so much so that it is still an instrument that lawyers today value highly.

Fast forward approximately one hundred years to the digital era, and the legal research landscape transitioned to resemble the system we use and see today. Throughout the 1960s, state bar associations began evaluating ways to streamline the legal research process by using newly introduced computers.[7] By the time the 70s rolled around, Lexis (now LexisNexis) launched their online platform and changed everything in the world of legal research and writing.[8] Gone were the days of flipping through pages of books and dusty legal tombs; now lawyers everywhere had unheard-of access to even the most recent judicial decisions, and the cherry on top, they were searchable by keywords![9] A few years later, West followed suit, creating Westlaw, and the legal research platform arms race was off and running.[10] Nearly fifty years later, these advancements are still the foundation many attorneys use in their practice daily.

That brief history of legal technologies leads us to today, the era of artificial intelligence (AI). AI has revolutionized legal writing and research by providing unprecedented access to vast amounts of information and enhancing the efficiency and accuracy of legal processes. Through natural language processing algorithms, AI platforms can swiftly sift through immense volumes of legal documents, statutes, and case law to extract relevant information. This capability expedites legal research, enabling lawyers to spend more time analyzing complex issues rather than conducting tedious searches. Moreover, AI-powered tools assist in drafting legal documents by generating structured, coherent, and tailored content based on input parameters. These tools not only save time but also reduce the likelihood of errors. However, while AI streamlines many aspects of legal writing and research, it also presents challenges, such as the need for lawyers to adapt to new technologies and the potential ethical implications of relying solely on algorithmic outputs in decision-making processes. Thus, while AI offers tremendous benefits to the legal profession, it requires careful integration and oversight to maximize its advantages while mitigating risks.

Do you want to know how easy it is to utilize AI in your writing? Well, I used ChatGPT to write the entire preceding paragraph (after the first sentence).[11] As you can see, AI such as ChatGPT, LexisAI, and Westlaw Precision with AI can create well-written content, and I actually agree with all of the positives the AI outlined in the paragraph above. However, many pitfalls come with using AI to write legal briefs and to conduct research, such as data privacy concerns and the danger of attorneys becoming overly reliant on AI, weakening their writing and argumentative skills. Still, the number one issue yet to be ironed out is that AI has been known to make up cases out of thin air.[12] Several attorneys have been quick to rely on the copy-and-pasting of AI-written briefs straight into their court briefs and memoranda, and this reliance has come back to bite them as it did not take long for courts to catch these fabricated cases.[13]

In Mata v. Avianca, the first case involving this issue to gain widespread attention, a young attorney (working under a supervising partner) copied and pasted a ChatGPT written memorandum into a court filing.[14] Quickly after, the opposing party filed a memorandum stating that Plaintiff had not cited any existing authority that supported their proposition and that seven of the purported “decisions” cited by Plaintiff’s counsel could not be located.[15] The court conducted its own search for these clandestine cases and could not locate them either.[16] Upon being confronted about these cases that nobody could find, the supervising partner was shocked to learn that they were not real, as he had not checked the cited case law the young attorney had copied and pasted.[17] When questioned, the young attorney stated that he was “operating under the false perception that [ChatGPT] could not possibly be fabricating cases on its own[]” and that “ChatGPT is finding that case somewhere . . . [m]aybe it’s unpublished . . . [or] appealed . . . [or] access is difficult to get . . . I just never thought it could be made up.”[18] Regardless of what he thought, the court sanctioned him and the supervising partner and fined them $5,000.[19]

Green attorneys are not the only ones susceptible to this sort of blunder, however. Even the most seasoned and famous lawyers (or a non-lawyer, in this case) can get caught in the trap of AI’s fake cases. In 2023, Michael Cohen, Donald Trump’s former lawyer, unknowingly presented his attorney with fake, AI-fabricated cases in an effort to help his attorney out with Cohen’s case, which the attorney later used in a motion filed with the court.[20] Once again, this was a failure by an attorney to double-check the cases supporting  his argument; Cohen asked that the judge give his attorney mercy for the mishap, calling it an “honest mistake” and “a product of inadvertence, not any intent to deceive.”[21] Ultimately, the judge declined to impose sanctions on Cohen and his attorney, calling the incident “embarrassing and unfortunate” while accepting Cohen’s explanation that he did not understand how the AI worked.[22]

While these attorneys may have been caught misusing AI to their detriment, those who have read this article will not make this same blunder. Here are several ways in which you can incorporate artificial intelligence into your research and writing to hopefully improve your writing and save you time, all the while keeping your briefs within the realms of reality.

1.      Check, Double Check, and Triple Check Those Cases.

This one should be easy. Don’t get caught using fake cases like the lawyers above did. Check those cases! It should be as simple as inputting the case it gives you into your search engine of choice. I have also run into the issue of AI giving me real cases, but they are not on the topic I asked for at all. Always be wary of the cases AI is feeding you, and make sure to check them for accuracy.

2.         Consider What Type of Argument AI Can Craft, but Never Copy and Paste That Argument.

Legal AI tools have reached the point where a person can say, “Write me a summary judgment on X issue with Y facts,” and it can craft a pretty decent argument in your favor. However, AI-written pieces are known to be overly wordy and very choppy.[23] That’s where you can come in, humanize the writing, and pick and choose the parts of the argument you want to use, if any. Even if you don’t end up using anything out of the brief the AI wrote, it may still inspire you on the way to structure an argument or may give you ideas on arguments you have not previously thought of. Just remember, you have an obligation to your clients and the courts to ensure that any argument you make is sound in law and logic and that you are not missing out on any arguments that could help your client’s case.[24]

3.      Make Sure to Comply with the ABA Rules of Professional Conduct.

Finally, using artificial intelligence in legal writing comes with a slew of different ethical concerns. The Model Rules of Professional Conduct require that every attorney provides “competent representation to a client,” including understanding “the benefits and risks associated with relevant technology.”[25] Whether you mean to or not, misusing AI can lead to disaster and sanctions for yourself or, at the very least, a tarnished reputation. There are also issues when it comes to client confidentiality, as some AI models run the risk of “reveal[ing] information related to the representation of a client” without the client’s “informed consent,” violating Model Rule 1.6.[26] Many experts have stated that “open source” AI technologies like ChatGPT could violate the duty of confidentiality by including specific case information that is then shared with an “AI trainer.”[27] Do not fret, however, as AI products such as CoCounsel and Harvey contain confidentiality controls to negate these disclosure risks.[28]

Now, this is not an exhaustive list, nor are these all the considerations an attorney should take before dipping their toe into the AI water; however, it is a good start. AI is the way of the future, and while right now, some may think of it as a cheat or an ethical violation, it may soon reach a point where not using it will be an ethical violation, as litigators, trial attorneys, and transactional attorneys alike who do not use AI are putting themselves, and therefore their clients, at a disadvantage. Until that time comes, however, do something the AI cannot do: use your brain. Check those citations. Let the AI be a guide and not a crutch. As John Connor says, “The future is not set. There’s no fate but what we make for ourselves.”[29]

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[1] Terminator 2: Judgment Day (Carolco Pictures 1991).

[2] From Dusty Tomes to Artificial Intelligence: The History and Future of Legal Research, Blue J, https://www.bluej.com/blog/from-dusty-tomes-to-artificial-intelligence-the-history-and-future-of-legal-research (last visited Mar. 20, 2024).

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] I used the prompt “Write me a paragraph discussing how AI has changed legal writing and research” and entered it into ChatGPT 3.5 on chat.openai.com.

[12] Benjamin Weiser, Here’s What Happens When Your Lawyer Uses ChatGPT, The New York Times (May 27, 2023), https://www.nytimes.com/2023/05/27/nyregion/avianca-airline-lawsuit-chatgpt.html.

[13] See generally, Mata v. Avianca, 22-cv-1461 (PKC), 2023 WL 4114965 (S.D.N.Y. June 22, 2023); Park v. Kim, 91 F.4th 610 (2nd Cir. 2024); J.G. v. New York City Dep’t of Educ., 23 Civ. 959 (PAE), 2024 WL 728626 (S.D.N.Y. Feb. 22, 2024).

[14] Mata, 2023 WL 4114965, at *2-3.

[15] Id. at *3.

[16] Id.

[17] Id. at *2.

[18] Id. at *3.

[19] See id. at *17 (stating that the $5,000 was “sufficient but not more than necessary to advance the goals of specific and general deterrence”).

[20] Larry Neumeister, Ex-Trump lawyer Michael Cohen says he unwittingly sent AI-generated fake legal cases to his attorney, The Assoc. Press (Dec. 29, 2023, 2:10 PM), https://apnews.com/article/michael-cohen-donald-trump-artificial-intelligence-777ace9cc34aa0e56398fd47a1d6b420.

[21] Id.

[22] Benjamin Weiser, Judge Won’t Punish Michael Cohen for Relying on Artificial Intelligence, The New York Times (March 20, 2024), https://www.nytimes.com/2024/03/20/nyregion/michael-cohen-artificial-intelligence.html.

[23] Ivy B. Grey & Danielle Cosimo, Why AI-Generated Text Sounds Wordy and Choppy, Wordrake, https://www.wordrake.com/blog/wordy-choppy-generative-ai (last visited March 25, 2024).

[24] Kate Rattray, Should Lawyers Use AI for Briefs?, Clio, https://www.clio.com/blog/ai-brief/ (last updated Mar. 8, 2024).

[25] Model Rules of Pro. Conduct r 1.1 cmt. 8 (Am. Bar Ass’n 2012).

[26] William A. Ryan et al., Practical Lessons from the Attorney AI Missteps in Mata v. Avianca, Ass’n of Corp. Couns. (Aug. 8, 2023), https://www.acc.com/resource-library/practical-lessons-attorney-ai-missteps-mata-v-avianca#; Model Rules of Pro. Conduct r 1.6(a) (Am. Bar Ass’n 2012) (“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent…”).

[27] Ryan, supra note 26.

[28] Id.

[29] Terminator 2: Judgment Day (Carolco Pictures 1991).

Photo Credit: Photograph of the New York Stock Exchange, in Gabriella Hammond, How to Experience the New York Stock Exchange, The Wall Street Experience (Sept. 4, 2023), https://www.thewallstreetexperience.com/blog/experience-the-nyse/ (“The New York Stock Exchange – also known as the “Big Board” – is one of the oldest and largest stock exchanges on the planet. Located on Wall Street in Lower Manhattan, the NYSE stands as both a symbol of capitalism and as the financial center of the U.S.”).

Authored by Cameron C. McCormack

In May 2022, President Joe Biden signed The Courthouse Ethics and Transparency Act (“the Act”).[1] The Act now requires online publication of financial disclosure reports of judicial officers (including Supreme Court Justices), bankruptcy judges, and magistrate judges.[2] The Ethics in Government Act of 1978 (“EIGA”) originally established financial disclosure reports for many high-level government officials and employees, including the Chief Justice of the United States and the Associate Justices of the Supreme Court.[3] But recent news articles highlighting undisclosed trips by an Associate Justice sparked public outrage regarding the transparency of the judicial system in the United States.[4] This increased scrutiny around the transparency of the judicial system in our county prompted lawmakers to revisit court ethics and the interpretation of the EIGA’s established reporting requirements.[5]

Initially, the EIGA required senior government employees to ensure financial interests were public, including sources of income, liabilities, gifts, and transactions.[6] Although disclosing their financial interests were required, the information could only be accessed through thumb drives or paper copies.[7] However, the recent media attention regarding an Associate Justice’s undisclosed trips brought the EIGA to the forefront of the media, sparking lawmakers to change the EIGA. The Act now requires the Administrative Office of the United States Courts (“AO”) to establish a “searchable internet database to enable public access to any report required to be filed” under the EIGA.[8] Additionally, the Act now requires federal judges to report any purchase, sale, or exchange of securities that exceeds $1,000 within 45 days of the transaction.[9]

Considering a recent article published by the Wall Street Journal, it seems that having knowledge of the financial interest judges may have in real-time could be crucial information for an attorney preparing to go before that judge.[10] The Wall Street Journal examined the financial disclosure forms submitted each year from 2010 to 2018 by approximately 700 federal judges who disclosed ownership of shares in major corporations.[11] Subsequently, this information was cross-referenced with court records from civil cases.[12] According to The Wall Street Journal’s investigation, 129 federal district judges and two federal appellate judges were involved in at least one case where a stock owned by them or their family was either the plaintiff or defendant.[13] The judges provided several justifications for their actions.[14] In certain instances, they attributed errors to misspelled names or mistakes made by clerks.[15] In other cases, the judges claimed they believed it unnecessary to disqualify themselves when their role in the case was minimal, when the stock belonged to a family member, or when the stock was traded through an account managed on their behalf, rather than by the judges personally.[16] All of these justifications were wrong as a matter of law.[17] Federal judges are supposed to “disqualify” themselves in any proceeding in which their “impartiality might reasonably be questioned.”[18] The law also requires recusal when the judge knows he or she “has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”[19]

Recent issues have delayed what inevitably will be a valuable resource for any attorney. The Act requires annual disclosures to be published within 90 days of submission by judges, while interim reports must be filed within 45 days of the transaction.[20] However, the AO has faced challenges with posting the annual disclosure reports.[21] More specifically, while judges submit the required disclosure information, the AO has struggled to post the yearly reports from nearly 2,500 judges.[22] The possible delay in posting the required reports could be due to the looming government shutdowns.[23] While Congress passed a short-term bill to extend last year’s funding levels until mid-November, the AO requests $297,000 for the fiscal year 2024 to support hiring ten people to process the financial disclosures.[24] Another possible delay in the disclosures could be due to specific provisions in the Act that allow for a delay in information if the AO finds “revealing personal and sensitive formation could endanger that individual or a family member of that individual.”[25]

A reasonable attorney will conduct thorough research regarding their client, the issue at hand, the applicable law, the venue, and the judge presiding over the case. Before the Act was signed into law in 2022, financial disclosures by judges were challenging to access because they were stored on paper or thumb drives. However, an attorney will now have all this information readily available on a database to ensure complete financial transparency from the federal judge in the case.[26] When fully implemented, the online database provided by the Act should be a valuable resource for any attorney.

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[1] 5 U.S.C. § 1305.

[2] Id.

[3] Delaney Marsco, At 40 Years Old, The Ethics in Government Act is in Need of a Tune-up, Campaign Legal Center, https://campaignlegal.org/update/40-years-old-ethics-government-act-need-tune (Oct. 26, 2018) (“Born out of the post-Watergate scandal reforms, EIGA is one of the most important laws on our books ensuring transparency at our highest levels of government and accountability from our nation’s most senior decisionmakers.”).

[4] Brett Murphy & Alex Mierjeski, Clarence Thomas’ 38 Vacations: The Other Billionaires Who Have Treated the Supreme Court Justice to Luxury Travel, ProPublica (Aug. 10, 2023, 5:45 AM), https://www.propublica.org/article/clarence-thomas-other-billionaires-sokol-huizenga-novelly-supreme-court) (“At least 38 destination vacations, including a previously unreported voyage on a yacht around the Bahamas; 26 private jet flights, plus an additional eight by helicopter; a dozen VIP passes to professional and college sporting events, typically perched in the skybox; two stays at luxury resorts in Florida and Jamaica; and one standing invitation to an uber-exclusive golf club overlooking the Atlantic coast.”).

[5] See Courthouse Ethics and Transparency Act, Pub. L. No. 117–125, 136 Stat. 1205 (2022); see also 68 Cong. Rec. H4522 (daily ed. Apr. 27, 2022) (statement of Rep. Hakeem Jeffries) (“Failure to recuse can cause real harm to parties seeking fair and impartial justice and leave a cloud of doubt over any decision that is made once the conflicts are subsequently uncovered.”).

[6]  See Ethics in Government Act of 1978, Pub. L. No. 95–521, 92 Stat. 1824 (1978) (codified as amended at 5 U.S.C. app. §§ 101-11).

[7] New Database Eases Release of Judges’ Finance Reports, United States Courts (Nov. 7, 2022), https://www.uscourts.gov/news/2022/11/07/new-database-eases-release-judges-finance-reports (“Federal judges have filed annual financial disclosure reports for decades. Previously, there was no central database, and FDRs were available only in paper documents or on thumb drives.”).

[8] 5 U.S.C. § 13107.

[9] Id.

[10]  See James V. Grimaldi et al., 131 Federal Judges Broke the Law by Hearing Cases Where They Had a Financial Interest, The Wall St. J. (Sept. 28, 2021, 9:07 AM), https://www.wsj.com/articles/131-federal-judges-broke-the-law-by-hearing-cases-where-they-had-a-financial-interest-11632834421.

[11] See id.

[12] See id.

[13] See id.

[14] See id.

[15] See id.

[16] See id.

[17] See generally 28 U.S.C. § 455.

[18] Id. § 455(a).

[19] Id. § 455(b)(4) (“[Any justice, judge, or magistrate judge of the United States] knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”).

[20] Id. § 1305.

[21] Suzanne Monyak, New Disclosure Site Slow to Post Judicial Stock Trading Reports, Bloomberg Law (Oct. 11. 2023, 3:45 AM), https://news.bloomberglaw.com/us-law-week/new-disclosure-site-slow-to-post-judicial-stock-trading-reports

[22] See id.

[23] See id.

[24] See id.

[25] 5 U.S.C. § 13107(3)(A).

[26] See 5 U.S.C. §§ 13105, 13107.

Photo Credit: Associated Press, Photograph of John Gotti Senior, in Charlie Parker, Son of One of America’s Most Feared Mob Bosses John Gotti Reveals What His Childhood Was like in a Mafia Family, The Sun, (Apr. 16, 2019), https://www.thesun.co.uk/sun-men/8869276/son-mob-boss-john-gotti-childhood-mafia-family/.

Authored By: W. Chase Harvey

The Racketeer Influenced and Corrupt Organizations Act (“RICO”) is a federal law that was enacted in 1970 to combat organized crime.[1] The law provides extended criminal penalties and civil liabilities for activities which are considered part of an ongoing criminal enterprise.[2] The RICO Act is often implemented to prosecute individuals and groups who are involved in organized crimes.[3] To convict a criminal defendant under federal RICO charges, the government must prove beyond a reasonable doubt:

(1) that an enterprise existed; (2) that the enterprise affected interstate commerce; (3) that the defendant was associated with or employed by the enterprise; (4) that the defendant engaged in a pattern of racketeering activity; and (5) that the defendant conducted or participated in the conduct of the enterprise through that pattern of racketeering activity through the commission of at least two acts of racketeering activity as set forth in the indictment.[4]

Since the rise and fall of the last notorious mob boss, John Gotti (also referred to as “Teflon Don”), federal prosecutors have used the RICO statute to induce fear of lengthy incarceration upon defendants in hopes of getting plea bargains.[5] This saves the federal government time and money, and ultimately ensures a conviction.[6] Because RICO allows for more lenient standards when offering evidence, defendants and their attorneys are often forced to take the negotiated plea deal instead of risking twenty (or more) years in federal prison.[7] These statistics are supported by the Pew Research Center, which found that nearly 98% of federal criminal cases ended before going to trial.[8]

Supporters of RICO argue the law is necessary to combat organized crime and has been a successful tool in bringing down criminal enterprises.[9] They point to high-profile cases where RICO was used to prosecute individuals involved in organized crimes – especially highlighting cases involving the mafia and drug cartels.[10] While such cases are certainly relevant, the mob no longer exists as it once did and now has minimal influence compared to the 1980’s and prior.[11]

Abolitionists of RICO point out several concerns.[12] First, they argue that the law is overly broad and can be applied to individuals who are not involved in organized crime.[13] Critics say that the law’s definition of “racketeering activity” is too vague and can be interpreted in ways the original drafters of the law did not intend.[14] Critics are undoubtedly right when arguing that RICO covers too many crimes.[15] For instance, RICO sets forth penalties for “any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance.”[16]The Act also addresses the consequences of running an illegal gambling book.[17] Essentially, every crime under the sun may constitute a RICO violation if the prosecution can sufficiently show a pattern of racketeering activity.[18]

Interestingly, Congress numerically identified that two or more instances of racketeering will constitute a “pattern.”[19] However, any ordinary person outside the legal field will tell you that a pattern is not reduced to simply two instances. For example, Black’s Law Dictionary defines a “pattern” as “[a] mode of behavior or series of acts that are recognizably consistent.”[20] Furthermore, proponents of RICO tend to focus on the high-profile convictions rather than Congress’s initial intent when enacting the Act.[21] When it boils down, Congress passed RICO with intentions to eliminate the mob.[22] But, prosecutors today use RICO to extend criminal sentences for defendants who are clearly not mob bosses.[23]

Opponents of RICO further argue that the law violates due process by allowing prosecutors to bring charges against an individual for crimes that they did not commit directly, but for crimes that were committed by others within the individual’s organization.[24] The opponents argue that this violates the principle of individual culpability and may lead to guilt by association.[25] Finally, some critics argue that RICO has been used to target businesses and individuals who are not involved in organized crime.[26] Such critics argue that the law’s wide-ranging powers have been abused by prosecutors and law enforcement agencies, leading to unjust prosecutions and overly harsh sentences.[27]

Accordingly, the debate over whether RICO should be abolished is complex and multifaceted. While some argue that the law is overly broad and can be abused, others argue it is necessary to combat organized crime.[28] Ultimately, the decision on whether to abolish RICO will depend on how individuals view the role of the law in fighting against crimes and protecting individual rights.

---

[1] See 18 U.S.C. §§ 1961–68.

[2] U.S. Sent’g Comm’n, Primer: RICO Guideline (Racketeer Influenced and Corrupt Organizations), (2020), https://www.ussc.gov/sites/default/files/pdf/training/primers/2020_Primer_RICO.pdf.

[3] Stacy M. Brown, Experts Say Lawmakers Should Abolish RICO Law, The Seattle Medium (Oct. 21, 2021), https://seattlemedium.com/experts-say-lawmakers-should-abolish-rico-law/.

[4] U.S. Dep’t of Just. Archives, Just. Manual, Crim. Res. Manual § 109 (2020).      

[5] Brown, supra note 3.

[6] Carrie Johnson, The Vast Majority of Criminal Cases End in Plea Bargains, A New Report Finds, NPR (Feb. 22, 2023), https://www.npr.org/2023/02/22/1158356619/plea-bargains-criminal-cases-justice.

[7] Brown, supra note 3(explaining that RICO charges may be added to a conviction involving the same crime that extends a defendant’s sentence by 20 years, or perhaps life).

[8] John Gramlich, Only 2% of Federal Criminal Defendants Went to Trial in 2018, and Most Who Did Were Found Guilty, Pew Research Center (June 11, 2019), https://www.pewresearch.org/fact-tank/2019/06/11/only-2-of-federal-criminal-defendants-go-to-trial-and-most-who-do-are-found-guilty/.

[9] See Scot J. Paltrow, Debate Rages Over the Long Arm of RICO, The Los Angeles Times (Aug. 13, 1989), https://www.latimes.com/archives/la-xpm-1989-08-13-fi-800-story.html.

[10] See id.

[11] Selwyn Raab, A Battered and Ailing Mafia Is Losing Its Grip on America, The New York Times (Oct. 22, 1990), https://www.nytimes.com/1990/10/22/us/a-battered-and-ailing-mafia-is-losing-its-grip-on-america.html.

[12] See Brown, supra note 3; Paltrow, supra note 9.

[13] Brown, supra note 3.

[14] Paltrow, supra note 9.

[15] See id.; 18 U.S.C. § 1961 (defining the term known as “racketeering activity”).

[16] 18 U.S.C. § 1961.

[17] See U.S. Atty’s Office, FBI Archives, Phila. Div. (Aug. 8, 2012), https://archives.fbi.gov/archives/philadelphia/press-releases/2012/members-of-alleged-sports-betting-ring-charged-with-racketeering.

[18] See 18 U.S.C. § 1961(5) (defining the phrase “pattern of racketeering activity”).

[19] See id.

[20] Pattern, Black’s Law Dictionary (11th ed. 2019).

[21] See Brown, supra note 3; Paltrow, supra note 9.

[22] See Paltrow, supra note 9.

[23] Brown, supra note 3; Eric Levenson & Bill Kirkos, R. Kelly, Already Serving 30 Years for Sex Trafficking, Sentenced to 20 Years in Federal Child Porn Case, CNN (Feb. 23, 2023), https://www.cnn.com/2023/02/23/entertainment/rkelly-chicago-child-porn-sentence/index.html#:~:text=Kelly%2C%2056%2C%20is%20already%20serving,a%20New%20York%20federal%20court; see Aryan Circle Gang Leader Sentenced to Life in Prison for RICO Violations Following HSI Houston-Assisted Investigation, U.S. Immigration and Customs Enforcement (Sept. 9, 2022), https://www.ice.gov/news/releases/aryan-circle-gang-leader-sentenced-life-prison-rico-violations-following-hsi-houston (noting that the RICO Act has recently been used to disband the Aryan Brotherhood).

[24] George Clemon Freeman, Jr. & Kyle E. McSlarrow, RICO and the Due Process “Void for Vagueness” Test, 45 The Business Lawyer, 1003, 1003 (1990), https://www.jstor.org/stable/40687107; see William L. Anderson & Candice E. Jackson, Law as a Weapon, How RICO Subverts Liberty and the True Purpose of Law, 91 The Independent Review 85, 88 (2004), https://www.independent.org/publications/tir/article.asp?id=215.   

[25] See Brown, supra note 3; Anderson & Jackson, supra note 24.

[26] Rob Frehse and Faith Karimi, Some Defendants in College Admission Scam Want Racketeering Charges Dismissed, CNN (Oct. 16, 2019), https://www.cnn.com/2019/10/16/us/college-admission-scandal-racketeering-charges/index.html.

[27] See id.; Anderson & Jackson, supra note 24.

[28] See Brown, supra note 3; Paltrow, supra note 9; Anderson & Jackson, supra note 24.

Photo Credit: Mike Cason, Which counties moved on Alabama’s new congressional district map?, Alabama Media Group (July 22, 2023), https://www.al.com/news/2023/07/zero-for-11-election-results-show-new-alabama-map-wont-fix-voting-rights-violation-black-voters-say.html.

Authored By: John Paradise

The State of Alabama is no stranger to accusations concerning infractions of voting rights. With historical foundations of Jim Crow era laws that hinged voting participation on literacy and property ownership, the implementation and, of higher importance, the desired outcome of the Voting Rights Act of 1965 has proved difficult for the State to achieve.[1] This difficulty can be evidenced by the State of Alabama’s presence in a significant proportion of landmark Supreme Court decisions regarding the interpretation of the Voting Rights Act. It was voting policies in the City of Mobile that garnered the highly criticized and now overruled Supreme Court holding which purported the notion that voting discrimination is only present when a “racially discriminatory motivation” or an “invidious purpose” could be shown.[2] More recently, it was Shelby County, Alabama that successfully sought to have Sections 5 and 4(b) of the Voting Rights Act – both safeguards from counties changing election laws without official authorization from the Attorney General – declared unconstitutional.[3] However, no topic regarding the protection of Alabamian’s voting rights has received public and judicial contention as has the issue of the State’s congressional map.

The Alabama congressional map is currently divided into seven districts.[4] Detractors of the congressional voting make-up of the State have long claimed the map is strategically proportioned to limit the voting efficacy of the minority vote, which is synonymous in Alabama with the Black vote.[5] Judicial action regarding the congressional map of Alabama first surfaced in 1992 with a group of plaintiffs representing “all African-American citizens of the State of Alabama.” These plaintiffs claimed that the State’s black population was “sufficiently compact and contiguous” to comprise an African-American majority congressional district.[6] The federal district court obliged, reworking District Seven (7) into an irregularly shaped district that roped off populous clusters of African American voters in the urban centers of Birmingham and Montgomery and connected the two across a swath of majority-black rural area known in Alabama as the “Black Belt.”[7] While this creation has now been held unconstitutional as an “extreme” form of racial gerrymandering, the federal district court’s creation remained relatively unchanged for over thirty years.[8] With eighty percent (80%) of Black Alabamians voting Democratic, the creation of the first-ever majority-Black Alabama district in District 7 appears to have been used as an affront to appease the African American caucus while also strategically lowering the democratic vote in Birmingham and Montgomery – two of Alabama’s largest cities.[9] However, in June 2023, an unsuspected harbinger came in the form of a Supreme Court decision where a historically conservative Court found Alabama’s congressional map to violate the Voting Rights Act.[10] Subsequently, the State was ordered to redraw the districts to allow Black voters to “have an [additional] opportunity to elect a representative of their choice.”[11]

The foundations for Allen v. Milligan began in 2020 when the decennial census revealed that the population of Alabama had increased by 5.1%.[12]  While this increase did not warrant a change in the number of seats Alabama would receive in the House, the growth was unevenly portioned and ultimately rendered the current Congressional map, created in 2011, out of date.[13] The updated 2020 map was nearly identical to the previous 2011 map, again reflecting only one district in which Black voters made up the majority voting age population.[14] In response, three groups of plaintiffs sought injunctive relief in federal district court against Alabama’s Secretary of State in an effort to prohibit the use of the 2020 map.[15] In a lengthy 227-page opinion, the federal district court promulgated that the issue of whether the 2020 Alabama congressional map violated the Voting Rights Act was not “a close one,” preliminarily enjoining the State from using it in subsequential elections.[16]

To determine whether the district court correctly interpreted the Voting Rights Act, the Supreme Court granted certiorari of the State’s appeal. When examining whether there has been a Voting Rights infraction regarding congressional districting, the Court has long applied the Gingles framework to given facts.[17] In Gingles, the Supreme Court found that the State of North Carolina unlawfully discriminated against African Americans by diluting their vote through strategic districting.[18] The Court opined that the greatest risk for this occurs when “minority and majority voters consistently prefer different candidates” and where minority voters are zoned in a majority population that “regularly defeats” their choices.[19] To ease the process of determining when this form of voting discrimination is present, the Court further purported three preconditions that the plaintiff must satisfy to successfully bring a Voting Rights action against a state for unlawful congressional districting.[20] These preconditions set forth that the minority group must: (1) be “sufficiently large and geographically compact” to make-up a majority in a “reasonably configured” district; (2) be politically cohesive; and (3) be able to demonstrate that the white majority “votes sufficiently as a bloc,” enabling it to defeat the minority’s choice of candidate.[21] To support the first precondition, the Plaintiffs provided examples of eleven districting maps which  not only granted an additional majority-black district to the State, but were also “compact, contained equal populations, [] contiguous, and respected existing political subdivisions.”[22] The Court further claimed that there was “no serious dispute” regarding preconditions two and three for the Gingles framework, with voting demographics revealed that Black voters averagely supported their choice of candidate with 92.3% of the vote, where white voters only voted for Black-preferred candidates 15.4% of the time.[23] With these preconditions satisfied, the Court ruled that under the totality of the circumstances, African American Alabamians were enjoying “virtually zero success in statewide elections.”[24] Accordingly, the Court held that the federal district court did not err in finding that the current Alabama congressional map violated the Voting Rights Act and could not constitutionally be enforced.[25]

In affirming the district court’s holding, the Supreme Court has required the State to create a new congressional map with a second majority Black district or “something quite close to it” in order to afford Black voters an opportunity to elect a candidate of their choice.[26] Having released such opinion on June 8, 2023, the Supreme Court tasked the Alabama Legislature to have a map meeting these requirements approved by July, 21, 2023.[27] Sparing little time, the State Legislature approved a new map on the day of the deadline; however, it appears evident that the new map fails to meet the guidelines required of it by the Court.[28] The resulting map does not add a second majority-Black district; instead, it increases the Black voting age population in District 2 and covers southeast Alabama from 30% to 42.5%.[29] In hopes that the rezoning of District 2 would be the second “opportunity” district for Black Voters, the democratic caucus of Alabama has judicially challenged the implementation of the redrawn map.[30] With the redrawn District, demographics reveal that the Black-preferred candidate received less votes than the white-preferred counterpart in all head-to-head elections since 2014 by an average deficit of more than ten percentage points.[31] Thus, with Black voters in the newly configured District 2 being unable  to elect their preferred candidates, detractors claim that the new map approved by the Legislature offers no more opportunity than it did with the old map, therefore categorizing it as unlawful under the Supreme Court’s guidelines.[32]

A three-judge federal district court panel is scheduled to hear the objections to the new map on August 14, 2023.[33] Alabama’s Secretary of State has ordered a new map to be prepared within conformity to the Supreme Court’s guidelines by October 1.[34] The expectations of the new map suggest that a third-party special master will be appointed by the court to redraw the congressional map if the district court finds the Legislature’s approved map invalid.[35] However, there is currently an in-party split within the Alabama democratic caucus regarding which map should be adopted by the federal court.[36] By keeping a part of Jefferson County connected to the already majority-Black District 7, some Alabama democrats suggest the only way to amend the State’s voting infractions is to create a second majority-Black district in the eastern half of Alabama’s “Black Belt.”[37] While this would no doubt satisfy the Supreme Court’s demands, others suggest a different and more logical way to create a second opportunity district for Black Alabamians.[38] Viewing the irrationality of the make-up of District 7 – which connects Birmingham (Jefferson County), the largest urban metropolitan area in the State, to the more southern, rural area of the western half of the “Black Belt” – some believe the resolution lies in making Jefferson County the entirety of the 6th congressional district.[39] But, with 40% of Jefferson County being African American, this would not create a second majority-Black district.[40]  However, voting demographics in Jefferson County reveal that opportunity is created by the fact that the Black-preferred candidate has received more votes than their Republican opponents in a significant majority of elections held since 2012.[41] This opportunity derives from Jefferson County having more white voters who support Democrats than other portions of the State.[42]

While it is unclear which route is more efficient in further amending the century long voting rights disparity in Alabama, it appears transparent why Alabama Republicans are dragging their feet with the demands of the Supreme Court. United States House Republicans hold just a narrow edge over Democrats, with 222 seats belonging to the GOP and 212 being attributed to their democratic counterpart.[43] Thus, with such a close margin of difference in House control, the majority Republican Alabama Legislature’s response to the Supreme Court’s decision in Allen v. Milligan appears to be an attempt maintain national political influence.[44] In defending the map created by the State Legislature, Alabama Republican’s state that the new district map complies with the Court’s orders because “it increases Black influence.”[45] However, “influence” is not synonymous with “opportunity,” and certain topics are more important than political absolutism. Voting equality amongst all citizens, along with full and accurate political representation, should be classified as one of these topics. Historically, the State of Alabama has chosen the political absolutist option; beginning with the Jim Crow era up to the three decades of implementing a congressional map labeled an “extreme” form of racial gerrymandering. As the district court adjourns on August 14 to determine the future of Alabama’s congressional map, an opportunity has been presented to the State to do what is right and take the first step in a rewrite of historical precedent. Hopefully, fairness will prevail.

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1 Christopher Maloney, Voting Rights Act of 1965 in Alabama, Encyclopedia of Alabama (Jul. 2, 2020), https://encyclopediaofalabama.org/article/voting-rights-act-of-1965-in-alabama/.

[2] City of Mobile, Alabama. v. Bolden, 100 S.Ct. 1490, 1497 (1980).

[3] Shelby County., Alabama v. Holder, 133 S.Ct. 2612, 2631 (2013).

[4] State District Maps, Ala. Sec’y of State (last visited Aug. 2, 2023), https://www.sos.alabama.gov/alabama-votes/state-district-maps. 

[5] Party Affiliation Among Adults in Alabama by Race/Ethnicity, PEW Rsch. Ctr., https://www.pewresearch.org/religion/religious-landscape-study/compare/party-affiliation/by/racial-and-ethnic-composition/among/state/alabama/ (last visited Aug. 2, 2023).

[6] Wesch v. Hunt, 785 F. Supp. 1491, 1498 (S.D. Ala. 1992).

[7] Id. at 1499; Allen v. Milligan, 143 S.Ct. 1487, 1542 (2023).

[8] Allen, 143 S.Ct. at 1542.

[9] Ala. Sec’y of State, supra note 5.

[10] Allen, 143 S.Ct. at 1501.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at 1502.

[15] Id. (explaining that the three groups of plaintiffs include: (1) Dr. Marcus Caster; (2) Evan Milligan; and (3) the Singleton plaintiffs).

[16] Id.

[17] Id. at 1493.

[18] Thornburg v. Gingles, 106 S.Ct. 2752, 2765 (1986).

[19] Id.

[20] Id. at 2766; Allen, 143 S.Ct. at 1493.

[21] Allen, 143 S.Ct. at 1493.

[22] Id. at 1504.

[23] Id. at 1505-06.

[24] Id. at 1506.

[25] Id. at 1506.

[26] Id. at 1535.

[27] Mike Cason, Supreme Court Rules Alabama Congressional Map Most Likely Violates Voting Rights Act, AL.com (June 08, 2023), https://www.al.com/news/2023/06/supreme-court-may-rule-today-whether-alabama-congressional-map-violates-voting-rights-act.html.

[28] Mike Cason, Zero for 11: Election Results Show New Alabama Map Won’t Fix Voting Rights Violation, Black Voters Say, AL.com (July 31, 2023), https://www.al.com/news/2023/07/zero-for-11-election-results-show-new-alabama-map-wont-fix-voting-rights-violation-black-voters-say.html.

[29] Mike Cason, GOP Lawmakers Pass Alabama Congressional Map; Democrats Say it Defies Supreme Court, AL.com (July 22, 2023), https://www.al.com/news/2023/07/gop-lawmakers-reach-compromise-on-alabama-congressional-map-democrats-say-it-defies-supreme-court.html.

[30] Mike Cason, Could Democrats Win in Alabama Congressional District That is 40% Black?, AL.com (July 18, 2023), https://www.al.com/news/2023/07/could-democrats-win-in-alabama-congressional-district-that-is-40-black.html.

[31] Cason, supra note 25.

[32] Id.

[33] Cason, supra note 27.

[34] Id.

[35] Id.

[36] Jemma Stephenson, Proposed Alabama Congressional Map Would Only Have 1 Majority-Black District, BirminghamWatch (July 18, 2023), https://birminghamwatch.org/proposed-alabama-congressional-map-would-only-have-1-majority-black-district/.

[37] Id.

[38] Id.

[39] Id.

[40] Cason, supra note 27.

[41] Id.

[42] Id.

[43] Fredreka Schouten, Plaintiffs in High-Profile Redistricting Case Urge Judges to Toss Out Alabama’s Controversial Congressional Map, CNN (July 29, 2023), https://www.cnn.com/2023/07/29/politics/alabama-redistricting-case-congressional-map/index.html.

[44] Brie Stimson, Alabama Lawmakers Reject 2nd Black Majority Congressional District, Increase to 40% After Supreme Court Ruling, Fox News (July 21, 2023), https://www.foxnews.com/politics/alabama-lawmakers-reject-2nd-black-majority-congressional-district-increase-to-40-after-supreme-court-ruling.

[45] Id.

Photo Credit: https://slate.com/technology/2015/10/emoticons-and-emojis-as-evidence-in-court.html | Photo illustration by Juliana Jiménez | Photo by Deborah Cheramie/Thinkstock.

Authored By: Dylan Patel

September 22, 2023

Nowadays, most Americans use emojis in everyday conversations.[1] But how do courts analyze and interpret such symbols? As emojis and emoticons appear in court filings and make their way into evidence, it is the court’s ultimate duty to determine the meaning and significance of these expressions. However, as Professor Eric Goldman of Santa Clara University School of Law explains throughout his work, emojis may convey different meanings in different contexts.[2]

 The use of emoticons first appeared as text characters were ordered and combined to create expressions of a smiley face or a frowny face, i.e., 🙂 and 😦 respectively.[3] In the 2000s, the iPhone first picked up steam in the United States and emoticons were essentially digitized into more visual characters: emojis.[4] As a result of these popular symbols being utilized and in everyday communications, it was inevitable that emojis would eventually come before the courts for interpretation. All legal practitioners should be aware of the possible implications of emoji interpretation, as such analysis may be the deciding factor in a court ruling in favor of his or her position.[5] Ultimately, lawyers must inform courts of the emoji’s context. For example, a “sunglasses” emoji might mean a sunny day or just feeling cool at that moment.[6]

The first case referencing emoticons was Microstrategy, Inc. v. Business Objects, S.A., an Eastern District of Virginia opinion with mention of a “spy” in combination with a smiley face emoticon.[7] In this case, the Court did not delve into “why” such a decision was held beyond industry norms. Nonetheless, Microstrategy, Inc. paved the path toward using emojis as evidence in future proceedings.[8]

In the more recent case of State v. D.R.C., questions arose from the use of emojis in conversations between D.R.C., a minor child, and her friends regarding D.R.C.’s plans to murder her mother.[9] Numerous text messages were sent from D.R.C. to different friends of with talks about killing her mother, as well as various “LOL” and laughy face emojis mixed in.[10] In fact, D.R.C. even went as far as to say, “imma f***ing take her life or slam her face in the wall if she’s lucky.”[11] In this case, the Court construed the various emojis and text conversations together in context with D.R.C. talking to her friends.[12] In addition, the Court noticed the lack of actual reactions present in response to D.R.C.’s texts.[13] The fact that D.R.C. prefaced her “imma f***ing kill this bitch” text with a “face with tears of joy” emoji effectively negated the establishment of a genuine threat.[14] Finally, the Court used previous text messages between D.R.C. and her friends as further evidence that both parties exchange similar emojis within sarcastic conversation when talking about harming or killing those they know.[15]

Another example comes from the Southern District of New York, where the defendant advertised various non-fungible token (“NFTs”) investment opportunities by pairing such offerings with emojis known to “expect a profit.”[16] The defendant would show advertisements on social media platforms and include the following emojis: “rocket ship,” “stock chart,” and “money bags.”[17] In this case, the Court used a commonsense approach to determine the emojis used in the advertisements clearly indicated that consumers were to expect a profit should they partake in the defendant’s offers.[18]

From the two case illustrations above, it becomes clear that courts need context to determine which emoji meaning to use and what facts are relevant to the analysis. But how do emojis and emoticons come before the court in the first place? There are two methods: (1) the nature of the lawsuit (subject matter),[19] and (2) through the myriad of evidentiary documents in which emojis happen to be used.[20] Ultimately, it is up to the attorney to show the courts why their interpretation of the emoji makes sense instead of a variation. Another example is the “rolling eyes” emoji. This emoji could mean someone is missing the point or it could be used playfully.[21] Another wrinkle is that emojis look different on different devices. Other than the basic standardized emojis through the Unicode Consortium (a non-profit dedicated to standardizing software standards and data), most emojis have no standard look or characterization to them.[22]

One final case illustration, In re Bed Bath & Beyond Corp. Sec. Litig., involved various messages by Ryan Cohen on social media platforms with the “smiley moon” emoji.[23] This emoji was understood to portray the holding and/or buying of stock in order to send the stock price “to the moon.”[24] The Court ruled against Cohen, providing valuable analysis of why they did so.[25] Simply put, the use of the “smiley moon” emoji had a particular meaning which caused investors to purchase Bed Bath & Beyond stock, meaning Cohen was confident in the price increase.[26] Thus, the Court held that the “smiley moon” emoji was actionable as securities fraud.[27]

In conclusion, be careful about emojis being present in evidence. All attorneys should tread carefully when crafting arguments for or against a particular meaning of an emoji. Context is the most advantageous. Utilize the surrounding facts and previous interactions to supplement the meaning you are trying to argue. The subjective nature of emojis practically requires a thorough investigation into all possible meanings in context to ensure a solid argument in favor of your client’s position.   

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[1] See Alexa Blaise, Your Emoji Can Be Used Against You, 47 Vt. Bar J., 3, 36 (2021) (“92 percent of the online population uses emojis and 2.3 trillion mobile messages incorporate emojis each year.”).

[2] See Heather King, Emojis and Emoticons: How Courts and Litigators are Dealing with Interpretation of Digital Wordless Communications, American Bar Association (Jan. 1, 2022),https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/2022/jf22/king/; Eric Goldman, https://law.scu.edu/faculty/profile/goldman-eric/ (last visited Sept. 21, 2023).

[3] See Emoticon, Merriam-Webster (2023) (defining “emoticon” as “a group of keyboard characters . . .that typically represents a facial expression or suggests an attitude or emotion and that is used especially in computerized communications (such as email)”), https://www.merriam-webster.com/dictionary/emoticon (last visited Sept. 21, 2023).

[4] See Emoji,Merriam-Webster (2023) (defining “emoji” as “any of various small images, symbols, or icons used in text fields in electronic communication . . .to express the emotional attitude of the writer, convey information succinctly, communicate a message playfully without using words, etc.”), https://www.merriam-webster.com/dictionary/emoji (last visited Sept. 21, 2023).

[5] See Golriz Chrostowski, ANALYSIS: Getting Emojis Into Evidence Is No Laughing Matter, Bloomberg Law (Aug. 8, 2023), https://www.bloomberglaw.com/bloomberglawnews/bloomberg-law-analysis/BNA%2000000189b167d8d9a1ffbdffff9e0001?bna_news_filter=bloomberg-law-analysis.(“Practitioners should not overlook the power of emojis to support or defend against a claim at trial . . . [they] might just prove vital to your case.”).

[6] See King, supra note 2 (describing other situations which lawyers need to provide courts context to interpret emojis such as a “rat” emoji implying a disloyal character or an actual rodent).

[7] See Chrostowski, supra note 5; 331 F. Supp. 2d 396, 404 (E.D. Va. 2004) (explaining that the spy reference accompanied by the smiley face emoticon was “common in any industry and does not necessarily constitute the misappropriation of a trade secret”, i.e., a playful email interaction.).  

[8] 331 F. Supp. 2d at 404.

[9] See 467 P.3d 994, 998 (Wash. Ct. App. 2020).

[10] State v. D.R.C., 467 P.3d at 998.

[11] Id. at 999.

[12] Id. at 1001 (“We [the Court] instead must ask whether a reasonable person in D.R.C.’s position would have foreseen that either Joshua or Lexy would have interpreted D.R.C.’s texts as true threats, as opposed to merely a joke or an expression of emotion.”) (alteration in original).

[13] Id.

[14] See id. at 1001 (explaining that D.R.C. might have sent these texts to her friends as a response of teenage frustration, but not actual intent to kill) (alteration in original).

[15] Id. (“The combination of the initialism [like “LOL”] and emojis conveyed an unmistakable message of sarcasm, as opposed to a serious intent to cause harm or death.”).

[16] See Friel v. Dapper Labs, Inc., 21 Civ. 5837 (VM), 2023 WL 2162747, at *1 (S.D.N.Y. Feb. 22, 2023).

[17] Id. at *17 (“Emoji objectively mean one thing” a financial return on investment.”).

[18] Id. at *17; see S.E.C. v. Edwards, 540 U.S. 389, 395 (2004) (explaining that consumers and investors are motivated simply by a profit or financial return on their investments).

[19] See Blaise, supra note 1 at 36 (explaining that an emoji may appear in a court system due to the “subject matter of a lawsuit, such as a copyright or trademark infringement issue”).

[20] Id. (showing that a person’s character may be proven or evidenced by such person’s emoji use).

[21] Id. (showcasing different emojis and how they have many meanings).

[22] Id; see The Unicode Consortium, https://unicode.org/consortium/consort.html (last visited Sept. 21, 2023).

[23] See No. 1:22-cv-2541, 2023 WL 4824734, at *2 (D.D.C. July 27, 2023) (explaining the online communities do interpret the “smiley moon” emoji to mean the holding and buying of a stock to make the price go up).

[24] See In re Bed Bath & Beyond Corp. Sec. Litig., 2023 WL 4824734, at *2.

[25] Id. at *5 (holding that emojis are symbols that require context and tone to help ascertain meaning as “just because language can be ambiguous does not mean it is not actionable or capable of being correctly understood”).

[26] Id. at *6 (“A fraudster may not escape liability simply because he used an emoji. Just like with words, liability will turn on the emoji’s particular meaning in context.”) (emphasis added).

[27] See id. at *5.