Photo Credit: Josh Moon, High chemical levels in water near Decatur landfill concern environmental group, ADEM, Alabama Political Reporter, June 25, 2020, https://www.alreporter.com/2020/06/25/high-levels-of-chemicals-in-groundwater-at-decatur-landfill-concerns-environmental-group-adem/.

Authored by: Jaylee R. Schroeder

For the first time in 20 years, the U.S. Environmental Protection Agency (EPA) established enforceable limits on the levels of six different perfluoroalkyl and polyfluoroalkyl substances (PFAS) that can be in drinking water under the final National Primary Drinking Water Regulation (NPDWR) by 2029.[1] PFAS, also known as forever chemicals, are a group of almost 15,000 synthetic chemicals that are in hundreds of daily household items, foods, water sources, and soil.[2] They are resistant to disintegration, remain in the environment for an unknown amount of time, and accumulate within the body.[3] PFAS in very low concentrations can cause harm to “the reproductive system, [have] developmental effects, increase risk of certain cancers, reduce immune response . . . increase cholesterol levels” and have been linked to numerous other health conditions.[4] Fifty percent of the nation’s rivers and streams contain PFAS, which serves an estimated 200 million Americans, as well as 20% of private wells being contaminated.[5] They are estimated to be detectable in the bloodstream of 98% of Americans.[6] This amount of inadvertent absorption is concerning as no amount of PFAS are considered to be safe for consumption.[7] There is still uncertainty surrounding exactly how dangerous PFAS are and how best to protect human health and the environment from them.  

The EPA has the authority to set national standards for the amount of contaminants that can found in drinking water under the Safe Drinking Water Act (SDWA) and can require the monitoring of public water systems for the levels of specified PFAS.[8] They also can investigate and require clean-up measures or reimbursement for clean-up measures from responsible parties that have released hazardous substances in the air, soil, water, and groundwater under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).[9] Currently under the new NPDWR, public water systems have until 2027 to complete initial monitoring and will then be subject to ongoing compliance monitoring, must provide the public with the levels of PFAS in their drinking water, and have until 2029 to implement solutions, to take action to reduce elevated PFAS levels and must notify the public of any violations.[10] In contrast, waste materials containing PFAS alone do not have any regulatory requirements by the EPA regarding their treatment, destruction, and disposal as they are not considered to be hazardous.[11] The EPA has designated two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), as hazardous under CERCLA, which will require reporting of any known releases of those chemicals.[12] The EPA has also proposed listing more PFAS as hazardous under the Resource Conservation and Recovery Act (RCRA).[13]

Alabama administers all of the major federal environmental laws, including the Clean Water and Safe Drinking Water acts.[14] The Alabama Department of Environmental Management (ADEM) was created with the passage of the Alabama Environmental Management Act in 1982 to create a comprehensive program that oversees all of the state’s environmental management.[15] Currently, ADEM follows the EPA’s NPDWR and the Fifth and Sixth Unregulated Contaminant Monitoring Rule to monitor new unregulated PFAS contaminants and identifies future potential ones to monitor.[16] ADEM is also the state agency responsible for enforcing regulations of the disposal of solid and hazardous waste under the federal Solid Waste Disposal Act.[17] The Alabama Hazardous Waste Management and Minimization Act of 1978 was enacted to “encourage the minimization of hazardous waste generation, transportation, and land disposal.[18] ADEM requires a facility that wishes to discharge pollutants into the state’s water sources to obtain a National Pollutant Discharge Elimination System (NPDES) permit.[19] Businesses are also required to get a State Indirect Discharge (SID) permit if they discharge large amounts of wastewater into treatment facilities.[20] Alabama Code § 22-22A-5(18)(c) gives ADEM the authority to impose civil penalties on landfills for violations of hazardous waste regulations that can be no more than $25,000.00 for each separate violation and a total amount of no more than $250,000.00.[21] ADEM cannot fine or make responsible parties clean-up PFAS pollution that has been released into ground water or other bodies of water because the EPA has not set any enforceable limits.[22] While PFAS are mainly being regulated for the potential health hazards of people through clean drinking water, that still leads to questions about the long-term effects of PFAS contamination in other under-regulated water sources.

As of now, there are three main technologies, that are used to destroy or contain PFAS waste: thermal treatment, landfills, and underground injection.[23] While incineration is the most common way that PFAS are destroyed, it still disperses PFAS into the air and there is uncertainty surrounding the amount of pollution it generates based on limited research.[24] Since destroying PFAS is limited, PFAS-containing waste are also sent for disposal in hazardous waste landfills. When a landfill is selected as the disposal option and PFAS levels are elevated, the EPA recommends using hazardous waste landfills because they have leachate emission protections, but PFAS emissions have been found to be more elevated than previously known.[25] Underground injection wells are used to protect underground sources of drinking water and have the lowest potential for environmental releases since they are deep below the surface. Problems with this option include a limited number of wells accepting PFAS, well location issues, and transportation possibly not being feasible.[26] Every type of destroying or disposal technique has some type of environmental impact and involves a balancing act of what is the best course of action to cause the least amount of damage possible.

Landfills are a major source of PFAS pollution, stemming both from products being flushed down household drains and from other states transporting PFA-laden waste to be disposed of in Alabama’s landfills instead of their own. [27] While landfills are strategically built to be long-lasting and are considered to be the safest option for disposal, they always have a risk of contamination from failing over time.[28] One such example is the Emelle commercial hazardous waste landfill, which has recently received over 38,500 gallons of firefighting foam that contained PFAS from a Wisconsin clean-up project.[29] While there are no current reports of contamination of drinking water, the landfill has a history of environmental violations, including cancer-causing PCBs leaching into wells, drainage ditches, and swamps located outside the landfill.[30] Another example is in Tallassee, Alabama, where a recent lawsuit has been filed against Stone’s Throw Landfill for knowingly releasing cancer-causing PFAS leachate into the local water supply by failing to make repairs that would’ve prevented the contamination.[31] Leachate is a black, foul-smelling liquid that is “formed when water seeps through landfill material and takes on the chemical characteristics of the waste through which is passes,” and is toxic to human health because it generally contains PFAS and other pollutants.[32] Stone’s Throw Landfill sits at a particularly troublesome location at the top of a ridge, leading to polluted water draining from the landfill.[33]

Decatur, Alabama has had a persistent PFAS problem that has led to numerous lawsuits. In 2019, 3M had to pay the West Morgan East Lawrence Water Authority a $35 million settlement for drinking water contamination of PFAS that “enter[ed] the Tennessee River from a landfill, groundwater, and runoff.”[34] In 2020, an abandoned landfill was found to have high levels of PFAS and PFOS in water flowing from the landfill.[35] ADEM responded that they are working with the EPA to develop a plan for the contamination but notes that it cannot impose fines or force remediation efforts by the responsible parties or issue contamination warnings to the public because the EPA has not set “acceptable PFAS/PFOS limits for ground water or bodies of water.”[36] Another major settlement against 3M was reached in 2023 for $98.4 million for more PFAS contamination into the Tennessee River from a chemical plant.[37] The settlement amounts went to water agencies and environmental groups in order to fund resolutions like new filtration systems or to fund cleanup costs, but leaves residents having to pursue legal recourse individually for their resulting health problems.[38] Large settlements from these environmental violation suits mainly benefit large corporations involved with the communities still suffering from the long-term effects of the pollution.         

The problem of PFAS contamination in Alabama is far from over, with at least four water systems still having reported concentrations of PFAS up to 40 parts per trillion.[39] Landfills in Alabama are still having continuous pollution problems, with most “solutions” by ADEM consisting of repeated small fines.[40] Since PFAS chemicals must be removed by specialized means, it is an expensive task to build and maintain removal equipment, which could take years for the agencies to acquire enough funding.[41] While the EPA has taken a progressive step towards PFAS regulation with the NPDWR and listing two PFAS chemicals as hazardous, there still needs to be more research concerning how dangerous PFAS are to human health in order to expand the regulations as needed.

---

[1] Per- and Polyfluoroalkyl Substances (PFAS), EPA (Feb. 19, 2025),  https://www.epa.gov/sdwa/and-polyfluoroalkyl-substances-pfas; Bennet Goldstein, Wisconsin PFAS cleanup shifts toxic burden to Alabama’s Black Belt, Wisconsin Watch (Oct. 25, 2023), https://pbswisconsin.org/news-item/wisconsin-pfas-cleanup-shifts-toxic-burden-to-alabamas-black-belt/, (“It warned against consuming more than 0.004 parts per trillion (ppt) and 0.02 ppt of the two compounds . . . equat[ing] to about 4 drops and 20 drops of water in 1,000 Olympic-sized swimming pools.”)

[2]Perfluoroalkyl and Polyfluoroalkyl Substances (PFAS), Nat’l Inst. of Env’t Health Sciences (Mar. 6, 2025), https://www.niehs.nih.gov/health/topics/agents/pfc#:~:text=Per%2D%20and%20polyfluoroalkyl%20substances%20(PFAS,degrade%20easily%20in%20the%20environment.

[3] Id.

[4] Id.

[5] Morgan Coulson, The Omnipresence of PFAS – and What We Can Do About Them, John Hopkins Bloomberg School of Public Health (Mar. 28, 2024), https://publichealth.jhu.edu/2024/what-to-know-about-pfas.

[6] Nat’l Inst. of Env’t Health Sciences, supra note 2; Coulson, supra note 5.

[7] Wisconsin Watch, What should I do about PFAS in my water?, PBS Wisconsin (Nov. 28, 2022), https://pbswisconsin.org/news-item/what-should-i-do-about-pfas-in-my-water/.

[8] EPA, supra note 1; Safe Drinking Water Act, EPA (Jan. 23, 2025), https://www.epa.gov/sdwa/overview-safe-drinking-water-act#:~:text=The%20Safe%20Drinking%20Water%20Act%20(SDWA)%20was%20originally%20passed%20by,(pdf)%20(368.27%20KB).

[9] Elizabeth Haskins & Noelle E. Wooten, PFOA and PFOS Are Now Hazardous Substances Under CERCLA, Baker Donelson (July 8, 2024), https://www.bakerdonelson.com/pfoa-and-pfos-are-now-hazardous-substances-under-cercla.

[10] Per- and Polyfluoroalkyl Substances (PFAS) in Drinking Water, ADEM (last visited Mar. 27, 2025), https://web-prd.adem.alabama.gov/water/and-polyfluoroalkyl-substances-pfas-drinking-water#:~:text=In%20accordance%20with%20ADEM%20Admin,documents%20for%20your%20water%20system.

[11] Elizabeth Haskins & Noelle E. Wooten, Is “Forever” Really Forever? EPA’s New Guidance on PFAS Destruction and Disposal, Baker Donelson (July 16, 2024), https://www.bakerdonelson.com/Is-Forever-Really-Forever-EPAs-New-Guidance-on-PFAS-Destruction-and-Disposal#:~:text=EPA’s%20updated%20Interim%20Guidance%20reviews,underground%20sources%20of%20drinking%20water.

[12] Haskins & Wooten, supra note 11.

[13] Haskins & Wooten, supra note 11.

[14] ADEM Overview, ADEM (last visited Mar. 27, 2025), https://web-prd.adem.alabama.gov/adem-overview.

[15] Id.

[16] Id.

[17] Chemical Waste Management, Inc., Consent Order No. 23-XXX-CHW, https://adem.alabama.gov/newsEvents/notices/sep23/pdfs/9chem.pdf.

[18] Alabama Code § 22-30-2(2023) – Legislative Findings, JUSTIA (last visited Mar. 27, 2025), https://law.justia.com/codes/alabama/title-22/title-1/chapter-30/section-22-30-2/#:~:text=It%20is%20also%20the%20intent%20of%20the,consistency%20with%20the%20Federal%20Hazardous%20Waste%20Management.

[19] NPDES Permits, Alabama Department of Environmental Management (last visited Mar. 27, 2025), https://adem.alabama.gov/programs/water/permitting.cnt.

[20] State Indirect Discharge (SID) Permit Information, Alabama Department of Environmental Management (last visited Mar. 27, 2025), https://adem.alabama.gov/programs/water/sidinfo.cnt.

[21] Ala. Code § 22-22A-5(18)(c).

[22] Josh Moon, High chemical levels in water near Decatur landfill concern environmental group, ADEM, Alabama Political Reporter (June 25, 2020), https://www.alreporter.com/2020/06/25/high-levels-of-chemicals-in-groundwater-at-decatur-landfill-concerns-environmental-group-adem/.

[23] Haskins & Wooten, supra note 11.

[24] Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances – Version 2 (2024), Interim Guidance For Public Comment at 12, (Apr. 8, 2024), https://www.epa.gov/system/files/documents/2024-04/2024-interim-guidance-on-pfas-destruction-and-disposal.pdf; Coulson, supra note 6; Goldstein, supra note 1.

[25] Haskins & Wooten, supra note 11.

[26] Id.

[27] Coulson, supra note 5; Goldstein, supra note 1.

[28] Sarah Whites-Koditschek, Alabama Has Become the Nation’s Toxic Waste Disposal, Governing (Oct. 20, 2023), https://www.governing.com/infrastructure/alabama-has-become-the-nations-toxic-waste-disposal.

[29] Goldstein, supra note 1.

[30] Goldstein, supra note 1; Curt Davidson, Emelle, Alabama: Home of the Nation’s Largest Hazardous Waste Landfill, University of Michigan (Mar. 20, 2017), http://umich.edu/~snre492/Jones/emelle.htm.

[31] Press Release, Beasley Allen Files Lawsuit Against Tallassee Landfill Leaking Toxic Pollutants Into Local Water Supplies, Beasley Allen Law Firm (Feb. 14, 2023), https://www.beasleyallen.com/article/beasley-allen-files-lawsuit-against-tallassee-landfill-leaking-toxic-pollutants-into-local-water-supplies/.

[32] Id.

[33] Transcript of Env’t Just. Episode Eight, VT. L. SCH. ENV’T LAW CTR., 4-5, 16 (Feb. 2020), https://www.vermontlaw.edu/sites/default/files/2020-02/HHEep8_transcript-environmental-justice.pdf.

[34] 3M, Alabama communities reach $98M pollution settlement, AP News (Oct. 19, 2021), https://apnews.com/article/business-environment-and-nature-alabama-lawsuits-environment-a4dda1162d018987d691064b02873557.

[35] Josh Moon, High chemical levels in water near Decatur landfill concern environmental group, ADEM, Alabama Political Reporter (June 25, 2020), https://www.alreporter.com/2020/06/25/high-levels-of-chemicals-in-groundwater-at-decatur-landfill-concerns-environmental-group-adem/.

[36] Id.

[37] AP News, supra note 34.

[38] Alabama Water Contamination Lawsuits, McCutcheon & Hammer Attorneys At Law (Jan. 8, 2024), https://mhatty.com/alabama-water-contamination-claims/#:~:text=One%20major%20settlement%20was%20reached,from%20the%20affected%20water%20supply.

[39] Dennis Pillion, Alabama utilities struggle to meet new limits on forever chemicals in drinking water, AL.com (Apr. 17, 2024), https://www.al.com/news/2024/04/alabama-utilities-struggle-to-meet-new-limits-on-forever-chemicals-in-drinking-water.html#:~:text=%E2%80%9CSince%202020%2C%20ADEM%20has%20required,to%20help%20them%20remediate%20problems.%E2%80%9D.

[40] Whites-Koditschek, supra note 28.

[41] Pillion, supra note 39.

Photo Credit: First Amendment Center, Mahmoud v. Taylor, in First Amendment Center, Middle Tennessee State University, https://firstamendment.mtsu.edu/article/mahmoud-v-taylor/ (last visited Aug. 23, 2025).

Authored by: Justin P. Martin

The Classroom as a Test of Parental Rights

On June 27, 2025, the U.S. Supreme Court delivered a 6–3 ruling in Mahmoud v. Taylor, holding that parents have a constitutional right under the First Amendment’s Free Exercise Clause to opt their children out of school lessons that conflict with their religious beliefs, specifically instruction using LGBTQ+ themed storybooks.[1] This decision unmistakably reaffirmed principles articulated in Wisconsin v. Yoder, in which the Court held that Amish parents could withdraw their children from school after eighth grade, overriding Wisconsin’s compulsory attendance law because it burdened their religious practices.[2]

The facts of Yoder highlight why the case has become so influential. The Amish community believed that high school education beyond eighth grade conflicted with their religious way of life and threatened the cohesion of their community.[3] Wisconsin law required students to attend school until age 16, but the Amish parents argued that sending their children to public high school would expose them to values and experiences contrary to their faith.[4] The Supreme Court sided with the Amish parents, holding that the Free Exercise Clause protected their right to withdraw their children from school after eighth grade.[5] The Court reasoned that the state’s interest in universal education, while important, was not compelling enough to override the parents’ deeply held religious convictions, and that forcing Amish children to remain in school past eighth grade would substantially burden the practice of their religion.[6]

Why Mahmoud Is Not Just About New Facts

In Mahmoud, Justice Alito’s majority opinion explicitly embraced Yoder as a foundational precedent, rejecting claims that Yoder was unique and reinforcing that its broad principle remains intact.[7] The Court emphasized that when a policy imposes a burden similar to the facts in Yoder, strict scrutiny applies even if the law appears neutral or generally applicable.[8] The ruling highlights that Mahmoud is not simply a case about a single school district or a particular curriculum, but about the enduring principle that the state cannot compel children to participate in educational content that conflicts with sincerely held religious beliefs.[9] By framing the issue as one of fundamental parental authority, the Court extended the logic of Yoder to modern educational contexts, signaling that the balance between religious freedom and state interests must be carefully calibrated whenever schooling intersects with deeply held religious beliefs.

The Lineage: Other Landmark Cases Between Yoder and Mahmoud

Several pivotal Supreme Court decisions serve as stepping stones in this doctrinal arc. Long before Yoder, the Court in Pierce v. Society of Sisters recognized that parents, not the State, hold the primary authority to direct their children’s education.[10] The decision famously declared that “the child is not the mere creature of the state.”[11] In West Virginia State Board of Education v. Barnette, the Court protected students and families from compulsory patriotic rituals, affirming that public schools cannot force students to affirm beliefs contrary to their consciences.[12]

Mahmoud v. Taylor: The 2025 Ruling

In Mahmoud, a group of parents in Montgomery County, Maryland, challenged their school district’s cancellation of opt-out permissions for LGBTQ themed storybook lessons.[13] They argued that forced participation undermined their ability to guide their children’s religious upbringing, a core parental liberty established in Yoder.[14] The lower courts, both the district court and the Fourth Circuit, declined to intervene, deeming exposure to differing viewpoints insufficient to constitute a religious burden.[15] But the Supreme Court reversed, ruling that without notice or opt-out provisions, the policy placed an impermissible burden on religious exercise and therefore violated Yoder’s standard.[16]

Justice Alito underscored that the burden was not merely incidental, but posed a very real threat of undermining the parents’ religious values, mirroring the language used in Yoder.[17] The Court’s ruling indicates that public schools must notify parents and allow opt-outs when instructional materials conflict with sincerely held religious beliefs.[18]

Dissenting Voices and Broader Debate

Justice Sotomayor, joined by Justices Kagan and Jackson, warned in dissent that such notice obligations and opt-outs could saddle schools with untenable administrative demands and undercut the inclusive mission of public education.[19] The dissent further argues that by allowing parents to veto LGBTQ inclusion in classrooms, Mahmoud effectively mandates that schools preemptively remove queer content to avoid compliance burdens.[20]

Conclusion: A Continuum of Parental Rights

From Pierce’s declaration that children are not the State’s property, through Barnette’s safeguard against forced ideological instruction, to Yoder’s recognition of religiously rooted parental autonomy, culminating with Mahmoud, the Supreme Court has long recognized that parents retain fundamental constitutional authority over their children’s moral and spiritual development even within public schools. The Mahmoud decision does more than affirm Yoder. It revives a deeply rooted tradition of parental rights under the Free Exercise Clause, reinforcing that religious liberty does not vanish at the schoolhouse gate.

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[1] See generally Mahmoud v. Taylor, 145 S. Ct. (2025).

[2] Wisconsin v. Yoder, 406 U.S. 205, 219 (1972).

[3] Id.

[4] Id. at 218.

[5] Id. at 219.

[6] Id. at 235.

[7] Mahmoud, 145 S. Ct. at 2357 (“[T]here is no reason to conclude that the [Yoder] decision is ‘sui generis’ or ‘tailored to [its] specific evidence[.]’”).

[8] Id. (“[W]e need not ask whether the law at issue is neutral or generally applicable before proceeding to strict scrutiny”).

[9] Id.

[10] Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 535 (1925).

[11] Id.

[12] W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

[13] Mahmoud, 145 S. Ct. at 2363.

[14] Id. at 2358.

[15] Id.

[16] Id.

[17] Id. at 2357 (“We have at times relied on [Yoder] as a statement of general principles.”).

[18] Id. at 2364 (“[T]he Board should be ordered to notify them in advance whenever one of the books in question or any other similar book is to be used in any way and to allow them to have their children excused from that instruction.”).

[19] Mahmoud, 145 S. Ct. at 2381 (Sotomayor, J., dissenting).

[20] Id. at 2382 (Sotomayor, J., dissenting).

Photo Credit: Sheetz v. Cnty. of El Dorado, Cal., The Federalist Society, https://fedsoc.org/case/sheetz-v-county-of-el-dorado-california (last visited Feb. 22, 2025).

Authored by: Annabelle F. Holliday

Trial attorneys are increasingly arguing that government-imposed development fees, especially when disconnected from a development’s actual impact, violate the Fifth Amendment’s Takings Clause. In the landmark decision Sheetz v. County of El Dorado, California, the Supreme Court reinforced the constitutional safeguard provided to property owners under the Takings Clause.[1] This case involved a challenge to a traffic impact fee of $23,420 that El Dorado County imposed on the property owner, George Sheetz, as a condition of the issuance of a building permit for his manufactured home.[2] In his challenge, Sheetz correctly contended that the impact fee was not an individualized assessment of the actual impact of his development, but was instead a legislatively mandated exaction that constituted an unconstitutional taking.[2] The Court unanimously held that permit fees created by legislation are not exempt from the constitutional review applied to administrative action, and that the government cannot extort developers by imposing arbitrary or excessive fees.[4] Undoubtedly, the case will be spawning additional litigation and policy adjustments at the local level as municipalities review their fee programs to ensure compliance with the constitutional requirements cited in the case.

The Court’s decision in Sheetz is built upon the Fifth Amendment and previous Supreme Court holdings that have strengthened property rights and mandated municipalities to only exact fees that are constitutionally permitted.[5] The Takings Clause asserts that the government may not take private property for public use without paying just compensation.[6] Accordingly, in Nollan v. California Coastal Commission, the Court introduced the “essential nexus” test by holding that there must be a legitimate connection between what the government seeks and what it justifies as a regulatory need.[7] Building on Nollan, the Court in Dolan v. City of Tigard introduced the “rough proportionality” test.[8] Here, the Court held that even if a government condition meets the nexus requirement, it must also be roughly proportional to the development’s impact.[9] Several years later, in Koontz v. St. Johns River Water Management District, the Court extended these principles, holding that the monetary exactions, such as impact fees, must also meet the same constitutional scrutiny as physical land dedications.[10] In response, trial attorneys have since leveraged Koontz as a precedent to argue that when governments impose fees or conditions that are not directly related to the specific impact of a proposed development, the government is effectively taking private property without just compensation which is a clear violation of the Fifth Amendment.[11] Consequently, in Sheetz, when the county implemented a flat rate scheme according to type and place of development, and not based on a case-by-case determination of the real traffic impact caused by Sheetz’s development, Sheetz argued that the fees did not meet constitutional standards.[12]

Nonetheless, the lower courts held that fee schedules enacted legislatively were not subject to the same kind of scrutiny as administrative actions.[13] Accordingly, this position effectively permitted El Dorado County to utilize its legislative power to impose a flat fee on developers without necessarily tying it to the precise impacts of an individual development. However, on appeal, the Supreme Court’s decision overturned the lower courts’ distinction.[14] In the opinion written by Justice Barrett and unanimously agreed to by the Court, the Court followed Sheetz’s reasoning and dismissed the contention that a legislative exaction was different than an administrative agency exaction.[15] The Court asserted that the Takings Clause makes no distinction between permit conditions imposed by legislation and those imposed through administrative actions.[16] Thus, this holding requires that if a fee is charged by statute or by an administrative proceeding, it must meet the “essential nexus” and “rough proportionality” tests established in Nollan and Dolan.[17] Accordingly, the holding prevents municipal governments from abusing statutory authority to demand excessive fees from property developers.[18]

Consequently, the Sheetz ruling has significant implications for municipalities that use development fees as a source of revenue for public infrastructure improvements. First, by holding legislatively imposed fees to the same strict constitutional requirements as individually tailored administrative conditions, the Court has established an absolute rule that development fees are to be tied directly to the predicted impact of a development. This decision effectively limits the power of governments to approximate flat or discretionary fees that can be utilized to produce revenue at the expense of property holders without a proportionate public gain. Second, the decision reinforces the doctrine that property rights are sacred. Property rights were included in the Constitution not only to protect private property from unauthorized takings, but also to ensure that governments are accountable if they attempt to encumber property with permit requirements or fees.[19] By addressing and then closing the loophole that allowed legislatures to impose fees without individualized review, the Court is able to reaffirm that government power must be exercised in a way that respects property rights. Lastly, although the Supreme Court’s decision leaves unresolved the specifics of how the “rough proportionality” standard will be applied to various types of developments, it makes clear that any condition on a permit will undergo a proportionality analysis.[20] Undoubtedly, the Court’s decision in Sheetz is a victory for property rights and a firm reaffirmation of the principle that government action, whether legislative or administrative, must be subject to strict constitutional scrutiny. This precedent ensures that any fees imposed by the government must be clearly justified by a direct connection to actual community costs imposed by the property development, and thus protecting property owners from government overreach.[21] For trial attorneys, Sheetz provides a powerful tool to challenge unconstitutional land use regulations and fees, and thus empowering developers and property owners to defend their rights when overreach arises.

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[1] See 601 U.S. 267, 279 (2024); U.S. Const. amend. V.

[2] Sheetz, 601 U.S. at 272.

[3] Id.

[4] Id. at 279.

[5] See U.S. Const. amend. V; Dolan v. City of Tigard, 512 U.S. 374, 396 (1994) (stating that the “essential nexus” and “rough proportionality” tests establish the narrow conditions under which the government can lawfully condition permit approval on a property owner dedicating land for public use. First, any required dedication must directly address the negative impacts that the proposed development would have on the public. Second, the government cannot leverage the permitting process to pressure landowners into surrendering property that it would otherwise need to purchase).

[6] U.S. Const. amend. V.

[7] 483 U.S. 825, 841 (1987).

[8] Dolan, 512 U.S. at 391 (“[A] term such as ‘rough proportionality’ best encapsulates what we hold to be the requirement of the Fifth Amendment. No precise mathematical calculation is required, but the city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.”).

[9] Id.

[10] 570 U.S. 595, 612 (2013) (“[Holding] that so-called ‘monetary exactions’ must satisfy the nexus and rough proportionality requirements of Nollan and Dolan.”).

[11] Koontz, 570 U.S. at 606.

[12] Sheetz, 601 U.S. at 272.

[13] Id. at 273.

[14] Id. at 279.

[15] Id. at 278.

[16] Id. at 270.

[17] Id.

[18] Id. at 276.

[19] The Editorial Board, The Supreme Court’s Road to El Dorado, Wall Street Journal (Jan. 7, 2024, 4:29 PM), https://www.wsj.com/articles/george-sheetz-v-county-of-el-dorado-property-rights-fifth-amendment-69ebc4c9 (“[A]s James Madison wrote in Federalist No. 10, the ‘great object’ of the Constitution was to secure private property ‘against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government.’”).

[20] Sheetz, 601 U.S. at 284 (Kavanaugh, J., concurring) (“[T]he Court has not previously decided—and today explicitly declines to decide—whether ‘a permit condition imposed on a class of properties must be tailored with the same degree of specificity as a permit condition that targets a particular development.’”).

[21] Nicole W.C. Yeatman, The government had George Sheetz ‘over a barrel.’ He took his case to the Supreme Court—and won., Pacific Legal Foundation (April 14, 2024), https://pacificlegal.org/sheetz-supreme-court/; Sheetz v. Cnty. of El Dorado: SLF urges Supreme Court to end Takings Clause debate, Southeastern Legal Foundation, https://www.slfliberty.org/case/sheetz-v-county-of-el-dorado/ (last visited Feb. 23, 2025).

Photo Credit: Cody Mello-Klein, Robin Hood or cold-blooded killer? Jury selection and jury nullification will be key in Luigi Mangione’s murder trial, legal expert explains, Northeastern Global News (February 19, 2025), https://news.northeastern.edu/2025/02/19/luigi-mangione-trial-jury/.

Authored by: Kaley E. Breland

As children, we begin to learn some of our most important lessons in morality through the stories of folk heroes. We often continue to search for these larger-than-life characters well into our adult lives, and we generally look to those that represent and fight for a cause that we believe in, even if their actions may be controversial.[1] This raises the question—what happens when someone who society has deemed a modern folk hero is accused of a serious crime, such as murder? Just how far is a jury willing to stretch the law when they are faced with a sympathetic defendant? Is it possible for the defendant to have an impartial and “fair” trial? These are the questions that legal experts are currently grappling with regarding alleged murderer Luigi Mangione—society’s “modern day Robin Hood.”

At 6:44 AM on December 4, 2024, UnitedHealthcare CEO Brian Thompson was fatally shot as he was entering the New York Hilton Midtown by a masked gunman who then fled the scene.[2] The manhunt for the masked shooter lasted for five days before 26-year-old Luigi Mangione was identified and taken into custody on December 9th.[3] Following his arrest, Mangione was charged in a federal court with one count of using a firearm to commit murder, one count of interstate stalking resulting in death, one count of stalking through use of interstate facilities resulting in death, and one count of discharging a firearm that was equipped with a silencer in furtherance of a crime of violence.[4] He has also been indicted by a grand jury in a New York state court on eleven different counts.[5] His state charges include one count of murder in the first degree, which alleges he killed the CEO in an act of terrorism, two counts of murder in the second degree, and various other weapon and forgery charges.[6]

Mangione has been met with an unprecedented level of public sympathy. His supporters liken him to a modern-day Robin Hood, and they justify his alleged actions because they see him as someone who represents their frustrations with both the healthcare industry and the inequality of wealth distribution in the United States.[7] Mangione has received extensive support on social media, where sympathizers make posts that sensationalize Mangione and the motives behind his alleged actions.[8] Many of his supporters have also turned to crowdfunding platforms to raise money to fund Mangione’s defense.[9] Notably, a campaign on the website GiveSendGo raised over $100,000 by December 15, 2024—a mere eleven days after the shooting.[10] As a result of this sympathy, some legal experts have expressed concerns that jury nullification could lead to Mangione’s acquittal.[11]

            Jury nullification is:

[a] jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness.[12]

The practice of jury nullification was initially accepted during the American Revolution; however, as the revolution faded, so did the willingness of courts to accept jury nullification, leading to the United States v. Battiste decision, which limited juror independence.[13] In that decision, a Massachusetts district court held that jurors have the power to nullify, but they do not have the moral right to nullify.[14] Further building upon the Battiste holding, the United States Supreme Court in 1895 held that “juries have no right to judge the law,” and the defendant is not entitled to a jury instruction informing jurors of their power to nullify.[15] The majority of courts today follow these holdings when presented with issues of jury nullification.[16]

Some legal experts have expressed concerns that Mangione may not receive a “fair” trial due to the mass amounts of public sympathy he has received, and they cite jury nullification as a huge potential risk.[17] These experts note that social media platforms have amplified the conversation surrounding Brian Thompson’s murder, which has shaped the narrative and also led to the development of polarized opinions on both sides of the issue.[18] As a result of this “trial by media,” activists who sympathize with Mangione’s alleged motives have the ability to “leverage platforms to promote their causes, influencing juror decisions in pursuit of perceived moral justice,” and there have already been instances of these activists advocating for nullification in Mangione’s upcoming trial.[19] Beyond the issue of social media, experts have also noted that a vast majority of Americans have had negative experiences with the American healthcare system, stating that “[i]n New York City, statistically it’s going to be hard to get 12 people where at least some of them are not going to be open to what [Mangione] did.”[20] Overall, these experts warn that the combination of a trial by media and the growing unrest with the American healthcare system could implicate the issue of nullification in Mangione’s trial.

On the other hand, there are some legal experts who do not express the same level of concern about the potential for nullification; rather, they anticipate that the jury will remain loyal to the oath that they took when they were selected to serve on the jury.[21] These experts have warned about the dangers of acquitting Mangione and the impact it could have in encouraging similar attacks in the future.[22] They warn that our legal system is dependent on fair and impartial juries, so setting a precedent that a murderer caught in broad daylight could be acquitted so long as he is sympathetic threatens foundations of our legal system.[23] Syracuse University College of Law professor Gregory Germain notes “[m]any of us hate insurance companies and have had difficult experiences dealing with insurance companies, but that doesn’t mean we think people should be going around murdering insurance executives in the street.”[24]

The trial of Luigi Mangione presents a critical test for the American legal system, highlighting the tension between the rule of law and public sentiment. While his supporters view him as a modern-day Robin Hood, the jury must still determine whether he is guilty of murder based on the evidence presented to them rather than moral justifications. The potential for jury nullification underscores the power and responsibility of jurors in shaping justice, but it also raises concerns about the integrity of our legal system, which relies on juror impartiality. This trial will serve as a case study in how social media, public opinion, and frustrations with systemic issues can influence courtroom proceedings. Ultimately, the outcome of this case will set a precedent for how justice is served when a “trial by media” clashes with the law.

---

[1] Peter Suciu, Luigi Mangione Has Become A Social Media Folk Hero, Forbes (December 12, 2024, 9:41 AM), https://www.forbes.com/sites/petersuciu/2024/12/12/luigi-mangione-has-become-a-social-media-folk-hero/ (“The American public has long been captivated by those who seemed to take on the system, even when they employed violence to do so.”).

[2] Chris Looft, Emily Shapiro, & Aaron Katersky, UnitedHealthcare shooting suspect’s timeline before, during, and after the brazen murder, ABC News (December 18, 2024, 9:11 AM), https://abcnews.go.com/US/unitedhealthcare-ceo-shooting-suspects-movements-timeline/story?id=116504579.

[3] Id.

[4] Press Release, U.S. Department of Justice, Luigi Mangione Charged with the Stalking and Murder of UnitedHealthcare CEO Brian Thompson and Use of a Silencer in a Crime of Violence (February 6, 2025) (on file with author).

[5] Emma Tucker, Lauren del Valle, Kara Scannell, & Zoe Sottile, Even for an administrative hearing, Luigi Mangione draws crowds at New York City courthouse, CNN (February 22, 2025,  6:38 AM), https://www.cnn.com/2025/02/21/us/mangione-court-charges-united-ceo-killing/index.html.

[6] Id.

[7] Suciu, supra note 2.

[8] Id.

[9] Peter Suciu, Social Media ‘Sympathy’ For Luigi Mangione Risks Jury Nullification, Forbes (December 16, 2024, 12:12 PM), https://www.forbes.com/sites/petersuciu/2024/12/16/social-media-sympathy-for-luigi-mangione-risks-jury-nullification/.

[10] Id.

[11] Id.

[12] Jury Nullification, Black’s Law Dictionary (12th ed. 2024).

[13] Mary Claire Mulligan, Jury Nullification: Its History and Practice, 33 Colo. Law., Dec. 2004, at 72, 73.

[14] Id. (explaining that the Battiste court was concerned with the uncertainty that results from nullification because it would be “impossible to ascertain the jury’s interpretation of the law”).

[15] Id.

[16] Id.

[17] Suciu, supra note 2.

[18] Id.

[19] Id.

[20] Id.

[21] Safia Samee Ali, Could fandom cause jury nullification in Luigi Mangione trial?, NewsNation (January 29, 2025, 3:02 PM), https://www.newsnationnow.com/crime/fandom-jury-nullification-luigi-mangione-trial/ (“If people think they will get off the hook because a victim is unsympathetic, that may lead to similar attacks . . . In the Mangione case, it’s even more concerning because this appears to be a planned attack.”).

[22] Id.

[23] Id.

[24] Id.

Photo Credit: Michelle John, Photograph of Robert and Brenda Andrew with their children, in “Dear diary, today I killed my husband…”, MEDIUM (Mar 16, 2023), https://medium.com/@michellejohn2003/dear-diary-today-i-killed-my-husband-241361b86bf5.

Authored by: Abigail C. Frazier

In November of 2001, Robert (“Rob”) Andrew and his wife Brenda were shot in their garage by two armed assailants.[1] Robert succumbed to his injuries, but his wife Brenda lived to tell the tale.[2] After the incident, Brenda informed the police that while she and her husband were in fact separated, they still saw each other frequently because of their children.[3] Interestingly enough, at the time of the shooting, Brenda was dating another man, James Pavatt. After her husband’s death, the pair traveled to Mexico together, and both soon became suspects in Rob’s murder.[4] Ultimately, Pavatt confessed to the shooting, stating that he committed it “with a friend.”[5] Pavatt denied Brenda Andrew’s involvement in the shooting of her husband, but both were charged with capital murder.[6] At trial, Pavatt was found guilty and sentenced to death.[7]

At Brenda Andrew’s trial, the prosecution had the burden to prove that “Andrew had conspired with Pavatt, an insurance agent, to murder her husband for the proceeds of his life insurance policy.”[8] The prosecution elicited evidence about Brenda’s past sexual partners, her choice in outfits, and her past sexual experiences.[9] Multiple of the prosecution’s witnesses “exclusively” testified about the provocative nature of Brenda’s clothing, while other witnesses who took the stand discussed whether “a good mother would dress or behave” how Brenda Andrew dressed and behaved.[10] The prosecution went as far as displaying Andrew’s underwear to the jury during closing argument.[11]

In 2004, Andrew was convicted of murdering her husband, Rob Andrew, and sentenced to death.[12] Andrew appealed and argued that “the introduction of irrelevant evidence . . . violated Oklahoma law as well as the Federal Due Process Clause.”[13] The Oklahoma Court of Criminal Appeals held that evidence regarding Andrew’s affairs was “proper because it showed that ‘[h]er co-defendant was just the last in a long line of men that she seduced.’”[14] However, the court struggled to find relevance for the other challenged evidence, besides the fact it could be viewed in relation to Andrew’s character.[15] The court nonetheless denied relief, stating that the errors were “harmless.”[16]

Judge Johnson and Judge Chapel both dissented.[17] In Judge Johnson’s dissent, she argued that the evidence introduced at the trial “had no purpose other than to hammer home that Brenda Andrew is a bad wife, a bad mother, and a bad woman,” and that this evidence caused the jurors to “trivialize the value of her life.”[18] In a separate dissent, Judge Chapel stated he would have “reversed the conviction and remanded for a new trial.”[19]

Subsequently, Andrew filed a federal habeas petition, in which she argued that the evidence introduced at her trial was “so prejudicial as to violate the Due Process Clause” of the Fourteenth Amendment.[20] Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a party is required to identify the “clearly established federal law governing [their] claim.”[21] The Tenth Circuit believed that “no holding of [the Supreme Court] established a general rule that the erroneous admission of prejudicial evidence could violate due process.”[22] The Tenth Circuit thus rejected Andrew’s claim and affirmed the Oklahoma Court of Criminal Appeals decision, holding that Andrew did not cite the required federal law in her claim.[23]

However, as noted by the majority, Andrew did cite Payne v. Tennessee, which states that the Due Process Clause can be a means of relief when unduly prejudicial evidence “renders [a] trial fundamentally unfair.”[24] The District Court determined that the part of Payne cited by Andrew was not a holding, but rather a “pronouncement” of the Supreme Court.[25] Therefore, the court did not consider whether the Oklahoma Court of Criminal Appeals “unreasonably applied Payne.”[26] In his dissent, Judge Bacharach argued that he would have held that Ms. Andrew was deprived of a “fundamentally fair trial” because the State’s focus on her sex life “pluck[ed] away any realistic chance that the jury would seriously consider her version of events.”[27]

The Supreme Court concluded that the Tenth Circuit was incorrect because its previous decision, Payne v. Tennessee, held that the Due Process Clause could be violated by unduly prejudicial evidence.[28] According to the Court, habeas relief may be granted “only if the state court relied on an unreasonable determination of the facts or unreasonably applied ‘clearly established Federal law, as determined by’ this Court.”[29] Petitioners must demonstrate that the state court unreasonably applied “the holdings, as opposed to the dicta” of Supreme Court decisions.[30] A principle is a “holding” for purposes of AEDPA, when the Supreme Court “relies on a legal rule or principle to decide a case.”[31] According to the Court, it was clear that Andrew “properly identified clearly established federal law” when she cited Payne.[32]

The Supreme Court emphasized that Payne did not “invent due process protections against unduly prejudicial evidence.”[33] In Payne, the Court considered “whether to overrule a set of prior cases that had categorically barred the introduction of victim impact evidence during the sentencing phases of a capital trial.”[34] The Court asserted that victim impact evidence serves “entirely legitimate purposes” in many instances.[35] Therefore, the Supreme Court concluded that the Due Process Clause of the Fourteenth Amendment provides a mechanism of relief against unduly prejudicial evidence and, furthermore, that a categorical bar was not necessary to preclude overly prejudicial testimony.[36]

In the case at hand, the Court notes that the Due Process Clause preventing admission of unduly prejudicial evidence was “indispensable” to Payne, making it a holding for purposes of AEDPA.[37] Nevertheless, the Court of Appeals held Payne “merely established that the Eighth Amendment did not erect a ‘per se bar’ to the introduction of victim-impact statements in capital cases.”[38] In its opinion, the Supreme Court dismissed the Court of Appeals’ assertion and explained that in Payne, the availability of Due Process Clause relief was “expressly relied on” in reaching their conclusion.[39]

Furthermore, Payne’s framework had previously been applied to claims very similar to Andrew’s.[40] Accordingly, the Court found that “Andrew does not rely on an interpretation or extension of this Court’s cases but on a principle this Court itself has relied on over the course of decades.”[41] On appeal, the Tenth Circuit did not consider whether the state court’s application of the law was reasonable because it held that “no relevant clearly established law existed.”[42] But the Supreme Court emphasized that “[a]t the time of the OCCA’s decision, clearly established law provided that the Due Process Clause forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair.”[43] Therefore, the Supreme Court vacated the judgment of the Tenth Circuit and remanded the case to the Court of Appeals[44] to determine the following: “whether a fair-minded jurist reviewing this record could disagree with Andrew that the trial court’s mistaken admission of irrelevant evidence was so ‘unduly prejudicial’ as to render her trial ‘fundamentally unfair.’”[45]

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[1] Andrew v. White, 145 S. Ct. 75, 78 (2025).

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] White, 145 S. Ct. at 78.

[8] Id.

[9] Id. at 78-79. (“Among other things, the prosecution elicited testimony about Andrew’s sexual partners reaching back two decades; about the outfits she wore to dinner or during grocery runs; about the underwear she packed for vacation; and about how often she had sex in her car.”).

[10] Id. at 79. (“At least two of the prosecution’s guilt-phase witnesses took the stand exclusively to testify about Andrew’s provocative clothing, and others were asked to comment on whether a good mother would dress or behave the way Andrew had.”).

[11] Id. (“In its closing statement, the prosecution again invoked these themes, including displaying Andrew’s ‘thong underwear’ to the jury, by reminding the jury of Andrew’s alleged affairs during college, and by emphasizing that Andrew ‘had sex on [her husband] over and over and over’ while ‘keeping a boyfriend on the side.’”).

[12] Id.

[13] White, 145 S. Ct. at 79.

[14] Andrew v. State, 164 P.3d 176, 192 (2007).

[15] Id.

[16] White, 145 S. Ct. at 80.

[17] Id.

[18] Id. (citing Andrew, 164 P.3d at 206-07).

[19] White, 145 S. Ct. at 80.

[20] Id. at 78.

[21] Id. at 80.

[22] Id. at 78.

[23] Id. at 80.

[24] 501 U.S. 808, 825 (1991).

[25] White, 145 S. Ct. at 80

[26] Id.

[27] Id.

[28] See 501 U.S. at 825.

[29] White, 145 S. Ct. at 80 (citing 28 U.S.C. §§ 2254(d)(1)-(2)).

[30] Id. (quoting White v. Woodall, 572 U.S. 415, 419 (2014)).

[31] Id. at 81 (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).

[32] Id.

[33] Id.

[34] Id.

[35] Payne, 501 U.S. at 825.

[36] White, 145 S. Ct. at 81.

[37] Id.

[38] Id. at 82.

[39] Id.

[40] See generally Romano v. Oklahoma, 512 U.S. 1 (1994); Kansas v. Carr, 577 U.S. 108 (2016).

[41] White, 145 S. Ct. at 83.

[42] Id.

[43] Id.               

[44] Id.

[45] Id. (quoting Payne, 501 U.S. at 825).

Photo Credit: Eric Prisbell, Why the House antitrust case is high stakes for the NCAA, ON3, (Sept. 19, 2023), https://www.on3.com/nil/news/why-the-house-antitrust-lawsuit-is-high-stakes-for-the-ncaa-nil-title-ix/.

Authored by: Barry Hall Billings

Will they be paid? This question about player compensation has buzzed around the world of college athletics for years. The clear answer desired has a possibility of being given this year. This answer begins with a holding in NCAA v. Alston where the U.S. Supreme Court unanimously ruled that the NCAA’s restrictions on education-related benefits for athletes violated antitrust law.[1] Moreover, Justice Brett Kavanaugh’s concurring opinion in Alston further signaled judicial skepticism toward the NCAA’s amateurism model, stating that “the NCAA’s business model would be flatly illegal in almost any other industry in America.”[2]

In 2020, Grant House and a group of student athletes filed a putative class action against the NCAA claiming that the NCAA’s rules violate antitrust law by banning players from benefiting from their name, image, and likeness. [3] Specifically, House and fellow plaintiffs asserted claims for (1) conspiracy to fix prices in violation of Section 1 of the Sherman Act, 15 U.S.C. § 1; (2) group boycott or refusal to deal in violation of Section 1 of the Sherman Act; and (3) unjust enrichment.[4] The NCAA’s reasoning for not allowing the player’s use of his own name, image, and likeness has always been to ensure that student athletes are student athletes to preserve the consumer demand for college sports as a distinct product from professional sports.[5]

The NCAA subsequently moved to dismiss House’s claims as they argued (1) the complaint should be barred under the doctrine of stare decisis in light of O’Bannon v. National Collegiate Athletic Ass’n,[6] and (2) the claims of the “Group-Licensing Damages Sub-Class” fail because the sub-class of plaintiffs did not have any publicity rights for the broadcasts, and even if they did, they did not allege an injury to the “Group Licensing Market” that was adjudicated in O’Bannon.[7]

The court held that the plaintiffs had sufficiently alleged that the NCAA’s restrictions on name, image, and likeness compensation constituted the unreasonable restraint of trade under the Sherman Antitrust Act.[8] The court found the allegations were plausible, which emphasized that the NCAA’s rules impose an non-competitive cap on athlete compensation without a legitimate justification.[9] The court further held that the NCAA’s rules could not be exempt from antitrust laws simply because they were tied to amateurism.[10] They reasoned that the NCAA’s business model increasingly resembled that of a professional or commercial enterprise.[11] By Judge Wilken denying the motion to dismiss, the case was also able to proceed as a class action, meaning House could represent all current and former Division I athletes who were denied name, image, and likeness compensation due to NCAA rules.[12]

After Judge Claudia Wilken denied the NCAA’s motion to dismiss,[13] a series of hearings and motions were filed. After over four years, the NCAA finally decided to settle this case for good.[14] In making this settlement, the NCAA agreed to pay out roughly $2.576 billion in back pay to “[a]ll student-athletes who compete on, competed on, or will compete on a Division I athletic team at any time between June 15, 2020 through the end of the Injunctive Relief Settlement Term.”[15] While this amount has been agreed upon, the fairness hearing is set to be heard in the Northern District of California before Judge Wilken to “determine whether to approve certification of the Settlement Classes . . . whether the proposed Settlement of the Lawsuit on the terms and conditions provided for in the Amended Settlement Agreement is fair, reasonable, and adequate to the Settlement Classes and should be approved by the Court,” and whether a final judgment for the approved amount should be entered.[16]

This amount will be paid out over a 10-year period.[17] Moreover, approximately 81% of the damages pool will be paid to Power Five football (SEC, Big-10, Big-12, ACC, and PAC-12, men’s basketball and women’s basketball student-athletes who were on a roster and received athletics aid from June 15, 2016 thru September 15, 2024.[18] The remaining 19% of the damages pool will be available to all student-athletes who can demonstrate that they lost third-party NIL (including video game) opportunities during the class period.[19] Students in the sports other than football, men’s basketball, and women’s basketball, and those who received a partial or full GIA during the 2019-2020 to 2024-2025 school years are eligible to submit a claim for these lost NIL opportunities.[20]

The settlement in House v. NCAA is in a position to create a precedent that will shape the future of NIL litigation in several ways. First, the case highlights the judicial importance  and societal recognition that college athletes are the core piece of a multi-billion dollar industry and are deserving of fair compensation for their contributions.[21] By addressing the antitrust implications of NIL restrictions, this case could influence other former athletes to challenge NCAA policies under both antitrust and labor laws.[22] Second, the settlement could change the trend and promote federal legislation governing NIL compensation.[23] Currently, there is not a uniform federal standard and a vast array of conflicting state laws is the current standard, which has created much confusion and inequities for athletes and institutions alike.[24] If the settlement is approved and it includes a revenue-sharing model or other significant concessions, Congress could potentially be pressured to enact comprehensive NIL legislation.[25] Finally, this settlementis likely to influence the outcome of related cases, such as Johnson v. NCAA.[26] If the settlement in House results in significant financial benefits for athletes, it could be used to strengthen the plaintiffs’ case that they are employees, which would further undermine the NCAA’s amateurism defense.[27]

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[1] See generally Nat’l Collegiate Athletic Ass’n v. Alston, 594 U.S. 69 (2021).

[2] Id. at 109 (Kavanaugh, J., concurring).

[3] House v. Nat’l Collegiate Athletic Ass’n, 545 F. Supp. 3d 804, 808 (N.D. Cal 2021)

[4] Id. at 810.

[5] See NCAA Bylaws §12.01.2 (revised Aug. 9, 2024).

[6] 802 F.3d 1049 (9th Cir. 2015).

[7] House, 545 F. Supp. 3d at 811.

[8] Id. at 816.

[9] Id.

[10] Id. at 817

[11] Id.

[12] Id.

[13] House, 545 F. Supp. 3dat 820.

[14] In re Coll. Athlete NIL Litig., No. 4:20-CV-03919-CW, 2024 WL 5360139, at *1 (N.D. Cal. Oct. 7, 2024).

[15] Id. at *2.

[16] Id. at *1.

[17] Jason Greco, House vs. NCAA Settlement, Utah Utes, (October 16, 2024), https://utahutes.com/sports/2024/10/16/house-vs-ncaa-settlement.aspx.

[18] Id.

[19] Id.

[20] Id.

[21] Dan Edelman, The Future of College Athlete Compensation, 45 J. Coll. & Univ. L. 123, 130 (2023).

[22] Id.

[23] Dan Murphy, Congress Urged to Act on NIL as State Laws Proliferate, ESPN (Jan. 12, 2024), https://www.espn.com.

[24] Id.

[25] Id.

[26] See Johnson v. Nat’l Collegiate Athletic Ass’n, 108 F.4th 163 (2024).

[27] Id.

Photo Credit: Oleg Abdurashitov, On Cybersecurity Laws – and Their Interpretations, Kaspersky, https://www.kaspersky.com/about/policy-blog/on-cybersecurity-laws (last visited Feb. 24, 2025).

Authored by: Elizabeth Gracie Smith

For people under the age of 50, it can be hard to imagine a world without the internet and consequently, cyber-attacks. The first cybercriminal, 16-year-old Kevin Mitnick, was arrested in 1979, for accessing operating systems at the Digital Equipment Corporation and making copies of the software.[1] The 1980s saw high profile attacks that drew public attention to cyber threats, and the field of cybersecurity began. The development of cybersecurity regulations in the United States has been shaped by the increasing frequency of cyber threats.

Since the United States has no single regulatory cybersecurity framework, there are several laws which govern cybersecurity and privacy practices. These laws are usually tailored to specific industries or sectors. The Sarbanes-Oxley Act (SOX), for example, mandates that publicly traded companies must have robust cybersecurity measures to protect financial data and ensure the accuracy of public financial statements.[2] The Securities and Exchange Commission’s (SEC) Regulation S-P targets financial institutions and requires them to have adequate safeguards to protect consumer financial information.[3]

Another significant law is the Gramm-Leach-Bliley Act (GLBA), which applies to a wide range of financial institutions, including entities such as banks, securities firms, non-bank mortgage lenders, and insurance companies.[4] The GLBA requires organizations to implement comprehensive security programs that include technical, physical and administrative safeguards to protect customers’ sensitive information.[5]

The Federal Trade Commission Act (FTC Act) enforces privacy protections across the United States and requires most businesses to take adequate cybersecurity measures, excluding banks and certain other industries.[6] Similarly, the Health Insurance Portability and Accountability Act (HIPAA) enforces strict security and privacy protocols for healthcare organizations, ensuring sensitive health information is safe.[7] Other regulations like the Defense Federal Acquisition Regulation (DFAR) apply specifically to U.S. Department of Defense contractors,[8] while the Children’s Online Privacy Protection Act (COPPA) protects the privacy of children online.[9]

Initially, cybersecurity laws focused more on protecting financial data, but as technology has advanced, privacy concerns and data protection have drawn more attention. For example, the rise of digital healthcare records required stricter privacy regulations, leading to the creation of HIPAA.[10] As technology continues to advance, the evolving nature of cyber threats may cause lawmakers to rethink this fragmented approach and consider a more unified framework.[11]

The variety of laws that regulate cybersecurity creates compliance challenges for organizations. Businesses operating across multiple states or internationally are especially affected by this patchwork system.[12] Each state may have its own breach notification requirements or cybersecurity mandates, and this inconsistency can make it difficult for businesses to create uniform compliance policies.[13] This complexity increases both the time and cost needed to manage legal requirements, particularly for smaller companies that may lack the resources to stay on top of constantly evolving laws.[14]

State specific laws, such as California’s Consumer Privacy Act (CCPA), create challenges for businesses that operate across state lines.[15] Companies not only must be aware of varying requirements, but also maintain flexibility to adjust their policies based on where they are doing business.[16] For example, a company headquartered in New York might need to comply with the stricter consumer privacy protections of California, which requires them to develop separate compliance strategies for different regions. This patchwork of state and federal laws can lead to inefficiencies and the need for businesses to invest in legal and compliance departments to ensure they do not accidentally violate state-specific regulations.

Varying laws can also create confusion in enforcement. Different states, courts and agencies may interpret the laws differently, leading to inconsistent enforcement and a lack of clarity regarding how different regulations apply in certain circumstances.[17] This inconsistency can undermine efforts to protect consumer privacy and create more risk for businesses that accidentally fail to comply with a specific law.

The cybersecurity regulatory landscape is not static, and recent developments show the importance of data protection. The introduction of bills like the American Data Privacy and Protection Act (ADPPA) in Congress represents a move toward a more cohesive national cybersecurity framework.[18] Although the bill has not passed yet, its presence in legislative discussions further emphasizes the increasing demand for a single, comprehensive framework to protect consumer data, especially as data breach concerns continue to rise.[19]

While there are disadvantages to the lack of a single, overarching cybersecurity law in the United States, there are also some positives. Having multiple laws allows for more specific regulations that directly address the unique needs of different industries.[20] For example, the specific needs of financial institutions are addressed by GLBA,[21] while healthcare organizations are regulated under HIPAA.[22] This sector-specific approach allows the laws to more effectively address the distinct challenges each industry faces.

The flexibility offered by state laws is another positive aspect. States can enact their own legislation based on the concerns and priorities of their residents.[23] For example, CCPA has stringent privacy rules, reflecting the California’s proactive stance on privacy protection.[24] This approach allows room for innovation for individual states and sets higher standards for privacy and security.

As technology continues to evolve, the need for additional laws will emerge, making the current patchwork of cybersecurity laws even more challenging to navigate.

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[1] Hope Trampski, Kevin Mitnick, sound familiar?, cyberTAP Purdue University (July 16, 2024), https://cyber.tap.purdue.edu/blog/articles/kevin-mitnick-sound-familiar/.

[2] Sarbanes-Oxley Act of 2002, Pub. L. No. 107-204 (2002).

[3] 17 C.F.R. 248.

[4] Gramm-Leach-Bliley Act, Pub. L. No. 106-102 (1999).

[5] See id.

[6] 15 U.S.C § 45.

[7] 45 C.F.R. 160-164.

[8] 48 C.F.R. 252.204-7012.

[9] 16 C.F.R. 312.

[10] 45 C.F.R. 160.

[11] Jessica L. Beyer, et al., The Next Step in Federal Cybersecurity? Considering an NTSB-Style Computer Safety Board, The Henry M. Jackson School of International Studies (August 6, 2018), https://jsis.washington.edu/news/the-next-step-in-federal-cybersecurity-considering-an-ntsb-style-computer-safety-board/ (discussing arguments that a single cybersecurity agency should be created at the federal level).

[12] See Amy Chang & Haiman Wong, Navigating the Complexities of U.S. Cybersecurity Regulation Harmonization, RStreet (June 27, 2024), https://www.rstreet.org/commentary/navigating-the-complexities-of-u-s-cybersecurity-regulation-harmonization/ (“In addition to an ever-evolving cyber threat landscape, organizations face a complex web of overlapping and often inconsistent cybersecurity regulations across federal, state, and local levels.”).

[13] Id.

[14] Id.

[15] Cal. Civ. Code § 1798.100.

[16] A Guide to U.S. Cybersecurity Laws and Compliance, NRI Secure (December 5, 2024), https://www.nri-secure.com/blog/us-cybersecurity-laws-compliance (“Businesses operating across multiple states face challenges due to varying cybersecurity and data privacy laws.”).

[17] See, e.g., Cam Sivesind, Chevron Doctrine Reversal: What’s It Mean for Cybersecurity Regulation?, SecureWorld (July 10, 2024), https://www.secureworld.io/industry-news/chevron-doctrine-cybersecurity-regulation (discussing the roles of courts and agencies in interpreting cybersecurity regulations).

[18] H.R. 8152 117th Cong. (2021-2022).

[19] Id.

[20] See Edward McNicholas and Frances Faircloth, Cybersecurity Laws and Regulations USA 2025, ICLG (July 6, 2024), https://iclg.com/practice-areas/cybersecurity-laws-and-regulations/usa (noting the additional requirements that must be taken by each affected industry).

[21] Gramm-Leach-Bliley Act, Pub. L. No. 106-102 (1999).

[22] 45 C.F.R. Part 160.

[23] See Cal. Civ. Code § 1798.100.

[24] Id.

Photo Credit: Students protest for the right to free speech outside the Supreme Court in Washington, DC, 19 March 2007 (photograph), in Can a school punish a student for online speech off campus?, News Decoder (Oct. 27, 2020), https://news-decoder.com/can-a-school-punish-a-student-for-online-speech-off-campus/.

Authored by: Nadia M. McDonald

In an age dominated by social media, the question of whether public schools have the right to discipline students for off campus online speech has become increasingly significant. This issue was brought to the forefront in the landmark Supreme Court case Mahanoy Area School District v. B.L., which addressed the tension between the First Amendment’s protection of free speech and schools’ authority to regulate student behavior.[1] While the Court ruled that schools have limited authority to regulate off campus speech,[2] many questions remain unanswered.

The First Amendment and Freedom of Speech in Schools

The First Amendment guarantees individuals the right to freedom of speech, a right that extends to students in public schools.[3] However, the Supreme Court has long recognized that student speech is not without limits, particularly when it comes to speech that disrupts the learning environment or violates school rules.[4] In Tinker v. Des Moines Independent Community School District, the Court ruled that students could express their opinions, including through symbolic speech, if it did not “materially and substantially disrupt the work and discipline of the school.”[5] While Tinker set the foundation for regulating student speech within the school, it didn’t address the question of off campus speech. Over the years, lower courts have grappled with how to apply Tinker to social media posts made by students outside of school grounds. In Mahanoy, the Court was tasked with determining whether the same principles apply to social media posts made by students off campus.[6]

Mahanoy Area School District v. B.L.

In 2017, Brandi Levy, a high school student at Mahanoy Area High School in Pennsylvania, posted a Snapchat story expressing frustration about not making the school’s varsity cheerleading team.[7] The post, made off campus at a local convenience store and outside of school hours, included profanity and directed harsh criticism at the school and its cheerleading program.[8] The following day, Levy was suspended from the junior varsity cheerleading team for the upcoming year, for what the school described as “disruptive” behavior which violated the team’s code of conduct.[9] Levy, however, challenged the suspension, claiming it violated her First Amendment right to free speech.[10] The case eventually made its way to the Supreme Court, where the Justices had to decide whether schools had the authority to punish students for speech made off campus that might not directly disrupt school activities.[11]

In an 8-1 decision, the Supreme Court ruled in favor of Brandi Levy, holding that public schools could not discipline students for off campus speech unless it caused a substantial disruption to the school environment.[12] Justice Stephen Breyer, writing for the majority, emphasized that the First Amendment protects a student’s right to express themselves outside of school, even if their speech is vulgar or critical of school activities.[13] The Court acknowledged that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” a principle established in Tinker.[14] However, the Court made it clear that this decision did not give students complete freedom to say anything without consequences.[15] Schools still have the authority to regulate speech that occurs on school property or at school events, as well as speech that disrupts the educational process or infringes on the rights of others.[16] In Levy’s case, her Snapchat post, though inappropriate, did not cause a substantial disruption to the school’s operations, and therefore, the school’s disciplinary action did violate her First Amendment rights.[17]

The Impact of Social Media on Student Speech

The rise of social media has fundamentally changed how students express themselves and how their speech can be regulated. Platforms like Snapchat and Instagram give students an unprecedented ability to communicate with their peers and the public at large, often outside the boundaries of traditional school environments. This shift has blurred the lines between what constitutes “on campus” and “off campus” speech.[18]

Social media posts, unlike traditional forms of speech, can be far reaching and can easily be shared, liked, or commented on by a large audience at all times and in any place.[19] The digital age has made it much more difficult to draw a clear line between student speech that is private and that which affects the school environment.[20] Even when speech occurs off campus, it can have ripple effects on the school, its students, and its staff. For example, a social media post that goes viral could create a climate of division within the school, leading to potential disruptions. The Court in Mahanoy recognized these complexities but reaffirmed the importance of student expression.[21] In doing so, the Justices underscored that schools should not overreach in attempting to control students’ online behavior unless there is a direct and significant impact on the school environment.[22]

Potential Ambiguities and Unanswered Questions

While the Mahanoy decision provided clarity in some respects, it also left several key issues unresolved. One of the primary questions left open by the ruling is how schools should handle off campus speech that is less overtly disruptive but still has the potential to cause harm or disruption. The Court’s opinion did not offer a comprehensive test for determining when off campus speech crosses the line from protected expression to disruptive behavior. For example, what happens if a student’s social media post includes threats, bullying, or harassment? While these types of posts are clearly disruptive, they may still fall outside the scope of school grounds.[23]

The Court also did not address the issue of cyberbullying, which is a significant concern for schools nationwide.[24] Cyberbullying can often take place off campus and affect students’ mental and emotional well-being within the school, and while Mahanoy provides a baseline for protecting students’ free speech rights, it leaves open the question of how schools can address harmful behavior without overstepping their authority.

Implications for Schools, Students, and the Legal Landscape

The Mahanoy decision has significant implications for both students and schools. For students, the ruling affirms that they have the right to express themselves online, even if their speech is critical of the school or its activities.[25] This ensures that students have the freedom to express their opinions and frustrations without fear of retaliation, a fundamental aspect of the First Amendment.[26] For schools, the decision sets limits on their authority to regulate online speech.[27] Schools can no longer impose discipline on students simply because their off campus speech is offensive or critical of the institution.[28] However, they still retain the ability to intervene if the speech creates a substantial disruption to the school’s operations or violates the rights of others.[29]

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[1] Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021). 

[2] Id. at 186-87.

[3] U.S. Const. amend. I.

[4] Mahanoy, 594 U.S. at 187.

[5] 393 U.S. 503, 513 (1969).

[6] Mahanoy, 594 U.S at 186-87.

[7] Id. at 180.

[8] Id.

[9] Id. at 185.

[10] Id.

[11] Id. at 180.

[12] Mahanoy, 594 U.S. at 186 (citing Brown v. Entm’t Merchs. Assn., 564 U.S. 786, 794 (2011) (“But we have also made clear that courts must apply the First Amendment ‘in light of the special characteristics of the school environment.’”).

[13] Id. at 190-91.

[14] Id. at 187 (citing Tinker, 393 U.S. at 506).

[15] Id. at 186 (citing Tinker, 393 U.S. at 513) (“[C]onduct by [a] student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech.”).

[16] Id. at 188.

[17] Id. at 189.

[18] Mahanoy, 594 U.S. at 190-91.

[19] Monica Miecznikowski, Left for the Future, Solved in the Past: A Test for School’s Ability to Regulate Student Speech Off-Campus, Vanderbilt JETLaw Blog (February 2, 2024), https://www.vanderbilt.edu/jetlaw/2024/02/02/left-for-the-future-solved-in-the-past-a-test-for-schools-ability-to-regulate-student-speech-off-campus/ (“Courts have found that schools generally have the right to regulate student’s speech while they are on campus. However, with the advancement of technology, speech is no longer tethered to a time or place. A person can type an opinion and near instantly that view can be heard across the country.”).

[20] Mahanoy, 594 U.S. at 189-90.

[21] Id. at 190.

[22] Id. at 180 (“Circumstances that may implicate a school’s regulatory interests include serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.”).

[23] Id. at 209 (“Bullying and severe harassment are serious (and age-old) problems, but these concepts are not easy to define with the precision required for a regulation of speech.”).

[24] Monica Anderson, A Majority of Teens Have Experienced Some Form of Cyberbullying, Pew Research Center,  https://www.pewresearch.org/internet/2018/09/27/a-majority-of-teens-have-experienced-some-form-of-cyberbullying/ (Sep. 27, 2018).

[25] Mahanoy, 594 U.S. at 192 (“Moreover, the vulgarity in B. L.’s posts encompassed a message, an expression of B. L.’s irritation with, and criticism of, the school and cheerleading communities. Further, the school has presented no evidence of any general effort to prevent students from using vulgarity outside the classroom. Together, these facts convince us that the school’s interest in teaching good manners is not sufficient, in this case, to overcome B. L.’s interest in free expression.”)

[26] Id. at 191.

[27] Id. at 190.

[28] Id. at 180.

[29] Id. at 181.

Photo Credit: Karen Cullinane, Did San Francisco Awaken the Ghost of the Chevron Doctrine? The Supreme Court Weighs In, Goldberg Segalla (Oct. 24, 2024), https://environmentallawmonitor.com/clean-water-act/did-san-francisco-awaken-the-ghost-of-the-chevron-doctrine-the-supreme-court-weighs-in/.

Authored by: Naomi Baltins

On March 4, 2025, the U.S. Supreme Court issued its opinion in City of San Francisco v. Environmental Protection Agency, limiting the EPA’s ability to enforce broad water quality mandates through its permitting process.[1] The opinion, authored by Justice Alito, reversed a Ninth Circuit ruling that had upheld the EPA’s ability to include “end-result” requirements in discharge permits.[2] These were provisions that held municipalities accountable for water quality standards without specifying the necessary compliance measures.[3]

Under the Clean Water Act (CWA), the EPA regulates pollutant discharges into U.S. waters through the National Pollutant Discharge Elimination System (NPDES).[4] Traditionally, these permits have included effluent limitations, which restrict the amount and type of pollutants an entity may discharge.[5] But in 2019, the EPA took things a step further by including broader  “end-result” provisions in San Francisco’s NPDES permit for its Oceanside wastewater treatment facility, prohibiting any discharge that contributed to violations of water quality standards.[6] San Francisco challenged these provisions, arguing that they exceeded the EPA’s authority under the CWA.[7]

Before reaching the Supreme Court, the Ninth Circuit upheld the EPA’s authority to impose end-result requirements in NPDES permits.[8] The appellate court reasoned that Section 1311(b)(1)(C) of the CWA allows the EPA to impose “any” limitations necessary to meet water quality standards, including requirements that do not explicitly state the steps permittees must take.[9] The Ninth Circuit found that these provisions were consistent with the EPA’s longstanding regulatory framework and necessary to ensure compliance with water quality standards.[10] However, the dissent warned that such an interpretation effectively forced cities to meet undefined environmental goals, potentially overstepping the EPA’s statutory limits.[11]

The Court held that the CWA does not authorize the EPA to impose “end-result” provisions in permits.[12] The Court reasoned that holding municipalities accountable for vague, undefined water quality outcomes creates uncertainty and undermines the law’s “permit shield” provision, which protects permit holders from liability if they adhere to permit conditions.[13]

This decision represents a shift in the balance of regulatory power, signaling that the EPA must set clear, enforceable guidelines rather than broad, outcome-based mandates.[14] This ruling is expected to impact wastewater treatment facilities nationwide, especially in cities with combined sewer systems that struggle with overflows during heavy rainfall, like the one in San Francisco.[15] Without the ability to enforce broad water quality-based permit conditions, the EPA may need to rethink its regulatory strategy, possible setting more specific pollutant limits or exploring alternative compliance methods.

Reactions to the ruling are likely to be split. Environmental advocates may see it as a weakening of water quality protections, while industry groups and municipalities could view it as a necessary check on federal overreach. This case reflects the Supreme Court’s growing skepticism toward the power of federal agencies, a trend that could extend beyond environmental regulation.[16]

The decision comes at a time when environmental policy is a hot-button issue in U.S. politics. The Biden administration pushed for stronger environmental protections against pollution and climate change, often clashing with states and industries that favor deregulation.[17] Meanwhile, conservative legal efforts to limit agency power have gained traction, with the Supreme Court increasingly reining in federal agencies like the EPA, SEC, and FTC.[18]

This ruling fits within a broader pattern of judicial skepticism toward expansive administrative power, echoing recent decisions that challenge the scope of agencies like the EPA, the SEC, and the FTC.[19] This case emphasizes the ongoing debate over federalism and the appropriate balance between state and federal control over environmental policy.

Beyond the EPA, other federal regulations may also be on the chopping block as the Court continues to limit agency authority. Challenges to the Clean Air Act, particularly regarding the EPA’s power to regulate greenhouse gas emissions, could follow. Financial and consumer protection agencies such as the SEC and FTC are seeing increasing restrictions on their ability to regulate corporate practices.[20] As these legal challenges unfold, the extent to which federal agencies can enforce regulatory mandates remains uncertain, leaving future environmental and administrative policies in a state of instability. With regulatory priorities shifting from each presidential administration, the future of environmental oversight remains uncertain. Both industry stakeholders and environmental groups will closely monitor how this ruling impacts legislative initiatives and regulatory policies in the years ahead. As regulatory agencies and local governments adapt to this evolving legal framework, this case is poised to influence future discussions on federal environmental oversight and the scope of agency authority in implementing statutory mandates.

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[1] City of San Francisco v. Env’t Prot. Agency, 145 S. Ct. 704, 707 (2025).

[2] Id. at 711.

[3] Id.

[4] Id. at 711-12.

[5] Id. at 712.

[6] Id. at 713.  

[7] City of San Francisco, 145 S. Ct at 713.

[8] Id.; see also City of San Francisco v. U.S. Env’t Prot. Agency, 75 F.4th 1074 (9th Cir. 2023), cert. granted sub nom. City of San Francisco v. Env’t Prot. Agency, 144 S. Ct. 2578 (2024), and rev’d and remanded sub nom. City of San Francisco v. Env’t Prot. Agency, 145 S. Ct. 704 (2025).

[9] City of San Francisco, 145 S. Ct. at 713.

[10] City of San Francisco, 75 F.4th at 1090.

[11] Id. at 1107 (Collins, J., dissenting).

[12] City of San Francisco v. EPA, 145 S. Ct. at 720.

[13] Id. at 718.

[14] Id. at 720.

[15] Pamela King & Miranda Willson, 5 things to know about San Francisco’s Supreme Court fight against EPA, POLITICO (Oct. 15, 2024) https://www.eenews.net/articles/5-things-to-know-about-san-franciscos-supreme-court-fight-against-epa/.

[16] Michael Smith et al., Supreme Court Makes Waves In San Francisco Ruling, Brownstein Client Alert (March 11, 2025) https://www.bhfs.com/insights/alerts-articles/2025/supreme-court-makes-waves-in-san-francisco-ruling; Lisa John Rogers, What a recent Supreme Court ruling could mean for the future of the Clean Water Act, Great Lakes Now (March 7, 2025) https://www.greatlakesnow.org/2025/03/what-a-recent-supreme-court-ruling-could-mean-for-the-future-of-the-clean-water-act/.

[17] See, e.g., Exec. Order No. 14,057, 86 Fed. Reg. 70,935 (Dec. 13, 2021) (projecting for a carbon pollution-free electricity sector by 2035 and net-zero emissions economy-wide by no later than 2050); Press Release, FACT SHEET: President Biden Protects Atlantic and Pacific Coasts from Offshore Oil and Gas Drilling (Jan. 6, 2025) https://bidenwhitehouse.archives.gov/briefing-room/statements-releases/2025/01/06/fact-sheet-president-biden-protects-atlantic-and-pacific-coasts-from-offshore-oil-and-gas-drilling/.

[18] Loper Bright Enters. v. Raimondo, 603 U.S. 369, 377 (2024) (overruling the Chevron doctrine); SEC v. Jarkesy, 603 U.S. 109, 115 (2025) (stripping the SEC of its ability to use in-house tribunals when seeking civil penalties).

[19] AMG Cap. Mgmt., LLC. v. FTC, 593 U.S. 67, 70 (2021).

[20] Nowell D. Bamberger et. al., Consumer Protection Compliance Remains Crucial in Spite of CFPB Work Stoppage, Cleary Gottlieb (Feb. 20, 2025) https://www.clearyenforcementwatch.com/2025/02/consumer-protection-compliance-remains-crucial-in-spite-of-cfpb-work-stoppage/.

Photo Credit: Lee A. O’Connor, Understanding the Categorical and Modified Categorical Tests, The Federal Lawyer (Dec. 2010), https://www.fedbar.org/wp-content/uploads/2010/11/categoricalmodified-pdf-1.pdf.

Authored by: Elizabeth Mojica

The Immigration and Nationality Act (“INA”) outlines specific criminal offenses that, if a non-citizen is convicted of them, may result in their removal from the United States.[1] Qualifying criminal offenses include crimes of moral turpitude and aggravated felonies as well as various other crimes.[2] Issues often arise when a conviction based on state law is the grounds for a federal order of removal.[3] Courts must then determine whether the state conviction sufficiently meets the requirements outlined by the INA to support the grounds for removal from the United States.[4] This determination is typically made using the categorical approach.[5]

The categorical approach follows an element by element comparison to determine whether the state crime a non-citizen is convicted of sufficiently meets those of the federal offense.[6] In cases regarding offenses without a specified federal definition, generic definitions which may be derived from relevant federal statutes, case law, dictionaries, or the INA itself are used.[7] The comparison is solely between the elements of the state crime and the generic definition.[8] Therefore, the underlying facts and circumstances which led to the non-citizen’s conviction are disregarded.[9] However, when a conviction is based on a state statute including both removable and non-removable offenses then a modified categorical approach is applied.[10] The modified categorical approach reviews the record to determine whether the conviction supports removal.[11] Both the categorical approach and the modified categorical approach have occasionally called for a comparison with the state definitions at the time of conviction.[12] The question remains, however, as to whether the federal definition should be that which was in place at the time of conviction or that which was in place at the time of removal proceedings.[13]

The Board of Immigration Appeals (“BIA”) recently addressed this question in Matter of Jonalson, a case regarding a non-citizen’s state conviction based on a controlled substance offense for possession of marijuana.[14]  The non-citizen filed a motion to terminate removal proceedings arguing the state definition of marijuana was over-broad when compared to the federal definition and therefore insufficient to constitute grounds for removal.[15] The immigration judge denied the non-citizen’s motion finding because at the time of the non-citizen’s conviction, the state defined marijuana more narrowly than federal law.[16] Once removal charges were adjudicated, however, the state defined marijuana more broadly.[17] The BIA reviewed de novo, applying the categorical approach, whether the non-citizen’s state conviction qualified for removal.[18]

As the BIA noted, when the issue is not disputed there is a presumption that the relevant comparison is the definitions in place at the time of conviction.[19] In addressing the dispute, the BIA referred to Second, Third, Ninth, and Eleventh Circuits’ rejections of the “time-of-removal argument in favor of using the time of conviction.” [20] The BIA’s decision is focused narrowly on the statutory interpretation issue created by the discrepancy and is an effort to promote certainty and predictability in future cases.[21] However, while Matter of Jonalson reflects the findings of four United States Courts of Appeals, others like the Fourth Circuit have differed.[22] Ultimately, the Second, Third, Ninth, and Eleventh Circuits will continue to rely on the time-of-conviction definitions. However, Matter of Jonalson arose in the First Circuit, which has not addressed the issue, and BIA decisions are not binding on circuit courts of appeals. Nonetheless, as the BIA noted, other circuits have also not addressed the issue. Therefore, while it is possible some circuits may follow suit to promote uniformity, it is likely others will continue to rely on the time of removal definitions which will create a circuit split the United States Supreme Court will need to address.

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[1] See 8 U.S.C. § 1227(a) (“Any [non-citizen] . . . in and admitted to the United States shall, upon the order of the Attorney General, be removed if the [non-citizen] is within one or more of the following classes of deportable [non-citizens.”); 8 U.S.C. § 1227(a)(2) (listing various deportable offenses for non-citizens).

[2] Id.

[3] Salinas v. Bondi, 131 F.4th 840, 843 (8th Cir. 2025) (challenging a removal order based on interpretations of state and federal definitions of marijuana); Rashid v. Mukasey, 531 F.3d 438, 447 (6th Cir. 2008) (applying the categorical approach to determine whether an offense constitutes an aggravated felony to qualify removal); Jaggernauth v. U.S. Att’y Gen. 432 F.3d 1346, 1353 (11th Cir. 2005) (determining whether a Florida conviction “constitutes a theft offense for purposes of the aggravated felony definition” to support grounds for removal).

[4] Ndungu v. Att’y Gen. U.S., No. 20-2562 (3d Cir. Jan. 13, 2025) (en banc) (illustrating the challenge of matching a state crime definition to the federal interpretation of crimes involving moral turpitude to sufficiently meet the grounds to support a removal order). See Crim-Imm Case Law Updates 2024, National Immigration Project (Dec. 16, 2024), https://nipnlg.org/sites/default/files/2024-12/2024_crim-imm-case-law-updates.pdf (outlining court updates from the BIA’s and the United States Courts of Appeals’ findings regarding the applications of the categorical approach to various state statutes).

[5] Moncrieffe v. Holder, 569 U.S. 184, 190 (2013) (“When the Government alleges that a state conviction qualifies as an ‘aggravated felony’ under the INA, we generally employ a ‘categorical approach’ to determine whether the state offense is comparable to an offense listed in the INA.”); Salinas, 131 F.4th at 843 (explaining removal orders for state drug convictions “must use the categorical approach”); Bazan-Reyes v. I.N.S., 256 F.3d 600, 606 (7th Cir. 2001) (explaining the use of the categorical approach in matching state statutes to federal law).  

[6] Salinas, 131 F.4th at 843; Soliman v. Gonzales, 419 F.3d 276, 279 (4th Cir. 2005) (explaining the application of the categorical approach in determining whether a conviction meets the grounds for removal).

[7] Moncrieffe, 569 U.S. at 190 (explaining the generic federal definitions are those which are “viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison”); Johnson v. U.S., 559 U.S. 133, 134 (2010) (stating the court will give a phrase its ordinary meaning where the federal statute has not provided a definition); see Office of the General Counsel, Categorical Approach Primer (2024) (explaining the various sources used to form the generic definition).

[8] Descamps v. U.S., 570 U.S. 254, 261 (2013) (“If the relevant statute has the same elements as the ‘generic’. . ., then the prior conviction can serve as . . . predicate; so too if the statute defines the crime more narrowly, because anyone convicted under that law is ‘necessarily. . . guilty of all the [generic crime’s] elements.’”).

[9] Moncrieffe, 569 U.S. at 191 (explaining the INA looks only at the offense the noncitizen is convicted of not the conduct which led to the conviction).

[10] Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev. 1669, 1760 (2011).

[11] Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 187 (2007) (explaining the modified categorical approach “permits the sentencing court ‘to go beyond the mere fact of conviction’); Batrez Gradiz v. Gonzales, 490 F.3d 1206, 1211 (10th Cir. 2007) (stating the modified categorical approach may look at “charging papers and jury instructions”).

[12] See Taylor v. U. S., 495, 576 (1990) (stating the definitions compared are those which are “now used in most States’ criminal codes”); Gonzalez, 549 U.S. at 183 (stating “[t]he term ‘theft offense’ in 8 U.S.C. § 1101(a)(43)(G) includes the crime of ‘aiding and abetting’ a theft offense, because the generic sense in which the term ‘theft’ is now used in state and federal law covers such aiders and abettors as well as principals.”).

[13] See Salinas, 131 F.4th at 845 (highlighting the uncertainty created by a time of removal review under the categorical approach); Jonalson, 29 I&N Dec. 20, 20 (B.I.A. 2025) (supporting a time of conviction review under the categorical approach).

[14]Jonalson, 29 I&N Dec. 20, 20 (B.I.A. 2025).

[15] Id. at 21.

[16]Id.

[17] Id.

[18]Id..

[19]Id. at 22.

[20] Id. at 22.

[21] Jonalson, 29 I&N Dec. 20, 22 (B.I.A. 2025).

[22] See Kelsey Mellan, Fourth Circuit Upholds Removal Order and Sentencing Determination, Wake Forest L. Rev. Blog (Jan. 26), https://www.wakeforestlawreview.com/2017/01/fourth-circuit-upholds-immigration-removal-and-sentence-as-constitutional/.