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CAS Award: CAS 2016/A/4643, Maria Sharapova v. ITF, 30 September 2016.
This Court of Arbitration for Sport (“CAS”) award puts (at least for the moment) an end to Maria Sharapova (or the “Player”)’s doping ordeal stemming from her admitted Use of Meldonium, a substance added to WADA’s Prohibited List less than a month before she tested positive at the 2016 edition of the Australian Open (the “Sharapova CAS Award”). In essence, the CAS partially upheld the appeal brought by the Player against decision of the ITF Tribunal (the “Sharapova ITF Decision”) and reduced the original two-year ban to 15 months. This award raises more questions than it answers, in particular with respect to (i) the evaluation of an Athlete’s fault in cases in which an Athlete’s anti-doping obligations were delegated to a third party who did not prove up to the task; and (ii) the scope of Anti-Doping Organization’s responsibility in notifying Athletes of changes made to the Prohibited List in circumstances where there were reasons to suspect widespread Use of the substance.
These issues are far from being straightforward. In the following Comment, we will discuss the way in which the CAS panel addressed them. We will show that the CAS panel’s approach is not entirely convincing and will compare this approach to that adopted by the ITF Tribunal in the initial decision, in particular from a Swiss law perspective. Our goal is to bring light to the reasons that led the ITF and CAS panels to reach such different conclusions, and assess what lessons future hearing panels and the anti-doping community should take from these diverging decisions.
On 26 January 2016, a urine Sample taken from the Player during the Australian Open revealed the presence of Meldonium at a concentration of 120 µg/L. This positive Sample was taken less than a month after the substance had been added to the Prohibited List on 1 January 2016. A matter of days after she was notified of her Adverse Analytical Finding, the Athlete admitted at a press conference that she had inadvertently committed an anti-doping rule violation by ingesting Mildronate, a medication she had been taking for over 10 years.
Meldonium – or Mildronate – was one component of a “nutritional regime” consisting of around 18 medications and supplements prescribed to the Player in 2005. The Player left her doctor’s care in early 2013, but continued to take three components of the prescribed regime, including Mildronate. According to a statement made by the Player, after she left, she entrusted her manager with all of her anti-doping issues, an action she viewed as natural in light of all of the other activities he was performing in her favour. In particular, her manager’s agency managed both her whereabouts information and applications for Therapeutic Use Exemptions (“TUEs”). Both the Player and the manager acknowledged in their statements that the manager did not have any anti-doping training, and the manager acknowledged that he had no particular medical or scientific expertise. Neither the Player nor her manager was aware that “Mildronate” was only a brand name, and not a substance.
The Player also conceded that she did not disclose her use of Mildronate on any doping control forms, but emphasized this was not in an attempt to hide her use of Meldonium, rather a misunderstanding of the scope of declaration she was expected to make.
In a statement filed before the ITF Tribunal, a senior executive director at the ITF described the steps that the ITF took to inform players of the modifications made to the Prohibited List. These steps included informing players through the ITF website, wallet cards, emails, and a hotline. He described the steps taken by the ITF to notify players as reasonable, acknowledging at the same time that the concept of “reasonable” depends on the level of information about a particular substance’s usage. He cited the substance “DMBA” as an example, contrasting this with Meldonium, about which the ITF had no specific information on its usage among athletes. With respect to the distribution of the wallet cards, the senior executive director confirmed that the ITF did not have a particular procedure in place to follow up to see whether the wallet cards were properly distributed. He also confirmed that the email sent to players did not directly highlight changes to the Prohibited List with respect to Meldonium.
WADA’s science director explained the procedure that WADA followed to add Meldonium to the Prohibited List. In particular, he confirmed that substances are typically included on the list by their “International Nonproprietary Names (INN)” or “generic names” as opposed to their “brand names.” In the case of Meldonium, the brand name “Mildronate” was also included in WADA’s Summary of Major Modifications published with the 2016 Prohibited List, since WADA viewed it as useful in light of the prevalence of Meldonium Use among Athletes.
The ITF Tribunal held that the violation at hand was committed with “very significant fault” on the part of the Player. While it held that the violation was not intentional, the ITF Tribunal did not see any basis on which it could reach a finding of No Significant Fault or Negligence that would allow for a reduction of a period of Ineligibility to below two years.
Maria Sharapova filed her statement of appeal with the CAS against the decision issued by the ITF Tribunal on 9 June 2016. A hearing was held on 7-8 September 2016.
The CAS panel’s analysis is divided in two parts: Whether the Player committed an anti-doping rule violation with No Significant Fault or Negligence (1.), and if so, the proper length of her sanction within the available 12 to 24 month range (2.). The CAS panel also considered and rejected the Player’s plea that the principle of proportionality called for a shorter period of Ineligibility (3.).
The CAS panel, unlike the ITF Tribunal, did not consider the Player’s fault to be significant. Before reaching this conclusion, the CAS panel made three key preliminary remarks about the nature of the analysis. First, it distanced itself from the reasoning undertaken in past CAS award by noting that no doctrine of binding precedence applies to CAS jurisprudence. Second, it emphasized that the answer to the question of whether an Athlete’s fault is significant is very fact-specific, and must be viewed in the totality of the circumstance. Third, it commented that while a finding of No Significant Fault or Negligence can be reached only in truly exceptional circumstances, the bar must not be set too high, a remark it made out of concern that an overly restrictive approach “would render the NSF provision in the WADC meaningless”.
The CAS panel analysed the significance of the Player’s fault in three steps: First, the Player’s choice to delegate elements of her anti-doping obligations; second, the factors relevant to the Player’s perception of the risk she was incurring by using Mildronate; and third, other factors relevant to the significance of her fault.
As a preliminary matter, the CAS panel accepted that nothing prevented the Player from delegating activities to third parties with the aim to ensure that she did not commit an anti-doping rule violation. In the event of a “misdeed” on the part of the third party, the CAS panel considered that the Player’s own fault should be tied to the reasonableness of her choice in delegate rather than the fault of the delegate. More specifically, it applied the following three-prong test, agreed upon by the parties and inspired by the Al Nahyan CAS award.
Choice of delegate: The CAS panel found the Player’s choice in delegate to be reasonable, based on three main considerations. First, in spite of the TADP’s reference to the “personal duty” of the Player with respect to fulfilling her anti-doping obligations, nothing prevented her from delegating activities aimed at ensuring regulatory compliance and more specifically at ensuring that no anti-doping rule violation is committed” to a third party. Second, her Manager and his company were already charged with fulfilling other anti-doping obligations on behalf of the Player. Third, her manager was sufficiently qualified, since no particular medical or scientific expertise is required to check a substance against the Prohibited List, which is evident since Athletes themselves are expected to be able to personally fulfil this obligation.
Instructions given to the delegate: In essence, the CAS panel held that the Player gave her manager no instructions as to how to carry out the delegated duties, instead, “[s]he simply passed the matter over to Mr Eisenbud, completely relying on him”.
Extent of her supervision: Likewise, the Player completely failed to “establish any procedure to supervise and control” her manager in the exercise of the delegated duties.
Length of unproblematic Use of Mildronate: The Player had used Mildronate for 10 years without any anti-doping issues, “as confirmed by the certificates of anti-doping compliance obtained” and “the lack of any positive result returned by the numerous anti-doping tests” that the Player submitted to after leaving Dr. Skalny’s care.
Lack of performance enhancing intent: The Player was prescribed Mildronate not “for the purposes of obtaining any performance enhancing product, but for medical reasons”. Unlike the ITF Tribunal, the CAS panel was not of the view that leaving the care of Dr. Skalny had any impact on the Player’s perception of Mildronate.
Anti-Doping Organizations’ failure to warn: The CAS panel found that none of the “relevant” organizations (i.e. WADA, ITF, or WTA) specifically notified players that Meldonium was added to the Prohibited List, and noted that “anti-doping organizations should have to take reasonable steps to provide notice to athletes of significant changes to the Prohibited List, such as the addition of a substance, including its brand names” and expressed concern that the ITF’s notification focused on procedural changes to the TADP, leaving out the addition of new substances to the Prohibited List.
Openness and honesty of the Player. The CAS panel noted the very public manner in which the Player – on her own volition – admitted her Use of Mildronate, which led to worldwide attention on her case and the use of Meldonium.
No weight to a rejected TUE. The CAS panel rejected the ITF’s argument that a longer sanction was justified based on the fact that her request for a TUE for the Use of Meldonium was refused.
According to the CAS panel, in light of the totality of the circumstances, the Player’s violation was committed with No Significant Fault or Negligence.
The CAS panel declared it had considered both the “precedents,” and the “framework review of these cases provided by the Cilic case (incorporated under the 2015 WADC in [CAS] 2016/A/4371 Lea v. USADA),” before considering that the Player’s degree of Fault corresponded to a period of Ineligibility of fifteen months, referencing specifically only two factors.
First, the CAS panel set forth that the “relevant measure of fault” was the Player’s reasonableness in selecting her management agency to assist her in discharging her anti-doping obligations, on which it observed that it had already considered the decision reasonable. It was in her failure to monitor and supervise the ‘delegee’ that she fell short. In this respect the CAS panel observed that it “cannot be consistent with the relevant precedents and the WADC” to accept that an Athlete can simply delegate his or her duties to a third party without providing instructions, monitoring or supervising that third party, indeed, such a stance “would render meaningless the obligation of an athlete to avoid doping.” Second, it noted that the Player had failed to disclose her use of Mildronate on her Doping Control Forms, which it observed was a factor that “weighed heavily in the mind of the CAS panel in Lund for the Panel to reach its conclusion of one year.” In light of these two factors, and under the totality of the circumstances, the CAS panel considered that the degree of the Player’s fault was commensurate with a 15-month period of Ineligibility.
The CAS panel found no basis on which to apply the principle of proportionality in this case, for three reasons. First, the method of sanctioning set forth in the WADC (as incorporated in the TADP) has been repeatedly confirmed to be proportional. Second, the “question of fault is built into its analysis of length of sanctions.” Third, the Player cited no case to justify a further reduction of the Player’s sanction.
The CAS award in the Sharapova matter was rendered in a turbulent context. The inclusion of Meldonium onto the Prohibited List 2016 by WADA, and its management of the unusually high number of positive cases in early 2016, especially from Eastern European countries, had been widely criticized in the media. During the period in which the Player’s case was being heard, anti-doping authorities were facing dilemmas over the ban of Russian athletes from the Rio Olympic and Paralympic Games after reports of endemic, state-supported doping practices.
When Maria Sharapova brought her case before the CAS, she was to serve a two-year Ineligibility imposed by the ITF Tribunal in a ruling accepting that there had been no intentional doping on her part, but refusing to grant her the benefit of No Significant Fault or Negligence, based on clearly expressed and openly moralistic reproaches. Despite the fact that the way in which the ITF Tribunal depicted the Player’s conduct might well have justified a ruling of intentional doping, neither the ITF nor WADA chose to appeal the ITF Tribunal’s decision. It was thus clear from the outset that the entire case would revolve around the degree of Maria Sharapova’s Fault, or, more precisely, her negligence in dealing with her anti-doping duties. It was also clear that part of her defence would be to denounce the shortcomings on part of the anti-doping authorities in handling the prohibition of Meldonium.
Our comment focuses on those two central aspects of the Sharapova CAS award: The evaluation of an Athlete’s Fault when entrusting their anti-doping duties to third parties (A.); and the duty on Anti-Doping Organizations to inform Athletes of changes to the Prohibited List (B.). We close by reflecting on whether the context in which the Sharapova CAS award was issued might have influenced the results of this case (C.).
There are two elements to consider when an Athlete or other Person engages a third party to assist in discharging his or her anti-doping duties: whether the party is authorized to entrust that third party with performing its duties in the first place (1.), and, second, how to assess the situation in which the third party improperly performs the delegated duties (2.).
The Sharapova CAS panel started its analysis by noting that “nothing prevented the Player, a high-level athlete focused on demanding sporting activities all over the world, from delegating activities aimed at ensuring regulatory compliance and more specifically that no anti-doping violation is committed”.
How to evaluate fault in cases involving the failures of third parties has always been a challenge in anti-doping. On one hand, the WADC places the ultimate personal responsibility on Athletes for complying with their anti-doping duties. On the other hand, the reality of elite sports dictates that Athletes will often be dependent on their support staff to meet these duties. The staff may include doctors, coaches, or – as in the Player’s case – managers. Even more to the point, one could certainly see how an Athlete faced with the task of determining whether a medication contains any of the numerous substances identified on the Prohibited List by their chemical name, or otherwise qualifies as a ‘similar’ substance, would perceive seeking the assistance of a third party – in particular to a more knowledgeable person – as a more reliable way to discharge his or her obligation to avoid consuming a Prohibited Substance.
The statement whereby “nothing prevented” an Athlete from delegating certain aspects of his or her anti-doping duties must therefore be read in its proper context. Under the WADC regime, Athletes execute a contract (or quasi-contract) with an Anti-Doping Organization (the ITF in Maria Sharapova’s case) – to act in accordance with applicable anti-doping regulations (for tennis the TADP). Among the obligations undertaken is a “personal duty to ensure that no Prohibited Substance enters his or her body,” (Article 2.1.1) as well as a more general responsibility under the TADP “to be familiar with the most current version of the Prohibited List” (Article 3.1.2 in fine). This does not mean that an Athlete breaches his or her obligations towards the Anti-Doping Organization if they entrust their support staff with certain tasks to fulfil this personal duty. However, even if admissible, this delegation of a task does not amount to a discharge of responsibility for the Athlete.
A parallel can be drawn here with the whereabouts requirements that rest on the Athletes included in a Registered Testing Pool. The International Standard for Testing and Investigations (“ISTI”) explicitly states that Athletes are authorized to entrust third parties with their whereabouts filings. However, the ISTI also makes it clear that whatever organization Athletes choose does not relieve them from their responsibility in case these duties are not correctly performed.
The finding in the Sharapova award must thus be read specifically within the context of an Athlete’s pursuit of regulatory compliance, in particular to ensure that no substance or method used is on the Prohibited List. Such finding cannot be generalized to all anti-doping duties of an Athlete. As an obvious example, the duty to be available for Testing at any time and the duty to submit to Sample collection if requested to do so by nature can only be performed by the Athlete personally. As far as regulatory compliance monitoring is concerned, by contrast, there is no interest of the Anti-Doping Organizations that an Athlete performs these personally. Quite to the contrary, given the technical nature of some of these regulatory activities, Athletes can be encouraged to seek assistance to avoid inadvertent doping, for example by using the advice of qualified health professionals.
Once it is accepted that an Athlete may engage a third party to assist in discharging his or her anti-doping duties, the next question is how to evaluate the Athlete’s Fault to determine the appropriate sanction when the third party failed to perform correctly, thereby causing – or contributing to causing – an anti-doping rule violation.
There are two possible approaches to this question: either the Athlete is held responsible for shortcomings in the manner in which the delegation was made, or the Athlete is held responsible for the manner in which the third party (mis-)performed. In the first approach, the scrutiny is on the Athlete’s conduct to assess whether the Athlete can be blamed for being careless in the delegation, whereas in the second approach one considers the acts of the third party and evaluates whether the Athlete would have been at fault if he or she had acted like the third party did. This second approach is often characterized as ‘imputing’ the conduct (or fault) of the delegee to the delegator.
In the Sharapova matter, the CAS panel opted for the first approach, explicitly insisting that only the “objective fact of the third party’s misdeed is imputed to the Athlete”, in other words: the Athlete cannot escape the finding of an anti-doping rule violation and any automatic Disqualification. By contrast, when setting the sanction the Panel held that “the fault to be assessed is not that which is made by the delegate, but the fault made by the [delegating] athlete in his/her choice”. The CAS panel concretizes this approach by reference to a three-pronged test according to which of the Player’s fault must be evaluated with respect to the reasonableness of (i) the choice, (ii) the oversight, and (iii) the instructions (also known as cura in eligendo, in custodiendo, and in instruendo).
The way in which the Sharapova CAS panel applied the proposed test to the matter in dispute is unconvincing. Indeed, with respect to two of these limbs: oversight and instruction, the CAS panel could not help but note that the Player failed to make any effort whatsoever, let alone a reasonable effort. With respect to the third, the CAS panel held that the Player made a reasonable choice, since her choice of a delegate was “sufficiently qualified” to check the contents of the Prohibited List. In sum, the Player wholly failed to meet two limbs of the test. For the third, while the choice was deemed “reasonable” there is no indication that it reflected the high standards of diligence Athletes are expected to meet in fulfilling their anti-doping obligations. Thus, the CAS panel’s conclusion that the Player’s fault was not significant, and more so that it fell on the rather ‘light’ side of the spectrum, can hardly be based on a (proper) application of the ‘delegation test’ alone and needs to be put in perspective with other ‘additional’ factors evoked by the panel, i.e. the management of the Meldonium inclusion by the anti-doping authorities (see below).
Beyond the arguably generous application of the test in the matter in dispute and the fact that delegating a task that can be technically challenging (as the facts of the matter show) to a person who does not have any particular skill is fundamentally inconsistent with the idea that delegation should be aimed at ensuring that no substance or method used is on the Prohibited List, it is submitted that the ‘delegation test’ identified by the panel is itself problematic.
First, the legal support for the test is far from being straightforward, both as a matter of state law and under the WADC. In Swiss law, for example, the cura in eligendo cura in instruendo and cura in custodiendo test only applies in tort law to define to the employer’s liability for damage unlawfully caused by his or her employees to third parties. It is difficult to justify an analogy with the situation of an Athlete who breaches his or her duty to an Anti-Doping Organization by acts of a third party entrusted to carry out activities in support of this duty. A better fitting parallel could be found in the context of Swiss contract law, designed for cases in which a party chooses to perform his or her contractual obligations by using an ‘agent’ (“auxiliaire”). In this case, the conduct of the agent is imputed to the party as if the party had acted in that manner himself.
There is equally no parallel for the test in the cases where the delegation is explicitly regulated in the WADC regime, e.g. the delegation in connection with whereabouts requirements. In this case the International Standard for Testing and Investigations make it clear that an Athlete remains responsible for any third party’s failure, by stating that it is not a defence against a Failing Failure or Missed Test that the Athlete entrusted another party with his or her whereabouts duties. Within the system of the Whereabouts Failures, this means that, in the same way as Swiss law recognises contractual liability for an auxiliaire, the Athlete is deemed negligent as if he or she had filed the information him- or herself.
In substance, both Swiss law and the rules of the WADC on comparable issues thus plead for using the ‘imputation’-test, as opposed to the ‘three curae’-test applied by the CAS panel in Sharapova. The CAS panel gave no justification for choosing the ‘three curae-test’ over the ‘imputation-test’, apart from relying on the parties’ agreement at the hearing.
The award referenced by the CAS panel as having inaugurated the ‘three curae-test’ within the context of anti-doping does not in our view offer a suitable analogy either. The test was applied in a case of equine doping, to assess the fault of the so-called “Person Responsible” for the horse, i.e. the rider. The equine anti-doping rules adopted by the Fédération équestre internationale (“FEI”) are inspired from and generally consistent with the WADC, but they do not necessarily exactly mirror the WADC rules. Thus, the concept of the ‘Person Responsible’ had to be created to account for the fact that the creature upon which the Strict Liability principle would normally apply when Presence of a Prohibited Substance is reported in a Sample – i.e. the horse – can obviously not be held responsible for what enters its body. It is understood in the context of equine anti-doping that the ‘Person Responsible’ is at times a rider who has no actual control over the horse’s care – e.g. because the rider is not the horse owner and only uses the horse for a competition. This type of situation may justify considering that the measure of the Person Responsible’s fault be assessed based on his or her diligence in delegating the care for the horse, rather than to simply impute the fault of those who had genuine control of the horse. The same considerations are clearly inapplicable to human Athletes, but the CAS panel did not seem to have appreciated the difference.
It is also questionable whether the panel fully considered the potential implications of declaring the ‘three curae-test’ applicable in anti-doping for human Athletes. Taken at its word, the practical effects of the CAS panel approach in Sharapova would provide a pathway for Athletes to circumvent the basic tenet personal responsibility for an anti-doping rule violation by finding a willing, and ostensibly reasonable, delegee. Moreover, one can see the potential for abuse going beyond the circumstances in the Sharapova case, to aspects such as TUEs and supplements. If Athletes are not held responsible for the actions of their support staff, it is difficult to see what would stop unscrupulous Athletes from hiding behind a doctor or coach that agreed to “cover” for them.
In our view, the standard of care ought to be exactly the same whether the Athlete decides to be in charge of his or her own verifications, or entrusts a third party with such verifications. When Athletes take care personally of their medication scheme compliance, CAS panels in the past have refused to grant a finding of No Significant Fault or Negligence finding if the Athlete was a professional and was not proactive in ensuring that the medication contained no Prohibited Substance, and this even if the medication was prescribed by his or her doctor. By contrast, under the ‘three curae-test’ chosen in Sharapova, if Athletes simply appoint a member of their support staff to do the job, properly instruct them and supervise them, and the support staff fails to do as instructed or lies to the Athlete about having done as instructed, one could even contemplate a finding of No Fault or Negligence. If one applies the test as the Sharapova panel did, No Significant Fault or Negligence could be found each time it is established (or the parties accept) that the delegee was carefully chosen irrespective of the way in which he or she is instructed or supervised. To avoid these undesirable consequences of the test, CAS panels would need to construct each failure of the third party as a fault of the Athlete either in instructing or in supervising, which would rapidly appear utterly artificial and undermine the very idea behind the test.
Tellingly, in the case of Maria Sharapova, the list of instructions that the CAS panel found she failed to give to her agent corresponds broadly to the steps she ought to have taken under the well-known guidance set by the CAS panel in Cilic to qualify for No Significant Fault or Negligence herself. In other words, had the Player merely failed to take these steps herself, she might well not have qualified for a reduction of her sanction. However, because she had delegated her duties instead and failed to tell her agent to take these very same steps, she was found to qualify for No Significant Fault or Negligence.
Moreover, the solution adopted by the CAS panel in Sharapova is difficult to square with the reality of anti-doping regulation, in particular when only the delegating party (i.e. the Athlete) falls under the jurisdiction of an Anti-Doping Organization. And, even if the party to whom the duty is delegated does fall under the jurisdiction of an Anti-Doping Organization, the highest stakes on the side of the Athlete usually lie in a potential Ineligibility sanction on the Athlete, rather than a sanction pronounced against his or her entourage. For this reason alone, it is difficult to see any reason to support a test that would create a facilitated pathway towards a finding of No Significant Fault or Negligence for an Athlete who chose (and/or can afford) to delegate activities in support of fulfilling their anti-doping duties to a third party.
The risk of the CAS ruling in Sharapova being abused in the future is heightened by the way in which the CAS downplayed the role of the qualifications of the third party entrusted with carrying out an Athlete’s anti-doping obligations. Though Athletes are allowed to seek assistance in fulfilling their anti-doping duties, it cannot follow that the qualifications of the third-party delegee are irrelevant to the evaluation of fault. Athletes seeking this type of assistance ought to be encouraged to carefully select a knowledgeable delegee, and this can be accomplished by factoring in the qualifications of this delegee. After all, as already mentioned, the delegation should be meant to decrease the risk that an anti-doping rule violation is committed. As a concrete example, even accepting that it was reasonable for Maria Sharapova to entrust her manager with this task, she clearly had better, more reliable options. One fails to see any legitimate reason to support a rule that treats equally the choice of a manager with no particular anti-doping training, and her previous choice, i.e. a medical doctor, who regularly sought advice directly from an anti-doping laboratory.
That said, it would appear that the ‘three curae-test’ was only one consideration in the CAS panel’s overall assessment of the Player’s fault. Indeed, the CAS panel devoted roughly the same amount of attention in its reasoning to discussing the Player’s “justifiably” reduced risk perception and outlining other “relevant” factors. The CAS panel ultimately rested its conclusion that the Player’s fault was not significant on the totality of the circumstances, and not just those falling within the narrow confines of its legal test. In our view, two of these very case-specific circumstances must have weighed heavily in the Player’s favour. First, she reacted with a forthcoming and honest response to the anti-doping rule violation. It is indeed to be noted that she admitted use of Meldonium in 2016 at a time WADA had not yet conducted excretion studies, and when it would thus have been conceivable to claim that she used Meldonium only before the 2016 List came into effect. Second, the perceived shortcomings with the way the Meldonium issue was treated by Anti-Doping Organizations, in particular the manner in which the inclusion of the new substance was communicated.
Athletes are expected to display a significant degree of diligence in verifying the substances they ingest against the Prohibited List. Whether the Athlete could reasonably be aware of the prohibited character of the substance is typically taken into account by CAS panels only at the level of the assessment of Fault, but does not impact the finding of an anti-doping rule violation. Predictability of the prohibition is only considered to set the applicable sanction and never lead to an ‘acquittal’ of the Athlete. Some CAS awards thus seem to recognize that the Athlete and the Anti-Doping Organization have mutual duties to make compliance with anti-doping rules a realistic expectation of Athletes, and that carelessness on part of an Anti-Doping Organization – specifically in its ‘information’ duties – can be a factor in reducing the Athlete’s Fault.
The importance of this factor is clearly reflected in the Sharapova CAS award, in which the CAS panel expressed its view that: “anti-doping organizations should have to take reasonable steps to provide notice to athletes of significant changes to the Prohibited List, such as the addition of a substance, including its brand names”. While this statement is easily understandable in the wake of the ‘epidemic’ of Meldonium cases in Spring 2016, it remains vague both as to its binding nature and the scope of the ‘reasonable steps’ required.
First, the use of the term ‘should’ raises some doubts as to whether the statement was meant to point at an existing duty of Anti-Doping Organizations, or ought to be understood as an invitation to increase them (de lege ferenda). The current regulatory framework of the WADC is ambiguous in that respect: Both the WADC and the TADP provide that Anti-Doping Organizations are to apply reasonable efforts to inform Athletes, but simultaneously are adamant to state that any failure to do so does not relieve individual Athletes from their responsibility to be aware of the contents of the Prohibited List at all times. In fact, the duty to proactively monitor the status of substances on an ongoing basis, based on the well-publicized fact that the Prohibited List is updated at least annually for the first of January each year, has been described by CAS as one of the Athlete’s basic anti-doping duties.
Second, on the extent of the communication expected from Anti-Doping Organizations, the CAS panel’s call to the ITF “to provide notice to athletes” of addition of a substance of the Prohibited List might create the impression that Anti-Doping Organizations have a duty towards each Athlete to warn them individually of changes in the Prohibited List. In our view, there is no basis in the WADC to support such a far-reaching duty, and it is only in extraordinary situations that such a duty might be construed based on a general principle to act in good faith. Thus, in the WADA v. USADA & Lund matter referred to as guidance by the Sharapova CAS panel and relied upon by the Player in her appeal, the Athlete Zachery Lund had failed to monitor the Prohibited List but had consistently carried on mentioning the medication taken on Doping Control Form. Nevertheless, no Anti-Doping Organization had ever reacted to that mention until he finally tested positive. In these circumstances, the CAS panel confessed being left “with an uneasy feeling that Mr Lund was badly served by the anti-doping organisations”. Even if a reinforced duty of care may be conceivable in situations in which the inaction of Anti-Doping Organizations could be interpreted by the Athlete as an approval of his or her conduct, there cannot be any generalized duty on Anti-Doping Organizations to systematically notify individual Athletes in the absence of concrete indications that a particular Athlete may be taking a Prohibited Substance, or a substance that is about to be prohibited. In fact, this aspect was discussed before the ITF Tribunal, which ruled out such possibility as it accepted that the ITF did not have access to the identity of Athletes using Monitored Substances, and thus could not know that Maria Sharapova in particular was using Meldonium.
Individual notification aside, the CAS panel specifically reproached the ITF for its failure to highlight the change in the status of Meldonium as a ‘significant change’, even though it did publish an announcement with important modifications to its TADP. The CAS panel further mentioned a prior occurrence in which the ITF had issued specific warnings regarding “DMBA” (1,3-Dimethylbutylamine), another Prohibited Substance.
Regarding the first reproach, changes to the TADP cannot be compared to changes in the Prohibited List as far as the communication requirements are concerned. Changes to the ITF anti-doping rules are the sole responsibility of the ITF, since the WADC has no direct effect on Athletes. By contrast, the Prohibited List is revised annually by WADA, without any specific action or input from the International Federations being required: the Prohibited List is incorporated through global reference, so there is no “ITF Prohibited List” separately adopted. The ITF website includes a link to the 2016 Prohibited List Summary of Modifications and Explanatory Notice published by WADA. This document contains a clear warning that: “Meldonium (Mildronate) was added because of evidence of its use by athletes with the intention of enhancing performance”. Thus, Athletes looking to keep up-to-date with the latest amendments of the List could easily retrieve both the name of the substance and its brand name.
With respect to the second reproach and the reference to the precedent of DMBA, the warnings issued by the ITF in April 2015 regarding the risk involved with the substance occurred in a context that differs significantly from the addition of Meldonium to the Prohibited List. The goal of the warning was not to announce a change in the Prohibited List, but to warn Athletes about the risk of DMBA being present in supplements. The warning included the recommendation that “Players are advised to exercise extreme caution when using any food supplement product, as these are often not subject to strict manufacturing controls, and may contain prohibited substances that are not declared on the label, or in different concentrations than stated on the label”. Sports or other supplements that are either mislabelled or contaminated have plagued anti-doping efforts for a long time. Since Athletes are obviously not in a position to verify whether they are putting themselves at risk by using a supplement – unless they have each batch of supplement tested – it is appropriate and necessary for Anti-Doping Organizations to issue warnings when a new trend in dubious supplements become noticeable on the market.
The situation of a medication (like Meldonium) is very different in this respect: medications are subject to strict regulation, with ingredients that need to be totally under control to gain market approval, and are systematically listed on the patient information notice. The doping related risks and challenges that supplements and medications create are thus very different. In the case of the supplement, the primary concern is that the Athlete will not realize that they are ingesting a Prohibited Substance when they consume the product. In the case of the medication, by contrast, the only concern is that the Athlete would not realize that the substance contained in the medication is on the Prohibited List.
Finally, Meldonium was included as a substance named explicitly on the Prohibited List. There was thus no issue as to whether the substance could reasonably be predicted to be a ‘similar’ or ‘related’ substance – a situation that could arguably imply an additional effort in terms of information. While communication is always important, inclusion onto the Prohibited List, as an explicitly named substance, of a new active ingredient contained in a medication should not, as a rule, trigger a particular duty of warning on the part of Anti-Doping Organizations. Indeed, compliance to the rules does not require more from the Athletes in this case than just their basic duty to annually verify whether the medications they are taking a still in line with the new Prohibited List. In the particular instance, a simple computer search for ‘Meldonium’ or one look at the WADA Summary of Modifications would have been sufficient to avoid the Player’s anti-doping rule violation.
In fact, there was never any defence made in the Sharapova matter that the Player could not reasonably be expected to know that Meldonium was the active ingredient in the medication she was taking. On this point again, one fails to see how the admonishment by the CAS panel that Anti-Doping Organizations ought to provide notice to Athletes that would ‘include brand names” might be possibly relevant for the assessment of the Fault in the particular matter. Indeed, the Player’s agent conceded that he had not checked the updates to the 2016 Prohibited List, due to particular circumstances he was going through at that time. Hence, the lack of warning should have had no impact on the Player degree of Fault, since the only person she instructed to do the verification simply failed to do so. As there is no indication that the agent checked Mildronate any more than he checked Meldonium, the lack of mention of a brand name had thus absolutely no causal contribution to the Player’s Fault in the particular matter.
C. A misplaced criticism of real challenges?
The factors listed by the CAS panel as elements reducing the Player’s Fault in the case of Maria Sharapova placed considerable emphasis on perceived general shortcomings on the part of the Anti-Doping Organizations, rather than on the diligence applied in the matter at stake and the ’three curae-test’ the CAS panel found to be relevant to assessing the Player’s Fault.
The impression is that the CAS panel seemed to be influenced by its desire to reach a fair outcome that would not give the appearance of a CAS panel endorsing the way in which the anti-doping authorities created and managed the Meldonium crisis, nor state that Athletes cannot avoid committing an anti-doping rule violation without the assistance of a health professional. One can legitimately wonder if a more straightforward approach under the unusual circumstances of this case would have been to acknowledge that the Player’s Fault was significant according to a more traditional analysis of Fault under the WADC, but to nevertheless allow for a reduction based on proportionality to take into account the genuine exceptional nature of her (Meldonium-related) situation. While CAS panels – and the Sharapova CAS panel is no exception – generally take pains to avoid relying on the principle of proportionality to reduce a sanction, it would have at least had the benefit of avoiding the risk of introducing a misconceived ‘delegation test’ that may eventually benefit Athletes seeking to break the rules.
More generally, one may also wonder whether Meldonium – and specifically Maria Sharapova’s case – was the most appropriate occasion to give a lesson to the anti-doping movement about how to communicate on the contents of the Prohibited List. Meldonium became the focus of media attention as a result of the number of cases and because it became apparent that there had been little studies about the excretion patterns of the substance. In short, no one had anticipated that Athletes who had taken the substance only before it became prohibited could still test positive in the weeks or months following the effective date of the prohibition. This unexpected situation resulted in WADA having to issue two Notices on Meldonium to clarify how Anti-Doping Organizations should administer results management for cases during the transitory period.
As an aside, it is worth pointing at an aspect of the management of Meldonium cases that does not seem to have attracted the attention it deserved. In its second Notice on Meldonium, the preliminary results of the excretion studies led WADA to recommend that no Anti-Doping Organizations may wish to refrain from imposing Disqualification under Article 9 if it were considered established, on a balance of probability, that the last intake of the substance occurred before 29 September 2015 (the data on which the 2016 Prohibited List and its modifications were published by WADA). Though this was not made explicit in the Notice on Meldonium, this means that an unofficial limit on the predictability of the prohibition was introduced into the system. Indeed, the Disqualification under Article 9 is automatic and mandatory as soon as an anti-doping rule violation occurs in connection with an In-Competition Testing. Renouncing the automatic Disqualification thus either means that WADA was advocating a departure from the WADC regime, or that it was WADA’s implicit opinion that in this case, no anti-doping rule violation occurred in the first place.
The Meldonium cases thus put the spotlight on some less-ideal aspects of the prohibition under the current WADC, in particular the fact that substances may have to be added while there is still little information about their metabolism in Athletes and related detection windows. The whole discussion surrounding the predictability of the consequences of an Athlete’s acts prior to a new prohibition being introduced, however, is an issue that is distinct from the concerns – however legitimate – that may exist with respect to the predictability of the Prohibited List or the transparency on its updates. In any event, the matter that was at issue in Sharapova was entirely detached from issues of predictability or lack of information on excretion times, since Maria Sharapova openly acknowledged having continued use of Meldonium after 1 January 2016.
 There have been reports that Maria Sharapova’s legal team is discussing the possibility of suing the International Tennis Federation, see e.g. “Maria Sharapova may sue International Tennis Federation after drug ban is reduced to 15 months,” 4 October 2016, http://www.telegraph.co.uk/tennis/2016/10/04/maria-sharapova-appeal-verdict-will-the-court-of-arbitration-for1/.
 Decision of the Independent Tribunal Appointed by the International Tennis Federation, ITF v. Sharapova, Decision of 6 June 2016. See 2016 I.S.L.R. 4, pp. 101–110, for our Comment on Maria Sharapova’s first instance case in front of the ITF Tribunal.
 The fact section of this comment is adapted from our comment on the Sharapova ITF Tribunal decision, Anti-Doping Reports, 2016 I.S.L.R 4, pp. 101–110.
 Sharapova CAS award at .
 Sharapova CAS award at . A second Sample taken on 2 February 2016 also returned an Adverse Analytical Finding for Meldonium; both of these positive tests are treated as one violation under the ITF’s anti-doping rules, Sharapova decision at .
 Sharapova CAS award at –.
 Sharapova ITF Tribunal decision at .
 Sharapova CAS award at [28(ii.)].
 Sharapova CAS award at [28(ii.)] & [28(v.)].
 Sharapova CAS award at [28(v.)].
 See the Sharapova ITF Tribunal decision.
 The Al Nahyan CAS award, CAS 2014/A/3591, Sheik Al Nayan v. FEI, Award of 8 June 2015, considered the significance of a rider’s fault for a Prohibited Substance found in his horse’s Sample that was administered by a veterinarian.
 Sharapova CAS award at [88(i.)].
 Sharapova CAS award at [88(ii.)].
 Sharapova CAS award at [88(iii.)].
 Sharapova CAS award at [92(iii.)].
 Sharapova CAS award at [93(a)].
 Sharapova CAS award at [93(b)].
 Sharapova CAS award at [93(c)].
 Sharapova CAS award at [97(a)].
 Sharapova CAS award at [97(b)].
 Sharapova CAS award at . The available range was 12 months to 24 months.
 See our previous comment on the Sharapova ITF Tribunal Decision, 2016 I.S.L:R 4, pp. 101–110.
 Sharapova CAS award at [93(i.)].
 ISTI Annex I.6.4: “An Athlete may choose to delegate the task of making his/her Whereabouts Filings (and/or any updates thereto) to a third party, such as a coach, a manager or a National Federation, provided that the third party agrees to such delegation. The Anti-Doping Organization collecting the Athlete’s Whereabouts Filings may require written notice of any agreed delegation to be filed with it, signed by both the Athlete in question and the third party delegate”.
 ISTI Annex I.6.3: “each Athlete in a Registered Testing Pool remains ultimately responsible at all times for making accurate and complete Whereabouts Filings, whether he/she makes each filing personally or delegates the task to a third party. It shall not be a defence to an allegation of a Filing Failure that the Athlete delegated such responsibility to a third party and that third party failed to comply with the applicable requirements”.
 And this irrespective of whether one is prepared to agree that delegating to a person with no specific knowledge is indeed consistent with the pursuit of regulatory compliance.
 Under Swiss contract law, Article 68 of Swiss Code of Obligations, a debtor is only bound to perform personally if the creditor has an interest in the debtor performing him- or herself.
 This aspect is analysed in more details, in Viret M, Taking the Blue Pill or the Red Pill: Should Athletes Really Check their Medications against the Prohibited List Personally?, ASSER International Sports Law Blog, http://www.asser.nl/SportsLaw/Blog/post/taking-the-blue-pill-or-the-red-pill-should-athletes-really-check-their-medications-against-the-prohibited-list-personally-a-comment-on-the-sharapova-award-by-marjolaine-viret-university-of-neuchatel (accessed 10 November 2016).
 Indeed, from the available sanctioning range of twelve months to twenty-four months, the CAS panel selected only fifteen months. Applying the Cilic logic (which the panel declared that it considered), this would put the Player’s fault in the “light” range.
 Article 55 of the Swiss Code of Obligations. See Werro Franz, in (2e ed.), Commentaire Romand, ad Article 55 CO, n° 18.
 Article 101 of the Swiss Code of Obligations. See Thévenoz Luc, in (2e ed.), Commentaire Romand, ad Art. 101 CO, n° 1 et seq.
 CAS 2014/A/3591, Sheik Al Nayan v. FEI.
 See Article 16 of the WADC on doping control for animals, whereby the anti-doping rules “shall establish and implement rules that are generally consistent with”, in particular Article 2 of the WADC.
 CAS 2014/A/3591, Sheik Al Nayan v. FEI at -.
 This risk was highlighted in CAS 2006/A/1133, WADA v. Stauber & WADA, Award of 18 December 2006 para. 35.
 CAS 2008/A/1565, WADA v. CISM & Turrini, Award of 4 November 2008 at ; CAS 2008/A/1488, P. v. ITF, Award of 22 August 2008 at .
 Sharapova CAS award at . These instructions included determining whether Mildronate was a brand name, getting in touch with her previous doctor when she left his care, which websites to consult, to call the ITF hotline, to look at the contents of the flash drive received with the wallet card, or read the emails that contained links on the status of the Prohibited List.
 In fact, in the way the test was applied in the Sharapova award, if you only choose a sufficiently unqualified person, the instructions you have to give to that person very much amount to explaining to that person to take the steps you should be taking yourself.
 As was brought up in the Hazza matter, this also creates an unfair difference in treatment between Athletes who have the resources to entrust other parties with their duties, versus those who have no choice but to do the verifications themselves.
 This risk was pointed out by the FEI in CAS 2014/A/3591, Sheik Al Nayan v. FEI at .
 On the necessity for Athletes to seek advice from a qualified health professional, see Viret M, Viret M, Taking the Blue Pill or the Red Pill: Should Athletes Really Check their Medications against the Prohibited List Personally?, ASSER International Sports Law Blog, http://www.asser.nl/SportsLaw/Blog/post/taking-the-blue-pill-or-the-red-pill-should-athletes-really-check-their-medications-against-the-prohibited-list-personally-a-comment-on-the-sharapova-award-by-marjolaine-viret-university-of-neuchatel (accessed 10 November 2016)..
 It is only on 13 April that WADA published preliminary results of excretion studies on the basis of which it issued a notice dealing with results management options and consequences on the sanction depending on the concentration present in the Sample. A second notice was subsequently issued on 30 June 2016. Of note, based, on the concentration recovered in her Sample, Maria Sharapova would in any event not have benefited from the special regime introduced by the notices.
 See, Viret M, Taking the Blue Pill or the Red Pill: Should Athletes Really Check their Medications against the Prohibited List Personally?, ASSER International Sports Law Blog, http://www.asser.nl/SportsLaw/Blog/post/taking-the-blue-pill-or-the-red-pill-should-athletes-really-check-their-medications-against-the-prohibited-list-personally-a-comment-on-the-sharapova-award-by-marjolaine-viret-university-of-neuchatel (accessed 10 November 2016)..
 See, for another recent case, CAS 2016/A/4371, Lea v. USADA, Award of 4 April 2016 at ; CAS 2012/A/3029, WADA v. Anthony West and FIM, Award of 22 November 2013 at .
 See Article 3.1.3 TADP: “Without prejudice to the last sentence of Article 3.1.2, the ITF shall take reasonable steps to publicise any amendments made by WADA to the Prohibited List”.
 See as early as CAS OG 06/001, WADA v. USADA & Lund, Award of 10 February 2006 at [4.11].
 CAS OG 06/001, WADA v. USADA & Lund at [4.16].
 http://www.itftennis.com/news/203469.aspx (accessed 30 Oct. 2016).
 In recognition of the risks going ahead with contamination, the 2015 WADC has introduced a specific ground for reduction of the sanction for « Contaminated Products ».
 Sharapova CAS award, at [92 (iii.)].
 In these unique circumstances, WADA would consider it acceptable that the athlete’s results not be disqualified or be reinstated in the absence of any evidence that Meldonium was used after 29 September 2015.

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This collection contains issues from volume 28 (1872-1873) of Street & Smith's New York Weekly.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 11, January 20, 1873.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 12, January 27, 1873.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 13, February 3, 1873.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 14, February 10, 1873.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 15, February 17, 1873.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 16, February 24, 1873.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 40, August 11, 1873.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 41, August 18, 1873.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 42, August 25, 1873.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 45, September 15, 1873.
Street and Smith's New York Weekly : a journal of useful knowledge, romance, amusement, & c. , v. XXVIII, no. 47, September 29, 1873.

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Manhattan Institute Center for Legal Policy intern Meghan Herwig assisted in drafting this post.
Monday's Supreme Court decision in Bond v. United States, which we earlier profiled here, involved a case raising fundamental constitutional questions of federalism and separation of powers. Rather than grappling with these questions, the Court majority ruled on statutory grounds.
Carol Anne Bond, a Pennsylvania microbiologist, attempted to poison her husband after learning that he had impregnated her best friend. She was convicted of violating a U.S. federal statute enacted to implement the Convention on Chemical Weapons, a 1997 treaty intended to prevent the proliferation of chemical weapons. On appeal, Bond's lawyers argued that the law did not apply to Bond's conduct and second that even if it applied it was unconstitutional.
Key to Bond's constitutional claim was whether a treaty signed by the president and ratified by the Senate can expand Congress's legislative powers beyond those otherwise enumerated in the Constitution. A 1920 Court decision authored by Justice Holmes, Missouri v. Holland, had held that for a valid treaty "there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government" -- without further analysis or authority. A subsequent Court decision, Reid v. Covert, limited this holding such that a treaty obligation could not empower Congress to violate the Bill of Rights. More recent scholarship by Georgetown law professor Nicholas Quinn Rosenkranz has challenged Missouri v. Holland's holding in light of the constitution's text, history, and structure.
While the Supreme Court unanimously overturned Bond's conviction, Chief Justice Roberts's majority opinion, on behalf of six justices, avoided the constitutional question. Roberts reasoned that the Chemical Weapons Convention was not intended to cover minor, local poisoning incidents and determined that Congress could not have intended such a construction of the convention's implementing statute, which would upset the constitutional balance of power between Congress and the states. Roberts thus construed the law narrowly and concluded that the law could not apply to Bond's crime.
Justices Scalia, Thomas, and Alito each filed separate concurring opinions arguing that the case had to be decided on constitutional rather than statutory grounds. In their view the statute on its face clearly applied to any attempted use of a "toxic chemical" not used for a "peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity." Justice Scalia's concurrence, joined by Justice Thomas, was particularly specific in its inquiry into the limits of the power given to the President and Senate to "make" treaties -- following significantly the line of argument of Professor Rosenkranz's article -- and called for Missouri v. Holland to be overturned.
SCOTUSblog's Amy Howe ably summarizes the decisions in more detail here.
At Volokh, Jonathan Adler suggests that the concurring opinions may signal some discontent on the part of the more conservative justices with the Chief Justice's tendency to embrace strained statutory readings to avoid constitutional questions (the so-called doctrine of "constitutional avoidance"). His co-conspirator Ilya Somin reads the tea leaves and suggests that in a future case where the treaty issue is more explicit, the Court may be disposed to overturn Missouri v. Holland and limit the ability of a treaty to expand Congressional legislative authority, and offers further thoughts on the justices' various positions.
In its embrace of constitutional avoidance, the Court's decision is obviously reminiscent of the Chief Justice's lone opinion in NFIB v. Sebelius, in which he construed the individual mandate of the PPACA (Obamacare) to be an exercise of Congress's taxing power rather than its Commerce Clause power to uphold the law's core provision (though in that opinion, the Chief did observe that the mandate was clearly a penalty, and only reached the "tax" construction as an alternative functional ruling through which Congress could have reached the same end). The Bond decision also brings to mind Justice Ginsburg's opinion in Skilling v. U.S., which effectively rewrote the "honest services fraud" statute (construing the law's vague provision to apply only to bribes and kickbacks) to avoid deciding whether it was unconstitutionally vague.
The Bond and Skilling decisions may signal how the Court will rule in the upcoming Yates v. United States. Yates involves the prosecution of a commercial fisherman accused of violating the Sarbanes-Oxley financial reform law's prohibition on destroying, manipulating, or concealing any "record, document or tangible object" to hinder federal investigations -- in the context of throwing back fish that may have been smaller than the minimum size allowed by regulations. While a fish is certainly a "tangible object," the Sarbanes-Oxley law, passed in the wake of the Enron-era corporate scandals, was clearly contemplating document-shredding and similar destruction of corporate records such as that conducted by Enron's auditor, Arthur Andersen. It will be interesting to watch whether the justices in the Bond majority will continue the trend of narrowing criminal statutes beyond their clear terms when the government is applying a broad statutory provision in the criminal-law context.
The Ramifications of EPA v. EME Homer City Generation, L.P.
For much of the 20th century, the steady growth of the administrative state led to increased calls for the codification of a legal and regulatory framework through which people and industries could be provided a degree of certainty in the course of their day-to-day activities. In the past few years, the scope of change in this field has accelerated, with executive aggrandizement at the center of the discussion. From a constitutional standpoint, the ongoing question remains to what extent the executive branch can increase its power while remaining within the strictures of the separation of powers.
To that end, the Supreme Court recently held 6-2 in Environmental Protection Agency v. EME Homer City Generation, L.P. that the EPA's Cross-State Pollution Rule as interpreted was valid, overturning the D.C. Court of Appeals.
Legally speaking, the reach of the EPA under the Rule turned on the meaning of the phrase "contribute significantly." Section 110(a)(2)(D)(i)(I), dubbed the "good neighbor" provision, says that states must prohibit emissions in amounts that "contribute significantly to nonattainment, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard."
The EPA claimed that, because the statute was ambiguous as to what factors could be used to determine what constitutes "significant," the EPA should have the right to fill the gap with their own cost-benefit analysis; specifically, they wished to use the nature of the technology a given state employed to determine whether the state is meeting its obligations under the good neighbor provision. For example, if a state was using EPA-approved technology to mitigate its pollution, it would be more likely to be deemed to be complying with the good neighbor provision.
The petitioners, which included states and some private companies, claimed that "significant" could not be interpreted this way, because the Clean Air Act only mandates that emissions are to not interfere with other states, and says nothing about the means used to achieve that goal. Therefore, the Rule allowing the EPA to factor in the technological means of emissions reduction would stretch agency authority in violation of the language of the statute.
No one disputes the EPA's authority to regulate air pollution across state lines, but for the first time the EPA imposed its standards without giving states a chance to offer their own plans. Also for the first time, the agency imposed a uniform compliance standard regardless of an individual state's contribution to cross-state pollution. This is aimed at Texas and other states that have large coal-fired electric plants and forces higher reductions in emissions than states might otherwise have to implement. It is part of the Administration's agenda of imposing via regulation what it can't get through Congress, even a Democratic Senate.
By favoring certain types of emissions-prevention technologies, the EPA would be able to impose politically-favored regulations on the states in circumvention of individual state legislatures and principles of federalism, all under the guise of an "ambiguity" in a statute when the agency does not agree with the statutorily-stated words. The danger ultimately lies in the precedent being laid out; namely, that an agency is presumptively deemed to be in the best position to resolve statutory ambiguities, and should be allowed to proffer rules to resolve those ambiguities. The safer presumption would lie in placing the benefit of the doubt with the politically-accountable Congress, i.e. assuming that Congress did not include the technology analysis in the statute because it did not wish to do so. Within this approach, Congress could change the statute if it so chose, and the nexus of the policy-making decision would still remain in its rightful place. Moreover, it would prevent agency aggrandizement from potentially spreading to other agencies and becoming a systemic problem.
If the country is to retain its constitutional balance, the separation-of-powers doctrine must be respected as a guiding force, even in the midst of the changing needs and obligations of a modern government.
Another case I'll be watching to see if the Supreme Court decides to take up: Limelight v. Akamai. As noted in The Federalist Society's blog, "Akamai charged Limelight with infringement of its patent on a method for delivering video content to consumers via the Internet." By a one-vote majority, an en banc panel of the Federal Circuit overturned lower court decisions that, under traditional patent principles, Limelight was not infringing on Akamai's business-methods patent by partially but not wholly replicating its competitor's process (Limelight's technology leaves some of the work up to the end-user). An array of businesses (Google, Cisco Systems, Oracle, Red Hat, etc.) and the Solicitor General have filed briefs asking the Court to take up the case (the SG's brief was filed at the Court's request -- and both that fact and the brief's recommendation augur well).
[P]atent trolling has emerged as a big and growing business line for what the Manhattan Institute has dubbed Trial Lawyers, Inc., the subset of the plaintiffs' bar that behaves like the biggest of big businesses (with the exception that instead of selling products to willing consumers, the lawyers extract monies from unwilling defendants through their unique access to the courts). . . . The number of patent lawsuits filed by PAEs grew from 466 in 2006 to 2,914 in 2012, an increase of 526 percent in just six years. In 2011, 2,150 companies were forced to mount 5,842 defenses against NPE-initiated patent lawsuits--up from only 1,401 defenses in 2005.
See also Gary Shapiro's op-ed on the case at the Washington Examiner.
Postscript: The Supreme Court on Friday granted cert on Limelight. We'll have more to say on the case as it comes before the Court on the merits.
As I discussed in yesterday's Washington Examiner, at tomorrow's conference, the Supreme Court will decide whether to grant certiorari on a pair of companion cases -- Sears v. Butler and Whirlpool v. Glazer, which Ted has previously discussed (here, here, and here).
Both cases involve 21 varieties of energy- and water-efficient "front-load" washing machines manufactured by Whirlpool.
In 2001, Whirlpool released the first of this diverse group of washers that reduced water and energy use by more than two-thirds (cutting $120 from the average family's annual water and power bills).
Whirlpool's washers have been ranked among the best in their class by Consumer Reports and helped the company win multiple "sustainable excellence" awards from the federal Environmental Protection Agency.
Class-action attorneys have pounced on the fact that a small percentage of these washers, like all washing machines, can (if improperly maintained) emit "musty odors" from leftover laundry residues.
Such odors may be marginally more likely in these newer machines than in traditional, less water- and energy-efficient washers.
A decade of call center data from Whirlpool and Sears place the percentage of consumers facing such odors at two to three percent, and a more recent February 2010 examination by the Consumers Union estimates the problem rate at less than one percent.
The Supreme Court has taken significant interest of late in limiting the use of class-action remedies. In its 2011 decision in Walmart v. Dukes (involving a gender discrimination claim) and last year's decision in Comcast v. Behrend (involving an antitrust claim), the court has emphasized that for a class of plaintiffs to be approved, the facts have to show a common and specific cause of harm that "predominates."
The washing machine cases certainly fail the Supreme Court's predominance test for class-action litigation.
Let's hope that the Supreme Court decides to step in yet again, because the legal theory underlying these cases is worse than musty -- it stinks.
Update: The Supreme Court neither granted nor denied the cert petitions here -- we'll watch for it at the next conference.
Ever so often, the Supreme Court hears a case that has ramifications for our very constitutional structure.These cases reach into the heart of our government to see what strictures remain between the founding generation and our own.
The Court is currently hearing oral arguments in Bond v. United States, a case dealing with fundamental issues of federalism and separation of powers. Specifically, the issue deals with the extent to which Congress can abrogate state police powers pursuant to the mandates of Congress's treaty obligations.
But in a larger sense, this case speaks to the validity of the framework of analysis the Court has employed since its inception. The presumption of constitutional analysis has always begun on the side of federalism and separation of powers; that is, the Constitution created certain enumerated powers to delegate to the federal government and left the majority to the states, so we begin our analysis from where the nexus of the power was meant to lie. In other words, our underlying premise is always to begin with federalism, and inch towards increasing federal power as circumstances might necessitate.
The Bond court has a chance to take another step towards maintaining the presumption of our Constitution by reaffirming the states' role in criminal prosecutions.
The Wall Street Journal has further details on the salient issues here, and the New York Times has more on the oral arguments here.
A couple of weeks ago, the California Supreme Court decided a potentially very impactful case dealing with the enforceability of arbitration agreements made between companies and their consumers/employees.
In Sonic-Calabasas A, Inc v. Moreno, the court ostensibly agreed with the U.S. Supreme Court's rulings in Concepcion and Italian Colors Restaurant that federal preemption applied over any state rulings that attempted to control the scope of consumer arbitration agreements under a specific formulation of the unconscionability doctrine.
However, the Sonic court then opened up the door to the potential introduction of a new unconscionability standard that would be substantively similar to the previously-discredited standard.
In the prior U.S. Supreme Court rulings, the Court specifically overruled the Discover Bank rule, which mandated that consumer arbitration agreements that did not include clauses allowing for class action suits were effectively unenforceable. The Supreme Court has held that the Federal Arbitration Act's mandates apply, regardless of any state "substantive or procedural policies to the contrary," including any any specific state standards for arbitration applicability.
Andrew J. Pincus and Archis A. Parasharami of the Mayer Brown law firm have written an op-ed discussing the various issues involved.
Floyd Norris, author of the High & Low Finance column for the New York Times, writes about two cases the Supreme Court has decided to hear dealing with fee-shifting in patent infringement cases. The outcomes could potentially deter future, frivolous infringement suits.
Businessweek mentions the pending CCAF Marek v. Lane Facebook cy pres certiorari petition (on the calendar for tomorrow) in a larger article about how the Supreme Court is supposedly squelching the class action by issuing rulings against abusive class-action certifications. Public Citizen got to Businessweek apparently, with the author warning that a cert grant could be bad for consumers. It's hard to see how consumers could be made worse off than a $0 settlement; such settlements hurt consumers by raising their costs without any corresponding benefit. Defense attorney John Beisner tells me of being on an American Constitution Society panel and asking the audience to identify a consumer class action where the consumers got more than the attorneys, and no one being able to name one.
Reliable data on class actions are in regrettably short supply because courts don't track them. The only helpful gauge over time measures just a slice of the relevant cases: federal securities fraud claims. The economic consulting firm Cornerstone Research says in the first six months of 2013, 74 securities class actions were filed in U.S. district courts. That's down 22 percent from the 16-year average from 1997 to 2012 and off 42 percent from the peak in the second half of 1998.
The problem here is that the Supreme Court has consistently ruled in favor of plaintiffs in securities cases in the last few years. If securities filings have gone down, it's because the stock market has gone up in the last four years, and securities filings go up and down in inverse correlation to the market direction—which does a lot to demonstrate that securities lawsuits tend to be less about fraud than about rent-seeking. In any event, the direction of securities class actions tells us nothing about the direction of consumer class actions.
In the Matter of McCutcheon: The Merits of Campaign-Finance "Aggregation"
This week, the Supreme Court is considering a potentially-transformative case that could alter the range of free speech protection granted under the First Amendment. In McCutcheon v. FEC, the Court must decide whether aggregate limits on the amount a person ($48,600 for direct contributions to candidates; $74,600 for donations to non candidate-affiliated political committees) can donate during an election cycle is constitutionally permissible.
Specifically, the Court's constitutionally-relevant precursor here is Buckley v. Valeo, which held that contributions could be limited due to the fear of perpetuating corruption by allowing a donor to make unlimited donations to a single candidate in exchange for political favors. Ostensibly, this appears to be a legitimate concern, possibly even to the extent of allowing for a qualified restriction on political free speech.
But in a larger sense, the specific principle laid out in Buckley cannot been extended out to encompass an area in which the Court's reasoning does not logically extend. The end as stated in Buckley is to subvert potential political corruption, through the means of restricting the amount an individual can donate to candidates for federal office. If we extend this logic to McCutcheon, the stated proposition would stand as: If we restrict the amount of money an individual can give as an aggregate to various candidates, then we are furthering the end of subverting potential political corruption.
"The concern," Chief Justice John Roberts noted, "is you have somebody who is very interested, say, in environmental regulation, and very interested in gun control. The current system, the way the anti-aggregation system works, is he's got to choose. Is he going to express his belief in environmental regulation by donating to more than nine people there? Or is he going to choose the gun control issue?"
An aggregate cap stands as a forced rationing of political thought as expressed, ironically, through the Buckley proposition that money in service of political speech is protected by the First Amendment. Because the latter statement is a long-standing legal fact, the logical disconnect becomes more apparent.
Moreover, because we are dealing with First Amendment protections, the means must be given "strict scrutiny" examination. The Buckley court seemingly found donor limits to individual candidates to be narrowly-tailored means to the end of rooting out potential quid pro quos.
In order to extend that to McCutcheon, the Court would have to say that the additional burden on political speech created by aggregation caps is either 1) still narrowly-tailored to the anti-corruption end or 2) come up with a new justification for the aggregation caps that can pass strict scrutiny.
Finally, because Super PACs are largely funded by wealthier donors, the aggregate caps would destroy the influence and impact of smaller donors in a variety of political arenas, while allowing larger donors to increase their influence in the political process; this would abrogate the intention of campaign finance laws in the first place. Considering these legal and policy implications, the Court should take this opportunity to clear the way for free expression of political thought.
I wish the district courts knew that. In EasySaver, the district court thought nothing about awarding $3 million to local universities (including class counsel's alma mater) in a national class action, even though the class was receiving only $225,000 and worthless coupons.
And just this summer, a district court made an appalling cy pres award in BankAmerica Corp. Securities Litigation. Though the class of shareholders received less than a nickel on the dollar for their alleged damages (and claimants ended up being paid less than a dime on the dollar), the Missouri district court refused to distribute $2.7 million to the class, instead ordering that a local legal aid society that serves only the St. Louis area get the money. CCAF wasn't involved at the district court level, but the class representative retained us as appellate counsel, and last week, we filed a brief in the Eighth Circuit appealing the decision. If the law of cy pres were clear, this wouldn't be remotely a close case, but the district court rejected the correct result out of hand.
At least Cato filed a strong amicus brief in the Facebook case. And some district courts are getting it right: the Northern District of California refused to approve problematic cy pres in a problematic settlement; a Kansas federal court demanded that cy pres recipients be identified in the class notice—something the Third Circuit refused to do in Baby Products.

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Now science may be validating the faith our Founding Fathers put in juries.
In a study published recently in Proceedings of the National Academy of Sciences (PNAS), http://www.pnas.org/content/112/24/7460.abstract, finds that groups are consistently more accurate in distinguishing truths from lies than one individual.
In "Group Discussion Improves Lie Detection," by University of Chicago Booth School of Business Professor Nicholas Epley and Chicago Booth doctoral student Nadav Klein, the researchers designed four experiments in which groups consistently distinguished truth from lies more accurately, demonstrating that the group advantage in lie detection comes through the process of group discussion, not the product of a "wisdom of crowds" effect. Groups were not simply maximizing the small amounts of accuracy contained among individual members but were instead creating a unique type of accuracy altogether. Group discussion alters how individuals evaluate a given statement to increase accuracy. Because individuals already possess some accuracy in detecting truths, unique improvement from group discussion would increase accuracy in detecting lies.
"We find a consistent group advantage for detecting small 'white' lies as well as intentional, high-stakes lies told for personal gain," says Epley. "This group advantage seems to come through the process of group discussion rather than statistical aggregation of individual opinions."
The available psychological and sociological research and analysis clearly indicates that a jury is a more reliable factfinder than a judge. A judge is more likely to have a cognitive bias against a defendant and a 12-person jury has the benefit of a diverse range of experience that enhances fairness. Ballew v. Georgia, 435 U.S. 223, 232-39(1978)(opinion of Blackmun, J.)(Research findings that “raise doubts about the accuracy of the results achieved by smaller and smaller panels” of factfinders used to decide that a five member jury does not satisfy the constitutional jury trial guarantee.); Lambright v. Stewart, 191 F.3d 1181, 1184(9th Cir. 1999)(lower number of jurors leads to inaccurate factfinding and incorrect application of the common sense of the community to the facts); Guggenheim & Hertz, Reflections on Judges, Juries, and Justice: Ensuring the Fairness of Juvenile Delinquency Trials, 33 Wake Forest L. Rev. 553, 571-82(1998).
The natural extension to the Ballew court’s finding that a five-member jury is not reliable is that one factfinder is even worse – especially one that must deal with a court calendar and make factual findings. Ballew, 435 U.S. at 232-33(“[A] positive correlation exists between group size and the quality of both group performance and group productivity.”); Guggenheim & Hertz, at 578. Simply put, one judge cannot compete with a 12-person jury for reliability of the factfinding function that is “critical to the accurate application of the common sense of the community to the facts.” Ballew, 435 U.S. at 234.
If I hire you as my criminal lawyer or defense attorney, can you guarantee me that my case or criminal charges will be dismissed?
It is an understandable question but a question any honest lawyer cannot answer. Not because they do not want to answer a client’s question. But because it is impossible for anyone to guarantee what will happen in the future. Any lawyer or attorney who guarantees what will happen in the future is trying to make a quick buck off a client without regard to effective representation of the client on their drug, assault, OWI or DWI charges, felony or misdemeanor. I explain that any lawyer who tells a client they know the future about their case should have a crystal ball or magic wand in their briefcase rather than law books.
I tell every person who comes to see me that I cannot guarantee the future but I can guarantee I have a history of taking what others thought to be losing cases and winning those cases. I guarantee them that as their defense attorney or criminal attorney, I will work hard on their case to protect all their rights. When I review the facts of a case, I guarantee I will look for any issue to file a legal challenge to the prosecution.
In other words, I guarantee you to exert my best efforts to defend you and your rights which has helped most people.
A landmark 2014 report, “The Growth of Incarceration in the United States: Exploring Causes and Consequences,” from the National Research Council of the National Academies — the preeminent research body in the United States, part of the National Academy of Sciences and chartered by Congress — was authored by a committee of leading criminal justice scholars from across the country. The project’s chair and vice chair were Jeremy Travis of the John Jay College of Criminal Justice at City University of New York and Bruce Western of the Department of Sociology and Kennedy School of Government at Harvard University.
The report’s findings and insights can credibly and authoritatively anchor coverage and debate about this issue. The following are key statements within the 464-page document.
Divorce is stressfull. It sometimes helps to have something to fall back on during the stress of your divorce. Luckily, that help may be as close as your cell phone!! Here are some apps you may wish to use as you PEACEFULLY work through your divorce.
same Street Divorce (iOS/Android): By using popular characters from Sesame Street, kids get a gentle introduction to divorce, including getting used to two homes. The app also offers parenting tips and conversation starters to get kids talking about how they’re feeling during this time of transition.
Our Family Wizard (iOS/Android): Parents can take the stress out of co-parenting by sharing important information about the costs of child support. For example, a parent initiating an expense on the part of the child can create an entry and then attach a receipt. Parents agree to pre-set formulas for how amounts is split (i.e., 50-50 on medical expenses). Once the receipt is approved by the other parent, the share of the payment is transferred from one parent to another through an attached account, like PayPal or a checking account. The popular app provides a shared child custody interface, too!
iSplit Divorce App (iOS/Android): How to split your marital assets? Here is an overview of the asset division process with iSplit, an app that has you assign values to your list of assets, then drag and drop icons to each individual side to see how they stack up — the app keeps a running total of the value of each side’s assets. You can also export the information into a spreadsheet to bring with you to a meeting with your attorney or give a copy to your spouse or financial advisor.
Divorce Coping Tip of the Day (Android): Laughter is the best medicine, right? Get this app packed with positive and practical advice for getting through the divorce process with your good humor intact.
Divorce Log (iOS): This app provides a calendar-based program to help you keep track of divorce-related information (i.e. alimony and child support payment dates, expenses, and time spent with the kids) in one place. All entries stored in the app can be forwarded directly to an email address so that you can send pertinent information to an attorney or ex-spouse. Easy!
In 1996 Wisconsin changed the state’s juvenile justice landscape by excluding 17-year-olds entirely from the juvenile court. Initially this was an effort to save resources and improve community safety by incarcerating older teens as adults, under the theory of ”adult crime, adult time.” At the time of the legislative change, there was little research to suggest that trying youth as adults would improve community safety. Since then, research has effectively contradicted the premise that the change would make communities safer.
As a result of this kind of thinking, across the U.S., there are 2,484 persons sentenced for crimes committed under age 18 are serving life without parole in U.S. prisons. There are none in the rest of the world. The Rest of Their Lives: Life Without Parole for Youth Offenders in the United States 2008, Human Rights Watch, May 2008. Forty three states permit the imposition of life with no possibility of parole in some form for children who commit crimes under 18 at the time of the offense.
Judges impose sentences of life with no parole on black youth at a rate 10 times greater than white youth. Feld, Unmitigated Punishment: Adolescent Criminal Responsibility and LWOP Sentences, 10 J.L.& Fam. Studies 11 (2007), at 70. The Governor’s Commission on Reducing Racial Disparities in the Wisconsin Justice System studied the problem of minority overrepresentation in prison and came up with a number of recommendations. One recommendation was to return 17-year-olds to the juvenile court, while retaining judges’ flexibility to try those accused of more serious crimes in the adult system.
There is no evidence that placing juveniles in the adult criminal system either through original adult court jurisdiction laws or waiver into adult court diminishes youth violence. In fact, this may increase crime and diminish community safety. See e.g. “Effects on Violence of Laws and Policies Facilitating the Transfer of Youth from the Juvenile to the Adult Justice System”, Morbidity and Mortality Weekly Review, November 30, 2007. www.cdc.gov/ mmwr/preview/mmwrhtml/rr5609al.htm. Christina DeJong & Eve Schwitzer Merrill, Getting “Tough on Crime:” Juvenile Waiver and the Criminal Court, 27 Ohio N.U.L. Rev. 175, 176 n. 10 (2001); “While incarcerating waived juveniles in adult facilities quenches the public’s thirst for ‘justice’ and provides the community with a sense of security, incarcerating juveniles with adults does not, in fact, increase public safety. Overwhelming evidence indicates that incarcerating juveniles with adults produces no superior deterrent or incapacitative effects, and instead results in increased recidivism.” Ellie D. Shefi, Waiving Goodbye, Incarcerating Waived Juveniles in Adult Correctional Facilities Will Not Reduce Crime, 36 U. Mich. J. Law & Reform 653, 665 (2003); citing Donna M. Bishop et al., The Transfer of Juveniles to Criminal Court: Does it Make a Difference?, 42 Crime & Delinq. 171, 184-85 (1996).
Upon close examination of a jail’s ability to serve 17-year-olds, it is not surprising that youth with jail sentences are the least likely to stay out of trouble after their release. According to data presented in the Legislative Audit Bureau’s analysis of 17-year-olds in the adult system, few services are available in the adult jail system. Legislative Audit Bureau, Report 08-3, A Review: 17-Year-Old Offenders in the Adult Criminal Justice System, February 2008, page 7 Significantly, the recidivism rate for 17-year-olds incarcerated in adult prisons was nearly double that of younger teens treated in the juvenile system, despite the longer follow up period for the juvenile offenders.
In Whren v. United States, 517 U.S. 806 (1996), the US Supreme Court clarified that “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Id. at 813. “[A]s long as the circumstances, viewed objectively, justify [the police officer's] action,” the officer's subjective state of mind is irrelevant. Id. (quoting Scott v. United States, 436 U.S. 128, 136, 138 (1978)). The logic of Whren v. United States, is inherently two-sided: if an officer's subjective motive or belief cannot invalidate an objectively justified traffic stop, then it cannot save an objectively unjustified one. In other words, Whren grants officers “broad leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to the legal justification for their actions. But the flip side of that leeway is that the legal justification must be objectively grounded.” United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (footnote omitted). Where the actions the officer observes provide no basis for concluding that any law, as properly construed, has been violated, an officer's subjective misunderstanding of the law cannot create the suspicion the Fourth Amendment requires.
The Eighth Circuit has found that an officer's “subjective good faith belief about the content of the law is irrelevant,” United States v. Washington, 455 F.3d 824, 827 (8th Cir. 2006). According to the Eighth Circuit, “the constitutionality of [a] traffic stop … depends on whether [the officer's] belief that a state law was violated was objectively reasonable.” Id.; accord United States v. Martin, 411 F.3d 998, 1001 (8th Cir. 2005).
Ordinary people are charged with knowledge of substantive criminal law, and if they make mistakes of law, they may not (absent special statutory exceptions) assert such mistakes as a defense to liability. This is so no matter how “objectively reasonable” a mistake may be. As has been said time and again, “ignorance of the law is no excuse.” Bryan v. United States, 524 U.S. 184, 196 (1998). Indeed, as Justice Holmes famously explained, “to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey.” Oliver Wendell Holmes, The Common Law 48 (1881). The expectation that the law is “definite and knowable” is no more tenable for police today than it is for the lay public.
It takes little reflection to see “the fundamental unfairness” of holding citizens to strict compliance with the law “while allowing those entrusted to enforce the law” to interpret and apply the law more flexibly. United States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2003) (internal quotation marks omitted). “Reciprocal expectations of law-abidingness between government and its citizens can scarcely be expected to endure if one party - the government - need not uphold its end of the bargain.” Wayne A. Logan, Police Mistakes of Law, 61 Emory L.J. 69, 91 (2011) (footnotes omitted). Indeed, if anything, those charged with enforcing the law should be expected to have a better - not worse - understanding than the general public. Any rule that undermines this actuality, and that rewards police officers with more authority when they are ignorant of the law they are supposed to be enforcing, flouts our most basic constitutional values.
On June 1, 2015 the U.S. Supreme Court in Elonis v. U.S., overturned the conviction of a man who had made violent threats on Facebook against his estranged wife. The court ruled that it was not enough — as prosecutors had argued — to convict someone on the basis that the language used could be regarded as a threat by a reasonable person. The justices said there had to be proof that the writer actually intended the words to be a threat to warrant criminal charges. Chief Justice John G. Roberts Jr., noting that Anthony Douglas Elonis had said he intended his postings to be fictitious and even therapeutic, said a defendant’s state of mind had to be considered. The narrow opinion said it was not necessary to address whether the First Amendment’s guarantee of free speech protected Elonis’s Facebook statements. The opinion also declined to take a position on whether it would be enough for a conviction to show that a defendant had been reckless in making inflammatory statements, as Alito proposed. It was sufficient for now, Roberts wrote, to correct a misinterpretation by most lower courts that the poster’s intent is immaterial and what matters only is how the message is received.
Is old racism in the past or raise your hand if you are racist please?
Racism as a conscious belief can limit our understanding of that bias. The conscious belief in racial inferiority with acts in furtherance of those beliefs, via discrimination or worse, may be not as frequent today. Most of us would never treat anyone differently due to race, and in the perceived absence of conscious bigotry from others, we're tempted to believe that for most people in most circumstances, racism is a previous generation's problem, not ours.
Not so. While racism can be expressed in conscious beliefs and actions, but it also can be expressed through unconscious bias. For example, millions have taken the Implicit Association Test developed by researchers at Harvard University and the University of Washington and most have been surprised at the extent to which the test can reveal implicit social cognition - thoughts and feelings outside of conscious awareness and control. The test documents a common form of racism that extends beyond the beliefs and attitudes that we're aware of. This research has far ranging implications for a lawyer during voir dire (where a court is really concerned with having effective voir dire and not just court conducted “get it over” voir dire). This test recognizes that people don’t always say what’s on their minds. One reason is that they are unwilling. For example, someone might report smoking a pack of cigarettes per day because they are embarrassed to admit that they smoke two. Another reason is that they are unable. A smoker might truly believe that she smokes a pack a day, or might not keep track at all. The difference between being unwilling and unable is the difference between purposely hiding something from someone and unknowingly hiding something from yourself. The Implicit Association Test (IAT) measures attitudes and beliefs that people may be unwilling or unable to report. The IAT may be especially interesting if it shows that you have an implicit attitude that you did not know about. For example, you may believe that women and men should be equally associated with science, but your automatic associations could show that you (like many others) associate men with science more than you associate women with science.
Psychologists who study this racism related to unconscious bias refer to the term as “aversive racism.” “Aversive racism” is thought to be a phenomenon in which people believe they harbor no prejudice toward minorities, when in fact they have a subconscious bias. Russ Espinoza, “The Impact of Ethnicity, Immigration Status, and Socioeconomic Status on Juror Decision Making,” 13 Journal of Ethnicity in Criminal Justice 3 (2015)http://www.tandfonline.com/doi/abs/10.1080/15377938.2014.984044#preview In an article in The Orange County Register, Cal State Fullerton psychologist Russ Espinoza found that mock jurors are motivated to find reasons other than race in order to justify greater punitiveness toward minority defendants. “When jurors can find other reasons besides race to place blame, such as low socioeconomic status, they will tend to be more punitive toward minority defendants and feel that they are not being prejudicial,” he said in explaining the theory. Liliana Mota, “CSUF researcher uncovers subconscious bias among jurors” The Orange County Register, http://www.ocregister.com/articles/espinoza-669017-jurors-penalty.html. Compared to a group of students in their 20s, the older jury pool was harsher in its sentencing, he said. “We found that the mock jurors with the average of age 38 tended to throw the book at minorities,” he said. Id. Moreover, regardless of the belief of Justice Scalia about the fairness of the death penalty, the study found that African Americans and Latinos with a low socioeconomic status and weak mitigating factors were more likely to receive the death penalty.
So as trial lawyers, maybe we should watch potential jurors either who avoid eye looking at you or your client, or instead simply burns holes by staring at you or client since that would seem to indicate they are showing aversion toward you or your client. It might be easier to ask about experience, rather than an attitude. Maybe ask the potential juror how often she/he has interacted with members of a minority group, for example, might be a window into aversive behavior.