Category Archives: Blog

Diversity and Disgrace – How the U.S. News Law School Rankings Hurt Everyone

Image Credit: James Sarmiento via Flickr

Image Credit: James Sarmiento via Flickr

By Tony Varona[*]
Professor of Law and Associate Dean for Faculty and Academic Affairs at the American University Washington College of Law

U.S. News and World Report recently released its law school rankings[1] and, as happens every year, readers have focused almost exclusively on the many extreme fluctuations in ranks. Why did Schools A, B and C suddenly jump 20 spots? Did the learning experience at Schools X, Y and Z really erode so dramatically as to justify their 25-spot freefall? What will this big drop (or climb) mean for student and faculty recruitment, and alumni employment rates, at these schools?

Instead, or in addition, we should be asking more probing questions, like: Does the U.S. News measuring stick itself measure up? Is it measuring the right things? And what effects have the U.S. News rankings had on legal education and society itself?

If we were to carry a miner’s canary[2] into the depths of the U.S. News ranking methodology,[3] we quickly would have a dead bird on our hands. Why? Let us look at just one flaw that, standing alone, discredits the U.S. News rankings altogether.

Experts in diversity point to how composites and alloys of diverse elements produce building materials that are much stronger and more robust than their individual parts.[4] They reference how reproductive diversity is crucial for the collective health of species.[5] There is no dispute that biodiversity itself is a linchpin of the planet’s ecosystem.[6] Philosophers such as Montesquieu and Condorcet credited random transactions among diverse merchants for promoting community and trust among different peoples; doux commerce civilized the motley hordes.[7] “Effective competition” requires the participation of a diversity of market competitors in delivering the best consumer value. And financial advisors urge us to diversify our investments so that we can better optimize the performance of our portfolios in uncertain markets.[8]

In short, diversity pays off in many areas.

In legal education, diversity among students is indispensable. We train law students, after all, to be “social architects”to serve as ministers of justice among the nation’s very diverse communities. Unsurprisingly then, an awareness of and comfort with the diversity of races, ethnicities and backgrounds that make up our societyand that are dependent upon our legal systemhelp law students become better and more effective lawyers.[9] In his plurality opinion in 1978’s Bakke[10] decision, Justice Powell wrote that “[i]t is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this nation of many peoples.”[11] Justice Powell’s words later played a prominent role in the Court’s landmark Grutter[12] decision, upholding the University of Michigan Law School’s diversity-promoting admissions policy.

Precisely how does a high rate of student diversity benefit all law students?

I teach Contracts to a full section of approximately 80 first-year students every fall at my law school, the American University Washington College of Law. Ours was “the first law school in the world founded by women” (in 1896), [13] “the first . . . founded especially for women,”[14] and one of our two founders, Ellen Spencer Mussey, became “the first woman dean of an American law school.”[15] Valuing diversity is in our school’s genome. Nearly 60 percent of our last entering class was comprised of women.[16] Fully 40 percent are racial and ethnic minorities.[17] We welcome many international, LGBT, and disabled students, and students from a spectrum of faiths, cultures and worldviews.

To train advocates, we law professors prefer to conduct our classes less like virtuoso lecturers and more like conductors of well-tuned symphony orchestras.[18] Law teaching is a rigorous, high-energy, and interactive exercise. What my students contribute from class to class, therefore, determines to a significant degree the quality, sophistication and rigor of the teaching we are able to achieve together. It should come as no surprise, therefore, that our school’s high rate of student diversity enriches the educational experience for all of my students throughout the semester.

Here are just a few examples from my last Contracts class:

  • In our first session, I had the students puzzle over an introductory hypothetical. In what cases should a gift shop’s prominently displayed sign saying “You Break It, You Buy It” lead to contractual liability? Almost immediately, some of my multilingual, multicultural students asked something like: “Would the answer not depend on whether the customer in question could read and understand English?” “What if she were blind, or functionally illiterate?” Important, challenging questions.
  • Later, we analyzed a case study involving sex work contracts and the legal bases for their criminalization. In response to several students’ liberty-based arguments for decriminalization, another student presented an eloquent appeal for the subjugation of personal autonomy in favor of communitarian objectives. This value of community over self, tribe over individual, was a decidedly foreign counterpoint delivered by my student from West Africa – a former Christian pastor and community servant.
  • When we discussed the Civil Rights Act of 1866 and its provision against racial discrimination in contract formation and enforcement, we considered the refusal of certain hairstylists to “do African-American hair.”[19] Some of my African-American students offered enlightening and unique observations, stemming from their personal experiences, about how our legal analysis should consider racial differences in hair texture, the manner in which the customer was addressed and treated, the salon’s clientele, and its neighboring community. These inquiries enabled us to go far beyond the otherwise facile substantive framing provided by casebook.
  • In another class, we discussed a viral social media story, likely a hoax but still instructive as a hypothetical case, in which a Chinese father claimed breach of contract against his wife after their biological baby came out, as he put it, “extremely ugly.”[20] The father alleged that his wife had surreptitiously undergone facial plastic surgery in order to induce him into marriage. Our analysis was made all the more sophisticated and culturally competent by the contributions of two of my students – one an Asian-American and the other a native-born Chinese student – who described the prevalence of plastic surgery among unmarried young women within Far Eastern societies.
  • Our examination of the 1902 Alaska Packers’ Association v. Domenico decision[21] was especially telling. Mostly Italian immigrant fishermen in San Francisco were contracted by a salmon fishing and packaging company to sail to Alaska and work in exchange for a flat $50 fee and a commission of 2 cents for every fish caught. The fishermen expected to earn most of their money catching salmon and so were alarmed to find upon arriving in Alaska that the company had plenty of salmon already caught for the fishermen to can and would only provide low-grade fishing nets. [22] They refused to work until the company’s representative granted their demand for a doubling of the base fee. After the company broke that promise, the fishermen sued, and lost. The court held that Alaska Packers’ representative had promised the doubled fee under duress, rendering the promise unenforceable.

    Our casebook presents Alaska Packers as a cut-and-dry application of doctrine, but some of my immigrant, working class, and non-native English students argued for the fishermen. They helped show how the fishermen were at a bargaining disadvantage due to a lack of facility with both the English language and American business practices. It was Alaska Packers who acted in bad faith and breached the contract, they argued, by unfairly saddling the fishermen with a backlog of fish and low quality nets. Their arguments were instrumental in bringing to light a more sophisticated and critical legal analysis found only in the best scholarly writing on the case.[23]

The different perspectives provided by these diverse students, rooted in their own experiences and backgrounds, added depth, nuance and quality to our discussions and debates. Their contributions turned what otherwise would have been rote and simplistic coverage of dusty doctrines into rigorous and careful analyses of the kind that we expect from the most sophisticated of practicing attorneys. Their presence and contributions added significantly to the academic rigor and sophistication of our course, and grounded it in the real world. In other words, they helped produce precisely the sort of learning experience we law professors strive to provide to all of our law students but that would be impossible to achieve in the absence of student diversity.

So, in light of how valuable diversity among students is to legal education, you might be wondering how much weight U.S. News devotes to student diversity in rating America’s law schools. Ten percent? Fifteen?

The answer is… zero.

The U.S. News ranking methodology ignores student diversity altogether in calculating the rankings. It treats a law school with little diversity as virtually indistinguishable from a very diverse school where pedagogically rich exchanges like those above abound.

For a variety of reasons,[24] the average underrepresented minority student tends to have lower GPA and LSAT scores – the myopic[25] academic credentials that U.S. News “counts” – than his or her White, nonminority counterpart. So, it is easy to see how schools that trade student diversity for higher numbers tend to move up in the U.S. News ranks. By contrast, schools that refuse to sacrifice diversity pay a big U.S. News price for pursuing what most educators agree is best for all our students. U.S. News actually rewards less diverse schools for admitting less diverse classes, and altogether ignores the clear learning advantages at the more diverse schools.

It is no secret that law schools have gone as far as admitting much smaller and significantly more homogenous first-year classes, and then letting many more students in through the 2L transfer “back door” (where U.S. News’s methodology does not look), thereby hiding the true credentials of their students from the magazine and artificially inflating their U.S. News ranks.[26] U.S. News does nothing to stop schools from engaging in this obvious manipulation.

The U.S. News editors in charge of the magazine’s law school rankings have known about these (and other) glaring flaws in their ratings methodology for years. I myself, together with colleagues, have spoken about some of these serious shortcomings with Robert Morse,[27] the editor in charge of the U.S. News rankings, twice. Despite the professoriate’s reticence to acknowledge and (we fear) legitimize U.S. News’s rankings, colleagues have made some of the same arguments I have made, as well as many others, again,[28] and again,[29] and again[30] (and again[31]). But to no avail. U.S. News remains unmoved.

Since U.S. News goes so far as to provide diversity data[32] separately from the main rankings, why does it not reward schools that are more diverse than others by incorporating a diversity score in the rankings themselves? Mr. Morse insists that doing so would be difficult.[33] He has argued that “measuring how successful law schools are at achieving diversity goals cannot be included easily in our rankings formula in a fair and meaningful way.”[34] Mr. Morse also has pointed to demographic, statistical and other hurdles.[35] And I agree with him that it would not be easy, particularly in light of the challenge of accurately defining, quantifying and weighting indicia of diversity without inadvertently penalizing schools (like historically Black institutions) that serve underrepresented minorities primarily but are not, in the technical sense, “diverse.” (Sociologists Wendy Espeland and Michael Sauder addressed these and other challenges brilliantly in a 2009 article.[36]) These ambiguities, however, are far less intractable than U.S. News’s current corrosive approach.

Furthermore, it should give pause that Mr. Morse, the guru of the U.S. News law school (and numerous other) rankings, betrays a disturbing ignorance of the significant pedagogical value of student diversity in law school classrooms. He has said that “an important issue” impeding the incorporation of a diversity element into the law school rankings is the “question of whether diversity should even be included in the rankings, given that the main purpose of the rankings is to identify the best schools academically.”[37] Apparently, Mr. Morse believes that student diversity and academic quality are competing instead of complementary objectives. Student diversity, he suggests, detracts from academic excellence, despite the Supreme Court’s own findings to the contrary[38] and the experience of many law students and law professors in diverse classrooms across the nation, including–as I demonstrate above–my own.

The sad truth is that the U.S. News law school rankings have hurt, and not helped, American law students, the legal profession and, thus, society as a whole. The U.S. News rankings have resulted in the denial of a quality legal education to minority law school applicants with great promise and drive but modest, rankings-unfriendly credentials. It has kept deserving students with great potential in the legal profession outside the doors of quality law schools and the profession itself by encouraging restrictive admissions policies geared more towards gaming the rankings than doing what is right societally, and what is best pedagogically.

Adding insult to injury, U.S. News has done all of this at a time when the demographic complexion of the legal profession continues to lag far behind the increasingly rich diversity of the nation’s population. No less than the president of the American Bar Association, James R. Silkenat, recently bemoaned the fact that the American legal profession looks very little like the population it serves. He noted that “[w]hile people of color will soon be the majority in this country, racial and ethnic minorities constitute just 13 percent of lawyers, and minority women are only 6 percent.”[39]

None of this, of course, is to say that White, non-minority students do not have a lot to contribute to in-class analyses, discussions and debates. They very much do. The issue is not about who already is present in many American law school classrooms – it’s who is absent. And there is no disputing the reality that U.S. News’s anti-diversity ranking methodology has led to more homogenous and less effective law school classrooms, harming all of our law students and producing a less sophisticated, worldly and diverse legal profession–a result that hurts us all.

Prospective law students should keep these criticisms in mind as they review the new U.S. News rankings. Applicants are right to choose among their law school options with great care and a skeptical eye. But they also should be wary of the U.S. News law school rankings themselves, which are so flawed and misleading that they may very likely do these students – like so many students before them – a whole lot more harm than good.


[*] The author thanks colleagues Professors Mary Clark, Angela Davis, Robert Dinerstein, Claudio Grossman, BJ Kaufman, Elliott Milstein, Andrew Popper, Jamin Raskin, Darren Rosenblum, Ann Shalleck, and Ari Ezra Waldman, the students in his fall 2013 Contracts class, and John Gill, for very helpful feedback on earlier drafts of this essay. Tami Martin, Esq., provided excellent research assistance. Many thanks also go to Geoffrey Wertime, Scott Bulua and Jonah Peppiatt for brilliant editing.

[1] Travis Mitchell, Best Law Schools 2015, U.S. News & World Rep., March 10, 2014, http://www.usnews.com/education/best-graduate-schools/top-law-schools/slideshows/us-news-best-law-schools-2015.

[2] See Lani Guinier & Gerald Torres, The Miner’s Canary: Enlisting Race, Resisting Power, Transforming Democracy (The Nathan I. Huggins Lectures) (2003) (applying the “canary in the coal mine” metaphor to the function and status of race in the United States).

[3] Sam Flanigan and Robert Morse, Methodology: 2015 Best Law Schools Rankings, U.S. News & World Rep., March 10, 2014, http://www.usnews.com/education/best-graduate-schools/top-law-schools/articles/2014/03/10/methodology-2015-best-law-schools-rankings.

[4] Frederick A. Miller & Judith H. Katz, The Path from Exclusive Club to Inclusive Organization: A Developmental Process 8 (2007), available at http://outandequal.org/documents/KJ_PathFromExclusive_AR_Flat_010509.pdf. See also Jeffrey F. Milem, Mitchell J. Chang, & Anthony Lising Antonio, Making Diversity Work on Campus: A Research-Based Perspective 6 (2005), available at http://siher.stanford.edu/AntonioMilemChang_makingdiversitywork.pdf (discussing educational advantages of diverse college classrooms).

[5] Miller & Katz, supra note 4, at 8.

[6] Biodiversity, World Health Org., http://www.who.int/globalchange/ecosystems/biodiversity/en/ (last visited Mar. 21, 2014, 12:41 AM).

[7] Alessandro Roncaglia, The Wealth of Ideas: A History of Economic Thought 86 (2006).

[8] See, e.g., The Pros’ Guide to Diversification, Fidelity Viewpoints, Fidelity (Sept. 4, 2013), https://www.fidelity.com/viewpoints/guide-to-diversification.

[9] See, e.g., Alyson Oliver and Reed Erikson, Why Leadership Diversity in Litigation Is Crucial, Trial Mag., March 2014, at 40, 40-43. Litigators Oliver and Erikson argue that “[d]iversity breeds courtroom success.” Id. at 41. They observe that, “[g]enerally, diverse groups tend to outperform nondiverse groups by a substantial margin, and they make more innovative business decisions than their homogenous counterparts.” Id. at 40.

[10] Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (quoting Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967)) (upholding the reliance on race as an element in college admissions decisions but invalidating the use of racial quotas).

[11] Bakke, 438 U.S. at 313.

[12] Grutter v. Bollinger, 539 U.S. 306 (2003).

[13] Founders: Mussey & Gillett, Am. U. Wash. Coll. of L., http://www.wcl.american.edu/history/founders.cfm (last visited April 1, 2014).

[14] http://www.wcl.american.edu/history/founders.cfm Virginia G. Drachman, Sisters in Law: Women Lawyers in Modern American History 150 (1998) (emphasis added). Drachman notes that WCL was the first and “only law school in the county devoted especially to women” and “was run and taught primarily by women.” Id. at 152.

[15] Mary Clark, The Founding of the Washington College of Law: The First Law School Established by Women for Women, 47 Am. U. L. Rev. 613, 661 (1998). Dean Clark notes that “[WCL] became the first law school established by and for women in the United States. As WCL’s first and second deans, Mussey and Gillett were the first two women to lead an American law school.” Id. at 614. See also Washington College of Law: Rich in History, Am. U. Wash. Coll. of. L., http://www.wcl.american.edu/history/ (last visited Mar. 21, 2014, 12:58 AM).

[16] Admissions Profile for the 2013 Entering Class, Am. U. Wash. Coll. of L., http://www.wcl.american.edu/admiss/profile.cfm (last visited Mar. 21, 2014, 1:00 AM).

[17] Id.

[18] See Tania Sheko, Should Teachers Be More Like Conductors? TED Tells, Brave New World (Oct. 22, 2009, 8:17 AM), http://tsheko.wordpress.com/2009/10/22/should-teachers-be-more-like-conductors-ted-tells/.

[19] See, e.g., Perry v. Command Performance, 913 F.2d 99 (3d. Cir. 1990) (African-American patron of hairstyling salon refused service by substitute stylist who exclaimed, “No, no, no, no! I don’t do black hair. No, no, no, no! Not today!. . . I’m from New Hampshire and I don’t deal with blacks!”), discussed in E. Allan Farnsworth et al., Contracts: Cases and Materials 176-77 (Foundation Press, 8th ed. 2013); “We Don’t Do Black Hair”: Discrimination at the Hair Salon, Clutch (Oct. 1, 2012), http://www.clutchmagonline.com/2012/10/we-dont-do-black-hair-discrimination-at-the-hair-salon.

[20] Zoe Mintz, Is That Jian Feng? New Ugly Baby Photo Attributed To Chinese Man Who Sued Wife Over Plastic Surgery Deception, Int’l Bus. Times (Nov. 7, 2013, 12:33 PM), http://www.ibtimes.com/jian-feng-new-ugly-baby-photo-attributed-chinese-man-who-sued-wife-over-plastic-surgery-deception. See also Chinese Man Sues Wife for Being Ugly, Wins, WBTV.COM (Nov. 2, 2012), http:// http://www.wbtv.com/story/19986930/chinese-man-sues-wife-for-being-ugly-wins.

[21] Alaska Packers’ Ass’n v. Domenico, 117 F. 99 (9th Cir. 1902).

[22] Id. at 100-01.

[23] See, e.g., Debora L. Threedy, A Fish Story: Alaska Packers’ Association v. Domenico, 2000 Utah L. Rev. 185 (2000).

[24] See Wendy Espeland & Michael Sauder, Rankings and Diversity, 18 S. Cal. Rev. L. & Soc. Just. 587 (2009); Alex M. Johnson, Jr., The Destruction of the Holistic Approach to Admissions: The Pernicious Effects of Rankings, 81 Ind. L.J. 309 (2006).

[25] See, e.g., Phoebe Haddon A. & Deborah W. Post, Misuse and Abuse of the LSAT: Making the Case for Alternative Evaluative Efforts and a Redefinition of Merit, 80 St. John’s L. Rev. 41 (2006)

[26] Catherine Ho, Law School Deans Push ABA About Transfers, Wash. Post (March 23, 2014), http://www.washingtonpost.com/business/capitalbusiness/law-school-deans-push-aba-about-transfers/2014/03/21/d59e2a98-aec1-11e3-96dc-d6ea14c099f9_story.html (“At issue is what many legal educators say is an effort by some schools to keep the data hidden in order to inflate their credentials for rankings purposes. Because U.S. News and World Report’s law school rankings look at the median LSAT scores of first-year students, but not the LSAT scores of transfer students — which are typically lower — critics contend the practice allows the schools to game the system.”).

[27] Mr. Morse’s official title is “Director of Data Research” for the magazine and, according to the biography on his blog, “[h]e develops the methodologies and surveys for the Best Colleges and Best Graduate Schools annual rankings….” Bob Morse, Morse Code: Inside the College Rankings, U.S. News & World Rep., http://www.usnews.com/education/blogs/college-rankings-blog (last visited April 2, 2014).

[28] Karen Sloan, Law School Rankings Complicate Diversity Efforts, Research Suggests, Nat’l L. J., http://www.alm.law.com/jsp/article.jsp?id=1202445313688&slreturn=20140220234501 (last visited Mar. 21, 2014, 1:22 AM).

[29] Victor Gold, What’s Really Behind U.S. News’ Refusal to Consider Diversity?, Huffington Post (Mar. 21, 2011, 2:53 PM), http://www.huffingtonpost.com/victor-gold/whats-really-behind-us-ne_b_838580.html.

[30] Louis H. Pollak, Why Trying to Rank Law Schools Numerically is a Non-Productive Undertaking: An Article on the U.S. News & World Report 2009 List of The Top 100 Schools,” 1 Drexel L. Rev. 52 (2009).

[31] Johnson, supra note 24. See also SALT Statement in Support of U.S. News & World Report Boycott (May 21, 2010), available at http://www.saltlaw.org/userfiles/file/5-21-10rankings%20letter.pdf; Jeffrey E. Stake, The Interplay Between Law School Rankings, Reputations, and Resource Allocation: Ways Rankings Mislead, 81 Indiana L. J. 229 (2006).

[32] Law School Diversity Index, U.S. News & World Rep., http://grad-schools.usnews.rankingsandreviews.com/best-graduate-schools/top-law-schools/law-school-diversity-rankings (last visited Mar. 21, 2014, 1:28 AM).

[33] Robert Morse, Should Diversity Be Added to Best Law Schools Rankings?, Morse Code: Inside the College Rankings, U.S. News & World Rep. (April 7, 2011), http://www.usnews.com/education/blogs/college-rankings-blog/2011/04/07/should-diversity-be-added-to-best-law-schools-rankings [hereinafter Should Diversity]; Sloan, supra note 28 (“Bob Morse, director of data research for U.S. News, said that diversity is a complicated issue that cannot easily be incorporated into its rankings formula. ‘To say that U.S. News is inhibiting law schools from taking minority students is a misunderstanding of the mathematics behind the rankings,’ he said.”); Debra Cassens Weiss, US News Weighs Request to Add Diversity Measure to Law School Rankings, ABA J. (Apr. 8, 2011, 10:28 AM), http://www.abajournal.com/news/article/us_news_weighs_request_to_add_diversity_measure_to_law_school_rankings.

[34] Should Diversity, supra note 33.

[35] Id.

[36] Espeland & Sauder, supra note 24.

[37] Should Diversity, supra note 33.

[38] See supra notes 10-12 and accompanying text. See also Gold, supra note 29 (quoting Grutter, which noted that the Court would “defer” to the University of Michigan “Law School’s educational judgment that diversity is essential to its educational mission,” particularly since the school’s “assessment that diversity will, in fact, yield educational benefits is substantiated . . . .”).

[39] James R. Silkenat, President’s Message: Major Push for Diversity, ABA J., March 2014, at 8. Mr. Silkenat also noted that “[a]t the law firm partner level, only 7 percent are minorities and just 2 percent are minority women.” Id.

Suggested citation: Tony Varona, Diversity and Disgrace – How the U.S. News Law School Rankings Hurt Everyone, N.Y.U. Rev. L. & Soc. Change Blog (April 3, 2014), http://socialchangenyu.com/2014/04/03/diversity-and-disgrace-how-the-u-s-news-law-school-rankings-hurt-everyone.

AWIS Previews RLSC Article on “Title IX and Pregnancy Discrimination”

Title IX AWISThe Association for Women in Science recently published an article by upcoming RLSC author Mary Ann Mason, PhD, called Title IX and Pregnancy Discrimination: Who Knew?. Dr. Mason, along with Jaclyn Younger, has written a piece on the same topic for a forthcoming issue of Social Change.

Read the AWIS piece now (PDF), and check back soon for the full Social Change article, Title IX and Pregnancy Discrimination: The New Frontier!

Squeezing Out Democracy: Florida’s Narrow Interpretation of the Single Subject Rule

Image Credit: Matt Spence / Flickr

Image Credit: Matt Spence / Flickr

by Katherine Erickson

Ballot initiatives are a way for citizens to directly affect their governments. In a representative democracy, where our representatives are often swayed by special interests, the ballot initiative procedure at its best acts as an important way of maintaining some voter control of legislative enactments.

The ballot initiative procedure, however, is also vulnerable to corruption. Many states haves accordingly adopted anti-logrolling[1] rules, called “single subject” rules, to make sure that voters won’t be pressured into accepting bad amendments in order to pass good ones. In modern America, however, getting even a popular initiative on the ballot requires raising funds for professional signature-gathering—all of which is wasted if the ballot is ruled to violate the single-subject rule.[2] The Florida judicial definition of a “single subject” remains impenetrable, and thus presents a significant burden to majoritarian movements to change the law.

When there’s no clear application of the single subject rule in judicial review, we risk arbitrary results at best, and letting judges’ political opinions affect the political process at worst. This is the current situation in Florida, where the single-subject rule has been applied extremely strictly, sometimes ludicrously so.[3]

The single-subject rule of the Florida Constitution requires ballot initiatives amending the state constitution to have only one subject.[4] Florida’s judicial review of its ballot initiatives arguably results in the strictest national application of a single subject rule.[5] For example in Evans v. Firestone, the Florida Supreme Court found litigation costs were not “naturally related” to liability for damages, and hence their inclusion in the same ballot initiative language was found to constitute multiple subjects.[6]

Florida courts have used a wide variety of confusing approaches to determine whether the single-subject requirement has been met. One test is “natural relation and connection as component parts or aspects of a single dominant plan or scheme.”[7] The Florida Supreme Court views with disfavor the existence of a “discrete, severable” portion of the ballot language that reasonable voters might reject if it were presented independently.[8] The Florida Supreme Court also looks at the extent to which multiple provisions of the constitution would be impacted.[9]

In theory, the more constitutional provisions impacted, the less likely the court is to find that the initiative proposal contains a single subject.[10] The Florida Supreme Court has said that the mere fact that a proposal affects three different branches of government will not, in and of itself, invalidate an initiative,[11] but also that looking at the number of government functions impacted is important.[12] Couching diverse subjects within a “cloak of broad generality” is also supposed to be ineffective.[13]

It is questionable, however, how much guidance these rules actually give to drafters of ballot initiatives. Commentators are skeptical about the consistency of Florida Supreme Court decisions on the single-subject rule.[14] In Advisory Opinion to the Attorney General re Protect People from the Health Hazards of Second-Hand Smoke by Prohibiting Workplace Smoking, for example, the court upheld an amendment banning workplace smoking with a mandate for the legislature to enact statutes, including civil penalties and provisions for administrative enforcement.[15] These aspects were considered details of implementation, not separate subjects. Similarly, in Advisory Opinion to the Attorney General re Florida Transportation Initiative for Statewide High Speed Monorail, Fixed Guideway or Magnetic Levitation System, the court upheld an amendment requiring the legislature, the cabinet, and the governor to create an extensive transportation system using “efficient and effective technologies.”[16] The court also upheld an amendment promoting a “comprehensive plan for the education of youth about the health hazards related to tobacco,” including “advertising, school curricula, and law enforcement,” saying that “all of these components are related to the single unifying purpose.”[17]

Meanwhile, the court struck down an amendment to create a trust fund to restore the Everglades, which would have financed the fund via a tax on the sugar industry. The court held that the amendment violated the single-subject provision, supposedly because it included the legislative function of imposing a levy, the executive function of authorizing trustees to administer a trust, and the judicial function of rendering judgment of wrongdoing and de facto liability on the sugar industry.[18] Then there was Advisory Opinion to the Attorney General re Amendment to Bar Government from Treating People Differently Based on Race in Public Education, which involved four proposed amendments limiting affirmative action. The court threw out these amendments because, it said, they applied to multiple sections of the state constitution, not just Art. I § 2, and because of the application to all three branches of government.[19] It has been argued that the analysis in this case was inconsistent and “even intellectually dishonest.”[20] Similarly, in Advisory Opinion to the Attorney General re Requirement for Adequate Public Education Funding, the court struck down an initiative because it required the legislature to appropriate 40% of its revenues for public education, supposedly because it affected multiple functions and branches of the government.[21]

As Rachael Downey puts it, “If one gets the sense that the Government Treating People Differently and Adequate Public Education Funding initiatives were significantly simpler than, for example, the amendments involved in Prohibiting Workplace Smoking and High Speed Monorail, then one may think that the Florida Supreme Court is making political decisions rather than simply applying the single subject rule of article XI, section 3 in a straightforward manner.”[22] She hastens to add that “many proposed amendments have been approved, some of them controversial or bizarre, so it is not impossible to get such an initiative approved as in compliance with the single subject rule in Florida.”[23]

The bottom line, however, is that Florida is currently an incredibly unpredictable place to draft a citizen’s ballot initiative. Everyday citizens should not need to hire a team of specialized lawyers in order to pass a basic ordinance with a plan to pay for it, and collect hundreds and thousands of signatures on a petition to get their initiative on the ballot, only to have their initiative struck from the ballot by a capricious judiciary. It almost does not matter what rule the Florida Supreme Court adopts next, as long as it is more consistent than the current situation. The long and short of it is that Florida should stop interpreting the single subject rule so tightly as to squeeze out democracy.


[1] Logrolling is “the practice of combining two or more dissimilar subjects into a single act to force simultaneous passage of the varied provisions.” Kurt G. Kastorf, Logrolling Gets Logrolled: Same-Sex Marriage, Direct Democracy, and the Single Subject Rule, 54 Emory L.J. 1633, 1637 (2005).

[2] Thomas Rutherford, The People Drunk or the People Sober? Direct Democracy Meets the Supreme Court of Florida, 15 St. Thomas L. Rev. 61, 70 (2002).

[3] Id. at 176 (“It is not contended that the foregoing criticisms of the Court’s opinion on the [anti-discrimination] omnibus petition [involving ten categories of protected groups] are so overwhelming as to make indefensible its finding of multiple subjects. It was uncertainty about this that caused [the initiative-supporting] FCRI to develop its fallback position, the three mini-petitions. As to them, there is no such uncertainty. The case for single-subject treatment of each mini-petition is overwhelming and the Court’s conclusion to the contrary is indefensible.”) (emphasis added).

[4] Fla. Const. art. XI, § 3 (“The power to propose the revision or amendment of any portion or portions of this constitution by initiative is reserved to the people, provided that, any such revision or amendment, except for those limiting the power of government to raise revenue, shall embrace but one subject and matter directly connected therewith.”).

[5] Kastorf, supra note 1, at 1669.

[6] Robert W. Lee, Pre-Election Initiative Review in Florida: A Framework for Analysis, Fla. B.J., March 1995, at 14, 16.

[7] Id.

[8] Id. See, e.g., Advisory Op. to Attorney Gen.—Ltd. Political Terms in Certain Elective Offices, 592 So. 2d 225, 231-32 (Fla. 1991).

[9] Lee, supra note 6, at 14, 18.

[10] Id.

[11] Advisory Op. to Attorney Gen.—Ltd. Political Terms in Certain Elective Offices, 592 So. 2d 225, 227 (Fla. 1991) (“Although the proposed amendment affects officeholders in three different branches of government, that fact alone is not sufficient to invalidate the proposed amendment. We have found proposed amendments to meet the single-subject requirement even though they affected multiple branches of government.”).

[12] Evans v. Firestone, 457 So. 2d 1351, 1354 (Fla. 1984) (“In Fine, we found multiplicity of subject matter because the proposed amendment would have affected several legislative functions.”).

[13] See, e.g., Evans v. Firestone, 457 So. at 1353-54 (finding more than a single subject in an initiative which would have modified the concept of joint and several liability, limited certain types of damages, and made the summary judgment rule a part of the state constitution, because it affected both legislative and judicial functions).

[14] Rachael Downey, Michelle Hargrove, & Vanessa Locklin, A Survey of the Single Subject Rule As Applied to Statewide Initiatives, 13 J. Contemp. Legal Issues 579, 593 (2004). See, e.g., Advisory Op. to Attorney Gen. re Florida Marriage Prot. Amendment, 926 So. 2d 1229, 1234 (Fla. 2006) (dismissing opponents’ claims that proposed amendment would ban both gay marriage and civil unions, and thus violated the single-subject rule). Many LGBT rights activists would be delighted to hear that gay marriage is equivalent to civil unions, and that thus all civil union states are also marriage states.

[15] Advisory Op. to Attorney Gen. re Protect People from the Health Hazards of Second-Hand Smoke, 814 So. 2d 415 (Fla. 2002) (“In the next regular legislative session occurring after voter approval of this amendment, the Florida Legislature shall adopt legislation to implement this amendment in a manner consistent with its broad purpose and stated terms, and having an effective date no later than July 1 of the year following voter approval. Such legislation shall include, without limitation, civil penalties for violations of this section; provisions for administrative enforcement; and the requirement and authorization of agency rules for implementation and enforcement.”).

[16] Advisory Op. to Attorney Gen. ex rel. Fla. Transp. Initiative for Statewide High Speed Monorail, Fixed Guideway or Magnetic Levitation Sys., 769 So. 2d 367 (Fla. 2000) (“The only subject embraced in the proposed amendment is whether the people of this State want to include a provision in their Constitution mandating that the government build a high speed ground transportation system.”).

[17] Advisory Op. to the Atty. Gen. re: Protect People, Especially Youth, from Addiction, Disease, & Other Health Hazards of Using Tobacco, 926 So. 2d 1186, 1191-92 (Fla. 2006).

[18] In re Advisory Opinion to the Attorney Gen.-Save Our Everglades, 636 So. 2d 1336, 1340 (Fla. 1994).

[19] Advisory Op. to Attorney Gen. ex rel. Amendment to Bar Gov’t from Treating People Differently Based on Race in Pub. Educ., 778 So. 2d 888 (Fla. 2000).

[20] Rutherford, supra note 2, at 66.

[21] Advisory Op. to the Attorney Gen. re Requirement for Adequate Pub. Educ. Funding, 703 So. 2d 446 (Fla. 1997).

[22] Downey, Hargrove & Locklin, supra note 14, at 596.

[23] Id.

You Can Check Out Whenever You Want, But Your Data Should Never Leave

By Michael Pernick, Staff Editor

Image Credit: ian-s / Flickr

Image Credit: ian-s / Flickr

When you check into a hotel, you always give that hotel your personal information—including your name, address, telephone number, credit card account numbers, expiration dates, and security codes. You do this, in part, because you trust that the hotel will keep your information secure. You trust that the hotel protects its computers with reasonable data security protocols and firewalls. Furthermore, most people, if they stopped to think about it, would assume that if a company failed to protect your private data, that company would get in trouble with the government. Typically, they would be right—the FTC brings dozens of data security complaints each year against companies that fail to protect consumer data.[1] These complaints are not usually litigated, as they are relatively straightforward; the business realizes that it made a mistake, agrees to a negotiated settlement, and changes its practices moving forward.

In June 2012, the FTC filed what appeared to be another typical data security complaint against Wyndham Hotels for a rather egregious breach.[2] Wyndham allegedly failed to maintain basic security for personal consumer information stored on its computers. Among other things, it allegedly (a) didn’t use firewalls; (b) failed to properly install encryption software; (c) used outdated operating systems without security updates; and (d) used easy-to-guess user IDs and passwords for access to Wyndham’s property management systems.[3] Not surprisingly, its servers were hacked and personal consumer information was stolen on three separate occasions over the course of two years.[4] Wyndham took no action to fix their data security after each incident.[5] As a result, over 619,000 customer accounts were compromised, and credit cards were hit with over $10.6 million in fraudulent charges.[6]

What happened next wasn’t typical. Rather than negotiate a settlement, Wyndham Hotels decided to go to court. Its argument—which it made before Judge Esther Salas in the District of New Jersey—is highly problematic, both from policy and legal perspectives. Specifically, Wyndham argues that the FTC lacks jurisdiction to regulate data security altogether; this is the first time such an argument has been put forward since the FTC began regulating data security.[7]

Wyndham bases its argument on FDA v. Brown & Williamson Tobacco Corp., where the Supreme Court held the Food and Drug Administration (FDA) lacked jurisdiction to regulate cigarettes.[8] In Brown & Williamson, the FDA lost because prior to its attempt to regulate the sale of cigarettes to children, the FDA had historically stated that they lacked the authority under the Food, Drug, and Cosmetic Act (FDCA) to regulate tobacco products—in other words, the FDA changed their position.[9] The Brown & Williamson court looked closely at Congressional regulation of the tobacco industry and specifically discussed Congress’s consideration (and rejection) of bills to grant the FDA jurisdiction, as well as other laws beyond the FDCA which directly regulated aspects of the tobacco industry.[10] The court ultimately concluded that Congress didn’t intend to permit the FDA to regulate cigarettes, and denied the FDA deference in its decision to interpret the phrases “drugs”, “devices”, or “combination products” within the FDCA to cover tobacco and cigarettes.[11]

Wyndham argues that in passing Section 5 of the Federal Trade Commission Act,[12] Congress did not intend to delegate to the FTC the power to regulate what constitutes an unfair data security practice.[13] They list other laws which authorize other federal agencies to establish minimum data security standards in certain contexts and point to quotes from the 1990’s where the FTC suggested they did not have the authority to regulate data security. Wyndham essentially argues that this case is an application of Brown and Williamson.[14]

Contorting Brown and Williamson to deny the FTC the authority to regulate data security, as Wyndham would have the court do, would set a dangerous precedent. Wyndham points to various other Acts passed by Congress which it claims indicate that Congress did not intend for the FTC to regulate data security.[15] For example, it points to HIPAA,[16] which requires health care providers to maintain security standards for electronic health information, as well as COPPA,[17] which protects children’s online activity.[18] These data security laws are not comparable to the tobacco laws passed by Congress which the court found persuasive in Brown and Williamson.[19] These tobacco laws directly suggested Congress never intended to delegate authority to the FDA because they regulated the entire industry. Here, Wyndham could not point to a single act of Congress intended to regulate data security generally; they could only find acts relating to specific instances, such as health care or children.

Wyndham also makes the dubious claim that the FTC previously stated that it lacked authority to regulate data security. Unlike in Brown and Williamson, where the FDA clearly stated that it did not have jurisdiction over tobacco products, in this case the FTC never stated that unfair or deceptive data security practices didn’t fall under the FTC Act.[20] Wyndham’s brief relies on several out-of-context quotes which suggest that the FTC stated that they lacked authority over certain information practice policies; in fact, the FTC reports which Wyndham cites to actually state the exact opposite—that these issues fall under the FTC’s “statutory mandate.”[21] Of course the full context of these reports is conveniently omitted from Wyndham’s brief.

Wyndham’s application of Brown and Williamson to this case is highly questionable, but the most troubling part of their argument is the policy implications if they somehow prevail.

There is no other regulator of data security practices besides the FTC. If the FTC is barred from regulating data security, there would be no watchdog agency forcing businesses to protect consumer data. That is why libertarian think tanks and business groups have filed amici in support of Wyndham, including the Chamber of Commerce,[22] the International Franchise Association,[23] and Techfreedom.[24] If the FTC cannot regulate this field, businesses will have free reign to implement whatever data security protocols they want, without fear of an agency to regulate their actions[25]. As a result, many businesses will choose not to invest in expensive software or technology to protect their customers’ private data from hackers.

Private lawsuits cannot fully protect consumers. Many consumers aren’t actually harmed, making class action commonality nearly impossible to satisfy. Additionally, individual lawsuits would be impractical because litigation costs would far outweigh any one individual’s harm. Only a watchdog agency with authority to investigate and file civil complaints can effectively protect consumer data, and the FTC is the only game in town. Without the FTC regulating the field, there will be nobody out there to fight for consumers.


[1] List of FTC Data Security Case Highlights, Fed. Trade Commission, http://www.business.ftc.gov/legal-resources/29/35 (last visited Nov. 13, 2013).

[2] Id. (referencing the Wyndham matter).

[3] See First Amended Complaint at ¶ 24, F.T.C. v. Wyndham Worldwide Corp., No. CV 12-1365-PHX-PGR (D. Ariz. Aug. 9, 2012), 2012 WL 3281910.

[4] Id. at ¶ 25.

[5] Id.

[6] Id. at ¶ 40.

[7] Motion to Dismiss by Defendant Wyndham Hotels & Resorts LLC, F.T.C. v. Wyndham Worldwide Corp., No. 2:13-cv-01887-ES-SCM (D.N.J. Apr. 26, 2013), 2013 WL 3475984.

[8] Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000).

[9] Id. at 156.

[10] Id. at 159–60.

[11] Id. at 175.

[12] 15 U.S.C. § 45 (2006).

[13] Motion to Dismiss by Defendant Wyndham Hotels & Resorts LLC, supra note 7, at 4.

[14] Id. at 14.

[15] Id. at 9.

[16] Health Insurance Portability & Accountability Act of 1996, Pub. L. No. 104–91, 110 Stat. 1936.

[17] Omnibus Consolidated And Emergency Supplemental Appropriations Act of 1999, Pub. L. No. 105–277, 112 Stat. 2681.

[18] Id.

[19] Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 122 (2000) (listing six Acts of Congress intended to regulate tobacco products, including health warnings, advertising restrictions, and distribution regulations).

[20] 15 U.S.C. § 45 (2006).

[21] See, e.g., Consumer Privacy on the World Wide Web, Hearing before H. Comm. on Commerce, Subcomm. on Telecomm., 105th Cong., at n.23. (July 21, 1998), available at http://www.ftc.gov/os/1998/07/privac98.htm.

[22] Proposed Brief of Amici Curiae Chamber of Commerce of the U.S., Retail Litig. Ctr., Am. Hotel & Lodging Ass’n, and Nat’l Fed. of Indep. Bus. in Support of Defendants, F.T.C. v. Wyndham Worldwide Corp., No. 2:13-cv-01887-ES-SCM (D.N.J. May 3, 2013), 2013 WL 3739706.

[23] Brief Amicus Curiae of the Int’l Franchise Ass’n in Support of Defendant Wyndham Hotels & Resorts’ Motion to Dismiss, F.T.C v. Wyndham Worldwide Corp., No. 13-cv-1887 (ES) (SCM) (D.N.J. May 3, 2013), 2013 WL 3739748.

[24] Techfreedom, Int’l Ctr. for Law and Econ. & Consumer Prot. Scholars’ Brief in Support of Their Motion for Leave to File Brief Amici Curiae in Support of the Wyndham Defendants’ Motions to Dismiss, F.T.C. v. Wyndham Worldwide Corp., No. 2:13-cv-01887(ES)(SCM) (D.N.J. May 3, 2013), 2013 WL 4510055.

[25] Some may argue that consumers are free to abandon companies that do not protect their data; therefore, the free market would provide an adequate incentive to companies to take necessary steps to protect consumer information and FTC regulation is not necessary. However, this argument fails for several reasons. First, there no information available to consumers when they make their purchasing decisions, and consumers cannot make ex ante decisions as to which companies will adequately protect their personal information. Second, because of fraud insurance included with most credit and debit cards, consumers don’t actually lose money when their credit card information is stolen; therefore, they have little incentive to alter purchasing decisions based on data security—instead, all consumers are forced to pay higher credit card fees to cover the additional costs. Finally, if all companies in a given market or industry fail to implement reasonable data security, consumers would have no choice but to accept whatever insufficient security is provided.


Are We Inadvertently Conceding Moral Ground?

Image Credit: heath_bar / Flickr

Image Credit: heath_bar / Flickr

The Importance of Language Choices in the Reproductive Justice Movement

By Marcella Kocolatos, Staff Editor

“No one is pro-abortion.”

This is a common refrain in the reproductive justice movement. It is uttered in response to opponents of reproductive choice who suggest that those who advocate for universal access to safe and legal abortion are somehow intent on maximizing the number of pregnancies terminated.[1] It is uttered in response to the accusation that abortion is a profit-driven industry[2] akin to the “$8 billion Abortionplex” satirically imagined by The Onion.[3] And it is clear why people use this response: when not only laypersons but elected lawmakers[4] perpetuate outlandish myths about the goals of the reproductive justice movement, choice proponents naturally seek to dispel such offensive misrepresentations of their beliefs.

I do not consider myself “pro-abortion” because such an ideological position seems flatly inconsistent with the notion of choice. I understand the term “pro-abortion” to signify a general preference for abortion over childbirth, without regard to how any individual woman wishes to proceed with her pregnancy. For me the term evokes support for forced abortions, such as the one Chinese family planning officials forced 23-year-old Feng Jianmei to undergo in 2012, seven months into her pregnancy.[5] To say that I am “not pro-abortion” means that I would not value an individual’s choice to terminate her pregnancy any more than I would value her choice to give birth.

For others who support legalized abortion, the statement “I am not pro-abortion” might carry an implicit value judgment, a suggestion that abortion is an ethically undesirable—even if sometimes justified—procedure. These individuals might morally disapprove of abortion but recognize that their personal disapproval should not dictate whether others may legally access abortion. This sentiment is reflected in statements made by politicians such as Hillary Clinton, who has emphasized her belief that abortion should be “safe, legal, and rare.”[6]

The acknowledgment that one’s own moral compass should not impose upon the decisions of others undoubtedly comports with the reproductive justice movement, which seeks to secure reproductive autonomy for all individuals. However, the simultaneous suggestion that abortion is a morally objectionable procedure—even if this suggestion is unintentional—arguably conflicts with the movement’s goals.

It should be of concern to those of us working in the area of reproductive justice that the declaration “no one is pro-abortion” might easily be misinterpreted by our opponents—willfully or not—as a concession of moral high ground, as an admission that abortion is in fact a “bad” thing and that all women who choose it must necessarily view it as such, rather than as a morally neutral medical procedure.

Even more worrisome is the stigma that rhetoric of this sort might confer on women who obtain abortions. Evidence suggests that stigma around abortion—unlike abortion itself[7]—can negatively impact the mental health of women who have had abortions. A 2008 report issued by the American Psychological Association found that “interpersonal concerns, including feelings of stigma, perceived need for secrecy . . . and low perceived or anticipated social support for the abortion decision, negatively affected women’s . . . psychological experiences” following an abortion.[8]

At the same time, we cannot avoid all rhetoric that may be read to implicitly condemn abortion. If we did so, we would risk alienating important reproductive justice allies by appearing flippant about the procedure. This is liable to hurt our cause. We do not want to lose opportunities for potential collaboration with those who do not feel comfortable aligning themselves fully with the reproductive justice movement.

There are inevitably going to be certain trade-offs involved in the language choices we make when we advocate for reproductive justice, whether as laypersons or as trained activists. This is a lesson I have learned firsthand as a member of NYU’s inaugural Reproductive Justice Clinic. Through the Clinic, I participated in drafting a press release applauding a decision in a child custody case with which the Clinic was involved. My classmates and I had to make painstakingly careful decisions about how we wanted to represent our position and about how best to do that without using language that might lend itself to distortion. One struggle we encountered was how to recognize the role that men play in the reproductive lives of most women without suggesting that men may make reproductive decisions for women. We also had to figure out how to concisely explain the legal dynamics at play, including the constitutional rights implicated, in a manner that was colloquial but, at the same time, did not mischaracterize the relevant statute, procedural history, or the court’s holding.

The rhetorical savvy generally required for good lawyering takes on a different hue when engaging the public than it does when engaging a court. Attorneys working to advance reproductive justice—particularly those who interact with the media—must remain as conscientious of the words they use as must on-the-ground advocates. Those of us who advocate for universal access to safe and legal abortion do so because we believe that complete reproductive freedom is necessary to a moral and just society. We must be wary of using language that might inadvertently convey to our adversaries, as well as the women and men we advocate for, that we believe otherwise.


[1] See, e.g., Steven Ertelt, Planned Parenthood Wants to Increase Abortions Globally 82%, LifeNews.com (Jan. 17, 2012, 8:50 PM), http://www.lifenews.com/2012/01/17/planned-parenthood-wants-to-increase-abortions-globally-82.

[2] See, e.g., Susan Michelle, What Does Planned Parenthood Do With Its Millions?, LifeNews.com (Nov. 23, 2011, 11:24 AM), http://www.lifenews.com/2011/11/23/what-does-planned-parenthood-do-with-its-millions.

[3] Planned Parenthood Opens $8 Billion Abortionplex, The Onion (May 18, 2011), http://www.theonion.com/articles/planned-parenthood-opens-8-billion-abortionplex,20476.

[4] See, e.g., Dino Grandoni, Congressman Falls for The Onion’s Planned Parenthood ‘Abortionplex’ Story, The Wire (Feb. 6, 2012, 11:41 AM), http://www.thewire.com/national/2012/02/congressman-falls-months-old-onion-story-about-planned-parenthood-abortionplex/48344.

[5] David Barboza, China Suspends Family Planning Workers After Forced Abortion, N.Y. Times, June 16, 2012, at A6, available at http://www.nytimes.com/2012/06/16/world/asia/china-suspends-family-planning-workers-after-forced-abortion.html.

[6] See, e.g., New Beginnings: Foreign Policy Priorities in the Obama Administration: Hearing Before the H. Comm. on Foreign Affairs, 111th Cong. 24 (2009) (statement of Hillary Rodham Clinton, Sec’y of State of the United States), available at http://www.gpo.gov/fdsys/pkg/CHRG-111hhrg48841/pdf/CHRG-111hhrg48841.pdf.

[7] Susan A. Cohen, Still True: Abortion Does Not Increase Women’s Risk of Mental Health Problems, Guttmacher Pol’y Rev., Spring 2013, at 13, 13 (2013), available at http://www.guttmacher.org/pubs/gpr/16/2/gpr160213.pdf.

[8] Brenda Major, Mark Appelbaum, Linda Beckman, Mary Ann Dutton, Nancy Felipe Russo & Carolyn West, American Psychological Ass’n, Report of the Task Force on Mental Health and Abortion 92 (2008), available at http://www.apa.org/pi/women/programs/abortion/mental-health.pdf.