Who Gets the Car, the House, and the Embryos?

Rosenberger, Jeff Headshot.jpgThis post was written by Associate Editor, Jeffrey Rosenberger.  The views and opinions expressed herein are those of the author alone.

When a couple gets a divorce and are unable to agree on the division of marital assets, state courts are usually able to equitably divide assets without much fanfare. After all, most people probably do not have a significant emotional investment in a car or a couch. However, technology has created a new marital asset, the frozen embryo, that is causing couples to go to war and leaving courts and legislatures searching for a way to resolve these disputes equitably.[1] In vitro fertilization (IVF) has enabled couples to create and store frozen embryos using their own eggs and sperm for future implantation and gestation.[2] This is a great benefit to couples who are unable to conceive naturally but it is also used in cases where one partner will be undergoing cancer treatment.[3] Cancer treatments can harm fertility or even cause sterility, so some couples will choose to preserve frozen embryos to ensure a chance at having healthy children.[4] However, when a couple divorces, the difficult question of who, if anyone, should be granted rights to any unused frozen embryos must be decided.

The majority of courts that have addressed the disposition of frozen embryos in divorce proceedings have applied a contract approach.[5] This approach simply asks whether the couple had a valid written agreement, either between themselves, or between them and the fertility clinic, that speaks to the disposition of the frozen embryos after a divorce.[6] If there is a valid agreement, the court will follow it.[7] The contract approach is often justified because it gives the affected parties control over the intimate decision of whether to procreate or not.[8] In theory, it should also lead to more people seriously considering this issue when undergoing IVF treatment and executing agreements accordingly to avoid litigation.[9]

If a couple does not have a valid agreement in place, the courts will often turn to a balancing of the interests test to determine the disposition of the embryos.[10] With the balancing test, courts often put significant weight on a party’s right not to procreate and normally this right prevails, except in cases where the party seeking the embryos is incapable of conceiving.[11] For example, the Superior Court in Pennsylvania awarded frozen embryos to a spouse that was no longer able to conceive over the objections of her husband.[12] The Court reasoned that the husband’s fear of being responsible for child support and his personal experience as an adopted child who did not know his genetic parents were not significant enough to outweigh the fact that his wife would likely never have children without the embryos.[13]

The balancing test provides the benefit of evaluating each case on an ad-hoc basis, which allows courts to consider the specific interests and concerns of each party. However, it also requires litigation, and all of the associated costs, to resolve every dispute. Nevertheless, the balancing test seems to be the approach that most states are taking when the contract approach is unavailable, with the Colorado Supreme Court most recently following suit.[14]

However, while the trend is for most state courts to adopt the contract and balancing approaches to the disposition of frozen embryos, some courts have rejected these approaches.[15] Both Iowa and Missouri courts have adopted the contemporaneous mutual consent approach.[16] The contemporaneous mutual consent approach requires that both parties must agree on the disposition of the frozen embryos or the status quo will remain.[17] Effectively, this means that the party who does not want to procreate always prevails. While this ensures the protection of the right not to procreate, the approach has been criticized because it can create an unfair bargaining chip and allow one party to hold the embryos hostage in a divorce negotiation.[18] Therefore, it is not likely to become a majority approach.

Overall, the judicially created solutions to this issue are the correct approach. The contract approach respects the decisions of couples who plan for the disposition of embryos via contract and the balancing approach is an equitable solution when a valid agreement has not been executed.

In the face of this trend of judicial adoption of the contract and balancing approaches, one state legislature, unhappy with the results of a balancing approach, decided to force procreation by statute.[19] The Arizona Legislature passed Senate Bill 1393 to prevent Arizona courts from applying the contract approach, the balancing approach, or even the contemporaneous mutual consent approach.[20] The statute requires courts to “award the in vitro human embryos to the spouse who intends to allow the in vitro human embryos to develop to birth.”[21] The statute prevents courts from performing any balancing of the interests approach and also explicitly overrides any valid agreement the parties may have regarding the disposition of the embryos.[22] Thus, every couple in Arizona who stores frozen embryos must assume the risk that those embryos could be implanted and gestated despite a valid agreement. In effect, a decision to create a frozen embryo in Arizona is a perpetual consent to procreate. It remains to be seen if the statute will survive an inevitable court challenge, but it marks a striking departure from the judicially created approaches that have been gaining traction to date. Hopefully, it will not be one that is emulated by any other states.


[1] See e.g. Andrew Fies, Divorced Couple Take Their Fight Over Frozen Embryos to Colorado Supreme Court, ABCNews (Jan. 10, 2018), https://abcnews.go.com/US/divorced-couple-fight-frozen-embryos-colorado-court/story?id=52270585.

[2] In Vitro Fertilization (IVF), Mayo Clinic, https://www.mayoclinic.org/tests-procedures/in-vitro-fertilization/about/pac-20384716 (last visited Nov. 18, 2018).

[3] Fertility Preservation: Understand Your Options Before Cancer Treatment, Mayo Clinic, https://www.mayoclinic.org/healthy-lifestyle/getting-pregnant/in-depth/fertility-preservation/art-20047512 (last visited Nov. 18, 2018).

[4] Id.

[5] Sarah H. Loy, Note, Responding to Reber: The Disposition of Pre-embryos Following Divorce in Pennsylvania, 122 Penn St. L. Rev. 545, at 552 (2018).

[6] Id. at 553.

[7] Id.

[8] See e.g. Szafranski v. Dunston, 993 N.E.2d 502, 515 (Ill. App. Ct. 2013).

[9] Id.

[10] In Re Marriage of Rooks, No. 16SC906, 2018 WL 5316404, at *8 (Colo. Oct. 29, 2018).

[11] See Szafranski v. Dunston, 34 N.E.3d 1132, 1162 (Ill. App. Ct. 2015)(citing Reber v. Reiss, 42 A.3d 1131, 1142 (Pa. Super. Ct. 2012); Davis v. Davis, 842 S.W.2d 588, 604 (Tenn. 1992)).

[12] Reber v. Reiss, 42 A.3d 1131, 1142 (Pa. Super. Ct. 2012)

[13] Id. at 1140.

[14] In Re Marriage of Rooks, No. 16SC906, 2018 WL 5316404, at *8 (Colo. Oct. 29, 2018).

[15] In re Marriage of Witten, 672 N.W.2d 768, 783 (Iowa 2003); McQueen v. Gadbury, 507 S.W.3d 127, at 157 (Mo. Ct. App. 2016).

[16] Id.

[17] Sarah H. Loy, Note, Responding to Reber: The Disposition of Pre-embryos Following Divorce in Pennsylvania, 122 Penn St. L. Rev. 545, at 557 (2018).

[18] Id.

[19] Alexa Lardieri, Arizona Law Awards Custody of Embryos to Partner Who Wants Child After Divorce, USNews & World Report (July 19, 2018), https://www.usnews.com/news/politics/articles/2018-07-19/arizona-law-awards-custody-of-embryos-to-partner-who-wants-child-after-divorce.

[20] Ariz. Rev. Stat. Ann. §25-318-03 (2018).

[21] Id.

[22] Id.


Will FOSTA’s Good Intentions Break the Internet?

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This post was written by Associate Editor, Brittany Wright.  The views and opinions expressed herein are those of author alone.

  • The Communications Decency Act of 1996


In the early stages of the internet, the United States Congress (“Congress”) enacted the Communications Decency Act of 1996 (“CDA”) to promote the development of the internet and allow websites to be unfettered by government regulation.[1] More importantly, CDA §230 offered an immunity provision to websites acting as distributors of content.[2] Prior common law did not allow such immunities and websites were liable for third party postings.[3] Along with the rapid growth of the internet came bad actors who abused the immunities of CDA §230 to sell the services of sex trafficking victims.

Backpage.com (“Backpage”) was a free, online classified advertising website that allowed listings by third party sellers, including an adult entertainment page.[4] This page contained revealing and suggestive pictures of sex workers and escorts accompanied by offered “services.” However, among these advertisements were children and other victims forced or coerced into sex trafficking. Three victims who were age fifteen when they were advertised brought suit against Backpage.[5] Their traffickers posted advertisements on Backpage, which led the three victims to be raped collectively over 1,900 times.[6] Backpage used the immunity of CDA §230 as a defense, claiming it was not liable for user content.[7] The First Circuit agreed with Backpage,[8] however, it suggested that Congress amend CDA §230.[9] Backpage also successfully stopped state legislation criminalizing the advertisement of commercial sexual abuse of minors.[10]

In J.S. v. Village Voice Media Holdings, three minors brought a tort action against Backpage and its parent company claiming it was an active participant in their sex trafficking.[11] Backpage again moved to dismiss the case because state law was preempted by the immunity of CDA §230.[12] The plaintiffs argued that CDA §230 immunity did not apply.[13] Backpage posted rules that assisted pimps in creating advertisements for minors without detection by law enforcement.[14] The court rationalized that Backpage did not simply host the advertisements, but helped develop the content through its posting rules.[15] Therefore, the Washington Supreme Court found that CDA §230 immunity did not apply because it assisted with creating the illegal content.[16]

  • Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”)


Congress responded to Backpage’s evasion of liability by passing the House of Representatives’ Allow States and Victims to Fight Online Sex Trafficking Act of 2017 (“FOSTA”),[17] and its Senate equivalent Stop Enabling Sex Traffickers Act of 2017 (“SESTA”).[18] When the CDA was amended in 1996, Congress did not intend for websites like Backpage to be immune from liability.[19] Therefore, FOSTA amended CDA §230 so websites were liable for promoting or facilitating prostitution and for recklessly disregarding sex trafficking.[20]

FOSTA passed through Congress with an overwhelming majority in its favor.[21] However, prior to enactment, not everyone supported FOSTA. Critics argued that FOSTA discouraged internet freedom by holding websites liable for third party posts. For example, if a user posted a sex trafficking advertisement on Reddit or Facebook, the social media platform could be criminally and civilly liable. One of the two opposing Senators of FOSTA, Ron Wyden, believed that FOSTA would deter startups from creating websites without the protection of CDA §230.[22]

On behalf of the Department of Justice (“DOJ”), the Assistant Attorney General, Stephen Boyd, informed Congress that FOSTA would make it difficult to prosecute traffickers.[23] Additionally, the DOJ objected to FOSTA applying retroactively.[24] It argued that the bill violated the Ex Post Facto Clause of the Constitution by imposing punishment on acts that were legal when they occurred.[25]

Many pro-speech and pro-internet advocacy groups criticized FOSTA. The American Civil Liberties Union asserted that FOSTA would hinder online freedom of expression and innovation.[26] It argued that current laws will amply punish traffickers without the support of FOSTA.[27] The Electronic Frontier Foundation (“EFF”) identified the biggest issue for websites with FOSTA’s enactment would be the difficulty of determining whether a post created an advertisement for sex trafficking.[28] EFF also raised the same constitutional issues as DOJ.[29] It joined a lawsuit pro hac vice, challenging the constitutionality of FOSTA and sought a preliminary injunction to prevent its enforcement.[30] The court rejected the argument and dismissed the case.[31]

  • The End of the Internet as We Know It?


For over twenty years, CDA §230 offered protection and immunity to websites for user content and survived much scrutiny. CDA §230’s liability immunity allowed the explosion of the internet and social media websites without fear of civil or criminal liability for user content. Although FOSTA is good intentioned, it could have unintended consequences. It will likely increase frivolous lawsuits with its vague wording.[32] Additionally, the possibility of civil and criminal liability may make the next social media phenomenon reconsider launching its new app or website that contains user content

FOSTA “poses a risk to freedom of speech on the Internet as we have come to know it while purporting to solve a problem that could be addressed in other ways.”[33] An alternative to FOSTA is to allow courts to hold bad actors liable for acting outside of the scope of CDA §230 by actively promoting or facilitating sex trafficking.[34] Before FOSTA was signed into law, the DOJ charged Backpage principals in a ninety-three count indictment.[35] Also, Backpage.com can no longer be accessed because on April 6, 2018, federal and state agencies seized it as part of an enforcement action.[36]

[1] 47 U.S.C. §§ 230 (b) (2)-(3).

[2] 47 U.S.C. §§ 230 (c).

[3] Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991); Stratton Oakmont v. Prodigy Servs., No. 31063/94, 1995 N.Y. Misc. LEXIS 229 (NY Sup. Ct. May 24, 1995).

[4] Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 16 (1st Cir. 2016)cert. denied137 S. Ct. 622 (2017).

[5] Id. at 17

[6] Id.

[7] Id. at 18.

[8] Id. at 29; see also M.A. v. Vill. Voice Media Holdings, 809 F. Supp. 2d 1041 (E.D. Mo. 2011).

[9] Jane Doe No. 1, 817 F.3d at 29.

[10] Backpage.com, LLC v. McKenna, No. C12-954 RSM, 2012 U.S. Dist. LEXIS 134216, at *3-4 (W.D. Wash. Sep. 18, 2012) (Senate Bill 6251); Backpage.com, LLC v. Cooper, No. 3:12-654, 2013 U.S. Dist. LEXIS 43852 (M.D. Tenn. Mar. 27, 2013) (Tenn. Code Ann. § 39-13-315); Backpage.com, LLC v. Hoffman, No. 13-3952 DMC-JAD, 2013 U.S. Dist. LEXIS 119811 (D.N.J. Aug. 20, 2013)(N.J. Stat. Ann. § 2C:13-10(b)(1)).

[11] J.S. v. Vill. Voice Media Holdings, LLC, 359 P.3d 714, 716 (Wash. 2015).

[12] Id.

[13] Id.

[14] Id.

[15] Id. at 717-18.

[16] Id. at 718.

[17] Allow States and Victims to Fight Online Sex Trafficking Act of 2017, H.R. 1865, 115th Cong. §5 (2018) [hereinafter “FOSTA”].

[18] Stop Enabling Sex Traffickers Act of 2017 (SESTA), S. 1693, 115th Cong. (2018).

[19] FOSTA, supra.

[20] Id. at §2.

[21] Id.

[22] 164 Cong. Rec. S1849 (daily ed. Mar. 21, 2018) (Statement of Sen. Wyden); Press Release, Ron Wyden, United States Senator for Oregon, Wyden Issues Warning About SESTA (Nov. 8, 2017).

[23] 164 Cong. Rec. S1849 (letter from Assistant A.G. Stephen Boyd).

[24] Id.

[25] Id.; U.S. Const. art I, 9, cl. 3.

[26] American Civil Liberties Union, ACLU.org, ACLU Vote Recommendation To Congress: Oppose H. R. 1865 – The “Allow States And Victims To Fight Online Sex Trafficking Act” (FOSTA), (Feb. 26, 2018), https://www.aclu.org/letter/aclu-vote-recommendation-congress-oppose-h-r-1865-allow-states-and-victims-fight-online-sex

[27] Id. at p. 3.

[28] Elliot Harmon, EFF.org, Amended Version of FOSTA Would Still Silence Legitimate Speech Online, https://www.eff.org/deeplinks/2017/12/amended-version-fosta-would-still-silence-legitimate-speech-online (Dec. 11, 2017).

[29] Id.

[30] Woodhull Freedom Found. v. United States, No. 18-1552, 2018 U.S. Dist. LEXIS 163292, at *36 (D.D.C. Sep. 24, 2018).

[31] Id. at *2.

[32] See Igbonwa v. Facebook, Inc. 2018 U.S. District LEXIS 173769 (N.D. Cal. Oct. 9, 2018) (Plaintiff sues Facebook and Mark Zuckerberg because people using fake profiles harassed him on Facebook. Plaintiff used FOSTA and cited “An Act [t]o amend the Communications Act of 1934 to clarify that section 230 of such Act does not prohibit the enforcement against providers and users of interactive computer services of Federal and State criminal and civil law relating to sexual exploitation of children or sex trafficking, and for other purposes.” (emphasis in original)).

[33] American Civil Liberties Union, supra note 27.

[34] See e.g. J.S. v. Vill. Voice Media Holdings, LLC, 359 P.3d 714 (Wash. 2015).

[35] Press Release 18-463, Elizabeth Strange, First Assistant United States Attorney, Backpage’s Co-founder and CEO, As Well As Several Backpage-Related Corporate Entities, Enter Guilty Pleas (April 12, 2018).

[36] http://www.backpage.com/; Press Release 18-427, U.S. Dep’t of Justice, Justice Department Leads Effort to Seize Backpage.Com, the Internet’s Leading Forum for Prostitution Ads, and Obtains 93-Count Federal Indictment (Apr. 9, 2018).

An Examination of Two Upcoming Death Penalty Cases at this Term

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This post was written by Senior Editor, Josh Kemme.  The views and opinions expressed herein are those of the author alone.

           The legality and morality of the use of capital punishment on convicted criminals has long been a subject of much debate and controversy in American jurisprudence. Once a common type of punishment that could be imposed on offenders for a multitude of various infractions, the death penalty today has been abandoned by an increasing number of states. Most recently, Washington became the twentieth state (along with the District of Columbia ) to abolish the death penalty in October 2018.[1] However, although the use of the death penalty has declined over the years, capital punishment remains a viable sentencing option in thirty U.S. states, including Kentucky, Ohio, and Indiana.[2]

With the exception of a four-year moratorium in place from 1972 to 1976, the Supreme Court of the United States has yet to strike down the death penalty as unconstitutional in all cases, although it has placed many substantive restrictions on its use in certain cases.[3] The Court has agreed to review two particular death penalty cases this term that will require the Court to determine whether further restrictions should be placed on the use of capital punishment in cases where the offender suffers from a particular mental or physical condition.[4] The defendants in both cases, Vernon Madison and Russell Bucklew, argue that the use of the death penalty on them would constitute cruel and unusual punishment in violation of the Eighth Amendment, though their reasonings as to why differ.

Vernon Madison was convicted and sentenced to death for shooting and killing an Alabama police officer in 1985.[5] After a lengthy series of trials, reversals, retrials, and convictions, Madison was finally scheduled to be executed in May of 2016.[6] In January of 2016, however, Madison suffered a stroke that caused him to develop vascular dementia, multiple physical impairments, and significant memory loss.[7] As a result of his condition, Madison no longer has any memory of committing the offense for which he was convicted and sentenced to death.[8] Madison argues that, due to his significant cognitive decline, he is no longer competent to be executed because he lacks a rational understanding of why he is being punished and put to death.[9] Madison contends that execution in such circumstances would violate the protections afforded to him by the Eighth Amendment’s prohibition against cruel and unusual punishment. The Court stayed Madison’s execution in January 2018 and agreed to hear oral arguments on behalf of Vernon Madison and the State of Alabama.[10]

The Court has also agreed to review the case of Russell Bucklew, who was convicted and sentenced to death by a Missouri trial court for kidnapping and raping his ex-girlfriend and murdering his ex-girlfriend’s roommate in 1996.[11] Bucklew was scheduled to be put to death by lethal injection in 2014, but his execution was stayed because of concern that Bucklew’s unique medical condition would complicate his execution and cause him to suffer “severe pain and needless suffering.”[12] Bucklew suffers from a rare condition known as cavernous hemangioma, which restricts the blood flow in the peripheral veins in his arms and hands, causing blood vessels and tumors to grow in and around Bucklew’s throat.[13] Medical experts determined that Bucklew’s condition creates a significant risk that the lethal drug to be injected into Bucklew would not circulate properly, causing Bucklew to be conscious and in severe pain during his execution. Due to the blood tumors in Bucklew’s neck and throat, medical personnel also concluded that Bucklew would likely choke on his own blood and be unable to breathe for up to four minutes.[14]

Bucklew challenged the lethal injection protocol to be used during his execution, arguing that it would constitute “cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments as applied to him because of his unique medical condition.”[15] The Eighth Circuit Court of Appeals rejected Bucklew’s challenge, concluding that he failed to satisfy the two-pronged test that an offender challenging the method of execution to be used against him must satisfy:[16] (1) that the method of execution “presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers;” and (2) the challenger must “identify an alternative [method of execution] that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.”[17] The Eighth Circuit acknowledged the possibility that lethal injection would cause Bucklew to experience severe pain during his execution, but concluded that Bucklew’s proposed alternative method of execution (death by lethal amounts of the nitrogen gas) would not substantially reduce the amount of pain that Bucklew would experience.[18] Bucklew petitioned to the Supreme Court, which granted certiorari on April 30, 2018.[19]

The Court has heard oral arguments from counsel for both defendants. It is too early to tell what the Court’s position will be in either case, but news reports suggest that the justices are sharply divided in both cases.[20] Although the Court’s ultimate conclusion in either case will by no means end the death penalty debate among the states, it will serve as a good indicator of what to expect with regard to the death penalty’s continued existence. The Court’s allowance of either Vernon Madison or Russell Bucklew to be executed would serve as a victory to the states, supporting the continued viability of the death penalty even for defendants with mental or physical defects such as Madison and Bucklew. A finding of unconstitutionality would demonstrate the death penalty’s increasing vulnerability and serve as a further restriction on the use of capital punishment. The Supreme Court is set to decide on the issues by term’s end in June 2019.



[1] State v. Gregory, 427 P.3d 621, (Wash. 2018).

[2] Shayanne Gal & Michelle Mark, Washington State’s Supreme Court just tossed out its death penalty- here are the states that still have the power to execute prisoners, Business Insider (Oct. 11, 2018), https://www.businessinsider.com/states-with-the-death-penalty-america-2018-3.

[3] See Furman v. Georgia, 408 U.S. 238 (1972) (holding that the use of the death penalty was being unconstitutionally imposed on convicted African American defendants at a disproportionate and arbitrary rate, and placing a temporary moratorium on the use of the death penalty until state legislatures could address the problem); Gregg v. Georgia, 428 U.S. 153 (1976) (reinstating the death penalty).

[4] Madison v. Alabama, 138 S.Ct. 943 (2018) (Mem); Bucklew v. Precythe, 138 S.Ct. 1706 (2018) (Mem).

[5] Dunn v. Madison, 138 S.Ct. 9, 10 (2017).

[6] Petition for a Writ of Certiorari at 4, Madison v. State of Alabama, No. 17-7505 (U.S. Jan. 18, 2018).

[7] Id. at 1.

[8] Id.

[9] Id. at 2. See Panetti v. Quarterman, 551 U.S. 930 (2007) (holding that an offender sentenced to death is incompetent to be executed under the Eight Amendment where the offender is unable to rationally comprehend the seriousness of his crime and the connection between the crime committed and the punishment to be inflicted on the offender).

[10] Madison v. Alabama, 138 S.Ct. 943 (2018) (Mem).

[11] Bucklew v. Luebbers, 436 F.3d 1010 (8th Cir. 2006). Bucklew was also convicted of first-degree murder, kidnapping, forcible rape, burglary, and armed criminal action. Id. at 1014.

[12] Bucklew v. Precythe, 883 F.3d 1087, 1090 (8th Cir. 2018).

[13] Id.

[14] Id.

[15] Id. at 1089.

[16] Id. at 1091 (“Glossip and Baze established two requirements for an Eighth Amendment challenge to a method of execution.”).

[17] Glossip v. Gross, 135 S.Ct. 2726, 2737 (2015).

[18] Bucklew v. Precythe, 883 F.3d 1087, 1096 (8th Cir. 2018).

[19] Bucklew v. Precythe, 138 S.Ct. 1706 (2018) (Mem).

[20] Supreme Court Hears Argument in Missouri Lethal-Injection Case, Death Penalty Information Center (Nov. 6, 2018), https://deathpenaltyinfo.org/category/categories/facts/us-supreme-court.

The False Claims Act and the Rule 9(b) Requirement

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This post was written by Lead Articles Editor, Tarah Remy.  The views and opinions expressed herein are those of the author alone.

In 1863, Congress enacted the False Claims Act (FCA) to combat fraud by suppliers of goods against the Union Army during the Civil War.[1] In the past, the main culprits were “government insiders” purchasing weapons for the army, however, today the main offenders are corporations committing procurement fraud through government contracts.[2] The primary industries affected are “the defense industry, Medicare, and Medicaid Reimbursements.”[3] Today the FCA continues to be the government’s best line of defense against those intending to defraud the Federal Treasury.[4]

Along with being a line of defense, the FCA works as an incentive benefiting private citizens (relators) by encouraging them to bring fraudulent acts to light. [5] This type of lawsuit is called a qui tam action, a type of whistle blower lawsuit brought under the FCA.[6] In these lawsuits, relators receive a cut in successful suits where the government recovers the stolen funds.[7] As an anti-fraud statute, claims brought under the FCA should comply with Fed R. Civ. Pro. 9(b)[8] which states the following: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake . . .”[9] However, the courts have yet to determine what level of specificity is required under this rule when alleging FCA claims.[10] For example, the Fourth, Sixth, Eighth, and Eleventh Circuits require a plaintiff “show ‘representative samples’ of the ‘alleged fraudulent conduct, specifying time, place, and content of the acts and the identity of the actors.’”  In contrast, the First, Fifth, Ninth, and now Third Circuit in the Fogila[11] decision, hold that Rule 9(b) requires a plaintiff show “particular details of a scheme to submit false claims paired with reliable indicia that lead to a strong inference that claims were actually submitted.” [12]

United States ex rel. Doe v. Jan-Care Ambulance Serv., Tri-State Div. provides an example of the strict specificity requirement followed by the Sixth Circuit.[13] In this case, two ambulance companies bid for a contract with the Department of Veterans Affairs (VA); Trans-Star Ambulance Service, a Kentucky company, and Jan-Care Ambulance Service, a West Virginia company. Jan-Care won the contract and hired Trans-Star to conduct transports in Kentucky.[14] However, after some time Jan-Care began performing the Kentucky transports itself.[15] Trans-Star sued Jan-Care and claimed Jan-Care was in violation of the FCA by filing false or fraudulent claims with the VA.[16] Specifically, Trans-Star states that Jan-Care must have a license to transport in Kentucky, something it alleges Jan-Care did not have and by asking the VA to pay money owed under their contract, Jan-Care was violating the FCA. Trans-Star does not identify a single false claim or even an alleged falsely claimed invoice. The court does point out that Trans-Star identified three instances where Jan-Care transported without a Kentucky license and therefore infers that Jan-Care must have asked the VA for payment.[17] The court held that “merely alleging that false claims ‘must have been submitted’ does not meet Rule 9(b)’s standard. Trans-Star provides no ‘concrete facts’ about when Jan-Care allegedly submitted these allegedly fraudulent claims to the government.”[18] Therefore, Trans-Star “fails to plead its FCA claims with particularity . . .”[19]

On the other hand, United States ex rel. Grubbs v. Ravikumar Kanneganti, provides an example of the lenient specificity requirement followed by the Fifth Circuit.[20] In this case, two doctors told their employee about their fraudulent billing scheme and told him how he could contribute to the scheme.[21] The court found that the employee did not need the exact dollar amounts, etc., to prove that the fraudulent bills were actually submitted.[22] The court needs only proof that the fraud occurred, not of the exact contents. The court also found that the employee provided “simple, concise, and particular allegations of the making of a false record or statement for payment by the government [and that] the employee sufficiently stated conspiracy claims against the two doctors.”[23]

The two viewpoints outlined above have allowed for much discussion and concern. With the lenient requirements, some worry relators are “forum shopping” and bringing frivolous claims against corporations. However, how might corporations take advantage of courts maintaining the stricter standard applied by the Fourth, Sixth, Eighth, and Eleventh Circuits? These circuits, as mentioned above, require “representative samples,” or actual examples of the alleged fraud. For example, the Sixth Circuit requires “concrete facts” to bring a FCA claim.[24] Making it harder to bring a claim exposing fraudulent behavior may go against the policy behind the very enactment of the False Claims Act. Valid cases of fraud may be thrown out for simply lacking “concrete facts.” However, the strict standard may encourage relators to dive deeper and obtain evidence before bringing claims. Either way, it will be interesting to see what courts determine should be the uniform requirement.

[1] Federal False Claims Act and Qui Tam Litigation § 2.01

[2] Id.

[3] Id.

[4] Id.

[5] Black’s Law Dictionary (10th ed. 2014), available at Westlaw BLACKS.(qui tam action (kee-tam or kwI tam) [Latin qui tam pro domino rege quam pro se ipso in hac parte sequitur “who as well for the king as for himself sues in this matter”] (18c) An action brought under a statute that allows a private person to sue for a penalty, part of which the government or some specified public institution will receive.)

[6] Lawrence J. Tabas, Benjamin Waters, Supreme Court Punts on False Claims Act Specificity Requirement, Health Law: News, Commentary & Insights (May 1, 2018), https://www.healthlawgurus.com/2018/05/supreme-court-punts-false-claims-act-specificity-requirement/

[7] Id.

[8] United States ex rel. Ryan v. Endo Pharm., Inc., 27 F. Supp. 3d 615, 623 (E.D. Pa. 2014) (“The Federal Rules of Civil Procedure usually require only that a plaintiff present ‘a short and plaint statement’ of his or her claim. See Fed. R. Civ. P. 8(a). However, the Rules demand that ‘in alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake,’ though malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally. Fed. R. Civ. P. 9(b). Since FCA claims inherently involve some ‘false’ or ‘fraudulent’ conduct, it seems appropriate that some level of more particularized pleading is required.”)

[9] Fed. R. Civ. Pro. 9(b)

[10] United States ex rel. Ryan v. Endo Pharm., Inc., 27 F. Supp. 3d 615, 623 (E.D. Pa. 2014)

[11] United States ex rel. Ryan v. Endo Pharm., Inc., 27 F. Supp. 3d 615, 623 (E.D. Pa. 2014) citing Foglia v. Renal Ventures Mgmt., LLC, No. 12-4050, 2014 U.S. App. LEXIS 10549 (3d Cir. June 6, 2014) (Third Circuit rejects the strict standard applied by the Fourth, Sixth, Eighth and Eleventh Circuits “reasoning that requiring ‘representative samples’ would be ‘one small step shy of requiring production of actual documentation with the complaint, a level of proof not demanded to win at trial and significantly more than any federal pleading rule contemplates.’”).

[12] United States ex rel. Ryan v. Endo Pharm., Inc., 27 F. Supp. 3d 615, 623 (E.D. Pa. 2014)

[13] Jan-Care Ambulance Serv., Tri-State Div., 187 F. Supp. 3d 786 at 791

[14] Id.

[15] Id.

[16] Jan-Care Ambulance Serv., Tri-State Div., 187 F. Supp. 3d 786 at 791

[17] Id.

[18] Id. at 793.

[19] Id.

[20] Ravikumar Kanneganti, 565 F.3d 180

[21] Id. at 184

[22] Id.

[23] Id.

[24] United States ex rel. Doe v. Jan-Care Ambulance Serv., Tri-State Div., 187 F. Supp. 3d 786, 793 (E.D. Ky. 2016) (“Trans-Star provides no “concrete facts” about when Jan-Care allegedly submitted these allegedly fraudulent claims to the government. See Marlar, 525 F.3d at 446. Jan-Care could have submitted the allegedly fraudulent claims to the VA the day after the transport, the next month, or the next year. Or perhaps Jan-Care never submitted claims for those three transports. As such, Trans-Star fails to plead its FCA claims with particularity and they are “properly dismissed” upon this ground as well.”)



Drone Home: How Courts Are Likely to Treat Drone Surveillance with Regard to the Fourth Amendment

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This post was written by Senior Editor, Alexander Wilcox.  The views and opinions expressed herein are those of author alone.


Technology evolves at a rapid pace and often does so in unexpected ways. Ten years ago, few would have predicted the boom of social media and how it has changed our day-to-day lives personally and professionally. While it is difficult to forecast what the future holds for technology and how it will interact with the law, relevant case law available to us today allows for some signaling of what is to come in the realm of legal procedure.

Distinguished from High-Tech Search Framework

The continued evolution of drones is likely to warrant changes in evidentiary and procedural rules, as well as legislation. A drone is defined as “an unmanned aircraft or ship guided by remote control or onboard computers.”[1] The holding of Kyllo V. United States[2] asserts that usage of uncommon high-tech devices at a defendant’s home constitutes a search for the purposes of Fourth Amendment search and seizure. Have drones become so common that they no longer fall under the uncommon technology umbrella? A cursory online search shows that drones advertised as children’s play things can be as inexpensive as $22.50, and surprisingly, higher tech drones equipped with 4k recording and imaging technology can be purchased for as low as $150.[3] The mass production of drones, the fall of their prices, and the ready availability of them at every major retailer is likely to allow for drones to fall out of the “uncommon high-tech device” definition, meaning that a police drone flyover of one’s house may not constitute a search.[4]

Distinguished from Aerial Search Framework

The judiciary, when looking at the admissibility of drone surveillance, is likely to look at past precedent regarding potential searches executed from the air. The seminal case concerning helicopter-based searches is Florida v. Riley.[5] The facts of Riley regard police flying over a suspect’s home at 400ft and peering into a greenhouse located on the property.[6] The police discovered, without the aid of any other technology, that the suspect was growing marijuana.[7] The case hinged on the fact that the helicopter was flying at a height that was within Federal Aviation Administration regulations.[8] The court ultimately found that no search had occurred because the suspect had no reasonable expectation of privacy when any member of the public could similarly fly at that level and see the illegal activity.[9]

Drawing a similar parallel, a drone being flown in compliance with its respective FAA rules should allow for an admissible “non-search” leading to an arrest. Section 107 of Chapter 14 of the Code of Federal Regulations lays out the limitations for drone flights. [10] It states that any drone cannot exceed 100mph in speed, 400ft in altitude unless avoiding a structure, or travel over three miles away from its controller.[11] If the same logic can be applied to a similar situation involving a drone, it seems unlikely that a would-be defendant would have any sort of expectation of privacy when viewed through a window, skylight, lunette, or similar aperture even if their illegal activity would be otherwise out of view from the street or sky and only accessible from a drone’s angle.[12] The rationale that any member of the public could fly their store bought drone down the street and view illegal activity similarly applies.


Drone usage has exploded in the past several years. Three million commercial and private drones were shipped last year alone.[13] While there was undoubtedly a moment in time in which a drone would have been considered high-tech and uncommon enough that the major public would not have been put on notice to its use in surveilling them, that time has most assuredly come and passed.[14] We are then left to compare legal precedent with modern facts and attempt to draw parallels between the past and future. Prior case law has stated that aerial surveillance does not constitute a search when viewing unobstructed apertures from an appropriate and legal altitude.[15] These two legal principles combine to forecast a future of criminal jurisprudence in which drone surveillance of one’s home is unlikely to constitute a search under the Fourth Amendment of the Constitution.


[1] “drone.” Merriam-Webster Online Dictionary. 2018. https://www.merriam-webster.com/dictionary/drone (25 Oct. 2018).

[2] Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038 (2001).

[3] GearBest, https://www.gearbest.com/rc-quadcopters (last visited Oct. 15, 2018).

[4] Andrew B. Talai, Drones and Jones, 102 Calif. L. Rev. 720,735 (2014).

[5] Florida v. Riley, 488 U.S. 445, 109 S. Ct. 693 (1989).

[6] Id at 450.

[7] Id.

[8] Id.

[9] Robert Molko, The Drones Are Coming!, 78 Brook. L. Rev. 1279, 1283 (2013).

[10] 14 C.F.R. §107.51.

[11] Id.

[12] Jonathan Olivito, Beyond the Fourth Amendment, 74 Ohio St. L.J. 669, 683 (2013).

[13] Amy Ann Forni, Gartner Says Almost 3 Million Personal and Commercial Drones Will Be Shipped in 2017, Gartner, (Feb. 9, 2017), https://www.gartner.com/en/newsroom/press-releases/2017-02-09.

[14] Matthew R. Koerner, Drones And The Fourth Amendment, 64 Duke L.J. 1129, 1143 (2015).

[15] Florida v. Riley, 488 U.S. 445, 109 S. Ct. 693 (1989).



Electronic Device Searches at the Nation’s Borders

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This post was written by Senior Editor, Andy Countryman.  The views and opinions expressed herein are those of the author alone.

            Do forensic searches of electronic devices at the nation’s borders, by searchers without a reasonable suspicion of wrongdoing, run afoul of the Fourth Amendment’s protection against unreasonable searches and seizures? It is easy to see why a person might conclude that no Fourth Amendment violation occurs just as it is easy to see why another person might conclude that a Fourth Amendment violation has occurred. But, as a nation, which way should we actually go?

The Eleventh Circuit

            The Eleventh Circuit is the latest court to face the issue on forensic searches of electronic devices at the border. In United States v. Touset, 890 F.3d 1227 (11th Cir. 2018), the court ruled that border agents do not violate the Fourth Amendment when they conduct a forensic search of a person’s electronic device at the nation’s border.[1] In Touset, border patrol stopped a person suspected of transporting child pornography from abroad when he arrived at an Atlanta airport.[2] Agents conducted a search of Touset’s two iPhones and camera and returned them after finding no evidence of the crime.[3] However, upon a forensic search of his computer and hard drive, analysts discovered child pornography.[4]

The court determined that border patrol did not need reasonable suspicion to conduct the search and even if the Fourth Amendment requires it.[5] The court reasoned on the main issue of whether reasonable suspicion was even needed, that agents did not need any level of suspicion to conduct the search because the search took place at the nation’s border.[6] The court acknowledged that the search of a phone poses a significant risk of intruding on privacy.[7] However, the court looked to its own precedent from United States v. Vega-Barvo, 729 F.2d 1341 (11th Cir. 1984) to conclude that the importance of preventing contraband from coming into the country outweighs the competing interest, outlined in Riley v. California, 134 S. Ct. 2473 (2014), of protecting persons from unreasonable searches of data stored on their electronic devices.[8]

The Fourth Circuit

            On the other hand, in United States v. Kolsuz, 890 F.3d 133 (4th Cir. 2018), the Fourth Circuit took the stance that reasonable suspicion is required by the Fourth Amendment to conduct a warrantless border search of a person’s digital device.[9] There, Kolsuz attempted to export firearms parts from a Washington, DC airport to Turkey.[10] However, border patrol stopped him, manually searched his phone at the airport, and then later conducted a forensic search of his phone in Homeland Security’s Virginia office four miles away.[11] The court ruled that border patrol needs at least reasonable suspicion to conduct a forensic search into a person’s mobile device under Riley, even if the search falls within the border exception.[12]

The Ninth Circuit

              The Ninth Circuit took the same stance as the Fourth Circuit when it decided United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013). There, border patrol agents stopped Cotterman at an Arizona-Mexico border crossing.[13] After the primary inspection revealed that he may be involved in child sex tourism, agents conducted a forensic search of Cotterman’s laptop which revealed hundreds of photographs of child pornography.[14] The court ruled that agents needed reasonable suspicion despite the border search exception.[15] The court reasoned that just because there are legitimate interests in security at the border and preventing the trafficking of child pornography, the increasing storage capacity of mobile devices, which are often used to store highly sensitive information, requires reasonable suspicion.[16]

So, What Should We Do?

               If the Supreme Court decides to resolve the circuit split, it should hold that searches of a person’s electronic devices at the border requires reasonable suspicion. After Riley, we know that the interest in protecting highly sensitive, personal information stored on an electronic device is legitimate.[17] Just because an exception to the Fourth Amendment’s warrant requirement exists to honor the genuine interests in securing our nation’s borders, it does not follow that we should seek this end at the destruction of all other interests – especially one as important as protecting highly sensitive, personal information.

               Riley itself offers us the best analogy. Under Riley, the Court said that the protection of searches of private information stored on electronic devices must still be honored even though there is a general rule that searches incident to arrest require no level of suspicion.[18] Similarly, that same protection afforded to devices in Riley must be honored despite the general rule that routine searches at our nation’s borders require no level of suspicion. The Court should hold that forensic searches of electronic devices demand at least reasonable suspicion, even when the border exception would generally permit a suspicionless search.

[1] United States v. Touset, 890 F.3d 1227, 1238 (11th Cir. 2018).

[2] Id. at 1230.

[3] Id.

[4] Id.

[5] Id. at 1231.

[6] Id. at 1234.

[7] Id.

[8] Id.

[9] United States v. Kolsuz, 890 F.3d 133, 142 (4th Cir. 2018).

[10] Id. at 139.

[11] Id.

[12] Id. at 148.

[13] United States v. Cotterman, 709 F.3d 952, 957 (9th Cir. 2013).

[14] Id. at 959.

[15] Id. at 968.

[16] Id. at 966.

[17] Riley v. California, 134 S. Ct. 2473, 2493 (2014)

[18] Id. at 2494.

Gay Panic Defense: Remnants of the Homophobic American Jurisprudence

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This post was written by Lead Symposium Editor, Justin Wayne.  The views and opinions expressed herein are those of author alone.

          The historical record of the American jurisprudence is littered with, if not centered on, notions of inequities between classes of people. Legislatures attempted to abolish these inequities through constitutional amendments and various statutes, but the remnants of discrimination persisted to invade modern times. One of the most glaring leftovers includes a claim of self-defense referred to as the Gay and Trans Panic Defense (“Gay Panic Defense”). Rights of Lesbian, Gay, Bisexual, and Trans (“LGBT”) individuals continue to gain traction around the world. Yet at home, a violent history haunts the LGBT community. In the past, many publicized cases failed to effectively shed light on the violent atrocities committed against LGBT individuals. Now, the Gay Panic Defense remains as a grotesque specter of the past which needs exposed and abolished.

LGBT Rights Abroad and at Home

            In the recent months and years, LGBT rights attracted a tremendous amount of attention both abroad and at home. The struggle for basic rights, dignity, and respect persists, albeit at a cadence of two steps forward and one step back. Within a matter of weeks, one historically conservative country removed barriers for same-sex marriage while a member of the traditionally liberal European Union attempted to create an all-out ban in their constitution. In the U.S., celebrations spread across the country at the decision of Obergefell, only to turn sour with a biased outlook on international relations. The shift between acceptance and disapproval of the LGBT community seems to move with the tides.

The end of the summer brought a historic ruling for LGBT rights out of India, the country with the world’s second largest population.[1] Laws not just banning same-sex marriage but also criminalizing homosexuality met their end thanks to the Indian Supreme Court.[2] The discriminatory laws used to abuse and blackmail LGBT individuals persisted for more than 150 years, left over from the time of British colonization of India.[3] The Supreme Court of India even ruled so far as to grant LGBT individuals all of the protections of their constitution, which contrasts sharply with the conservative societal ideology.[4]

An unfortunate setback of LGBT rights occurred this past week in Romania.[5] While Romania is part of the unified European Union federation, it failed to shed its deep roots and heavy influence of the Romanian Orthodox Church.[6] The referendum attempted to prohibit legislation to legalize same-sex marriage.[7] It targeted LGBT individuals, but commentators expressed concern that its effects will be felt by unmarried couples and single parents.[8] Low voter turnout ultimately voided the referendum, with only 20.41 percent of registered voters going to the polls and a requirement of at least 30 percent.[9]

The ebb and flow of LGBT rights continues here at home in the U.S. Before Obergefell in 2015, roughly thirty-three states legalized gay marriage by statute.[10] The ruling of Obergefell opened the door to marriage for all same-sex couples in the United States because the Supreme Court of the United States (“SCOTUS”) held marriage is a fundamental right under the 14th Amendment and that same-sex couples may exercise that right.[11] SCOTUS failed to extend all the rights and protections of the Constitution to LGBT individuals with its limited holding[12] and failed to classify LGBT individuals as a protected class.[13]

Notwithstanding the Obergefell holding, the current administration created means to discriminate against same sex partners of foreign diplomats.[14] The Department of State will no longer issue visas to same sex partners of diplomats in the United States under the G category visas.[15] Commentators noted this policy will discourage talented diplomats from working with the United States and could harm international relations at large.[16] There is no information as to whether the provision will be challenged by foreign or domestic groups.[17] This policy created another dark notch in the country’s terrible treatment of LGBT individuals.

A Brief Homophobic History and the Gay Panic Defense

            The recent joy and celebration of LGBT individuals over the right to marry contains a glaring and violent scar. In the realm of criminal law, a disturbing doctrine evolved over time and took the name Gay Panic Defense. The defense gained fame in some notable cases in 1998, but continued into the 2000’s with little to no action to prevent its use. Its use to justify the killing of LGBT individuals is but one example of archaic and dangerous rhetoric that pervades the current legal system.

The heinous defense started because of psychiatrists classifying some behavior as latent homosexuality, which would manifest a person’s internal conflict of sexual identity as violence against those who display open homosexuality.[18] Past defendants attempted to use the defense under a plea of insanity and claimed the homosexual advances compromised their mental abilities.[19] Other circumstances invoked the doctrine under a defense of provocation, defense of self-defense, or diminished capacity.[20]

Headlines roared with this issue in 1998, when popular talk show host Jenny Jones invited two male friends on the show under the topic of secret crushes.[21] The victim confessed his secret love for his friend, Defendant Schmitz, which caused “panic” in Schmitz.[22] Schmitz drove to the victim’s house after the taping and shot him twice in the heart.[23] Schmitz’s charges included first-degree murder, but he used the defense of diminished capacity due to gay panic because of the talk show.[24] The court mitigated the charge down to second-degree murder.[25]

The Gay Panic Defense reared its ugly head in the Matthew Shepard murder, also in 1998 with a prominent spot in national headlines, but it ultimately failed.[26] Beyond these two unfortunate instances, the Gay Panic Defense appeared in the murders of Ahmed Dabarran (2001), Gwen Araujo (2002), Guin “Richie” Phillips (2003), Angie Zapata (2008), Larry King (2008), Terrance Hauser (2008), Francisco Gonzalez Fuentes (2011), Marco McMillian (2013), Ever Orozco (2013), Jennifer Laude (2014), and Daniel Spencer (2015) in some way, shape, or form with varied results of acquittals, mistrials, mitigation of charges, or appeals still pending.[27] The Gay Panic Defense mitigated a murder charge to criminally negligent homicide as recently as April 2018.[28] The past of this dark doctrine is filled with horror and sorrow, but hope sparked anew this past summer.

The Rainbow, the Silver Lining, and the Future

            The Gay Panic Defense arose from the judiciary, but the other branches of government remained relatively silent on the issue. Neither state nor federal legislatures addressed these incredulous mechanisms of the legal system. The silence broke this summer after encouragement and recommendation from the American Bar Association (“ABA”). A few states codified bans on the Gay Panic Defense through their respective legislatures. Now, Congress moved to restore the dignity of those LGBT individuals and the lives lost and dismissed by the Gay Panic Defense by introducing the Gay and Trans Panic Defense Prohibition Act of 2018.

Five years ago, the House of Delegates of the ABA drafted a resolution and submitted it to all federal, tribal, state, local, and territorial governments and their legislatures.[29] The resolution stated its recommendation to prohibit defenses based on sexual orientation or gender identity.[30] It went on to include a suggestion for jury instructions to not allow bias against gender identity and sexuality influence the decision of the jury.[31] Most importantly, the resolution stated:

Neither a non-violent sexual advance, nor the discovery of a person’s sex or gender identity, constitutes legally adequate provocation to mitigate         the crime of murder to manslaughter, or to mitigate the severity of any      non-capital crime.[32]

After the submission by the ABA, some states took notice and started to pass laws banning the Gay Panic Defense.[33] These included California (2014), Illinois (2017), and Rhode Island (2018), and pending legislation in New Jersey, Pennsylvania, and the District of Columbia.[34] This past summer, Senator Markey and Congressman Kennedy, both Democrats from Massachusetts, introduced the Gay and Trans Panic Defense Prohibition Act of 2018.[35] The bill essentially adopts the recommendations of the ABA resolution.[36] The legislatures referred the bill to the Senate Committee on the Judiciary, where it currently sits as of July 2018.[37]

This is one of many examples of the discriminatory and degrading history of the American jurisprudence system. It has followed the pattern of many other issues that permeate modern society. While slavery was abolished by amendment and equality codified in statute, the theme of bondage remains in uneven and disproportionate sentencing of people of color in comparison to their white peers. The history of discrimination, degradation, and dehumanization within the American legal system needs to stop. Society needs to facilitate this change through education, awareness, and understanding of the issues facing these marginalized groups. While we cannot erase the dark history, a brighter future stays within reach.

If you wish to support the Gay and Trans Defense Prohibition Act of 2018, please write or call your United States Senator or Representative.

[1] Jeffrey Gettleman et al., India Gay Sex Ban Is Struck Down. ‘Indefensible,’ Court Says., N.Y. Times (Sept. 6, 2018), https://www.nytimes.com/2018/09/06/world/asia/india-gay-sex-377.html

[2] Id.

[3] Id.

[4] Id.

[5] Alison Mutler, Romanians Vote on Putting Gay Marriage Ban in Consitutition, Wash. Post (Oct. 6, 2018), https://www.washingtonpost.com/world/europe/romanians-vote-on-putting-gay-marriage-ban-in-constitution/2018/10/06/bee65408-c91d-11e8-9c0f-2ffaf6d422aa_story.html?noredirect=on&utm_term=.5b9f15a824f7

[6] Id.

[7] Id.

[8] Id.

[9] The Latest: Low Turnout Voids Romania Marriage Vote, Wash. Post (Oct. 7,2018), https://www.washingtonpost.com/world/europe/the-latest-turnout-is-low-for-romanian-vote-on-marriage/2018/10/07/0780f38e-ca28-11e8-ad0a-0e01efba3cc1_story.html?utm_term=.eb5409889e8f

[10] Obergefell v. Hodges, 135 S. Ct. 2584 (2015)

[11] Id.

[12] Id.

[13] See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938)(establishing the requirements for a protected class of people as a discrete and insular minority which would require a test of strict scrutiny for laws which display animus toward a certain group of people)

[14] Edward Wong et al., U.S. Bans Diplomatic Visas for Foreign Same-Sex Domestic Partners, N.Y. Times (Oct. 2, 2018), https://www.nytimes.com/2018/10/02/us/politics/visa-ban-same-sex-partners-diplomats.html

[15] Id.

[16] Id.

[17] Id.

[18] Cynthia Lee, Article: The Gay Panic Defense, 42 U.C. Davis L. Rev. 471 (2008)

[19] Id. at 491

[20] Id.

[21] People v. Schmitz, 586 N.W.2d 766, 768 (1998).

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Lee, supra note 17

[27] Gay and Trans Panic Defense, The LGBT Bar, https://lgbtbar.org/what-we-do/programs/gay-and-trans-panic-defense/ (last visited Oct. 6, 2018).

[28] Id.

[29] American Bar Association, House of Delegates, Resolution 113A (August 12-13, 2013).

[30] Id.

[31] Id.

[32] Id.

[33] Gay and Trans Panic Defense, supra note 24

[34] Id.

[35] Gay and Trans Panic Defense Prohibition Act of 2018, S.1388, 115th Congress (as reported by S. Comm. on the Judiciary, July 10, 2018).

[36] Id.

[37] Id.