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Davis Journal of Legal Studies

Volume III: Spring 2023

Developed with the University of California National Center for Free Speech and Civic

Engagement.

Davis Journal of Legal Studies is an undergraduate, student-run publication at the University of

California, Davis. The views expressed herein are those of the authors and do not necessarily

reflect the views or positions of Davis Journal of Legal Studies, partners of Davis Journal of

Legal Studies, the University of California, Davis, or the Regents of the University of California.

Davis Journal of Legal Studies Editorial Staff

Volume III: Spring 2023

Editors-in-Chief

Hunter Keaster

Emma Tolliver

Director of Internal Affairs

Aaron Guerra

Director of External Affairs

Noreen Auyoung

Editors

Erin Richeny Chim

Nadine Corsano

Michael Felberg

Frances Haydock

Madeline Ionascu

Clarissa Lopez

Megha Nagaram

Ganga Nair

Aishwarya Rajan

Siyona Roychoudhury

Julia Shurman

Gus Wachbrit

Katherine Cook

Holly Eberhard

Michael Hayden

Anna Hicks

Zihan “Tom” Li

Alexandra McCarthy

Micha Nagornyi

Jenna Nguyen

Rachel Rosner

Hannah Schrader

Paulina Villanueva

Maxine Wagas

Social Media Manager

Proudy Kim

Editor Emeritus

Claire Volkmann

Table of Contents

Letter from the Editors-in-Chief

Fiery Cross Reef

Noreen Auyoung & Julia Shurman

The Art of AI: Addressing Legal Challenges in Content Generation

Aaron Guerra

Tort Doctrine on the Law of Dental Malpractice

Zihan “Tom” Li

Double Jeopardy, It’s Complicated: The Intricacies of Dual Sovereignty, Due

Process, and Legislative Intent

Alexandra McCarthy

Fairness in the Court of Public Opinion

Audrey Mechali

Wrong Answers: State Bar Moral Character Applications, Disability Rights Law,

and the Legal Field’s Mental Health Question

Emma Tolliver

Acknowledgments

Letter from the Editors-in-Chief

Dear Reader,

It is with great enthusiasm that we present to you Davis Journal of Legal Studies: Volume III,

Spring 2023.

Davis Journal of Legal Studies (DJLS) was founded in June 2020 at the University of

California, Davis. DJLS is a student-run publication committed to contributing to public

legal scholarship, developing a community of undergraduate legal scholars, and creating

opportunities in publication for undergraduate students.

We greatly appreciate the generous support from the University of California National Center

for Free Speech and Civic Engagement and the Center’s Executive Director, Michelle

Deutchman. We would also like to acknowledge Kate Andrup Stephensen, advisor of the

University Honors Program: thank you for your guidance, support, and encouragement

throughout this project. We are also grateful to our contributors, who are a diverse group of

students, for strengthening our undergraduate legal community. Finally, we must thank the

Davis Journal of Legal Studies editorial staff for their shared commitment to this work. Our

operations have grown substantially since Volume II with the creation of new executive

positions and the expansion of our editorial team in size. It has been a pleasure and privilege

to work with and watch this team grow throughout the development of Volume III.

The papers in this volume consist of undergraduate scholarship and research related to

unresolved issues in the justice system and legal field, including emerging issues like

artificial intelligence law and social media’s role in legal cases, as well as long-standing

issues relating to disability justice and international law. With the nuanced insights of these

articles, we hope to broaden the discourse surrounding these and other current issues in the

legal field.

Good reading,

Hunter Keaster & Emma Tolliver

Editors-in-Chief

Davis Journal of Legal Studies, Volume III: Spring 2023

Fiery Cross Reef

By Noreen Auyoung and Julia Shurman

Noreen Auyoung studied Political Science and Economics as an undergraduate student at the University of

California, Davis and graduated in March 2023. She will be attending the UC Davis School of Law in fall of 2023.

Julia Shurman studies Political Science and English as an undergraduate student at the University of California,

Davis. Upon graduation, she will be pursuing a Master’s in International Relations at King’s College London prior

to law school.

The Spratly Islands form an archipelago located in the South China Sea. This archipelago

is home to an atoll that has been named Fiery Cross Reef. Due to the complex geopolitical and

legal environment surrounding this vast body of water, ownership of various regions in the South

China Sea are highly contested. As such, the permissibility of China’s occupation and

construction on Fiery Cross Reef and the other formations that comprise the Spratly Islands is

unclear under international law. Through examining the findings and decisions of the United

Nations Convention on the Law of the Sea and the Arbitral Tribunal, this paper clarifies the

distinctions between which claims and actions taken in the South China Sea, particularly over

the Fiery Cross Reef of the Spratly Islands, are lawful or still have yet to be determined.

Initial Dispute Over Fiery Cross Reef

China’s occupation and actions in the South China Sea have spurred decades of

controversy. Their disputes over territories and sovereignty rights have long plagued the region.

China’s occupation of Fiery Cross Reef exemplifies the legal ramifications of their actions. Since

1987, China has continuously built on the reef despite the Philippines and Vietnam also claiming

sovereignty over it.

In July 2015, new evidence revealed China’s modifications to the reef,

including a 3,000-meter airstrip capable of supporting military aircraft.

These actions sparked

Chase and Purser, “China's Airfield,” The RAND Blog.

Michael S. Chase and Benjamin Purser, “China's Airfield Construction at Fiery Cross Reef in Context: Catch-Up

or Coercion?,” The RAND Blog, August 11, 2015, accessed March 3, 2023,

https://www.rand.org/blog/2015/08/chinas-airfield-construction-at-fiery-cross-reef-in.html.

outrage from countries, such as the Philippines and Vietnam, that saw these as abuses of

international law and threats to the nearby territories in future conflicts. Designed to address

conflicts and disputes over sovereignty, the United Nations Convention on the Law of the Sea

(UNCLOS) facilitates negotiating tables and tribunals for its signatories. One such tribunal was

formed in 2013 when the Philippines raised legal concerns regarding China’s actions in the South

China Sea.

The findings of this arbitration address the legality of China’s actions on the Spratly

Islands under the United Nations Convention on the Law of the Sea.

China’s Militarization of Fiery Cross Reef

Fiery Cross Reef has prompted controversy in recent years as countries like the US and

the Philippines critique China’s apparent militarization of the territory.

Legally defined as a

rock, Fiery Cross Reef is part of the Spratly Islands and multiple countries claim territorial

sovereignty over the land feature.

Despite these claims, China currently occupies Fiery Cross

Reef and has formed an artificial island on the rock. In late 2014, satellite imagery revealed that

China had begun building an airstrip on the reef, prompting objections from the US, the

Philippines, and Vietnam.

In response, China stated this construction would improve the

working and living conditions of workers and pointed out other states that have airstrips in the

Spratlys.

However, other states find China’s reclamation efforts unsettling and view the runway

as a strategic action to intimidate countries with claims in the South China Sea.

From a strategic

Id.

Commentary, “Fiery Cross Reef and Strategic Implications for Taiwan,” Center for Strategic & International

Studies, December 10, 2014, accessed March 2, 2023,

https://www.csis.org/analysis/fiery-cross-reef-and-strategic-implications-taiwan.

PCA Case No. 2013–19 in the Matter of the South China Sea Arbitration before an Arbitral Tribunal Constituted

Under Annex VII to the 1982 United Nations Convention on the Law of the Sea between the Republic of the

Philippines and the People’s Republic of China, Award, July 12, 2016,

http://www.andrewerickson.com/wp-content/uploads/2016/07/PH-CN-20160712-Press-Release-No-11- English.pdf.

standpoint, China’s occupation of Fiery Cross Reef bolsters China’s strength in the area and

provides China with an advantage if conflict were to arise.

For instance, part of the outrage over

the runway is because it is large enough to fit the military aircrafts that are currently in China’s

arsenal.

China built the runway nonetheless and has landed military jets since its construction.

Furthermore, it is believed that the rock can serve as an electronic surveillance base for China.

While China faces backlash from other states, the question remains whether these actions on

Fiery Cross Reef are legal under international law.

United Nations Convention on the Law of the Sea

The United Nations Convention on the Law of the Sea was first adopted in 1982 and the

treaty has grown into the reigning authority on international matters regarding the sea.

While

first created to address concerns such as territorial disputes and fishing conservation, the treaty

has since evolved into customary international law.

Because it is now widely considered

customary law, countries that have not signed, like the US, are still bound to the legal standards

established in UNCLOS.

Included as one of the current 168 parties to the treaty, China has

signed and ratified the convention.

As a party to UNCLOS, China is responsible for upholding

the rules of the convention and adhering to decisions rendered by the arbitral tribunal. These

“Law of the Sea,” opened for signature December 10, 1982, United Nations Treaty Collection no. 6,

https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mtdsg3&cl

ang=_en.

Id.

The Fletcher School of Law and Diplomacy, Tufts University, “Customary International Law and the Adoption of

the Law of the Sea Convention,” Tufts, accessed April 24, 2023, https://sites.tufts.edu/lawofthesea/chapter-one/.

International Maritime Organization, “United Nations Convention on the Law of the Sea,” International Maritime

Organization, accessed April 24, 2023,

https://www.imo.org/en/ourwork/legal/pages/unitednationsconventiononthelawofthesea.aspx#:~:text=The%20Unite

d%20Nations%20Convention%20on,the%20oceans%20and%20their%20resources.

Commentary, “Fiery Cross,” Center for Strategic & International Studies.

Id.

Reuters Staff, “Chinese military aircraft makes first public landing on disputed island,” Reuters, April 17, 2016,

accessed April 24, 2023,

https://www.reuters.com/article/southchinasea-china/chinese-military-aircraft-makes-first-public-landing-on-dispute

d-island-idUSL3N17L1M8.

Id.

tables are necessary when parties have disputes, as seen with the 2013 accusations the

Philippines brought against China. As was the case with those two states, these disputes are often

settled through an arbitral tribunal—a group of unbiased individuals gathered to settle a

disagreement. Signatories are legally bound to respect the decisions of these tribunals and acting

against the rulings violates UNCLOS.

The Role of Exclusive Economic Zones

UNCLOS specifies the rules surrounding exclusive economic zones (EEZs). EEZs are

areas in which the Coastal States have sovereignty and jurisdiction in a 200-nautical mile region

for both their natural resources and certain economic activities.

In particular, Coastal States

have specific “sovereign rights” as decreed in the United Nations Convention and jurisdiction

over “the establishment and use of artificial islands, installations, and structures.”

Based on

how EEZs are defined in UNCLOS, “the EEZ is not a maritime zone of sovereignty but one of

functionally limited rights and jurisdiction.”

In turn, countries have certain jurisdiction over

their EEZs, which includes building structures and artificial islands. However, limits exist and

states cannot exert their sovereignty over the zones that conflict with other parts of the Law of

the Sea.

Despite this, China claims a historical right to 90 percent of the South China Sea based

on what they maintain as a historical precedent that was decided in 1947 after Japan’s surrender

in World War II.

Referred to as the nine-dash line, China’s claim envelops several territories

and maritime provisions. Within China’s nine-dash line also lies the EEZs of countries such as

Tom Philips, Oliver Holmes, and Owen Bowcott, “Beijing rejects tribunal ruling in South China Sea case,” The

Guardian, July 12, 2016, accessed March 2, 2023,

https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china.

Convention on the Law of the Sea, 1982.

Valentin Schatz and Christian Wirth, “South China Sea ‘Lawfare’: Fighting over the Freedom of Navigation,”

German Institute for Global and Area Studies (GIGA) Focus, no. 5, (2020): 3, accessed April 28, 2023,

https://www.jstor.org/stable/resrep27058.

Convention on the Law of the Sea, 1982.

“Exclusive Economic Zone,” United Nations, accessed March 2, 2023,

https://www.un.org/depts/los/convention_agreements/texts/unclos/part5.htm.

Vietnam, Malaysia, and the Philippines.

As a result, China’s attempt to claim 90 percent of the

South Pacific Sea through the nine-dash line often leads to conflicts with other countries.

This

happened in 2013 when the Philippines argued against China’s actions on Fiery Cross Reef and

in the South China Sea. The Philippines’ accusations resulted in a Tribunal that looked at the

rights of the two states and whether China’s behavior in the South China Sea violated sections of

UNCLOS.

The Permanent Court of Arbitration’s Ruling

In 2016, the Permanent Court of Arbitration, an organization that resolves international

disputes, released a ruling on this case. The Tribunal declared that China’s nine-dash line lacks

historical foundations and has no legal basis.

Despite being legally bound to UNCLOS, China

rejects this decision, refusing to acknowledge the Tribunal ruling. China justifies its rejection by

calling the findings “ill-founded” and stating that “the Chinese government and the Chinese

people firmly oppose [the ruling] and will neither acknowledge it nor accept it.”

China’s

persistent claim of 90 percent of the South China Sea and resumption of actions in areas like the

Spratly Islands and the EEZs of other countries explicitly ignore the Tribunal ruling, violating

the Law of the Sea. As such, China’s continued nine-dash line claim breached UNCLOS and is

therefore unlawful. Additionally, the Tribunal singles out China for specific environmental

violations like their dredging method of constructing new land.

These violations destroy the

reef habitat by chiseling away soil, rock, and coral, disturbing organisms such as fishes and

The Republic of the Philippines, 2016.

Id.

Caitlin Campbell and Nargiza Salidjanova, rep., South China Sea Arbitration Ruling: What Happened and What’s

Next? (U.S.-China Economic and Security Review Commission, 2016),

https://www.uscc.gov/sites/default/files/Research/Issue%20Brief_South%20China%20Sea%20Arbitration%20Rulin

g%20What%20Happened%20and%20What%27s%20Next071216.pdf.

The Republic of the Philippines, 2016.

Philips, Holmes, and Bowcott, “Beijing rejects tribunal ruling,” The Guardian.

Id.

larvae which inhabit Fiery Cross Reef.

Despite these violations, it remains ambiguous as to

whether or not the construction of artificial islands or buildings on the Spratly Islands is lawful.

Analysis and Implications of the Tribunal

Nowhere in UNCLOS or the Tribunal’s decision is it stated that China does not have

sovereignty over Fiery Cross Reef. The Tribunal did not “address whether the actual occupation

and construction activities of China on these islands are prohibited by UNCLOS.”

The court

was able to declare certain actions and occupations unlawful on the part of China because of

other states’ rights to EEZs. Fiery Cross Reef is not part of another country’s EEZ, so UNCLOS

has no specific provisions on “what activities states can undertake on disputed islands.”

As that

rock’s sovereignty remains disputed, there is no explicit statement that makes China’s

construction projects unlawful beyond the environmental violations, the Tribunal notes.

Accordingly, China’s occupation and building on Fiery Cross Reef as a whole are not technically

illegal, but they could lead to much larger problems in the future. International law remains

unclear on this issue of a state building on a rock with disputed sovereignty claims, so it is

premature to call this action by China on Fiery Cross Reef unlawful.

The Legality of China’s Actions

Although many countries see China’s exploits in the South China Sea as an illegal threat,

China’s occupation and construction on Fiery Cross Island is ultimately not unlawful. There is no

legal basis for the accusations regarding China’s actions and construction of airstrips on the rock

if countries wanted to push the issue further with China. While there are other areas in which

China is violating its responsibilities as a party to UNCLOS, building on Fiery Cross Reef is not

Id.

Tara Davenport, “Island-Building in the South China Sea: Legality and Limits,” Cambridge University Press,

February 16, 2018, accessed March 3, 2023.

The Republic of the Philippines, 2016.

one of these illegal actions. China’s situation is complicated and signifies a bigger issue in

international laws of the sea since there are points of ambiguity that countries can exploit.

Additionally, the controversy over Fiery Cross Reef suggests the need for further specification on

state rights when occupying a disputed territory. For the issue to have a clear answer on China’s

legal right to construction on the rock, international law would need to specifically address the

sovereignty of Fiery Cross Reef and/or the specific rules regarding disputed sovereignty. In turn,

until further legal distinctions are formed, China can lawfully build on Fiery Cross Reef as long

as it follows the other rules that are specified in UNCLOS.

References

Campbell, Caitlin, and Nargiza Salidjanova. “South China Sea Arbitration Ruling: What Happened and What's

Next?” U.S.-China Economic and Security Review Commission. July 12, 2016. Accessed March 3, 2023.

https://www.uscc.gov/sites/default/files/Research/Issue%20Brief_South%20China%20Sea%20Arbitration

%20Ruling%20What%20Happened%20and%20What%27s%20Next071216.pdf.

Chase, Michael S., and Benjamin Purser. “China’s Airfield Construction at Fiery Cross Reef in Context: Catch-Up or

Coercion?” The RAND Blog. Last modified August 11, 2015. Accessed March 3, 2023.

https://www.rand.org/blog/2015/08/chinas-airfield-construction-at-fiery-cross-reef-in.html.

“China lands more civilian planes on Fiery Cross reef.” BBC News. Last modified January 7, 2016. Accessed March

3, 2023. https://www.bbc.com/news/world-asia-china-35249092.

Commentary. “Fiery Cross Reef and Strategic Implications for Taiwan.” Center for Strategic & International Studies.

Last modified December 10, 2014. Accessed March 2, 2023.

https://www.csis.org/analysis/fiery-cross-reef-and-strategic-implications-taiwan.

Convention on the Law of the Sea, Dec. 10, 1982, 1833 U.N.T.S.

Crawford, Jamie, Jim Sciutto, and Tim Schwarz. “U.S. protests after Chinese military jet lands on South China Sea

island.” CNN. Last modified April 19, 2016. Accessed February 7, 2023.

https://www.cnn.com/2016/04/18/politics/chinese-military-jet-lands-on-island/index.htm.

Davenport, Tara. “Island-Building in the South China Sea: Legality and Limits.” Asian Journal of International Law

8, no. 1 (2018): 76–90. doi:10.1017/S2044251317000145.

Duong, Huy. “Massive Island-Building and International Law.” Asia Maritime Transparency. Last modified June 15,

2015. Accessed February 7, 2023. https://amti.csis.org/massive-island-building-and-international-law/.

“Exclusive Economic Zone.” United Nations. Accessed March 2, 2023.

https://www.un.org/depts/los/convention_agreements/texts/unclos/part5.htm.

International Maritime Organization. “United Nations Convention on the Law of the Sea.”

International Maritime Organization. Accessed April 24, 2023.

https://www.imo.org/en/ourwork/legal/pages/unitednationsconventiononthelawofthesea.aspx#:~:text=The%

20United%20Nations%20Convention%20on,the%20oceans%20and%20their%20resources.

Kohl, Adam W. “China's Artificial Island Building Campaign in the South China Sea: Implications for the Reform of

the United Nations Convention on the Law of the Sea.” Dickinson Law Review 122, no. 3 (2018). Accessed

February 7, 2023. https://ideas.dickinsonlaw.psu.edu/dlr/vol122/iss3/8/.

Philips, Tom, Oliver Holmes, and Owen Bowcott. “Beijing rejects tribunal ruling in South China Sea case.” The

Guardian. Last modified July 12, 2016. Accessed March 2, 2023.

https://www.theguardian.com/world/2016/jul/12/philippines-wins-south-china-sea-case-against-china.

Reuters Staff. “Chinese military aircraft makes first public landing on disputed island.” Reuters. Last modified April

17, 2016. Accessed April 24, 2023. https://www.reuters.com/article/southchinasea-china/

chinese-military-aircraft-makes-first-public-landing-on-disputed-island-idUSL3N17L1M8.

The Fletcher School of Law and Diplomacy, Tufts University. “Customary International Law and the Adoption of

the Law of the Sea Convention.” Tufts. Accessed April 24, 2023.

https://sites.tufts.edu/lawofthesea/chapter-one/.

The Republic of the Philippines v. The People’s Republic of China, 19 U.S. (July

12, 2016). Accessed April 24, 2023. https://pcacases.com/web/sendAttach/ 2086.

United Nations. “Law of the Sea.” United Nations Treaty Collection. Accessed

April 24, 2023.

https://treaties.un.org/pages/ViewDetailsIII.aspx?src=TREATY&mtdsg_no=XXI-6&chapter=21&Temp=mt

dsg3&clang=_en.

Wirth, Christian, and Valentin Schatz. “South China Sea “Lawfare”:.” In . N.p.: German Institute

of Global and Area Studies (GIGA), 2020. http://www.jstor.org/stable/resrep27058.

The Art of AI: Addressing Legal Challenges in Content Generation

By Aaron Guerra

Aaron Guerra is a student at the University of California, Davis, where he studies Environmental Science,

Environmental Policy, and Political Science. He is particularly interested in the intersection of agricultural science

and policy, and the applications of artificial intelligence and machine learning for agricultural modeling and

statewide policy analysis.

Artificial Intelligence, or AI, has become one of the most prevalent topics in popular

culture over a markedly short period of time. According to Google Trends, popular interest in AI

skyrocketed in late 2022, coinciding with the release and discussion of several popular AI tools,

primarily ChatGPT.

According to Encyclopedia Britannica, AI is defined as “the ability of a digital computer

or computer-controlled robot to perform tasks commonly associated with intelligent beings.”

technologies are hyper-present in day-to-day life, ranging from virtual assistants that interpret

human voices, to social media and algorithms used by streaming services that provide

individualized recommendations. For the purposes of this paper, only certain AI functions will be

examined, primarily those revolving around transformer language models that utilize natural

language processing to produce either text or images. As AI technologies become more advanced

and widely deployed, legal and regulatory issues regarding liability and intellectual property will

become more common. This paper will examine two categories of publicly available AI systems,

text and image generation platforms, and summarize the current and potential legal issues facing

these systems.

“Artificial Intelligence | Definition, Examples, Types, Applications, Companies, & Facts | Britannica,” February

16, 2023, https://www.britannica.com/technology/artificial-intelligence.

Google Trends (n.d.). “Artificial Intelligence,” May 18, 2023,

https://trends.google.com/trends/explore?geo=US&q=%2Fm%2F0mkz&hl=en.

LLM AI and Text Generation

The ‘GPT’ in ChatGPT stands for Generative Pre-Trained Transformer and is a type of

large language model that has gained significant attention and adoption in recent years.

Transformers and large language models (LLMs) represent a new frontier in natural language

processing (NLP), a division of computer science that focuses on “giving computers the ability

to understand text and spoken words in much the same way human beings can.”

Natural

language processing is commonly found in voice-to-text or voice command softwares, including

digital assistants on mobile devices and customer service chatbots.

However, the development

and implementation of transformers has transformed this technology into a vastly more capable

version.

At their core, transformers are a type of deep learning model that can analyze and

process sequential data, such as language, with remarkable accuracy and speed.

Sequential data

refers to the notion of words in a language being ordered in a common way that can be

understood by machines studying these patterns billions of times. For example, the phrase ‘I

think’ is often followed by the word ‘that.’ Transformers build on this principle by training

LLMs using large datasets of text which enable the machinery to develop a complex and

mathematical understanding of the intricacies and subtleties of language.

This allows them to

generate text that is both fluent and contextually appropriate, even in complex and nuanced

situations. One notable feature of transformers and LLMs includes their use of unsupervised

learning mechanisms, a format of machine learning that allows for pattern recognition and model

Id.

Ashish Vaswani, Noam Shazeer, Niki Parmar, Jakob Uszkoreit, Llion Jones, Aidan N. Gomez, Lukasz Kaiser and

Illia Polosukhin, “Attention is All you Need,” ArXiv abs/1706.03762 (2017).

Id.

“What is natural language processing (NLP)?” IBM, accessed March 1, 2023,

https://www.ibm.com/topics/natural-language-processing.

training without labeled data, which is often more difficult to come by and expensive to

produce.

Liability

One of the primary legal issues facing the use of AI and LLMs like ChatGPT is liability.

As these systems become more advanced and capable of making autonomous statements,

questions arise about who is responsible for the actions and decisions made by these systems.

One particular framework through which to analyze the liability of online systems is Section 230

of the Communications Decency Act.

Section 230 refers to the specific provision of the Communications Decency Act that

regulates liability for online platforms and services. This rule prevents online platforms from

being liable for user-generated content posted on their platforms, so long as they act in good faith

to remove illegal content if and when they become aware of it.

However, the law makes

particular stipulations about what is and is not considered user-generated content, and it remains

undecided how AI and LLMs in particular would be defined in accordance with this statute.

In particular, the regulation stipulates that “[n]o provider or user of an interactive

computer service shall be treated as the publisher or speaker of any information provided by

another information content provider.”

The regulation further defines an “interactive computer

service” as “any information service, system, or access software provider that provides or

enables computer access by multiple users to a computer server, including specifically a service

or system that provides access to the Internet and such systems operated or services offered by

Communications Decency Act of 1996. 47 U.S.C. § 230. (2012).

Id., 16.

Valerie C. Brannon and Eric N. Holmes, “Section 230: An Overview,” Congressional Research Service (April 7,

2021): 2.

Communications Decency Act of 1996. 47 U.S.C. § 230. (2012).

Jacob Devlin and Ming-Wei Chang, “Open Sourcing BERT: State-of-The-Art Pre-Training for Natural Language

Processing,” Google AI Blog, November 2, 2018,

https://ai.googleblog.com/2018/11/open-sourcing-bert-state-of-art-pre.html.

libraries or educational institutions.”

Finally, an “information content provider” is “any person

or entity that is responsible, in whole or in part, for the creation or development of information

provided through the Internet or any other interactive computer service.”

Under these

definitions, it is possible to use the Section 230 framework to determine how LLMs would be

categorized, as this would have important implications for the laws governing the content

created. As LLMs have not yet been regulated, it remains undecided exactly which mechanisms

or frameworks would be used to create these rules.

Assuming that LLM models are treated as an interactive computer service, and thus not

liable under Section 230, these services would be treated similarly to YouTube, Google, or

Instagram. These services primarily function to connect the user to content created by individuals

other than the service provider, such as a corporate website or video. This may apply to the use

of LLMs in certain scenarios, for example, if a user were to recommend a book from a given list

or an appropriate mathematical formula for solving a problem. The argument can be made here

that no content is truly being generated, and the LLM is acting as a service. However, for

situations such as writing poetry or summarizing text, the model is better understood as an

information content provider. As defined by the statute, a content provider need only generate

information in part, which would align with the method that LLMs use to generate text outputs.

As such, it is likely that in many contexts, a court would find that LLMs on the scale of

input-output text generation would be information content providers, and thus not subject to

Section 230 protection.

Indeed, Supreme Court Justice Neil Gorsuch recently stated that online artificial

intelligence that generates “poetry” and “polemics [...] goes beyond picking, choosing,

Id.

analyzing, or digesting content. And that is not protected.”

This quote, taken from a currently

pending Supreme Court case reviewing the liability of YouTube and its recommendation

algorithms, suggests that at least one justice believes that if reviewed, this model would not

qualify for protection under Section 230.

There are costs and benefits to LLMs not being protected under Section 230. Possible

benefits of being liable include accountability and an incentive for developers to create models

that are accurate, inoffensive, and reduce liability risk. The lack of regulation of harmful content

such as disinformation or hate speech on social media platforms protected by Section 230 has led

legislators to push for stricter standards in recent years. Some individuals, including President

Joe Biden, have suggested the removal of Section 230 entirely due to the liability protections it

creates for tech companies.

However, many legal scholars argue that the existence of Section 230 allowed for the

development of the internet as it exists today, for better or worse, and to limit or restrict it could

have unintended consequences. Stanford Law professor Evelyn Douek argued in a 2022

interview that the existence of Section 230 has mitigated risk for platforms and allowed for the

vast diversity of content that is posted. She states that “the #MeToo movement, for example,

might have played out very differently in a world where platforms took down any posts that even

remotely looked defamatory.”

AI and Image Creation

Art generation models, such as DALL-E, Midjourney, or Stable Diffusion, use similar

techniques as LLMs to create visual art. These models often provide multiple options, including

Evelyn Douek, “Stanford’s Evelyn Douek on What Section 230 is And Why it is Misunderstood,” interview by

Melissa De Witte, October 10, 2022,

https://law.stanford.edu/2022/10/10/stanfords-evelyn-douek-on-what-section-230-is-and-why-it-is-misunderstood.

The Editorial Board, “Opinion | Joe Biden Says Age Is Just a Number.” The New York Times, January 17, 2020.

https://www.nytimes.com/interactive/2020/01/17/opinion/joe-biden-nytimes-interview.html.

Gonzalez v. Google, LLC, No. 18-16700 (9th Cir. 2021).

processing text or analyzing existing images to create entirely new or edited versions. The

process of generating art typically begins with a random assortment of pixels that are then fed

into the model as input. The model identifies descriptive cues from the text using a method

similar to an LLM, or characteristics of the provided image such as shapes, colors, and textures.

Once the model has analyzed the initial input, it generates a new image by modifying and

combining the features it has learned.

This process is repeated iteratively, with the model

adjusting its parameters each time to produce an image that more closely matches the desired

prompt.

Similar to LLM, AI art generation models have the ability to learn from both labeled and

unlabeled data. This means that they can be trained on large datasets of existing artwork,

allowing them to learn the underlying patterns and styles of different artists or genres. This

enables them to generate new artwork that is not only contextually appropriate but also

stylistically consistent with the chosen genre or artist. While this ability allows for a great

amount of freedom, this also creates the primary legal concern in relation to AI artwork.

By the very nature of the training data used to create these models, legal controversy has

been inevitable. Every model uses potentially different training datasets, which have different

sources with varying levels of transparency on how the images were procured. Typically, web

scraping of some form is involved, a process which involves “using technology tools for

automatic extraction and organization of data from the Web for the purpose of further analysis of

this data.”

The conference paper providing this definition, titled “Legality and Ethics of Web

Vlad Krotov and Leiser Silva, “Legality and Ethics of Web Scraping,” Americas Conference on Information

Systems (2018): 2, https://doi.org/10.17705/1cais.04724.

Id.

Guodong Zhao, “How Stable Diffusion Works, Explained for Non-Technical People.” Medium. April 4, 2023.

https://bootcamp.uxdesign.cc/how-stable-diffusion-works-explained-for-non-technical-people-be6aa674fa1d.

Scraping,” provides context on several potential legal issues regarding the topic and the use of

data derived from web scraping. This section will use the lawsuit Andersen et al. v. Stability AI

Ltd. et al. (2023) as a case study to understand the concerns that artists have with AI models and

their ability to potentially infringe on copyrighted material.

In the complaint, three named Plaintiffs along with potentially innumerous class action

members allege the direct and vicarious copyright infringement of their property, among other

claims, against the creators of Stable Diffusion, a notably open source AI art model. This model

was trained using various datasets provided by Large-Scale Artificial Intelligence Open Network

(LAION), a German nonprofit that provides image machine learning datasets to the public free

of charge.

The complaint alleges that several of these datasets were composed by scraping images

from “commercial image-hosting services,” a claim rebuked by the LAION FAQ.

Rather, the

dataset contains web links to images and the alt text provided with those images, a distinction

that may be relevant in determining LAION’s role in copyright infringement.

One textbook on

data analysis cites eBay v. Bidder’s Edge (2000) as a case curtailing scraper’s rights, particularly

on the provision of deep links such as those provided in LAION datasets, which point directly to

a file stored on a page that prevents navigation through the page.

The complaint further alleges that the damages caused by Stable Diffusion include the

profit from the preparation and distribution of the images and market competition created by the

images. These monetary damages manifest “as a result of Defendants’ conduct” when imposters

create art in the style of another artist and sell that product on marketplaces.

The complaint

Andersen et al. v. Stability AI et al., 32.

Simon Munzert, Christian Rubba, Peter Meißner, Dominic Nyhuis, “Scraping the Web,” in Automated Data

Collection with R, (John Wiley & Sons, Ltd, 2015), 219 –294, https://doi.org/10.1002/9781118834732.ch9.

Id.

“FAQ | LAION,” accessed March 1, 2023, https://laion.ai/faq.

Andersen et al. v. Stability AI Ltd. et al., Docket No. 3:23-cv-00201 (N.D. Cal. Jan 13, 2023), 23.

states that Stable Diffusion is “vicariously liable for any infringements committed by Imposters,”

a term referring to the liability when a superior party bears responsibility for actions committed

by a subordinate or associate party.

26,27

There are weaknesses to the argument presented by the plaintiffs, particularly in regard to

the facts of how AI art models work. For example, the complaint refers to the idea of compressed

copies several times, stating that the “AI Image products themselves [...] contain compressed

copies of the copyrighted works they were trained on.”

Similarly, in the factual allegations

plaintiffs refer to Stable Diffusion as a “21st-Century Collage Tool.”

This is at best a

mischaracterization of the process used by AI models to create images, as described previously.

Art models, like LLM models or any machine learning models, do not contain the data that they

were trained on but rather a mathematical interpretation of that data which can be used for

predictive purposes.

One assumed response to the claims made in the complaint involves the protections

granted by the Fair Use Doctrine, which is specifically mentioned as an anticipated defense of

the Defendant.

The Fair Use Doctrine states that reproduction of copyrighted work for purposes

such as “criticism, comment, news reporting, teaching (including multiple copies for classroom

use), scholarship, or research, is not an infringement of copyright.”

The act puts forth a

four-pronged analysis of whether a work is fair use or not, which includes consideration of the

following factors:

Id.

Id., 11.

Id., 14.

Andersen et al. v. Stability AI et al., 3.

“Vicarious Liability,” LII / Legal Information Institute, accessed March 1, 2023,

https://www.law.cornell.edu/wex/vicarious_liability.

Id.

(1) the purpose and character of the use, including whether such use is of a commercial

nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work

as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The first factor’s inclusion of nonprofit use of the copyrighted work may suggest that due

to LAION’s status as a nonprofit organization, the data scraping itself may be protected under the

Fair Use Doctrine. While Stability is not a nonprofit organization, OpenAI, the company that

developed the DALLE and ChatGPT models, was previously a nonprofit and still maintains a

nonprofit arm of the organization. This could potentially allow for leniency towards groups of

this form. The third factor suggests applicability to the Fair Use Doctrine depending on how a

court views the technology behind art models. The logic presented in the complaint, as

previously described, alleges that not only do the models contain the images they were trained

on, but each image product contains the true image as well. While this argument is factually

untrue, there may be enough of an argument behind it to convince a court that the amount of the

original image used in a generated image would prohibit the application of the Fair Use Doctrine.

Finally, the fourth factor seems to suggest that the model would not be protected under the Fair

Use Doctrine, following the logic provided in the complaint. While the plaintiffs do not provide

concrete evidence of this occurring, it is easy to imagine this situation and the implications

so-called ‘fakes’ could have on the market value of images created by the artist. As the case

proceeds through the court, any or none of these arguments could be used by the defendant.

The Krotov and Silva paper on web scraping touches on the issue as well, suggesting that

in addition to ‘fair use,’ “ideas cannot be copyrighted—only the specific form or representation

of those ideas. So one can use copyrighted data to create summaries of copyrighted data.”

This

Krotov and Silva, “Legality and Ethics,” 3.

argument would seem to apply to LLMs or AI art models, as the products created are summaries

or wholly new products based on interpretations of copyrighted data.

There are strong arguments on both sides of the argument, and multiple existing legal

standards that may apply towards how a court decides on this matter. In any case, Andersen et al.

(2023) is unlikely to be the last legal assertion of damages caused by these models.

Conclusion

The development of AI technology has led to the emergence of two categories, among

others, of publicly available AI systems: text and image generation. Through new technologies

including transformers and deep learning, these models have proven to be incredibly powerful at

generating content in their respective fields, but they also pose present and future legal

challenges that need to be addressed. With regard to AI and LLM, assigning appropriate liability

is a critical issue that requires careful consideration, given the impact it could have on

accountability and the reduction of harmful content. The Section 230 of the Communications

Decency Act may provide some level of protection, but it is undecided whether AI systems

would be protected under the definition of interactive computer services. Similarly, the ability of

AI to generate art in the style of other individuals has raised concerns about copyright

infringement, data scraping, and the application of the Fair Use Doctrine. The recent case

Andersen et al. highlights the legal battles that have begun over this technology and hints at

where these issues may develop in the future. AI technologies are far from limited to the two

select categories of content generation, and new applications are being discovered and

implemented at a rate faster than legislators can keep up with. As AI technologies continue to

advance, it will be essential to address the legal implications of their use and ensure that they are

regulated in a manner that protects individual rights while allowing for continued innovation.

References

“Artificial Intelligence | Definition, Examples, Types, Applications, Companies, & Facts |

Britannica,” February 16, 2023. https://www.britannica.com/technology/artificial-intelligence.

The Editorial Board. “Opinion | Joe Biden Says Age Is Just a Number.” The New York Times,

January 17, 2020.

https://www.nytimes.com/interactive/2020/01/17/opinion/joe-biden-nytimes-interview.html.

Brannon, Valerie C., and Eric N. Holmes. “Section 230: An Overview,” April 7, 2021.

https://crsreports.congress.gov/product/pdf/R/R46751.

Communications Decency Act of 1996. Pub. L. No. 104-104, Tit. V, 110 Stat. 133 (1996).

Devlin, Jacob, and Ming-Wei Chang. 2018. “Open Sourcing BERT: State-of-The-Art

Pre-Training for Natural Language Processing.” Google AI Blog. November 2, 2018.

https://ai.googleblog.com/2018/11/open-sourcing-bert-state-of-art-pre.html.

Douek, Evelyn. “Stanford’s Evelyn Douek on What Section 230 is And Why it is

Misunderstood”. Interview by Melissa De Witte, October 10, 2022.

https://law.stanford.edu/2022/10/10/stanfords-evelyn-douek-on-what-section-230-is-and-why-it-is-misunde

rstood/.

“FAQ | LAION.” Accessed March 1, 2023. https://laion.ai/faq.

Google Trends (n.d.). “Artificial Intelligence”. May 18, 2023.

https://trends.google.com/trends/explore?geo=US&q=%2Fm%2F0mkz&hl=en.

Krotov, Vlad, and Leiser Silva. “Legality and Ethics of Web Scraping,” Americas Conference on Information

Systems. 2018. https://doi.org/10.17705/1cais.04724.

LII / Legal Information Institute. “Vicarious Liability.” Accessed March 1, 2023.

https://www.law.cornell.edu/wex/vicarious_liability.

Munzert, S., Rubba, C., Meißner, P. and Nyhuis, D. “Scraping the Web.” In Automated Data

Collection with R, edited by Munzert, S., Rubba, C., Meißner, P. and Nyhuis, D, (John Wiley & Sons, Ltd,

2015), 219 - 294. https://doi.org/10.1002/9781118834732.ch9.

Vaswani, Ashish, Noam M. Shazeer, Niki Parmar, Jakob Uszkoreit, Llion Jones, Aidan N.

Gomez, Lukasz Kaiser and Illia Polosukhin. “Attention is All you Need.” ArXiv abs/1706.03762 (2017)

Zhao, Guodong . 2023. “How Stable Diffusion Works, Explained for Non-Technical People.”

Medium. April 4, 2023.

https://bootcamp.uxdesign.cc/how-stable-diffusion-works-explained-for-non-technical-people-be6aa674fa1

Tort Doctrine on the Law of Dental Malpractice

By Zihan “Tom” Li

Zihan (“Tom”) Li is a student pursuing a Bachelor of Science in Animal Science at the University of California,

Davis. He holds the position of Editor for the Davis Journal of Legal Studies and serves as a board member of the

Davis Pre-Law Society. In addition, Tom is a fellow of the Harvard School of Dental Medicine Advocacy

Committee and the Community Involvement Committee, and he is the founder and president of a medical equipment

start-up based at UC Davis. With a career aspiration that intertwines his interests in life sciences and law, Tom is

working toward becoming a healthcare provider and attorney, focusing on healthcare law.

Dentistry is evolving, oral disease patterns are changing, and a more educated and

health-conscious population is willing to spend more money on advanced dental treatments. Due

to advancements in the clinical sciences, dentists are now able to perform various specialized

dental treatments, which have altered traditional dental procedures. From a legal liability

perspective, the complexity of these treatments raises the possibility that dentists may provide

care below acceptable standards. The purpose of this review is to introduce general readers to the

basic concepts of dental malpractice law within the auspices of the tort doctrine, while also

raising patient awareness of legal rights, reducing dental litigation, and improving public

welfare.

Introduction

Dental malpractice litigation has increased in the past few years; as patients become

conscious of their rights, they are more likely and willing to bring lawsuits against their dentists.

A recent study suggests that dental malpractice suits have risen. In fact, 11.2 percent of

malpractice payments in the United States are against dentists,

while the number of malpractice

payments against non-dentist health professionals has fallen.

Furthermore, there is limited

Id.

R. P. Nalliah, “Trends in US Malpractice Payments in Dentistry Compared to Other Health Professions – Dentistry

Payments Increase, Others Fall,” British Dental Journal 222, no. 1 (January 2017): 36–40,

https://doi.org/10.1038/sj.bdj.2017.34.

knowledge available about trends and insights in dental malpractice lawsuits. One reason for this

is that these cases still make up a minority of medical malpractice cases. With such high stakes

and trends of increasing cases, comprehensive legal studies on the matter are critical.

Dental malpractice is defined as any omission by a dental professional during the

treatment of a patient that diverges from norms or standards of care in the dental community and

causes damage to the patient. Current dental malpractice law originates in nineteenth century

English common law.

Common law is the legal system established through court rulings, as

opposed to laws formed solely from legislative statutes or executive orders. In the United States,

dental malpractice law is under the jurisdiction of states: the structure and rules of law that

oversee it have been established through decisions on lawsuits filed in state courts. Thus, dental

malpractice law varies across jurisdictions, but maintains basic and similar legal standards. In

addition, statutes passed by state and federal legislatures, such as the 1946 Federal Tort Claims

Act, have further influenced the framework of dental malpractice laws.

The consequences of dental malpractice can be severe, ranging from physical and

emotional distress to permanent disfigurement or even death. Therefore, it is important to give

dental malpractice the same level of attention as other forms of medical malpractice. The legal

principles that apply to cases of medical-related malpractice are similar to those that apply to

dental malpractice,

but there are also significant differences between the two fields. One of the

most notable differences is that the role of a dentist is much more multifaceted than that of a

physician, as they must often conjointly serve as a surgeon, anesthesiologist, and radiologist. As

a surgeon, a dentist must perform delicate and intricate procedures within the mouth, a small and

confined area, while also ensuring that the patient is adequately anesthetized and comfortable. In

Louis J Regan, Doctor and Patient and the Law (C.V. Mosby Company, 1956).

Stuart M Speiser, The American Law of Torts (Thomson West, 1986).

addition to surgical procedures, dentists must also interpret X-rays and other diagnostic images,

which are crucial in making an accurate diagnosis and treatment plan. Misinterpreting these

images can lead to incorrect diagnoses or treatments, which can have serious consequences for

the patient. Furthermore, dentists often administer anesthesia to patients, which requires a high

level of expertise and attention to detail. Failure to properly administer anesthesia can lead to

serious complications, such as respiratory or cardiac arrest. The complexity and diversity of tasks

increase the likelihood of mistakes occurring during dental procedures, making dentists more

susceptible to error.

Another difference is that the medical and dental professions are regulated by different

authorities. Both have different training, licensing, and accreditation requirements. This suggests

that dental malpractice cases require different legal considerations than medical malpractice

cases given the unique nature of dental procedures. Dental malpractice and medical malpractice

may share many similarities, but there are also significant differences that justify separate legal

considerations for these types of cases.

Common Law of Tort Doctrine

“Tort’’ is the medieval Latin word for ‘‘wrong and injustice,’’ and tort law is a rule of law

that creates and provides remedies for civil wrongs.

Tort doctrine is the rule of law solely

pivoting on interpersonal wrongs, principally between private parties. Distinct from the law of

contractual duties, tort liabilities are not a voluntary quid pro quo (a reciprocal exchange of

benefits or services, whereby each party agrees to provide something of value to the other in

return for a corresponding benefit or service). They are also distinct from the law regarding

criminal wrongs. In the case of criminal wrong, the standard of proof is “beyond a reasonable

G Edward White and Inc Ebrary, Tort Law in America : An Intellectual History (Oxford ; New York: Oxford

University Press, 2003).

doubt”; the plaintiff must demonstrate that the defendant has satisfied each of the requirements

of the tort action that is more probable than not. Beyond that, the state or federal government are

not necessarily a part of the tort action. In the United States, tort cases are heard before civil

juries, and most of the time, tort suits are settled before reaching trial.

Tort law protects people’s

physical integrity and health from intentional or omissive harm; it protects their mental health

and integrity from intentional harassment or violation and negligent infliction of psychological

damage; it protects people’s reputation from defamation; it ensures that people are free from

unwarranted publicity (right to privacy) and false imprisonment; and it protects the integrity of

property from intrusions like unauthorized use, damage, and trespassing (land). The law derived

from tort doctrine partakes two fundamental issues of law and ethics in civil life: how people

should treat each other and who is liable when damage occurs.

Tort Law in Dental Malpractice

The etymology of “malpractice” is rooted in the Latin words “male” and “praxis,” which

together indicate “bad, incorrect application.” Malpractice is described as the improper, deficient

practices of a professional that occur during the exercise of their duties. The World Medical

Association defines malpractice as “injury caused to a patient due to a healthcare provider’s

failure to adhere to the standard of care, the lack of expertise, or improper and careless delivery

of the treatment.”

Malpractice in dentistry refers to improper procedures carried out by dental

professionals that cause damage to the patient. Although the legal definition of dental

malpractice differs in different jurisdictions, it typically relates to problems arising from neglect,

misdiagnosis, or delayed diagnosis or treatment in dentistry.

“World Medical Association Statement on Medical Malpractice,” WMA, accessed January 6, 2023,

https://www.wma.net/policies-post/world-medical-association-statement-on-medical-malpractice/.

Arthur Ripstein, “Theories of the Common Law of Torts,” ed. Edward N. Zalta, Stanford Encyclopedia of

Philosophy (Metaphysics Research Lab, Stanford University, 2022).

Applying the tort doctrine to dental malpractice cases is meant to ensure that the involved

parties reach a settlement via extensive negotiation and concessions without a jury trial. The vast

majority of lawsuits involve the patients suing their dentist for bodily damage purportedly caused

by negligence. The injured patient must prove that their dentist was negligent and that this

conduct resulted in harm in order to have the standing to file a lawsuit. More specifically, three

legal components must be established to have standing.

First, a duty of care between the

provider and the patient must have been established. Second, an actual violation of said duty

must have occurred. Third, harm must have resulted from the violation. If the jury ruling favors

the plaintiff, the compensatory damages often account for economic and noneconomic losses

(pain and mental distress).

In the eyes of many dentists, one of the most unpalatable elements of dentistry is the

possibility of being sued for malpractice. The fear of being sued forces dentists to practice

defensive decision making, such as recommending diagnostic tests or dental treatment that are

not necessarily the best option for the patient but would protect the dentist in a lawsuit.

This

defensive method raises the cost of a visit and encourages overtreatment in dentistry.

Overtreatment refers to a situation in which a patient receives more medical or dental treatment

than necessary or appropriate for their condition. However, patients regularly incur financial loss,

pain, and emotional distress due to dentists’ omissions. In the dentistry field, it is commonly

considered that the possibility of legal sanctions encourages providers to be more cautious and

invest in safety. These contrasting opinions clash when a lawsuit is filed.

M. Sonal Sekhar and N Vyas, “Defensive Medicine: A Bane to Healthcare,” Annals of Medical and Health

Sciences Research 3, no. 2 (2013): 295, https://doi.org/10.4103/2141-9248.113688.

B. Sonny Bal, “An Introduction to Medical Malpractice in the United States,” Clinical Orthopaedics and Related

Research 467, no. 2 (November 2008): 339–47, https://doi.org/10.1007/s11999-008-0636-2.

Duty of Care

In negligence cases, the pivotal question revolves around the potential breach of duty of

care by dentists, which tort doctrine scrutinizes through the lens of actions a reasonable

individual would undertake in analogous circumstances. The standard dentist-patient relationship

is a contractual duty. Even if the dentist invites people to seek his service, the dentist is not

legally required to accept them as her or his patients. Regardless of one’s values or professional

ethics, the law does not force the dentist to accept the patients just because she or he is licensed

to practice dentistry.

The law imposes obligations on the dentist and the patient only if the

invited individual has been accepted as a patient.

The dentist then affirms, directly or by

implication, that she or he possesses professional knowledge and competence and will exercise

care in using their skill and knowledge to achieve the clinical objective for which she or he is

engaged. In addition, once the relationship is formed, the dentist is obligated to provide services

until they are no longer required or until the patient is discharged.

It would be unreasonable to expect a dentist to provide immaculate treatment and neglect

the patient’s own behavior. Consequently, according to the contributory negligence doctrine,

individuals have a duty to exercise reasonable care for their own safety and well-being.

When a

plaintiff fails to fulfill this duty, they are deemed to have contributed to the harm they have

experienced. Simply put, it is the patient’s responsibility to provide an accurate medical history,

alert the dentist of any unanticipated occurrences during treatment, and indicate whether she or

Chubbs v. Holmes, 150 A. 516 (Conn. 1930); "Contributory Negligence or Assumption of Risk as a Defense in

Actions against Physicians or Surgeons for Malpractice," 50 A.L.R.2d 1043 (1954); Donathan v. McConnell, 193

P.2d 819 (Mont. 1948).

Stevenson v. Yates, 183 Ky.196, 208 S.W. 820 (Cal. App. 1919); Summerour v. Lee, 104 Ga.73, 121 S.E.2d 80

(Ga. Ct. App. 1961); Allison v. Blewitt, 348 S.W.2d 182 (Tex. Civ. App. 1961); Engle v. Clark, 346 S.W.2d 13 (Ky.

App. 1961); see also Ohio Rev. Code, §§ 4715.01-4715.99, which is exemplary of the majority of the states’ codes

on this subject.

Tvedt v. Haugen, 70 N.D. 338, 294 N.W. 183, 132 A.L.R. 379 (N.D. 1940); Findlay v. Board of Sup’rs of County

of Mohave, 72 Ariz. 58, 230 P.2d 526 (Ariz. 1951).

he comprehends a proposed treatment. These responsibilities may play a role in defenses with

contributory negligence or acceptance of risk, but they may also be relevant in assessing the

dentist’s performance.

Once a dentist-patient relationship has been established, some responsibilities take effect.

If the duties of care are not satisfied, whether by omission or intention, and someone is hurt

directly due to the dentist’s breach of duty, the dentist is liable. The duty of care for the dentist is

straightforward. The dentist must possess the updated knowledge and competence in the region

in which she or he practices, and the dentist must apply that knowledge and skill as a reasonably

sensible dentist would in the same community.

This is in favor of the dentist since there is a

presumption that the dentist possesses and employs the required knowledge and abilities. The

plaintiff bears the burden of proving that the dentist lacked the expertise or did not employ it

appropriately. In states that demand ongoing education for dental society membership or

re-licensure, there is a legally questionable inference that the dentist may lack the required

knowledge and skills if the dentist fails to complete the continuing education courses. It is

simpler to demonstrate that the dentist did not employ the anticipated knowledge and ability than

to demonstrate that he did not possess them.

The Standard of Care

Standard of care is what standard a professional would use and what a reasonable person

would do. A few examples of some common cases that violated the standard of care would be

where there is some known procedure that is not done—such as failure to sterilize or irrigate a

socket after extraction of a tooth—the injury due to the negligent use of an instrument, or the

dentist drilling through someone’s tongue instead of their tooth. In tort doctrine, customary

Henry A. Collett, “Dental Malpractice: An Enormous and Growing Problem,” The Journal of Prosthetic Dentistry

39, no. 2 (February 1978): 217–25.

practice is the standard of care in dental malpractice cases, and proving compliance with it

typically nullifies the plaintiff’s claim. Within the paradigm of customary practice, dentists are

held to the standard of a reasonable practitioner in their field. Customary behavior is not

conclusive in most tort cases, although it can be used to determine if a defendant behaved

inappropriately.

In recent years, courts’ approaches to evaluating allegations of negligence have clearly

shifted in favor of using the test of the standard of care provided nationwide rather than the

community test-legal principle that assesses whether the conduct in question would be deemed

reasonable and appropriate by an ordinary person within the relevant community. A case in point

is Sanderson v. Moline (1972), in which the Washington State Court of Appeals reversed the trial

court’s judgment that the trial court improperly utilized the locality rule to establish the standard

of care. A patient in Spokane County filed a malpractice suit against his dentist, alleging that his

dentist failed to diagnose and treat their periodontal disease properly. The dentist’s attorney

falsely convinced the trial court that the expert witness within the Spokane area was where the

patient could establish the only standard of care relevant to the case. Thus, the jury charge was

prejudicial to the patient by dismissing the value of the patient’s expert witness, who did not

come from the Spokane area. The Appellate court reasoned that the Washington Supreme Court,

in the far-reaching decision of Pederson v. Dumouchel (1967), abandoned the locality rule as it

then existed in this jurisdiction:

The “locality rule” has no present-day vitality except that it may be considered as one of

the elements to determine the degree of care and skill which is to be expected of the

average practitioner of the class to which he belongs. A qualified medical or dental

practitioner should be subject to liability, in an action for negligence, if he fails to

“Dental Malpractice,” Justia, last reviewed October 2022,

https://www.justia.com/injury/medical-malpractice/dental-malpractice/.

exercise that degree of care and skill that is expected of the average practitioner in the

class to which he belongs, acting in the same or similar circumstances.

This rule gave the court a guideline when determining the standard of care: geographic

boundaries should not be a limitation.

Another crucial factor in a dental malpractice case is the standard for specialists. It is not

a sign of a lack of empathy to refer patients to a dental specialist when providing treatment. It

shows extreme caution and professionalism to refer patients to dental specialists who are better at

delivering the necessary care. A referral also indicates that the dentist is not capable of legally

providing such treatment for the patient. For example, asthma patients are sent to pulmonologists

for specialized care. After visiting the specialist, the patients must continue visiting their primary

care provider or family physician. In dentistry, the same principle holds. A general dentist might

refer a patient to an endodontist to discuss the possibility of root canal treatment when the patient

is suffering from pain but does not want the tooth extraction. Dental malpractice claims may

emerge from a dentist’s inability to refer patients who need care outside the scope of their

training, experience, or expertise. Concerns arise when more dental procedures are carried out by

dentists who are not trained, experienced, or licensed.

A specialist is held to the same standards as other dental specialists who practice in a

related or identical community. For example, an oral surgeon must present the superior skills and

knowledge he represents to the public as holding. In contrast, a general dentist is not required to

acquire and use the knowledge and skills of third-molar (wisdom teeth) extraction like an oral

surgeon would.

Sanderson v. Moline, 7 Wn. App. 439, 499 P.2d 1281 (Wash. App. 1972).

Pederson v. Dumouchel, 72 Wn.2d 73, 431 P.2d 973 (Wash. 1967).

Rule of Law on Proof

The heart of a dental malpractice lawsuit consists of four essential components. The first

is establishing whether the duty of care that existed resulted from a patient-dentist relationship.

Typically, it is simple to identify whether or not this relationship exists. Then, the dentists must

perform a high standard of care for their patients. This entails the safety protocols that a dentist

would have followed while caring for a patient within the same professional community. The

plaintiff will need an expert witness—unless the negligence was egregious—to demonstrate this

facet. The expert needs to be knowledgeable about the particular kind of procedure that relates to

the claim. The third part of the claim, known as breach and causation, will also require the

expert’s opinion. Any action (or inaction) by the dentist that deviates from the standard of care is

referred to as a breach. If the dentist had not violated the duty of care, there would have been no

harm to the patient; this inference process is known as causation. Damage is the final component

of the claim, and it relies significantly on how much the patient was harmed. The jury tends to

award damages to patients sympathetically if the patients took high medical costs to treat their

malpractice injuries. The patients may also be rewarded for non-economic harms like pain and

mental distress; therefore, they should assess the severity of the injuries with an attorney before

bringing litigation to determine whether it is worthwhile considering the potential legal cost.

Preponderance of the Evidence

The preponderance of the evidence is the evidentiary standard in a burden of proof

analysis. When the party with the burden of proof persuades the fact-finder (either the judge or

the jury) that there is a more than 50 percent possibility that the claim is true, the burden of proof

is considered to have been satisfied under the preponderance test. In Karch v. Karch (2005), the

Superior Court of Pennsylvania ruled that “preponderance of the evidence means that one side of

an argument has more convincing evidence than the other side. It’s like tipping a scale slightly in

favor of one side, showing that their evidence is stronger and more persuasive.”

Also, in

Barbour v. Mun. Police Officers’ Educ. & Training Comm’n (2012), the Commonwealth Court

of Pennsylvania ruled that a “preponderance of the evidence is such evidence as leads a

fact-finder to find a contested fact to be more probable than its nonexistence. It is also within the

exclusive province of the Commission, as a fact-finder, to determine the witnesses’ credibility

and resolve any conflicting evidence.”

In these cases, the plaintiff usually sues the defendant

for financial loss due to damage, injury, and medical bills caused by the tort action.

After both parties have presented their evidence during a trial, the judge rules on the

presented facts. The jury resolves the remaining issues, including whether the defendant is at

fault and, if so, how much damages the plaintiff should be awarded. The plaintiff must

demonstrate the aforementioned factors using the more likely than not method to establish

liabilities. However, plaintiffs often struggle to meet this standard.

Expert Witness

The American Dental Association Principles of Ethics and Code of Professional Conduct

(ADA Code) states, “dentists may provide expert testimony when that testimony is essential to a

just and fair disposition of a judicial or administrative action.”

The expert witness is a crucial

part of most dental malpractice lawsuits. Dental experts who can attest to the standard of care the

defendant should have adhered to are the most common in this situation. The testimony of an

expert can be very helpful in persuading the court to rule in the plaintiff’s favor. First, experts

can give precise and succinct testimony regarding the relevant standard of care. Second, they can

American Dental Association, Principles of Ethics and Code of Professional Conduct, 2020.

Barbour v. Mun. Police Officers' Educ. & Training Comm'n, 52 A.3d 392 (Pa. Commw. 2012).

Karch v. Karch, 2005 PA Super 342, 885 A.2d 535 (Pa. Super. 2005).

assist the jury in comprehending the defendant’s departure from that standard. Third, they can

discuss how the plaintiff’s injuries related to the degree of that deviation. An experienced

attorney is usually able to choose good expert witnesses for the plaintiff.

The plaintiff in a malpractice case needs expert testimony to support her or his allegations

of negligence and proximate causation before she or he can bring the problem to a jury for

judgment. The expert must inform the jury of the standard in the defendant’s professional

community and apply the profession’s standards to the facts. Then, the jury can determine

whether the defendant violated her or his duty of care.

It is essential that the expert, in a

professional case, explains to the fact-finders what the duty of the case was and how it was

breached.

For instance, the jury is aware that one should not run a red light; however, they

might not know the standard practice for a dentist to perform a root canal therapy, so the three

steps apply. The sacred role of the expert witness is to vindicate the dental profession’s standard

of care and ethics.

Res Ipsa Loquitur

The legal concept of res ipsa loquitur is Latin for “the fact itself speaks” or “the fact

speaks for itself.”

The patient must provide evidence that the dentist violated the standard of

care in order to demonstrate a duty breach. The exact interpretation of the standard of care varies

by jurisdiction and can be difficult to apply to each specific case. The term refers to the treatment

that a reasonable dentist in a similar situation would have given her or his patient. Extraction of

the wrong tooth is an apparent breach of duty that “speaks for itself.”

“Res Ipsa Loquitur,” n.d. Biotech.law.lsu.edu, accessed May 12, 2023,

https://biotech.law.lsu.edu/books/lbb/x132.htm.

Id.

Some violations of the standard of care are so evident that expert testimony is not

necessary. For example, a patient visits a dentist for a tooth extraction. However, after the

surgery, the patient experiences severe pain and difficulty breathing. Further examination reveals

that a dental instrument has been inadvertently left inside the patient’s mouth, lodged near the

throat. The patient suffers from complications due to this incident. In this case, the patient may

rely on res ipsa loquitur to argue that the presence of the dental instrument left inside the mouth

is an event that would not occur in the absence of negligence. The facts of the case speak for

themselves, and it can be reasonably inferred that the dentist’s negligence caused the patient’s

injury. While the patient may still need to provide evidence to support their claim, the doctrine of

res ipsa loquitur shifts the burden of proof to the defendant (the dentist), who must now provide

an explanation or evidence to rebut the presumption of negligence.

In such circumstances, the trial is shortened. The court will likely grant a summary

judgment to the movant, or the jury can easily move on to awarding damages because the

violation of duty is evident.

When res ipsa loquitur is an available doctrine, there is no need for

the plaintiff to put forth expert testimony to sustain his burden of proof: when “the fact speaks

for itself,” the plaintiff is assured that the jury will consider his case. In Whetstine v. Moravec

(1940), an action at law for personal injury damages was alleged to have been caused by the

defendant’s negligence in permitting the root of a tooth to pass into the plaintiff’s right lung

while extracting the teeth of the plaintiff.

The plaintiff visited the defendant to have his teeth

pulled. While extracting the plaintiff’s teeth under general anesthesia, the defendant fractured

several of the patient’s teeth. Unbeknownst to the defendant and the plaintiff, a part of the tooth’s

roots slipped into the patient’s lung. The moment the plaintiff left the clinic, he felt terrible chest

Whetstine v. Moravec, 228 Iowa 352, 291 N.W. 425 (Iowa Sup. 1940).

Id.

pain. The patient’s lung underwent an X-ray, but nothing was found. After the extraction, the

patient had severe discomfort and coughing for nine months. One day, the plaintiff coughed out a

tip of the root from his lung. The appellate court reversed the trial court ruling that erred in

ordering a summary judgment in favor of the defendant. The court asserted that the concept of

res ipsa loquitur applied in the malpractice case; therefore, expert testimony was not necessary. It

is common sense that when a tooth or its root is extracted, neither usually enters the trachea and

subsequently the lungs. This incident happens quite infrequently. In the eyes of the court, this

incident was so uncommon that there was a high likelihood of negligence just by virtue of it

happening.

Application of the Standard of Care in Dental Specialties

In the realm of dental practice, the concept of varying standards of care emerges as a

critical factor in understanding the intricacies and unique expectations associated with different

dental specialties. There are twelve specialties recognized by the American Dental Association

(ADA) and the National Commission on Recognition of Dental Specialties and Certifying Board

(NCRDSCB): Dental Anesthesiology, Dental Public Health, Endodontics, Oral and Maxillofacial

Pathology, Oral and Maxillofacial Radiology, Oral and Maxillofacial Surgery, Oral Medicine,

Orofacial Pain, Orthodontics and Dentofacial Orthopedics, Pediatric Dentistry, Periodontics, and

Prosthodontics.

These specialties require additional knowledge and training after the

completion of dental school. This may include a residency, a master’s degree, or a doctorate

(PhD or MD). Since dental school offers rotations for the specialties in the dental school clinical

“Dental Specialties,” CDA, October 2022,

https://www.cda.org/Home/Public-Health/Careers-in-Oral-Health/Dental-Specialties.

Id.

training, in some states, general dentists can perform some of the same services that a specialist

offers.

To properly understand the dentist’s legal duty, a study must be conducted of how the

malpractice hazards and standard of care are applied to certain dental specialties. Endodontics

provides a particularly illustrative example. Endodontics, as a specialized branch of dentistry

focusing on the diagnosis and treatment of dental pulp and periapical tissue, inherently carries a

high risk for dental malpractice cases.

Endodontics

Clinical endodontic surgeries involve highly technique-sensitive procedures.

Endodontic-related cases in various specialties of dentistry witness the most frequently filed

malpractice claims.

This is due to the fact that endodontic treatment procedures involve

operative and surgical procedures using a variety of medications and techniques. Endodontic

procedural malpractice can refer to preoperative errors (misdiagnosing, intraoperative errors, root

canal treatment errors, pulp chamber perforations, anatomical injury and nerve damage caused

by hypochlorite accidents) and postoperative errors (infections due to error, abnormal bleeding,

tooth cracks, improper referral to specialists (endodontists or medical physicians), improper

prescription of medication, paresthesia, and leaving the fractured instruments in the patient’s

gum or teeth).

In an analysis of 650 endodontic-related malpractice lawsuits in the United States from

2001 to 2021, 86.6 percent of the defendants were general dentists, 43.75 percent of the cases

favored the plaintiff, 55.2 percent of the cases favored the defendant, and 1.04 percent of the

Id.

Alrahabi, M., Zafar, M. S., and Adanir, N., “Aspects of Clinical Malpractice in Endodontics,” European Journal

of Dentistry 13, no. 3 (July 2019): 450–458, https://doi.org/10.1055/s-0039-1700767.

Id.

cases were settled without going to trial.

The court rulings that favored the plaintiffs regarded

allegations involving root (root canal and cementum) perforation, failure to use a rubber dam,

root canal treatment performed on the wrong tooth, and paresthesia caused by infections.

Plaintiffs who alleged postprocedural cases had a notably higher winning rate than

non-postprocedural cases. 77.08 percent of the litigations consisted of intraprocedural

malpractice claims. In this study, plaintiffs won 75 percent of the litigation attributed to

postprocedural infections.

Failure of the dentist to abide by the standard of care and surgical

protocols is the main cause of malpractice suits. The paper indicates that in 72.7 percent of cases

the court rules in favor of the plaintiff, which indicates a high proportion of the cases the dentists

failed to rebuke the allegations against them.

Failure to use a rubber dam may result in the ingestion of endodontic instruments, which

constitutes malpractice and potentially technical assault. S. C. Barnum invented the rubber dam

in 1862.

The rubber dam enabled the dentist to work in an aseptic field and apply gold foil and

mercury restorations for dental fillings. The rubber dam’s most crucial function in endodontic

surgeries is to avoid the ingestion and aspiration of tooth debris and root canal tools and provide

a field free of saliva and microbes. In a joint survey conducted by the Veterans Administration

Hospital in San Francisco and Loyola University Dental School in Chicago, “37.00% dentists

never or rarely apply the rubber dam for endodontic surgeries, 20.00% applied it oc casionally,

and 43.00% always applied it.”

A notable number of dentists continue to forgo the use of

rubber dams, resulting in a marked increase in the ingestion or aspiration of dental instruments,

Robert E. Going and Vincent J. Sawinski, “Frequency of Use of the Rubber Dam: A Survey,” The Journal of the

American Dental Association 75, no. 1 (July 1967): 158–66, https://doi.org/10.14219/jada.archive.1967.0187.

Louis I. Grossman, “Prevention in Endodontic Practice,” The Journal of the American Dental Association 82, no.

2 (February 1971): 395–96, https://doi.org/10.14219/jada.archive.1971.0052.

Id.

King-Jean Wu et al., “Endodontic Malpractice Litigations in the United States from 2000 to 2021,” Journal of

Dental Sciences (November 2022), https://doi.org/10.1016/j.jds.2022.11.008.

such as reamers, files, and broaches, over the course of the twenty-first century.

Survey results

indicate that the primary reason for not using rubber dams is convenience. However, rubber

dams can be applied quickly and can facilitate smoother procedures due to the absence of saliva.

It is important for dental professionals to carefully consider the benefits of using rubber dams, as

they can effectively minimize risks to patients and protect practitioners from potential

malpractice litigation.

To highlight the potential legal repercussions of procedural errors, it's important to

consider real-world cases. In the case of Magos v. Feerick (1996), the dentist was found liable for

a dental malpractice allegation due to his patient’s root perforation caused by his error.

The

plaintiff went to the defendant (a general dentist) for damaged tooth repair. The defendant

performed root canal therapy and cemented the tooth with permanent crowns. Shortly after the

visit, the plaintiff began experiencing pain and discomfort in the gums above where the crowns

were cemented. According to the plaintiff’s testimony, “the pain and discomfort included

swelling, bleeding, and discoloration of the gums accompanied by a foul odor.”

However, the

defendant only suggested the plaintiff massage her gums and rinse her mouth with Listerine

mouthwash. Due to the continued discoloration of her gums and pain, the plaintiff visited another

dentist who discovered that she had open margins surrounding the permanent crown. Soon, the

dentist discovered that both front teeth had been perforated at the root under the gumline. The

appellate court reversed the trial court ruling, the judgment was entered in favor of the plaintiff in

her dental malpractice allegation, and damages were awarded.

Id.

Magos v. Feerick, 690 So.2d 812 (La.App. 3 Cir. 1996).

Id.

In the case of Rorick v. Silverman (2015), the dentist was liable for the malpractice

allegation caused by his straying from the standard of care and leaving a piece of a broken tool in

the patient’s tooth.

The defendant negligently performed dental work for the plaintiff. The

plaintiff alleged that the defendant performed root canal treatment on her and that she “began to

experience headaches and also experienced tooth decay and infections with these same teeth and

eventually lost two of these teeth.”

She then received treatment from another dentist, who

found that her symptoms stemmed from the defendant’s negligent performance of root canal

treatment. The defendant had not completed the root canal treatment completely or correctly

according to the standard of care and had left a piece of a file in one of her teeth. After her

treatment with the new dentist, the plaintiff no longer suffered from the headaches she had

suffered over the previous eleven years. The court’s judgment was entered in favor of the

plaintiff in her dental malpractice allegation, and damages were awarded.

With a high level of technique sensitivity, endodontics is the most involved specialty in

dental malpractice litigations.

Patients who are dissatisfied with a service tend to

initiate legal lawsuits. According to reports, pain after root canal treatment affects 9.6 to 12

percent of patients.

Thus, probably 10 percent of patients who undergo root canal treatment are

potential plaintiffs. In the present study published on European Journal of Dentistry, 55.5 percent

of endodontic litigation favored dentists in the US.

General dentists refer complicated cases to

King-Jean Wu et al., “Endodontic Malpractice Litigations in the United States from 2000 to 2021,” Journal of

Dental Sciences (November 2022), https://doi.org/10.1016/j.jds.2022.11.008.

N. Polycarpou et al., “Prevalence of Persistent Pain after Endodontic Treatment and Factors Affecting Its

Occurrence in Cases with Complete Radiographic Healing,” International Endodontic Journal 38, no. 3 (March

2005): 169–78, https://doi.org/10.1111/j.1365-2591.2004.00923.x.

Alice Aquino Zanin, Lara Maria Herrara, and Rodolfo Francisco Haltenhoff Melani, “Civil Liability:

Characterization of the Demand for Lawsuits against Dentists,” Brazilian Oral Research 30, no. 1 (2016),

https://doi.org/10.1590/1807-3107bor-2016.vol30.0091.

Id.

Rorick v. Silverman, Case No. 1:14-cv-312 (S.D. Ohio Dec. 22, 2015).

endodontists and treat them carefully to avoid paresthesia, root canal perforation, and infections.

Dentists should always diagnose and treat patients correctly, share the procedure plan with the

patient, and use rubber dams routinely and in a timely manner to prevent malpractice claims.

Conclusion

This review aims to give readers a general understanding of dental malpractice within tort

doctrine. Contemporary tort doctrine relating to malpractice has developed in accordance with

the principles of English common law. Court rulings, interpretations of law, and legislation have

contributed to developing dental malpractice litigation frameworks. Most cases analyzed in this

review demonstrate that dentists need more knowledge about malpractice and related legal

regulations. The practical way to reduce dental malpractice and the subsequent lawsuit is to

make dentists aware of their legal, administrative, professional, and ethical duties of care, and to

implore them to reflect those duties in their practice. Dentists should strengthen their

professional skills, learn healthcare laws, and update their clinical practices through continuous

education. Constant communication with other dental professionals within the same community

can help them ensure the standard of care. Given the complex state of dentistry, additional legal

studies will be required to address dental malpractice.

Mothanna Alrahabi, Muhammad Sohail Zafar, and Necdet Adanir, “Aspects of Clinical Malpractice in

Endodontics,” European Journal of Dentistry 13, no. 03 (July 2019): 450–58,

https://doi.org/10.1055/s-0039-1700767.

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Double Jeopardy, It’s Complicated: The Intricacies of Dual

Sovereignty, Due Process, and Legislative Intent

By Alexandra McCarthy

Alexandra McCarthy is a student at the University of California, Davis. She is majoring in Sociology, with an

emphasis on law and society, and minoring in Political Science.

In its current state, the constitutional principle of double jeopardy fails to uphold its

guarantee to protect citizens from multiple prosecutions and continues to undermine victims’

rights. Analyzing the United States Supreme Court case law from Whalen v. United States (1980)

and Gamble v. United States (2019), I aim to show the legal inconsistencies in the application of

the US Constitution's double jeopardy clause. Additionally, I will evaluate legislative intent,

which is relevant in shaping how double jeopardy is understood in the United States. Finally, this

essay concludes with recommendations for improving the existing double jeopardy clause by

evaluating the United Kingdom’s existing appeals systems and proposing a similar model for the

US.

The Double Jeopardy Clause

The double jeopardy clause, as written in the Fifth Amendment of the Constitution, states

that a person “shall not be twice put in jeopardy of life or limb.”

The maxim aims to protect a

person from being tried for the same crime after having already been acquitted. The Supreme

Court has determined that ‘jeopardy’ attaches when a jury is sworn in or when a judge begins to

hear evidence.

Green v. United States, 355 U.S. 184 (1957).

“Constitution of the United States: Analysis and Interpretation,” Congress.gov, accessed May 15, 2023,

https://constitution.congress.gov/browse/essay/amdt5-3-1/ALDE_00000858/.

Case Law

Whalen v. United States (1980)

In the initial case brought against Thomas Whalen, Whalen was charged for rape and

murder in the District of Columbia. Under D.C. law, “rape and killing a human being in the

course of any six specified felonies, including rape, are separate statute offenses.”

The district

court convicted Whalen of two separate offenses, and he was sentenced to twenty years to life for

murder in the first degree and fifteen years to life for rape. Whalen petitioned for an appeal,

arguing that the rape sentence should be nullified because the separate offense of rape had

already been merged with the felony murder sentence—violating his double jeopardy rights. The

District of Columbia Court of Appeals held that Congress and D.C. law authorized the

consecutive sentences; the appeal was denied.

The Supreme Court reversed this holding. The Supreme Court referenced Blockburger v.

United States (1932) and the resulting Blockburger test, which determines if two offenses are,

indeed, separate. According to the Blockburger test, for a crime to qualify as two separate

offenses, each offense must “require proof of a fact which the other does not.”

In 1973, after

consistently using the Blockburger test’s rule of statutory construction, the requirement of proof

of differentiating facts was written into the District of Columbia Code.

Per the Blockburger test,

rape cannot be a separate charge in the Whalen case because, to prove murder during the course

of a rape, the court must first prove all of the elements of rape. The Supreme Court determined

that—due to a lack of differentiating elements of proof—the initial sentencing for both rape and

D.C. Code § 23-112 (1973).

Blockburger v. United States, 284 U. S. 299 (1932).

Id.

Whalen v. United States, 445 U.S. 684 (1980); See D.C. Code § 22-2401 (1973).

murder violated Whalen’s double jeopardy protections since it resulted in him being charged for

the crime of rape twice.

In addition, the Court found that the lower courts’ violations of double jeopardy

amounted to a violation of the separation of powers.

The Blockburger test, as incorporated into

D.C. Code, predates Whalen by a decade and provides a definitive legal precedent of legislative

intent when determining the use of consecutive sentences. The lower court blatantly “exceeded

its own authority” by ignoring the legislature's intent regarding sentencing as written in the D.C.

Code.

Gamble v. United States (2019)

After Terance Gamble was pulled over for an alleged broken headlight, the police officer

claimed the car smelled of marijuana and declared he had probable cause to search Gamble’s

vehicle. Upon searching the car, the officer found a loaded handgun. Gamble had been

previously convicted of robbery which, because of its classification under Alabama law as a

crime of violence, prohibited Gamble from possessing a firearm. Gamble pleaded guilty to

possession of a firearm and was convicted for the offense in the state of Alabama. Shortly after

his conviction, a federal prosecutor charged Gamble with possession of a firearm under the

felon-in-possession statute for the same act of firearm possession. Gamble appealed on the

grounds that he was tried twice for the same offense, which would violate his double jeopardy

rights.

The district court dismissed Gamble’s appeal and the United States Court of Appeals for

the Eleventh Circuit affirmed. The Court of Appeals held that double jeopardy protections were

Id.

Whalen, 445 U.S. 684.

not violated because each sovereign

has the right to prosecute under its own, separate statutes

under the doctrine of dual sovereignty.

It held that “offenses are defined by law, and each law is

defined by a sovereign,” meaning that even though it’s the same ‘crime,’ it qualifies as separate

offenses.

The Court of Appeals found that the language of double jeopardy supports this

conclusion.

Despite double jeopardy maintaining that a person should not be tried twice for one

offense, the Court of Appeals ruled that offenses are not defined by acts but rather by laws.

According to this interpretation of double jeopardy and dual sovereignty, both the state of

Alabama and the federal government, as independent sovereigns, have the right to prosecute

Gamble.

Therefore, the same act can qualify as multiple offenses, even without the presence of

differentiating facts.

Comparing Whalen and Gamble

In Whalen (1980), the Supreme Court held that determining a separate offense mandated

that each statute (or offense) must require one element of proof that the other does not;

otherwise, it violates double jeopardy. In Gamble (2019), the legal precedent was established that

offenses are defined in laws by sovereigns, so, under dual sovereignty, separate state and federal

sovereigns charging a suspect for the same act does not violate double jeopardy. Subsequently,

US law determines that there must be an element of separation between statutes, but

simultaneously holds that different sovereigns can charge a suspect under identical statutes since

each sovereign operates independently.

“Amendment 5: Dual Sovereignty Doctrine,” LII / Legal Information Institute, Cornell Law School, accessed May

15, 2023, https://www.law.cornell.edu/constitution-conan/amendment-5/dual-sovereignty-doctrine.

Gamble, 139 S. Ct. 1960.; See Moore v. Illinois, 434 U.S. 220 (1977).

United States v. Lanza, 260 U.S. 377 (1922).

Adam Adler, “Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old Problem,”

The Yale Law Journal (2014), https://www.yalelawjournal.org/pdf/e.448.Adler.483_f8zed3jx.pdf.

The Supreme Court acknowledges the importance of recognizing that, if two statutes

have the same burden of proof, they cannot qualify as separate offenses. However, if the same

act violates the legal codes of two different sovereigns, even if they have the same burden of

proof, it is not the same offense and, therefore, not protected under double jeopardy. This

interpretation of the word “offense” is currently questionable and contradictory.

Legislative Intent, Due Process, and the Rights of Victims

If the Supreme Court maintains, under their definition of “offense,” that dual sovereignty

is a special exception and does not violate double jeopardy, it should be noted that dual

sovereignty still violates the separation of powers because dual sovereignty allows a “defendant

[to] receive a [judicial] punishment that is inconsistent with the intent of the legislature, as

indicated by statute.”

The Constitution governs the decision of sentencing, stating that the

courts should “impose a sentence sufficient, but not greater than necessary”

to advance

Congress’ interests in punishment. Congress has indicated through precedent that the minimum

and maximum sentence necessary for an act should be based on the advancement of Congress’

interests, not the sovereigns’. Congress further outlines the importance of “avoid[ing]

unwarranted sentence disparities among defendants with similar records who have been found

guilty of similar conduct.”

In cases where dual sovereignty is applied, a person could face

double the maximum sentence compared to someone who was not prosecuted under dual

sovereignty. This violation of the separation of powers leads to a violation of due process

because “fundamentally, ‘due process’ meant that the government may not interfere with

established rights without legal authorization and according to law.”

Chapman, Nathan S. “Separation of Powers as Ordinary Interpretation,” Yale Law Journal 121, no. 6 (2012):

1672–1731, accessed May 15, 2023,

https://openyls.law.yale.edu/bitstream/handle/20.500.13051/10006/46_121YaleLJ1672_May2012_.pdf?sequence=2.

18 U.S.C. § 3553(a).

Adam Adler, “Dual Sovereignty, Due Process, and Duplicative Punishment: A New Solution to an Old Problem.”

Sentencing statutes state that “whoever is guilty of an assault shall be punished by

imprisonment for not more than twenty years”

and that “a person convicted of burglary shall be

imprisoned not more than fifteen years.”

The first statute makes no mention of the word

“offense”; rather, it states “an assault.” In situations of ambiguity within a statute and instances

when legislative intent is unclear, the canons of construction set forth guiding rules that should

be followed by the courts when deciphering legislative intent. The relevant canon of construction

in this circumstance is the fourth canon: when the language is not clear and a particular term is

not precisely defined, the court is to give the term its “ordinary meaning.”

Using the ordinary

meaning has been understood as using the dictionary definition to define the term within the

statue.

When defining the word ‘an’ using its ordinary meaning, the dictionary states that it is

“the form of the indefinite article used before words beginning with a vowel sound,” the

indefinite article being ‘a.’

‘A’ is then defined by the dictionary as “used with units of

measurement to mean one such unit” or “one single; any.”

‘An’ is therefore just ‘a’ for when

the word starts with a vowel. Using these definitions to define the term should lead to the statute

being interpreted as discussing punishment for a singular act, or an act of “one such unit.”

It is a “fundamental canon of statutory construction that the words of a statute must be

read in their context and with a view to their place in the overall statutory scheme.”

Unfortunately, the judiciary overlooks this definition and disregards legislative intent in favor of

states’ rights and dual sovereignty. Not only has the judiciary chosen to allow dual sovereignty to

outweigh double jeopardy and the Court’s own rulings, but the Court’s allowance of dual

Davis v. Michigan Department of Treasury, 489 U.S., 803, 809 (1989).

“Definition of A,” Merriam-webster.com, 2019, https://www.merriam-webster.com/dictionary/a.

“Definition of AN,” Merriam-webster.com, 2019, https://www.merriam-webster.com/dictionary/an.

See BP American Products Company v. Burton, 549 U.S. 84 (2006).

VT. STAT. ANN. tit.13, § 1201(2013).

18 U.S.C. § 113 (2012).

sovereignty misinterprets the legislative intent of sentencing statutes. Thus, even if dual

sovereignty does not violate double jeopardy, it most certainly violates individuals’ rights to due

process and the separation of powers.

One of the most troublesome applications of dual sovereignty can be found in Heath v.

Alabama (1985).

After Larry Heath hired two men to kill his wife, who kidnapped her from her

home in Alabama and left her body in Georgia, Heath was prosecuted in Georgia and pleaded

guilty to malice murder and a life sentence on the grounds that he would be spared the death

penalty.

Throughout Alabama and Georgia’s separate investigations, the two states cooperated

with each other.

After Heath pleaded guilty to the murder in Georgia, he was charged with

murder during a kidnapping in Alabama.

Alabama obtained a conviction and sought the death

penalty, after Heath had already pleaded guilty in Georgia to avoid the death penalty.

Almost

thirty years prior to Heath (1985), Green v. United States (1957) held that “the underlying idea,

one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the

State, with all its resources and power, should not be allowed to make repeated attempts to

convict an individual for an alleged offense.”

In Green, the Court determines that states should

not have the unfettered ability to retry someone for a crime. Yet, a state can try a person for a

crime that a different state has already tried and convicted a person for. Dual sovereignty, then,

violates due process and the separation of powers by ignoring legislative intent and sentencing

individuals to twice the maximum sentence that is outlined in the statute.

Green v. United States, 355 U.S. 184. (1957) See United States v. Jorn, 400 U. S. 470, 400 U. S. 479 (1971); Price

v. Georgia, 398 U. S. 323, 398 U. S. 326 (1970).

Id.

Heath v. Alabama, 474 U.S. 82 (1985).

Due process also guarantees a person’s right to a speedy trial, and those who are

convicted are allowed to appeal based on new evidence. Yet, speedy trials seem to leave victims

no right to a fair trial, as they have no ability to appeal an acquittal even with new evidence.

Double jeopardy was invented to provide a “finality of the law,” but there is no such finality

around conviction. If a person feels he or she was wrongly convicted, they are able to ask for an

appeal to be granted a possible retrial. Subsequently, every guilty verdict could be subject to an

appeal.

Double jeopardy is an unbalanced approach to justice, which assumes that there is no

injured party when there is a wrongful acquittal. It is a question of justice when allowing a

wrongfully acquitted individual to roam free, as it is to put an innocent person in jail.

Double Jeopardy and the United Kingdom’s Criminal Justice Act of 2003

In 2003, the United Kingdom (UK) overhauled its justice system through the Criminal

Justice Act. Part 10 is titled “Retrials for Serious Offenders” and outlines a system of appeals

that allows double jeopardy protection to be overridden.

The system outlines the appeal process

and the burden of proof necessary to successfully petition for a retrial when a defendant receives

an acquittal.

To begin the appeal process, the prosecutor will need to obtain permission from the

Director of Public Prosecutions to file an appeal. If granted, the prosecutor then files an appeal to

overturn a previous acquittal and initiate a new trial. The appeal must indicate fulfillment of

Section 78 requirements and be found to be in the public’s best interest. Section 78 outlines the

“new and compelling” standard of evidence to determine if the new evidence warrants a retrial.

“Part 10 -Retrials for Serious Offenders,” Legislation.gov.uk, accessed May 15, 2023,

https://www.legislation.gov.uk/ukpga/2003/44/part/10.; See also “Criminal Justice Act 2003 Explanatory Notes,”

Legislation.gov.uk, accessed May 15, 2023,

https://www.legislation.gov.uk/ukpga/2003/44/notes/division/4/10?view=plain.

Under Section 78.2, “new” evidence is any evidence that “was not adduced in the proceedings in

which the person was acquitted (nor, if those were appeal proceedings, in earlier proceedings to

which the appeal related).”

Section 78.3 outlines that evidence is “compelling” if “(a) it is

reliable, (b) it is substantial, and (c) in the context of the outstanding issues, it appears highly

probative of the case against the acquitted person.”

The Criminal Justice Reform Act allows for

only one appeal on behalf of the prosecution.

The UK recognized in 2003—two decades ago—that double jeopardy protections needed

to be updated. The Criminal Justice Act of 2003 created a circumstance in which the system

could be reformed. The US constitution’s maxim of double jeopardy was borrowed from English

Common Law; updating it, as the UK has, is necessary.

Recommendations: Grand Juries and Retrial Appeals

The United States criminal justice system can be modeled more closely to the UK’s

post-Criminal Justice Act of 2003 to better uphold the maxim of double jeopardy. In this model,

the appeals process would start with a grand jury process of indictment; new evidence would

then be submitted to a jury of the accused’s peers.

During the grand jury trial, the prosecution

would present all new evidence to the jury, who would then determine if the evidence presented

warrants a retrial. Granted that the new evidence permits a retrial, the accused will be retried.

Justice should not be based on technicality, and injustice should not be tolerated because

of judicial misinterpretation of the Constitution. Double jeopardy has been unsuccessful in

protecting people from multiple prosecutions. Dual sovereignty has allowed states to subject a

person to multiple trials, directly in conflict with one's double jeopardy protections. This is not

“Grand Jury Terms of Service,” U.S. District Court, Central District of California, accessed May 15, 2023,

https://www.cacd.uscourts.gov/jurors/grand-jury-terms-service.

“Part 10 -Retrials for Serious Offenders.”

Criminal Justice Act of 2003: Part 10 Section 78.3.

Criminal Justice Act of 2003: Part 10 Section 78.2.

an argument against dual sovereignty; rather, it is an evidence-based criticism of double

jeopardy as it is currently understood by the courts. Double jeopardy reform would allow us to

clarify the language and processes that uphold the clause as an important maxim, which would,

hopefully, address circumstances in which an individual is tried twice for the same crime. The

issues related to double jeopardy must be recognized to ensure that double jeopardy is not

misconstrued and that it does, indeed, protect individuals from being twice put in jeopardy.

References

Adler, Adam J. “Dual Sovereignty, Due Process, and Duplicative ... - Yale Law Journal.” The Yale Law Journal.

2014. https://www.yalelawjournal.org/pdf/e.448.Adler.483_f8zed3jx.pdf.

“Amendment 14.S1.3 Due Process Generally - Constitution Annotated | Congress.Gov.” Constitution Annotated.

Accessed May 26, 2023. https://constitution.congress.gov/browse/essay/amdt14-S1-3/ALDE_00013743/.

“Amendment 5: Dual Sovereignty Doctrine.” Legal Information Institute. Accessed May 26, 2023.

https://www.law.cornell.edu/constitution-conan/amendment-5/dual-sovereignty-doctrine#fn8amd5.

Criminal Justice Act of 2003: Part 10 Section 78.2.

Criminal Justice Act of 2003: Part 10 Section 78.3.

Chapman, Nathan S. “Due Process as Separation of Powers - Yale Law Journal.” The Yale Law Journal. Accessed

May 26, 2023. https://www.yalelawjournal.org/pdf/1080_y4sioof3.pdf.

Chapman, Nathan S. “Separation of Powers as Ordinary Interpretation,” Yale Law Journal 121, no. 6 (2012):

1672-1731. Accessed May 15, 2023.

https://openyls.law.yale.edu/bitstream/handle/20.500.13051/10006/46_121YaleLJ1672_May2012_.pdf?seq

uence=2.

"Gamble v. United States." Harvard Law Review, Vol. 133. Accessed May 26, 2023.

https://harvardlawreview.org/print/vol-133/gamble-v-united-states/#footnote-14.

"Grand Jury Terms of Service." U.S. District Court, Central District of California. Accessed May 25, 2023.

https://www.cacd.uscourts.gov/jurors/grand-jury-terms-service.

Merriam-webster.com. “Definition of A.” 2019. https://www.merriam-webster.com/dictionary/a.

Merriam-webster.com. “Definition of AN.” 2019. https://www.merriam-webster.com/dictionary/an.

"National Institute of Justice Research Report: DNA Evidence Basics." Office of Justice Programs, National

Institute of Justice. Accessed May 26, 2023. https://www.ojp.gov/pdffiles1/nij/grants/233981.pdf.

"Part 10 - Retrials for Serious Offenders." Legislation.gov.uk. Accessed May 26, 2023.

https://www.legislation.gov.uk/ukpga/2003/44/part/10.

Fairness in the Court of Public Opinion

By Audrey Mechali

Audrey Mechali is a student at the University of California, Davis studying Managerial Economics with a minor in

Technology Management. Following graduation, she plans to attend law school and pursue a career as an attorney

working in-house for a tech company.

While social media has given a platform for individual voices to be heard and amplified,

it has also created a place where public opinion can be manipulated. This review examines

several cases in which social media played a large role in a trial or verdict. The Cameron Herrin

v. the State of Florida (2022) case demonstrates that public opinion can be driven by

inappropriate reasoning. Additionally, the People of the State of Colorado v. Rogel

Aguilera-Menderos (2019) case shows that an outpour of public opinion on social media can

interfere with the judicial process by convincing them to change their decision. Finally, the John

C. Depp, II v. Amber Laura Heard (2022) case suggests that losing a case in the court of public

opinion can be even more damaging to one’s career and livelihood than the consequences

assigned by the judge or jury. These examples provide insight into the power of public opinion

in judicial proceedings. Overall, this review underscores the need for an alternate approach to

address the role of public opinion in the legal system. Such an approach may require better

regulation of social media platforms and perhaps legislation to maintain a balance between

satisfying public opinion and ensuring the fairness of judicial procedure.

The emergence of social media has completely revolutionized American society by

changing the ways that humans interact with each other. Social media is relatively new

within the scope of human history, and, thus, legislation has failed to encompass all aspects

of social media usage that pose a risk to people or to society. With the technological

landscape evolving so quickly, consistently adapting laws to this changing landscape

remains a challenge.

The use of social media has skyrocketed since the start of the COVID-19 pandemic.

Worldwide, the number of monthly active Facebook users in 2019 was 2.45 billion, but, by

December 2020, it rose to over 2.8 billion monthly active users.

As of December 2022, there are

302.35 million Americans regularly using social media, which translates to roughly 90 percent of

the total population of the United States.

Facebook is the most widely used social media

platform with approximately 74.2 percent of Americans using it.

According to the International

Telecommunications Union, approximately 40 percent of the world’s population and an

estimated 76 percent of people in developed countries are regular social media users.

The

ubiquitousness of social media allows the voices of individuals from all across the country and

the world to be shared and amplified in a common space.

Policies regarding social media usage, such as censorship of certain forms of speech on

social media platforms, have recently become a widely discussed issue. There is an emerging

conflict between people seeking to maintain social media platforms as a medium for unrestricted

free speech, and others who want social media spaces to remain more closely controlled by

moderating hate speech, misinformation, and other types of harmful speech. In fact, since Elon

Musk’s acquisition of the Twitter platform, there has been a notable increase in hate speech.

This is most likely due to Musk removing nearly all content moderation, including that for hate

speech, from the platform.

Sheera Frenkel and Kate Conger, “Hate Speech’s Rise on Twitter Is Unprecedented, Researchers Find,” The New

York Times, December 2, 2022, sec. Technology,

https://www.nytimes.com/2022/12/02/technology/twitter-hate-speech.html.

Smriti Agrawal, “SOCIAL MEDIA and CRIMES: AN ENTANGLED RELATIONSHIP,” The Daily Guardian,

September 27, 2021.

Id.

Daniel Ruby, “Social Media Users — How Many People Use Social Media in 2022,” demandsage, January 4,

2023.

Facebook, “Facebook Reports Fourth Quarter and Full Year 2020 Results,” investor.fb.com, January 27, 2021.

In the past, most free speech lawyers spent decades advocating for freedom from

regulation and uncensored free speech to guarantee the protections granted under the First

Amendment. However, the development of social media has made one individual’s words more

impactful than ever before. A recent study conducted by Pew Research showed that

approximately 62 percent of the American population gets their news primarily from social

media.

As such, many lawyers now argue in favor of regulations limiting speech on social

media platforms.

Speech on social media refers to tweets, posts, images, videos, and anything

else an individual or organization posts to a social media account and is often used by citizens to

convey personal beliefs, attitudes, and opinions. This type of speech cannot be censored by the

government due to the First Amendment; however, social media platforms are run by private

companies. Private companies can legally censor speech on their platforms.

Although regulating speech on social media is a controversial issue, evidence suggests

that social media can be a breeding ground for propaganda and misinformation if not properly

regulated. Absent regulations, social media does not communicate whether an image, video, or

story is real or staged, and public opinion can quite easily be manipulated via misinformation to

promote an unsavory agenda. For instance, Senate reports confirmed that during the 2012 and

2016 presidential elections, the Russian government spread entirely fabricated information and

conspiracy theories using platforms such as Facebook, Instagram, and Twitter in a deliberate

attempt to weaken the United States.

As a result, without regulations, abuse of social media can

threaten the foundations of democratic societies.

An emerging legal issue is the role that social media can have in damaging the

Sara Brown, “MIT Sloan Research about Social Media, Misinformation, and Elections,”

https://mitsloan.mit.edu/ideas-made-to-matter/mit-sloan-research-about-social-media-misinformation-and-elections,

October 5, 2020.

47 U.S. Code § 230.

Id.

Mark A. Cohen, “Law in the Age of Social Media,” Forbes, 2023.

sanctity of legal procedure. Due to the prevalence of individuals getting information in

bite-size pieces through social media, public opinion is not generally a fair assessment, given

that they may not consider all facts and information relevant to the case. There is a great risk

that these unfair assessments may infiltrate our legal system, which means our legal system

must now determine how much weight to place on public opinion in trials and legal

procedure.

Social media has been used as a tool to address injustices in the legal system by raising

awareness and inciting public demand for change. Yet the social media-consuming public may

not be fully informed. For instance, some individuals solely support a particular stance based

on the views of their favorite celebrity. Therefore, it is not necessarily fair for public opinion to

impact sentences and sentencing when there is a disconnect between what the public knows of

a case, and the court's assumption of how informative their opinion is.

Public opinion can incite change through inappropriate justification for crimes. In

2022, a petition amassed over 28,000 signatures to reduce the sentence of twenty-one-year-old

defendant Cameron Herrin, sentenced to twenty-four years in prison for two counts of

vehicular homicide.

In 2018, the then eighteen-year-old engaged in a street racing activity in

Tampa, Florida, which led to the death of Jessica Reisinger-Raubenolt and her infant daughter,

Lillia. In his speed race, Herrin reached speeds as high as 106 miles per hour on public roads.

A TikTok video showing Herrin’s reaction to learning of his twenty-four-year prison sentence

went viral, and his fans were upset. #JusticeForCameron became a trending topic on TikTok,

with thousands of people demanding a shorter sentence, often citing the defendant’s

appearance as the reason why. In under one month, there were over 100,000 tweets about

Id.

Karishma Rao, “Who Is Cameron Herrin? Petition to Free TikTok Star, Sentenced to 24 Years in Prison, Receives

More than 25,000 Signatures,” 2021, www.sportskeeda.com.

“Justice for Herrin.”

Supporters commented on TikTok videos claiming that the defendant

was “too cute to go to prison” or that “he looks innocent, he doesn’t deserve it.”

Pragmatically, good looks are not a factor considered in the legal system when determining a

defendant’s sentence. For individuals on social media to suggest that Herrin should receive a

reduced sentence, citing only his appearance as justification, shows insufficient reasoning and

inappropriate considerations. Insufficient evidence and flawed reasoning call into question the

reliability of public opinion and whether it has any merit in the judicial system. While the

effect of this petition on Herrin’s sentence was negligible, the significance of this public outcry

indicates that public opinion can be swayed by improper reasoning and, thus, may not be

conducive to our judicial system.

Herrin’s case is not the only example of a social media frenzy related to a legal case. On

April 25, 2019, Rogel Aguilera-Menderos was driving a truck full of lumber on the freeway in

Denver, Colorado when his brakes failed. The prosecution argued that the driver made a series of

poor decisions by failing to take reasonable steps to minimize the danger, such as by speeding

and not taking an available runaway truck ramp along the highway.

Aguilera-Menderos crashed

the truck into several cars, resulting in the deaths of four people. After refusing several plea deals

and going to trial, a jury found the defendant guilty on twenty-seven counts, including charges of

vehicular homicide and vehicular manslaughter.

Colorado state law requires that all sentences

for each count be served consecutively, not concurrently. As a result, the twenty-six-year old

defendant was sentenced to 110 years in prison. Immediately after his sentencing, the public

turned to social media to demand a reduced sentence. An online petition demanding

Id.

Lanie Cook, “Truck Driver’s 110-Year Sentence Dramatically Cut Down,”

https://pix11.com/news/truck-drivers-110-year-sentence-dramatically-cut-down-after-mill, December 30, 2021.

Id.

Aguilera-Menderos’s sentence be reduced was signed by over 4.5 million people.

The hashtag

#JusticeForRogel became widely used on social media. This petition and subsequent posts on

social media raising awareness on this case claimed that his sentence was not warranted due to

lack of malicious intent. The public cited Aguilera-Menderos’s clear driving and criminal record,

along with clean drug tests to support their argument. As a result of the public outcry, Colorado

Governor Jared Polis granted clemency to Aguilera-Menderos and reduced his sentence to only

ten years in prison. Aguilera-Menderos will be eligible for parole in December 2026.

Aguilera-Menderos’s case opens the door to the reality that public opinion can, in certain

cases, modify a jury’s opinion. The jury in this case determined that the prosecution proved the

defendant’s guilt on each count beyond a reasonable doubt. It would therefore be unlawful and

potentially undemocratic to undermine the jury’s verdict simply because people who are not

fully educated about the case disapprove of the outcome. Individuals must also look at the

precedent that this case sets for future trials in which the public disagrees with the verdict. While

the governor granting clemency is a channel that can compromise the fairness of jury decisions,

it is not the only means of doing so. This case sets the precedent that in future cases where the

public disagrees with the verdict, especially vehicular homicide and manslaughter cases, public

outcry has enough validity to overturn the jury’s verdict. One must then consider the possibility

that the public could support the release of someone who has intentionally committed

horrendous crimes.

Additionally, this precedent is problematic because public opinion is difficult to directly

measure. What is the threshold of public support needed to overrule a court’s sentence? If

Aguilera-Menderos’s petition had only gotten one million signatures, would that still have been

enough to get his sentence reduced? Two million? There is no clear threshold, which makes this

issue rather difficult to ensure equal treatment for all, a principle that the justice system

Id.

prioritizes.

The amount of public interest in a case can also determine which cases are investigated

thoroughly. Prominent South Carolina attorney Alex Murdaugh was recently convicted of having

intentionally shot and murdered his wife and son at his home estate. When taking the stand at his

televised trial, Alex Murdaugh confessed to lying about his alibi and misusing funds but denied

killing anyone.

Nonetheless, the jury in this case found the evidence convincing enough to

convict Murdaugh on two counts of murder. Following the trial, public pressure led to reopening

investigations into people previously associated with the Murdaugh family who seemed to

experience suspicious deaths. For instance, Stephen Smith’s death in 2015, a classmate of Alex

Murdaugh’s son Buster, was classified as a hit-and-run.

Following Murdaugh’s murder trial,

public pressure has prompted the exhumation of Smith’s body to reopen the investigations due to

suspicions that Murdaugh may have also been responsible for Smith’s death.

The case of Gloria

Satterfield, the Murdaugh family housekeeper who died falling down the stairs at the Murdaugh

estate in 2018, is also being reopened due to public pressure after Murdaugh’s guilty verdict.

This suggests that public opinion can influence which cases are investigated by government

authorities. Here, public pressure driven by rumors of Murdaugh’s involvement in Smith’s and

Satterfield’s deaths reopened investigations into these previously closed cases.

Therefore, the popularity of social media can strongly affect the legal system’s ability to

uphold laws. In both criminal and civil cases, judges and juries are not allowed to conduct

outside research on a case. Juries, in cases heavily covered by the media, will oftentimes be

Id.

Bailee Hill, “Public Demands Answers in Suspicious Death of Buster Murdaugh’s Classmate after Father Alex’s

Conviction,”https://www.foxnews.com/media/public-demands-answers-suspicious-death-buster-murdaughs-classma

te-after-father-alexs-conviction, March 5, 2023.

Jacey Fortin, “The Timeline of the Investigation Stretches Back Years before the Killings.,”

https://www.nytimes.com/2023/01/25/us/murdaugh-murder-trial-timeline.html, January 25, 2023.

Bill Chappell, “A Jury Finds Disbarred Lawyer Alex Murdaugh Guilty in the Deaths of His Wife and Son,”

https://www.npr.org/2023/03/02/1160581579/alex-murdaugh-murder-trial-verdict, March 2, 2023.

sequestered or instructed not to check social media platforms to avoid outside biases from

entering the courtroom. The prevalence of social media makes it difficult to find impartial juries

that have not been exposed to outside information. Simply knowing the public’s opinion for a

case can be enough to bias the jury and, consequently, the verdict. It is crucial that social

media’s role in our society stays out of the courtroom. The interference of social media in legal

proceedings can also cause inequality by creating inconsistencies and exceptions; there are

individuals with cases similar to Aguilera-Menderos whose sentences were not reduced. Social

media amplifies public opinion and can undermine the fairness of legal proceedings.

Moreover, while someone may win a case in court, losing in the court of public opinion

can be much more damaging. One of the most widely publicized recent cases was John C.

Depp, II v. Amber Laura Heard (2022), also known as the “TikTok Trial.”

This was a public

trial that took place from April 11, 2022, to June 1, 2022. Actor Johnny Depp filed suit against

ex-wife Amber Heard for defamation, claiming that an op-ed she wrote—in which she heavily

insinuated that Depp had physically abused her during the time of their marriage—cost him his

role as the lead actor in the Pirates of the Caribbean franchise. Depp sued for $50 million in

damages, and Heard countersued for $100 million in damages.

The live stream of the trial was

watched by millions, with approximately 3.5 million people tuning in for the verdict

announcement live.

Throughout the trial, people on social media showed clear support for

Depp.

In cases involving domestic abuse in heterosexual relationships, public support

typically falls on the woman’s side as 85 percent of domestic violence victims are women.

“11 Facts about Domestic and Dating Violence,” DoSomething.org, 2015.

Id.

Frederick Penney, “A Defamation Case to Remember: Statistics from the Record-Breaking Depp v. Heard Trial,”

https://www.penneylawyers.com/news/a-defamation-case-to-remember-statistics-from-the-record-breaking-depp-v-h

eard-trial/, June 16, 2022.

Id.

Anna Pilgrim, “Depp v. Heard and the Court of Public Opinion,”

https://www.standrewslawreview.com/post/depp-v-heard-and-the-court-of-public-opinion, July 3, 2022.

However, as this trial developed, the public heard testimony from many sources who testified

that Heard was faking her injuries and even claimed that she was the abuser in the

relationship.

These testimonies helped shift public support away from Heard and onto Depp.

At the close of the case, the hashtag #IStandWithAmberHeard only had about 8.2

million views, whereas #JusticeForJohnnyDepp had reached over 21 billion views.

Clips,

video compilations, and memes at Heard’s expense from the trial had spread across social

media by the time the case closed. Even if Heard had won the case, her image in the public eye

was completely destroyed. For someone who makes her living as an actress, any serious

reputation damage can be career ending. Heard’s role in the Aquaman franchise has since been

canceled after a petition amassed over 4.6 million signatures on Change.org to remove Heard

from the Aquaman series.

In this trial, the jury sided with Depp, awarding him $15 million in

damages. In the court of public opinion, Depp was widely supported and by the end of the trial,

about 68 percent of Americans had a favorable perception of Depp.

Heard claimed that she

plans to appeal the verdict, and while she may be granted such an appeal, the court of public

opinion certainly will not.

Overall, this suggests a need for an alternate approach to addressing the impact of public

opinion in the legal system. Better regulation of social media platforms may decrease the

amount of misinformation online and lead to more reliable reasoning for public opinion. A clear

line should be drawn, perhaps by legislation, to determine the situations when it is appropriate

for public opinion to interfere with or overrule judicial decisions. Regardless of the verdicts

Anna Pilgrim, “Depp v. Heard and the Court of Public Opinion.”

Deron Dalton, “DC Fans Petition for Amber Heard to Be Recast in ‘Aquaman 2,’ While Johnny Depp’s

Supporters Push for His Return to ‘Pirates of the Caribbean,’”

https://www.pennlive.com/life/2022/05/dc-fans-petition-for-amber-heard-to-be-recast-in-aquaman-2-while-johnny-d

epps-supporters-push-for-his-return-to-pirates-of-the-caribbean.html, May 5, 2022.

Frederick Penney, “A Defamation Case To Remember: Statistics From The Record-Breaking Depp v. Heard

Trial.”

Andrea Rice and Jennifer Chesak, “5 Domestic Abuse Experts on the Johnny Depp-Amber Heard

Trial,”https://psychcentral.com/news/johnny-depp-amber-heard-mutual-abuse-experts-weigh-in#Depp-v.-Heard:-Do

mestic-abuse-experts-weigh-in, April 28, 2022.

decided in court, the decision in the court of public opinion carries its own consequences. While

one has a right to a fair trial in our legal system, there is no guarantee that they will be granted a

fair trial in the court of public opinion.

References

47 U.S. Code § 230.

Deron Dalton. “DC Fans Petition for Amber Heard to Be Recast in ‘Aquaman 2,’ While

Johnny Depp’s Supporters Push for His Return to ‘Pirates of the Caribbean.’” pennlive, May 5, 2022.

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johnny-depps-supporters-push-for-his-return-to-pirates-of-the-caribbean.html.

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https://www.dosomething.org/us/facts/11-facts-about-domestic-and-dating-violence.

Agrawal, Smriti. “SOCIAL MEDIA and CRIMES: AN ENTANGLED RELATIONSHIP.” The Daily Guardian,

September 27, 2021. https://thedailyguardian.com/social-media-and-crimes-an-entangled-relationship.

Brown, Sara. “MIT Sloan Research about Social Media, Misinformation, and Elections.” MIT Sloan. MIT Sloan

School of Management, October 5, 2020.

https://mitsloan.mit.edu/ideas-made-to-matter/mit-sloan-research-about-social-media-misinformation-and-e

lections.

Chappell, Bill. “A Jury Finds Disbarred Lawyer Alex Murdaugh Guilty in the Deaths of His Wife and Son.” NPR,

March 2, 2023. https://www.npr.org/2023/03/02/1160581579/alex-murdaugh-murder-trial-verdict.

Cohen, Mark A. “Law in the Age of Social Media.” Forbes, 2023.

https://www.forbes.com/sites/markcohen1/2016/11/27/law-in-the-age-of-social-media/?sh.

Cook, Lanie. “Truck Driver’s 110-Year Sentence Dramatically Cut Down.” PIX11, December 30, 2021.

https://pix11.com/news/truck-drivers-110-year-sentence-dramatically-cut-down-after-mill.

Facebook. “Facebook Reports Fourth Quarter and Full Year 2020 Results.” investor.fb.com, January 27, 2021.

https://investor.fb.com/investor-news/press-release-details/2021/Facebook-Reports-Fourth-Quarter-and-Ful

l-Year-2020-Results/default.aspx.

Fortin, Jacey. “The Timeline of the Investigation Stretches Back Years before the Killings.” The New York Times,

January 25, 2023, sec. U.S. https://www.nytimes.com/2023/01/25/us/murdaugh-murder-trial-timeline.html.

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York Times, December 2, 2022, sec. Technology.

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Conviction.” Fox News, March 5, 2023.

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fter-father-alexs-conviction.

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Penney & Associates - Personal Injury Lawyers, June 16, 2022.

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Central, April 28, 2022.

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Domestic-abuse-experts-weigh-in.

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https://www.demandsage.com/social-media-users/.

Wrong Answers: State Bar Moral Character Applications,

Disability Rights Law, and the Legal Field’s Mental Health Question

By Emma Tolliver

Emma Tolliver is a student at the University of California, Davis. She studies Political Science — Public Service

and English. She is currently fulfilling her term as a 2022–2023 research fellow at the UC National Center for Free

Speech and Civic Engagement, where she studies the barriers to student engagement and develops strategies to

increase accessibility. After graduating, Emma plans to attend law school.

The state moral character application is a required component of a bar applicant’s

application to practice law in a given state. The majority of states have at least one question on

their respective bar association’s moral character evaluation that makes an inquiry into the

mental health of the applicant. The legal standing of “the mental health question” is a contentious

issue within the legal community, evident by the investigations into and legal arguments

surrounding the legitimacy of the question. Through a lens of disability rights law, this article

analyzes two cases of litigation pertaining to questions on state bar moral character evaluations

related to the applicant’s mental health: the 2014 Department of Justice investigation of the

Louisiana State Bar and the 2016 Florida Supreme Court advisory opinion. Finally,

recommendations derived from reviewing the litigation are offered, proposing either

institutional-level legal advocacy or amending national policy to address the legal field’s “mental

health question.”

State Bar Moral Character Application

Definition

The moral character application is required for individuals seeking to practice law in a

given state.

It is one of three requirements for an individual to practice law, in addition to the

“The State Bar of California,” www.calbar.ca.gov, accessed October 9, 2021.

Multistate Professional Responsibility Examination (MPRE) and a state’s bar exam.

The

California State Bar defines “good moral character” as including (but not limited to): “honesty,

fairness, candor, trustworthiness, observance of fiduciary responsibility, respect for and

obedience to the law, and respect for the rights of others and the judicial process.”

The moral character application consists of a number of questions pertaining to one’s

background, criminal history if applicable, and civil actions in order to assess the character of a

bar applicant prior to their application to a state bar.

A positive moral character determination by

the state bar is required in order to practice law in said state; therefore, failing to receive a

positive moral character determination disqualifies an applicant from applying to the state bar.

The purpose of the moral character application, as defined by the Conference for Bar Examiners,

“is [to ensure] the protection of the public and the system of justice . . . The public interest

requires that the public be secure in its expectation that those who are admitted to the bar are

worthy of the trust and confidence clients may reasonably place in their lawyers.”

The Moral Character Application in Practice

Applicants submit a written moral character application to the state bar. All questions on

the application must be answered in order for the application to be deemed complete; an

investigation by the state bar is conducted after submission to ensure accuracy.

The burden of

proof of requisite moral character is upon the bar applicant.

The responsibility of full disclosure

is the applicant’s responsibility. If an applicant is unsure about whether to disclose or omit an

Id.

Hadar Aviram, 6.

National Conference of Bar Examiners and American Bar Association: Legal Education and Admissions to the

Bar, “Comprehensive Guide to Bar Admission Requirements National Conference of Bar Examiners American Bar

Association Section of Legal Education and Admissions to the Bar” (2021): 7.

Id.

“The State Bar of California.”

Hadar Aviram,“Moral Character: Making Sense of the Experiences of Bar Applicants with Criminal Records,”

SSRN Electronic Journal (2019): 5, https://doi.org/.

item in their moral character application, state bars tend to encourage disclosure.

Bar examiners

that review moral character applications are instructed to “exhibit courage, judgment, and moral

stamina in refusing to recommend applicants who lack adequate general and professional

preparation or who lack moral character and fitness.”

The Moral Character Application’s Mental Health Question

The bar associations of thirty-nine states and Washington, D.C. include one or more

questions referencing the mental health status of an applicant.

Mental health questions asked by

state bar associations can be categorized into four distinct classifications: mental health

diagnosis, previous and current treatment for mental health, mental health as a defense or

explanation for actions and behavior, and whether there has been previous placement under a

conservatorship.

Eleven states and Washington D.C. use the mental health questions drafted by the

National Conference of Bar Examiners (NCBE): Hawaii, Louisiana, Montana, New Mexico,

North Carolina, North Dakota, Oklahoma, South Dakota, Vermont, West Virginia, and

Wyoming.

The NCBE questions are as follows:

● Diagnosis: “Do you currently have any condition or impairment (including, but not

limited to, substance abuse, alcohol abuse, or a mental, emotional, or nervous disorder or

condition) that in any way affects your ability to practice law in a competent, ethical, and

professional manner? Note: ‘Currently’ means recent enough that the condition or

impairment could reasonably affect your ability to function as a lawyer.”

Id.

American Bar Association, “Mental Health Character & Fitness Questions for Bar Admission,”

www.americanbar.org, December 6, 2022.

National Conference of Bar Examiners and American Bar Association: Legal Education and Admissions to the

Bar, 7.

Id., 5.

● Treatment: “Are the limitations caused by your condition or impairment reduced or

ameliorated because you receive ongoing treatment or because you participate in a

monitoring or support program?”

● Defense/Disciplinary Action: “Within the past 5 years, have you asserted any condition

or impairment as a defense, in mitigation, or as an explanation for your conduct in the

course of any inquiry, any investigation, or any administrative or judicial proceeding by

an educational institution, government agency, professional organization, or licensing

authority; or in 10 connection with an employment disciplinary or termination

procedure?”

States that choose not to adopt all three questions drafted by the NCBE either adopt some of the

NCBE questions or draft their own questions. Some of the questions included in other state bars

include, but are not limited to:

● Diagnosis: “Within the past 5 years, have you been treated for. . .schizophrenia or any

other psychotic disorder, a bipolar disorder, or major depressive disorder, that has

impaired or could impair your ability to practice law? If your answer is ‘yes,’ please (i)

identify each condition for which you received treatment or had a recurrence, (ii) state the

beginning and end dates of any treatment (or state ‘present’ if no end date); (iii) state the

name and address of each professional who treated you; and (iv) identify any medication

that was prescribed to you during treatment. Please direct each treating professional to

provide any information or records that the Board may request regarding treatment,

which includes, without limitation, hospitalization.”

(Florida)

● Diagnosis: “Are you currently, or have you been within the last five years, (a) diagnosed

with or (b) treated for any of the following: Schizophrenia or any other psychotic

disorder, delusional disorder, bipolar or manic depressive mood disorder, antisocial

personality disorder, or any other condition which significantly impairs your behavior,

judgment, understanding, capacity to recognize reality, or ability to function in school,

work, or other important life activities? (If you are uncertain of a diagnosis, it is your

responsibility to check with your treating health care professional.)”

(Kentucky)

● Treatment: “Within the past two years, have you. . .discontinued treatment or medication

for a condition that at any time impaired your ability. . .?”

(Minnesota)

● Treatment: “Within the past five (5) years, have you sought or been directed to seek

treatment for your conduct or behavior?”

(Virginia)

Id.

The remaining states that do not consider a candidate’s mental health status in evaluating their

fitness are Arizona, Illinois, Iowa, Maryland, Massachusetts, Michigan, Mississippi, New York,

Pennsylvania, Tennessee, and Washington.

The historical argument states use to support their usage of questions pertaining to mental

health on the state bar is that the questions are necessary to identify applicants that may lack the

fortitude to be an attorney. States maintain that attorneys who tend to receive ethical complaints

typically suffer from issues stemming from poor mental health or substance abuse issues.

This

position is often refuted by legal professionals, academics in the legal field, and mental health

professionals, who argue that there is a lack of evidence that a diagnosis affects one’s ability to

serve as an attorney.

The 2014 Department of Justice Investigation into the Mental Health Question

Basic Facts

In January 2011, the Judge David L. Bazelon Center for Mental Health Law —henceforth

referred to as the Bazelon Center —filed an administrative complaint with the United States

Department of Justice (DOJ) against the Supreme Court of the State of Louisiana, Louisiana

Committee on Bar Admissions, and Louisiana Office of Disciplinary Counsel.

The complaint

was filed on behalf of an attorney granted “conditional admission” to practice law in the state of

Louisiana based on her answers to the mental health questions on the Louisiana State Bar moral

“Louisiana Bar Conditional Admissions | Bazelon Center for Mental Health Law,” Judge David L. Bazelon Center

for Mental Health Law, accessed December 30, 2022.

Judge David L. Bazelon Center for Mental Health Law, “Bar Examiners Screening for Mental Illness Violates the

ADA,” 2013.

Holcombe, Madeline, “Law Students Say They Don’t Get Mental Health Treatment for Fear It Will Keep Them

from Becoming Lawyers. Some States Are Trying to Change That,” CNN, February 29, 2020.

Id.

character application.

The complaint was filed with the Disability Rights Section of the Civil

Rights Division of the DOJ.

The complaint holds that the Louisiana bar has engaged in a patterned practice of

“routinely imposed conditional admissions” on applicants with mental health diagnoses, despite

a lack of evidence that their mental health would interfere with the applicants’ ability to practice

law.

The complaint asks the DOJ to “[s]ecure an end to Louisiana’s pattern and practice of

subjecting individuals with mental illness to conditional admissions based solely on a diagnosis

of mental illness.”

While the investigation was initiated by a single administrative complaint, the Bazelon

Center filed an additional complaint pertaining to the same issue but on behalf of a different

individual. The complaint initiated an investigation pursuant to Title II of the Americans with

Disabilities Act and Sections 504 of the Rehabilitation Act.

Relevant Laws

Americans with Disabilities Act of 1990

The Americans with Disabilities Act (ADA) is a federal civil rights law that defines

prohibited discrimination against individuals with disabilities. Under the ADA, a disability is

considered to be a:

1. “a physical or mental impairment that substantially limits one or more of the major life

activities of such individual,”

2. “a record of such an impairment,”

3. “being regarded as having such an impairment.”

Id.

108th Congress, “Americans with Disabilities Act of 1990 (Original Text) | U.S. Equal Employment Opportunity

Commission,” 1990, www.eeoc.gov.

Louisiana Bar Conditional Admissions | Bazelon Center for Mental Health Law.”

Id., 7.

“Redacted Title II Complaint,” Judge David L. Bazelon Center for Mental Health Law, January 2011, 6.

Id.

The ADA consists of five titles, and each title specifies requirements for different agencies and

organizations: employment, public (state and local government) services, private (business)

services open to the public, telecommunications, and miscellaneous provisions.

Regarding the administrative complaint, the relevant title is Title II: Public Services.

“Public Services” consists of all programs, activities, and services of state and local

governments; it holds that they must provide people an equal opportunity to benefit from and

participate in all programs, activities, and services.

Under section § 35.130 of Title II, a local

and state government may not “deny a qualified individual with a disability the opportunity to

participate in or benefit from the aid, benefit, or service.”

Rehabilitation Act of 1973

The Rehabilitation Act is a federal law that prohibits discrimination against individuals

with disabilities in federally funded programs and activities.

It primarily consists of rights,

access, and protections for individuals with disabilities. The relevant section, Section 504, states

that “no qualified individual with a disability in the United States shall be excluded from, denied

the benefits of, or be subjected to discrimination under any program or activity which receives

Federal financial assistance.”

It enshrines the rights of individuals with disabilities to

participate in and have access to programs, benefits, and services.

Investigation and Findings

In March 2011, federal prosecutors within the Disability Rights Section of the DOJ

launched an investigation against the Louisiana Supreme Court and bar officials regarding the

“CA Department of Rehabilitation,” n.d., www.dor.ca.gov.

Employer Assistance and Resource Network for Disability Inclusion (EARN), “Rehabilitation Act of 1973 (Rehab

Act),” n.d., askearn.org.

“Americans with Disabilities Act of 1990 (Original Text) | U.S. Equal Employment Opportunity Commission.”

Id.

“Introduction to the Americans with Disabilities Act,” ADA.gov, November 18, 2022.

administrative complaint by the Bazelon Center that alleged that Title II of the ADA had been

violated.

In addition to the two individuals who had complaints filed for them by the Bazelon

Center, five other individuals who had previously been affected by the mental health questions

were identified and interviewed by the DOJ.

In February 2014, the DOJ concluded their investigation and found that the practice of

admission based on answers to and the evaluation of the Louisiana bar moral character

application’s mental health questions “discriminate[d] against individuals on the basis of

disability.”

This finding was based on the DOJ’s conclusion that the evaluation and practice of

admission based on answers to the questions was “based on [disability] stereotypes and

assumptions” and were not necessary to assess the applicants’ fitness to practice law.

The Louisiana Supreme Court was ultimately found to be in violation of Title II of the

ADA. The questions were determined by the investigation to subject people with disabilities to

additional burdens and be ineffective in identifying unfit applicants.

These questions were

considered to be unnecessary by the DOJ when evaluating an applicant’s fitness to become an

attorney because questions related to applicant conduct on the Louisiana moral character

application were deemed sufficient for determining fitness.

The DOJ also found that these

questions are “likely to deter applicants from seeking counseling and treatment for mental health

concerns, which fails to serve the Court’s interest in ensuring the fitness of licensed attorneys.”

Id., 23.

Id., 19–20.

Id., 18.

Id.

Id., 2.

Id., 3.

Jocelyn Samuels and U.S. Department of Justice, Civil Rights Division, “The United States’ Investigation of the

Louisiana Attorney Licensure System pursuant to the Americans with Disabilities Act CDJ No. 204-32M-60,

204-32-88, 204-32-89),” February 5, 2014.

The DOJ investigation additionally found that processes related to the use of the mental

health questions on the Louisiana moral character application violated the ADA. Specifically, the

Louisiana Supreme Court imposed undue and unfounded burden onto applicants with disabilities

by requiring further investigation of applicants who answered affirmatively to the mental health

questions, discriminating against applicants by awarding conditional admissions based primarily

on mental health diagnosis as opposed to behavior and conduct, and failing to protect applicant

confidentiality.

The Louisiana Admission Committee violated the ADA by imposing “intrusive

and onerous conditions of admission upon applicants with disabilities” that made employment as

an attorney more difficult and required a costly and undue financial burden in the form of an

independent psychiatric evaluation.

Settlement

In August 2014, the Louisiana Supreme Court and the DOJ reached an agreement and

settled the case.

The agreement holds that the Louisiana State Bar must refrain from asking

“unnecessary and intrusive questions about bar applicants’ mental health diagnosis or treatment”

and must stop imposing conditional admission to the bar on the basis of an applicant's mental

health diagnosis or treatment.

Applicants will only share their mental health history should they

wish to use it as an explanation for prior conduct.

Additionally, the court was instructed to pay

a total of $200,000 to compensate the seven individuals involved in the DOJ investigation and

who were determined to be affected by the Louisiana bar mental health moral character

questions.

Despite the settlement agreement, the Louisiana Supreme Court denied that they

Id.

“Settlement Agreement between the United States of America and the Louisiana Supreme Court,” August 14,

2014, archive.ada.gov.

David Lee, “Louisiana Supreme Court Settles with USA,” August 19, 2014, www.courthousenews.com.

Id., 28.

Id., 27–28.

discriminated against bar applicants; it maintains that it did not discriminate against applicants

with disabilities or violate Title II of the ADA.

Subsequent Litigation and Current Legal Standing

The current legal standing of mental health questions, as determined by the DOJ in their

2014 letter to the Louisiana state bar, rests on application of the questions. The practice of

admission on the basis of answers to the mental health questions was found to be in violation of

the ADA; it was not the question itself that was in violation.

The way that the mental health

questions were applied by the Louisiana State Bar violated the ADA. This explains why other

states are still permitted to ask questions about mental health.

It is a common misconception that the DOJ found that the violation was because of the

questions themselves, as opposed to the application and evaluation of the answers to the mental

health questions; the legal application of the ADA is often incorrectly understood. Since the state

bar is a licensing agency that is part of the government and not a business, it falls under Title II

of the ADA.

Asking about mental health conditions violates Title III—which states the

requirements of private services, such as businesses—of the ADA.

However, state bar agencies

are not private businesses and are, therefore, beholden to different standards; these

standards—stated in Title II of the ADA—permit government agencies and public services to ask

about the mental health conditions of an individual.

This is evident in subsequent litigation following the 2014 DOJ investigation. In 2016, a

plaintiff in Florida filed a suit against the Florida State Board of Bar Examiners, arguing that the

Board had violated the ADA by asking questions pertaining to the applicant’s mental health.

Jim Rosica, “Mental Health Questions on Florida Bar Application Are Discriminatory, Suit Says,” Florida Politics

- Campaigns & Elections. Lobbying & Government, October 25, 2016.

Id.

“Americans with Disabilities Act of 1990 (Original Text) | U.S. Equal Employment Opportunity Commission.”

Jocelyn Samuels and U.S. Department of Justice, Civil Rights Division.

David Lee, “Louisiana Supreme Court Settles with USA.”

The Florida Supreme Court found in their advisory opinion that the Board asked questions that

were “limited and focused,” did not apply the mental health questions in a discriminatory way,

and evaluated the answers to the mental health questions in a manner that complied with the

ADA.

The Florida Supreme Court denied the plaintiff’s motion and confirmed the findings of

the 2014 DOJ investigation: the application of and evaluation of answers to the mental health

questions can result in the violation of Title II of the ADA, but asking a question pertaining to

mental health conditions does not.

Ultimately, the current standing holds that it is legal for a state bar to inquire into the

mental health diagnosis and treatment of an individual, and it becomes illegal when the inquiry

results in discriminatory actions taken by a state bar.

Recommendations

Based on the circumstances created by the current legal processes, there are two primary

forms of addressing the mental health question: through legal institution advocacy or through

legal amendment.

Legal Institution Actions and Reform

Measures of reform taken by legal institutions may provide a means to address the mental

health question. While many may believe that the primary legal institution that should engage in

advocacy is the American Bar Association, the legal institution that would be the most effective

reformer is the National Conference of Bar Examiners.

In 2015, shortly after the finalization of the settlement between the DOJ and the

Louisiana state bar, the American Bar Association published a report and adopted a policy urging

state bar associations “to eliminate from applications required for admission to the bar any

Id.

Supreme Court of Florida, “Supreme Court of Florida, Case No. SC20-850,” 2021.

questions that ask about mental health history, diagnoses, or treatment and instead use questions

that focus on conduct or behavior that impairs an applicant’s ability to practice law in a

competent, ethical, and professional manner.”

However, as the majority of state bar associations

include one or more questions referencing the mental health status of an applicant, this policy

was not binding and did not result in a change regarding mental health questions for moral

character applications in a majority of states.

A more effective legal institution to enact policy for the purpose of reform is the National

Conference of Bar Examiners (NCBE). The NCBE is a legal institution that assists admission

authorities at different state bar associations, courts, the legal education community and law

schools, and prospective attorneys and provides legal assessments, services, research,

investigations, resources, and programs.

The NCBE holds that they “actively work to eliminate

any aspects of our exams that could contribute to performance disparities among different

groups.”

Opponents of the mental health questions would disagree that the NCBE succeeds in

this work due to the promotion of their drafted mental health questions and the fact that mental

health questions drafted by the NCBE are currently used in moral character applications in

eleven states and Washington, D.C.

If the NCBE were to declare that they no longer recommend state bar associations ask

questions regarding an applicant’s mental health history and request that states no longer use

their drafted questions related to the mental health diagnosis, history, and treatment of an

applicant, states using the NCBE-drafted mental health questions would have to remove those

National Conference of Bar Examiners, “Diversity, Fairness, and Inclusion,” NCBE, accessed January 12, 2023,

https://www.ncbex.org/about/diversity-fairness-and-inclusion/.

National Conference of Bar Examiners, “About NCBE,” NCBE, accessed January 12, 2023,

https://www.ncbex.org/about/.

American Bar Association, “Mental Health Character & Fitness Questions for Bar Admission.”

Frederick Vars, “Dangerous and Discriminatory: Mental Health Questions on Bar Applications,” www.jurist.org,

September 9, 2022, https://www.jurist.org/commentary/2022/09/frederick-vars-mental-health-questions-bar/.

questions accordingly. This may lead to states removing questions pertaining to an applicant’s

mental health entirely rather than drafting their own replacement questions.

Additionally, if the NCBE were to produce a policy similar to the American Bar

Association’s policy regarding the discouragement of mental health questions on state bar moral

character applications, there would be alignment on the viewpoint held about mental health

questions by important legal institutions. The American Bar Association and the NCBE are the

two most prominent legal institutions in America; if they both held similar stances on the mental

health question, members of the legal field may take cues from these institutions and reevaluate

whether mental health questions should be included on moral character applications. As a widely

accredited legal institution that has a history of promoting the mental health question, action by

the NCBE has the potential to propose a resolution regarding the conflict of the mental health

question.

Legal Amendment

Conversely, legal amendment may prove to be an efficient and effective means to resolve

the legal field’s mental health question. The policy subject to amendment would be the

Americans with Disabilities Act. The ADA Amendments Act of 2008 was signed to clarify the

definition of disability under the ADA.

While this would be considered a legal amendment to

the ADA, it was signed into law as its own policy.

To address the mental health question, a policy could amend the ADA to apply the same

protection requirements regarding inquiry into mental health conditions listed in Title III for

private businesses to Title II for government agencies and services. If this were to become policy,

Joseph Sassi, “Important Changes to the ‘Americans with Disabilities Act,’” 2008,

https://hr.uconn.edu/wp-content/uploads/sites/1421/2020/03/Important-Changes-to-the-ADA.pdf.

U.S. Equal Employment Opportunity Commission, “ADA AMENDMENTS ACT OF 2008 | U.S. Equal

Employment Opportunity Commission,” www.eeoc.gov, September 25, 2008,

https://www.eeoc.gov/statutes/ada-amendments-act-2008.

government agencies—and therefore state bar associations—would be violating the ADA if they

were to ask about the mental health conditions of applicants. By passing an act amending the

ADA to provide the same mental health inquiry protections by both private and public

institutions, the issue surrounding the mental health question would be resolved. The legal

standing of the question would be made unambiguous across the nation because the amending

act would make it clear that mental health questions on moral character applications would

violate federal law.

Conclusion

Despite the controversy surrounding the mental health question—particularly in the last

decade—the majority of bar associations still include some form of mental health question on

their moral character applications required for admission to the state bar. The 2014 investigation

and 2016 opinion suggest that the mental health question could emerge as a major legal issue

subject to significant litigation in the near future.

In spite of the emergence of the controversy, the legal standing of the mental health

question is widely misunderstood. The language and scope of the ADA only protects against

improper application and evaluation of the answers to mental health questions on state bar moral

character applications; it does not protect against the questions being asked to begin with.

To resolve the issues surrounding the mental health question and to protect prospective

lawyers with disabilities pertaining to their mental health, there seem to be two potential

solutions, either that:

I. The National Conference of Bar Examiners, as a prominent American legal

institution:

A. Rescinds their former support of the mental health question in state bar

moral character applications,

B. Opposes the usage of their drafted mental health questions for state bar

moral character applications,

C. Writes a formal policy modeled after the American Bar Association’s

policy discouraging the usage of mental health questions in moral

character applications; or,

II. An act be passed to legally amend the Americans with Disabilities Act in order to

apply the Title II mental health inquiry protections granted to individuals by

private institutions to Title III, resulting in mental health inquiry protections being

granted to individuals by government agencies, public services, and state and

local offices.

Ultimately, the current landscape of state bar questionnaires creates a situation in which

prospective attorneys with mental health diagnoses and treatments are made to feel that they only

have wrong answers to the mental health question.

References

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Acknowledgments

This journal would not have been possible without the support and generosity of our partners.

Volume III was developed with the support of the University of California National Center for

Free Speech and Civic Engagement. On behalf of Davis Journal of Legal Studies, we thank them

sincerely for their investment and support in advancing public understanding, legal research, and

undergraduate scholarship.

We would also like to note our appreciation for Dr. Lauren Young, Kate Stephensen, and Claudia

Guerrero, who provided early support and encouragement necessary to undertake this project.

J O U R N A L O F L E G A L S T U D I E S