Federal Arbitration Act

This post is written by Associate Editor Alexandra Walker. Opinions and views expressed herein are those of the writer alone. 

The Supreme Court will soon take up the issue of whether employers can require employees to sign class-action waivers and arbitration agreements as a condition to employment. As most people who have ever had a job are aware, there is no room for negotiating these provisions and employees needing a job are in a vulnerable state when it comes to these contracts. If you don’t sign the dotted line, you don’t have employment.

For those unfamiliar with the area of labor law, Section 7 of the NLRA guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.“[1] Furthermore, Section 8(a)(1) of the NLRA makes it an unfair labor practice for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the Act.[2]

Additionally, the Federal Arbitration Act (FAA) states that a written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.[3] There are two exceptions to the FAA. First, an arbitration agreement may be invalidated on any ground that would invalidate a contract under the FAA’s saving clause, and second, application of the FAA may be precluded by another statute’s contrary congressional command.[4]

Those opposing such employment contract provisions rely heavily on the language and congressional intent of the NLRA. The NLRB argues that the savings clause of the FAA ensures that there is no irreconcilable conflict between the NLRA and the FAA.[5] In regards to the congressional intent exception, the NLRB has implied that congress, in acting the NLRA, demanded protection of employees’ collective rights in legal action.[6] The main issue in this circuit split is whether Section 7 of the NLRA and the FAA work together or should be viewed separately.

Currently, the circuit split is between the fifth circuit, seventh circuit, and ninth circuit.[7] This year, the U.S. Supreme Court will decide this major labor and employment issue, which will affect the rights of individual employees across the nation.

[1] 29 U.S.C. § 157.

[2] 29 U.S.C § 158.

[3] 9 U.S.C. § 2.

[4] D.R. Horton, Inc. v. NLRB, 737 F.3d 344, 358 (5th Cir. 2013).

[5] Lewis v. Epic Sys. Corp., 823 F.3d 1147, 1158 (7th Cir. 2016).

[6] Id.

[7] See D.R. Horton, Inc. v. NLRB, 737 F.3d 344 (5th Cir. 2013), Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), Lewis v. Epic Sys. Corp., 823 F.3d 1147 (7th Cir. 2016), and Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016).

United States v. Microsoft & the CLOUD Act

This post is written by Associate Editor Andy Countryman. Opinions and views expressed herein are those of the writer alone. 


If I save something to my cloud drive (Google Drive, Apple iCloud, Amazon Cloud Drive, etc.), where is it stored? For disinterested users with a rudimentary understanding of what data is, I imagine the line of thinking typically goes something like this: “Well, I know most of the online services use ‘cloud’ storage, but I know there are not invisible storage boxes floating over my head. I suppose my data has to be physically located somewhere.” And after hitting this point of digging, the user is satisfied with his attempt at understanding how cloud storage works. But, this picture is incomplete without the introduction of the internet and servers.

Online service providers, such as Microsoft with its Outlook email service, do store the information in a physical location – on a server at a data center. Data is located in a physical building somewhere and can be accessed with the click of a button from somewhere else. For instance, if an email service provider wanted to retrieve the content of an outgoing email, it could instruct a computer, robot, or person located at the data center to read the email and report back.

Companies with users across the globe must serve them efficiently and cost-effectively. Many companies have set up data centers in centralized locations across the globe to sharpen the delivery of online services. These global companies encounter foreign laws with regularity. None of this is novel; but what is yet to be seen is how technologies like cloud storage will impact the relationship between domestic and foreign laws.

This is the backdrop by which Microsoft opposed a search warrant by the government, under the Stored Communications Act of 1986 (SCA), of emails located on a Microsoft-owned server in Dublin, Ireland.[1] There is no question that the SCA gives government the authority to compel a company to disclose information stored domestically.[2] However, the SCA generally does not have exterritorial reach. Meaning, the SCA cannot be used by the government to force a company to turn over information that is stored in another country. In obtaining a search warrant, the government ordinarily would need to use the treaty mechanisms in place with the country where the information sought is located. But, using the treaty mechanisms can be slower and cumbersome.

The United States argued that because the conduct occurred domestically, that is, Microsoft retrieved the files from here in the United States, that the search warrant was only being applied domestically.[3] The United States believes that the SCA focuses on disclosure, not necessarily on the storage.[4] Further, the United States argued that the information was within Microsoft’s control domestically even though it may have been physically located abroad.[5]

While both sides have an interest in winning the case, both the United States and Microsoft agree that changes needed to be made to the SCA. The issue with extraterritoriality was only one indicator of the need for an update. Fortunately for both sides, and with both sides supporting, Congress recently passed the Clarifying Lawful Overseas Use of Data Act (CLOUD Act).[6] In all likelihood, the CLOUD Act will moot the case and the United States will be able to use the Act, in conjunction with a new search warrant, to cause Microsoft to turn over the emails located in Ireland. Practically, the CLOUD Act assesses heightened importance on executive agreements between the United States and foreign countries.[7] Issues such as the expediency of MLATs seem to be directly targeted by the Act, but continued debate will likely occur as country-specific agreements are drafted.


[1] United States v. Microsoft Corp., 138 S. Ct. 356 (2017)

[2] 18 U.S.C. §§ 2703

[3] United States of America v. Microsoft Corporation, 2018 WL 835269 (U.S.), 3 (U.S.,2018)

[4] Id.

[5] Id. at 13.

[6] Peter Swire and Jennifer Daskal, What the CLOUD Act Means for Privacy Pros, iapp.org, https://iapp.org/news/a/what-the-cloud-act-means-for-privacy-pros/.

[7] Swire and Daskal, supra note 6.

Artificial Intelligence—The Emerging Author and Inventor


This post is written by Associate Editor Tarah Remy. Opinions and views expressed herein are those of the writer alone. 

Exciting and new technology is emerging every day. Some of this technology we hardly expected to see beyond our television screens. Artificial intelligence (AI) has been a heavy topic of interest for decades. Film makers, writers, and artists alike have created alternate realities where AI has evolved into the unthinkable. Movies depict apocalyptic alternate realties where AI outgrow humans, becoming sentient and demonstrate intelligence far beyond human capabilities.

Our task, as students and legal professionals, is to ask whether the law is moving fast enough to keep up with the new developing technology. Look at AI today, in the real world, advancement is apparent though maybe not to the extent seen in films. Today, there are examples of AI writing literary works and nearly winning awards of high recognition.[1] AI is writing news articles,[2] painting portraits in the style of artists long gone,[3] and even composing musical pieces.[4] So maybe AI comes in peace with no plans to overrun humans.

AI are creating works of art equal and at times beyond human ability through a process known as “Deep Learning”. Learning, as we are all aware, is “the acquisition of knowledge or skills through study, experience or being taught,”[5] similarly, the process of Deep Learning is “…machine learning that is dedicated to mimicking human learning capabilities. It uses multiple layers of neural networks to translate high level abstractions, recognize complex patterns and comprehend patterns.”[6] Does that sound familiar? So, the issue to consider is, when a work of art is created by AI, who then owns the copyright? Is it the programmer, the entity who owns the machine, or perhaps, the AI itself? Seemingly obvious it is still a hard concept to absorb. Our instinct is to default to the human being, whatever their involvement might be. There is no established law on this exact issue, but there is potential for legal disputes and possible changes specifically in the world of IP copyright.

Andres Guadamuz, Senior Lecturer in Intellectual Property Law, University of Sussex, United Kingdom conceptualizes it best, “[t]raditionally, the ownership of copyright in computer-generated works was not in question because the program was merely a tool that supported the creative process, very much like a pen and paper…But with the latest types of artificial intelligence, the computer program is no longer a tool; it actually makes many of the decisions involved in the creative process without human intervention.”[7]

Copyright law protects not the idea behind the work, but in fact the expression, the procedures, or methods of creating.[8] Inspiration is born of many different sources. We learn from our surroundings and from history thereby creating works unique to ourselves.[9] This is a relatively acceptable concept when it relates to human beings.  Article 1, Section 8 of the United States Constitution states, “[t]he Congress shall have power …to promote the progress of science and useful arts, by securing for limited tımes to authors and inventors the exclusive right to their respective writings and discoveries.”[10]  Logically speaking, it is highly doubtful the framers spoke of, or even considered the possibility of such advanced technology at the time of drafting. However, today AI fits the definition of author and inventor. Should it be guaranteed the same protection?


[1] Andres Guadamuz, Artificial intelligence and copyright, WIPO Magazine (October 2017) http://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html

[2] Id.

[3] Id.

[4] Bartu Kaleagasi, A New AI Can Write Music as Well as a Human Composer (March 9, 2017) https://futurism.com/a-new-ai-can-write-music-as-well-as-a-human-composer/

[5] English Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/learning

[6] Deep Learning, Futurism https://futurism.com/?post_type=glossary&p=53163?post_type=glossary&p=53163

[7] Andres Guadamuz, Artificial intelligence and copyright, WIPO Magazine (October 2017) http://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html

[8] David Vaver, Principles of Copyright, World Intellectual Property Organization, http://www.wipo.int/edocs/pubdocs/en/copyright/844/wipo_pub_844.pdf

[9] Idea and Expression-Case File #7: The Matching Wallpaper, http://www.copyrightuser.org/wp-content/uploads/2017/07/CU_CaseFile_7.pdf

[10]U.S. Const. art. 1 §8

Kentucky Cracks Down on Service Animal Fraud in Housing

This post is written by Senior Editor Pamela Hall. Opinions and views expressed herein are those of the writer alone. 

            The debate surrounding service and emotional support animals has been heating up in recent years.  The news is permeated with stories of airline fiascos and other incidents of animals behaving badly in public.[1]  Service animals and emotional support animals are specifically protected by various federal laws, including the Americans with Disabilities Act[2], the Fair Housing Amendments Act of 1988[3], and the Air Carrier Access Act.[4]  Recently, states have made an effort to crack down on abuse of these generally broad protections by creating fines for fraudulently representing mere pets as service or emotional support animals.  So far, laws have been passed in New York, Colorado, Maine, Michigan, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Texas, Utah, and Virginia to create liability for misrepresentation of an assistance animal.[5]  Kentucky has chosen to join the trend by introducing a bill targeting tenants in rental properties.

            Kentucky House Bill 329, if it becomes law, will create a misdemeanor of “misrepresentation of an assistance animal”  if a person “misrepresents part of a request for a reasonable accommodation to maintain an assistance animal in a dwelling that the person has a disability or disability-related need for the use of an assistance animal; makes a materially false statements for the purpose of obtaining documentation for the use of an assistance animal in housing; creates or executes a document that misrepresents an animal as an assistance animal for use in housing, provides documentation to another falsely stating that an animal is an assistance animal for use in housing; or fits an animal, which is not an assistance animal, with a harness, collar, vest, or sign that the pet is an assistance animal.”[6]  The stated fine for the offense is not to exceed $1,000 dollars.[7]  Otherwise, the law mirrors the Fair Housing Amendments Act of 1988 as to standards for obtaining a reasonable accommodation to maintain an assistance animal in a rental property and does not create a new standard for obtaining an accommodation in housing for assistance animals.[8]

This law is likely to create some interesting litigation surrounding the standards to keep an assistance animal in the context of rental housing as they relate to the violation of misrepresentation.  The standards for a “reasonable accommodation” and the requisite link between the function an animal performs and the disability of an individual, in relation to the federal law, have already been debated in cases appearing on the dockets of other state courts.[9]  It is yet to be determined how courts will balance the complex interests of creating important accommodations for individuals who require them to obtain equal rights to housing against the need for enforcement that responds to the real concerns of landlords and other tenants who must share community property with assistance animals.

The bill has been passed in both the Kentucky House of Representatives and the Kentucky Senate, and was delivered to the governor on Ma

[1] Michael Ollove, These 19 States are Cracking Down on Fake Service Dogs, PBS, (March 24, 2018), https://www.pbs.org/newshour/health/19-states-cracking-fake-service-dogs.

[2] 42 U.S.C.A. § 12182

[3] 24 CFR 960.705

[4] 49 USCA § 41705

[5] Kevin Fritz and John W. Egan, New York Passes Law Against Animal Fraud, Joining Other States, SEYFARTH SHAW (March 24, 2018), https://www.adatitleiii.com/2018/01/new-york-passes-law-against-service-animal-fraud-joining-other-states/.

[6] Ky. HB 329

[7] Id.

[8] Id.

[9]John Ensminger and Frances Breitkopf, Service and Support Animals in Housing Law, AMERICAN BAR ASSOCIATION, (March 24, 2018), https://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/servicesupportanimals.html.

McCoy v. Louisiana – An Update

This post is written by Senior Editor Brittany Grigery. Opinions and views expressed herein are those of the writer alone.

Oral arguments were heard on January 17 in the case concerning a Louisiana death-row inmate, Robert McCoy who says he should receive a new trial because his defense attorney told jurors that he was guilty over McCoy’s objection.

McCoy was tried on three counts of first-degree murder for the shooting deaths of his estranged wife’s mother, stepfather and son.[1] McCoy maintained that he was not in the state when the murders occurred, and that he was being framed by local police.[2] However, his attorney chose to do what he thought would save McCoy’s life and told jurors McCoy was responsible but that he did not intend to kill anyone. English states he made this decision because he felt there was overwhelming evidence against McCoy, even though McCoy emphatically opposed this decision to concede his guilt. McCoy was convicted and sentenced to death.

Ultimately, the case is about the allocation of decision-making authority between lawyers and clients.[3] The critical issue of who has the power to make certain decisions extends beyond capital cases and the questions of conceding guilt.[4] The Supreme Court has determined that certain decisions in a criminal case remain the defendant’s to make, including whether to (1) plead, (2) waive a jury, (3) testify at trial, and (4) appeal. The rest of the decisions are strategic decisions made by the attorney. McCoy argues in his brief that it is irrelevant whether an admission of guilt might have been a reasonable trial strategy well within the bounds of his attorney’s discretion.[5] Once McCoy communicated his contrary decision, that choice was not English’s to make.[6]

Former U.S. solicitor general Seth Waxman argued for McCoy on January 17. He emphasized that the Constitution “guarantees a personal defense that belongs to the accused, and whether to admit or contest guilt is the paradigmatic example of that personal defense, not only because it singularly affects the life and liberty of the accused, but also because making that decision requires weighing subjective aspirations and value judgments that are unique to every individual.”[7] During the first 30 minutes of oral arguments, the justices questioned whether a ruling in favor of McCoy could shackle a defense attorney’s ability to make strategic decisions for their clients.[8] Specifically, Chief Justice John Roberts asked how would this proposed rule apply? Waxman tried to limit the potential reach of his rule, telling Roberts that a criminal defense lawyer “may not stand up and affirmatively vouch, admit that his client is guilty.”[9]

The latter half of the arguments addressed the impact the case could have on defendants’ ability to express wishes about his or her future, should a ruling allow defense attorneys to act contrary to their clients’ wishes.[10]

Elizabeth Murrill, Louisiana solicitor general argued for Louisiana and was immediately confronted with questions regarding English overstepping his bounds as a defense attorney.

Justice Kagen noted that Larry English, who was hired by McCoy’s parents, wanted for his client to avoid the death penalty, while McCoy had the goal of not admitting he killed his estranged wife’s three family members.[11] Justice Kagan said that English substituted his goal for McCoy.

The newest addition to the Court, Justice Neil Gorsuch asked whether this substitution qualifies as “assistance of counsel” under the sixth amendment. He seemed to side with McCoy, asking Murrill why English’s actions weren’t a “structural error” – an error that is so fundamental that his conviction should automatically be reversed.[12] Justice Anthony Kennedy concluded that based on Louisiana’s argument, if a defendant wanted to plead not guilty, the defense counsel could, to the contrary, plead guilty.

The justices were clearly concerned about where and how to draw a line between a defense attorney’s right to make strategic decisions and a defendant’s right to maintain his innocence. A decision is expected by late June.


[1] Amy Howe, Argument analysis: Concern for death-row inmate’s rights likely to trump line-drawing worries, SCOTUSblog (January 17, 2018, 5:37 pm) http://www.scotusblog.com/2018/01/argument-analysis-concern-death-row-inmates-rights-likely-trump-line-drawing-worries/

[2] Id.

[3] Steven Zeidman, ‘McCoy v. Louisiana’: Whose Case is it Anyway? New York Law Journal (January 19, 2018, 5:20 PM) https://www.law.com/newyorklawjournal/sites/newyorklawjournal/2018/01/19/mccoy-v-louisiana-whose-case-is-it-anyway/?slreturn=20180227222135

[4] Id.

[5] Brief of Petitioner at 2, McCoy v. Louisiana, 218 So. 3d 535 (La. 2016) (No. 16-8255).

[6] Id.

[7] Amy Howe, Argument analysis: Concern for death-row inmate’s rights likely to trump line-drawing worries, SCOTUSblog (January 17, 2018, 5:37 pm) http://www.scotusblog.com/2018/01/argument-analysis-concern-death-row-inmates-rights-likely-trump-line-drawing-worries/

[8] Melissa Quinn, Supreme Court mulls whether lawyer can admit client’s guilt to try to avoid death penalty, Washington Examiner, (January 17, 2018, 2:25 PM) https://www.washingtonexaminer.com/supreme-court-mulls-whether-lawyer-can-admit-clients-guilt-to-try-to-avoid-death-penalty

[9] Amy Howe, Argument analysis: Concern for death-row inmate’s rights likely to trump line-drawing worries, SCOTUSblog (January 17, 2018, 5:37 pm) http://www.scotusblog.com/2018/01/argument-analysis-concern-death-row-inmates-rights-likely-trump-line-drawing-worries/

[10] Id.

[11] Id.

[12] Amy Howe, Argument analysis: Concern for death-row inmate’s rights likely to trump line-drawing worries, SCOTUSblog (January 17, 2018, 5:37 pm) http://www.scotusblog.com/2018/01/argument-analysis-concern-death-row-inmates-rights-likely-trump-line-drawing-worries/

Race and Wrongful Conviction

This post is written by Associate Editor Stephanie Williams. Opinions and views expressed herein are those of the writer alone.


The Innocence Network’s Annual Conference theme this year is Race and Wrongful Conviction. The conference will host educational sessions addressing the historic fight for civil rights and the organization’s fight for justice for the innocent.  The Innocence Network is a group of independent organizations—including the Kentucky Innocent Project (KIP)—that exonerate and support the innocent.[1] Their mission is to free the staggering number of innocent people who remain incarcerated, and to bring reform to the system responsible for their unjust imprisonment.[2] As a KIP extern, I will be attending this year’s conference.  For those who do not know what KIP externs do, let me briefly explain.  KIP “provides incarcerated men and women who have legitimate claims of innocence with a resource through which their claims may be investigated and presented to the courts of the Commonwealth for relief.”[3]  That resource is typically a law student at one of Kentucky’s three law schools who works with KIP attorneys and investigators.  Each student is assigned a client, an actual convicted person who is serving time for a crime they claim they are innocent of.

Wrongful conviction is a topic that has been garnering national attention recently. Popular documentaries and podcasts have added to the national dialogue surrounding this issue.  Despite this awareness, many people continue to think wrongful conviction is an anomaly.  That simply is not the case.  In 2015, an article was published highlighting the fact that a record number of people were exonerated for crimes they did not commit.[4]  That number was 149.  Compare that to last year’s number of exonerations and you can see the number is very similar.  At least 139 convicted defendants were exonerated in 2017.[5]

In preparation for the upcoming Innocence Conference and in light of its theme, I wanted to learn about the role that race plays in wrongful convictions.  I started with DNA.  That is the first thing many people think of when considering innocence-related issues.  DNA was first used in an exoneration in 1989 and since then the number of wrongful convictions is steadily increasing.[6]  As of 2017, the Innocence Project reports that 354 people have been exonerated because of DNA.[7]  70% of those exonerees were racial minorities; 62% of those exonerees were black.[8]

A report published in March 2017 by the National Registry of Exonerations (“Registry”) contained some very sobering statistics for anyone who is interested in social justice.  As of the report date, there have been 2,182 exonerations in the United States.[9] The report examined what the first 1,900 cases tell us about race and wrongful conviction. Black people make up 13% of the U.S. population but constitute 47% of exonerations listed in the Registry.[10] That is a gross overrepresentation.

The Registry looks at all major crime categories and while noting that racial disparities exist in all categories, focuses on the three types of crimes producing the largest numbers of exonerations: murder, sexual assault, and drug crimes.[11] Black people convicted of murder or sexual assault are significantly more likely than their white counterparts to be later found innocent of the crimes.[12]

When it comes to exonerations for murder, half of those exonerated are black.  That’s 50% for a group that only make up 13% of the population.  Another gross overrepresentation. By comparison, whites make up 64% of the population and 36% of murder exonerations.  Compared to the population, blacks are seven times more likely to be wrongfully convicted for murder than whites.

Someone convicted of sexual assault is three-and-a-half times more likely to be innocent if that person is black rather than white.  Black sexual assault exonerees are represented at four-and-a-half times their proportion in the population.[13]

Drug crimes show the greatest disparities. Even though there is ample evidence that rates of drug use are comparable across races, black people are at least twelve times more likely to be convicted of drug crimes and overall are almost five times as likely to go to prison for drug possession when compared to whites.[14]

Race plays a huge factor in the criminal justice system, including in wrongful conviction.  Racial minorities are disproportionately represented at every stage of the system, from arrest through conviction.[15] I look forward to attending the conference and continuing to learn about issues surrounding race and wrongful conviction and to hear from individuals who have gone through this tragic experience.  The conference will take place less than mile from where Martin Luther King, Jr. was assassinated 50 years ago and will conclude with a march for racial justice ending at the Lorraine Motel, the site of the assassination.

[1] Innocence Project, https://www.innocenceproject.org/about/(Last visited Mar 8, 2018).

[2] Id.

[3] Dep’t of Pub Advocacy, Ky Inn. Proj., https://dpa.ky.gov/who_we_are/KIP/Pages/KIP.aspx.

[4] Matt Ferner, A Record Number of People Were Exonerated In 2015 For Crimes They Didn’t Commit, Huff. Post (Feb 3, 2016) https://www.huffingtonpost.com/entry/exonerations-2015_us_56ac0374e4b00b033aaf3da9.

[5] Niraj Chokshi, False Confessions, Mistaken Witnesses, Corrupt Investigators: Why 139 Innocent People Went to Jail, N.Y. Times (Mar 14, 2018) https://www.nytimes.com/2018/03/14/us/convict-exonerations-2017.html.

[6] Samuel R. Gross, The staggering number of wrongful convictions in America, Wash. Post (Jul 24, 2015) https://www.washingtonpost.com/opinions/the-cost-of-convicting-the-innocent/2015/07/24/260fc3a2-1aae-11e5-93b7-5eddc056ad8a_story.html?utm_term=.4aaf0592bcb8.

[7] DNA Exonerations in the United States, Inn. Proj. (last visited Mar 8 2018) https://www.innocenceproject.org/dna-exonerations-in-the-united-states/.

[8] Id.

[9] National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/about.aspx, (last visited Mar 8, 2018).

[10] Id.

[11] Id.

[12] Niraj Chokshi, Black People More Likely to be Wrongfully Convicted of Murder, Study Shows, N.Y. Times (Mar 7, 2017) https://www.nytimes.com/2017/03/07/us/wrongful-convictions-race-exoneration.html.

[13] National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/about.aspx.

[14] Id.

[15] See Edwin Grimsley, What Wrongful Convictions Teach Us About Racial Inequality, Inn. Proj. (Sep 26, 2012) https://www.innocenceproject.org/what-wrongful-convictions-teach-us-about-racial-inequality/.

Will SCOTUS Allow the Ninth Circuit’s Foie Gras Follies?

This post is written by Senior Editor Hannah Seiter. Opinions and views expressed herein are those of the writer alone.

Force-feeding and consequently fattening geese for slaughter and consumption may have been a culinary practice as early as the Fifth Dynasty of Egypt.[1] We even know that Roman Senator Cato the Elder wrote down techniques on force-feeding geese in his On Farming.[2] Similar practices continue today with the most famous product resulting from force-feeding geese being foie gras [fwä-ˈgrä], which Webster defines as “the fatted liver of an animal and especially of a goose usually served as a pâté.”[3]  The dish’s importance is even recognized in French law.[4] Foie gras, while traditionally a French dish, has long been known to American taste buds, as famous television chefs, such as Julia Child and Emeril Lagasse, have easily assessible recipes for the preparation of foie gras.[5]


While foie gras is well-known and steeped with history, the production of foie gras is controversial. The animal-rights organization, PETA, describes the production of foie gras as a practice where “workers ram pipes down the throats of male ducks twice each day, pumping up to 2.2 pounds of grain and fat into their stomachs, or geese three times a day, up to 4 pounds daily, in a process known as “gavage.” The force-feeding causes the birds’ livers to swell to up to 10 times their normal size” for eventual harvesting.[6]


The State of California moved to ban the practice in 2004. Then-Governor Arnold Schwarzenegger, as he signed the bill into law, stated, “This bill’s intent is to ban the current foie gras production practice of forcing a tube down a bird’s throat to greatly increase the consumption of grain by the bird. It does not ban the food product, foie gras.”[7] As result, California Health and Safety Code Section 25981 prohibits the force feeding a bird to “enlarging the bird’s liver.”[8] Section 25982 prohibits selling any product “in California if it is the result of force-feeding a bird for the purpose of enlarging [a bird’s liver].”[9]


After years of litigation, the Ninth Circuit Court of Appeals upheld California’s ban, overturning a District Court decision, which found the ban unconstitutional last September.[10] The Plaintiffs, three companies, namely, Canadian Farmers, Hudson Valley, and Hot’s Restaurant Group, argued that the Poultry Products Inspection Act (PPIA)[11] preempts Section 25982 of the California Health and Safety Code.[12] More specifically, the District Court determined that the issue is “whether a sales ban on product containing a constituent that was produced in a manner is an “ingredient requirement” under the PPIA.”[13]


The PPIA, according to the District Court,


expressly preempts states from imposing: [m]arking, labeling, packaging, or ingredient requirements (or storage or handling requirements . . . [that] unduly interfere with of poultry products in commerce) in addition to, or different than, those made under this chapter [of the PPIA] with respect to articles prepared at any official establishment in accordance with the requirements under this chapter.[14]


The District Court reasons that “Plaintiffs foie gras products may comply with all federal requirements but still violate Section 25982 because their products contain a particular constituent—force-fed bird’s liver [then] Section 25982 imposes an ingredient requirement in addition to or different than the federal laws and regulations.”[15] Therefore, District Court granted summary judgement to the Plaintiffs because the PPIA expressly preempts Section 25982.


The Ninth Circuit, however, holds “that section 25982 is not expressly preempted by the PPIA.”[16] Among other reasons, the Ninth Circuit stated that “Because animal cruelty is a field traditionally regulated by the states, compelling evidence of an intention to preempt is required.”[17]


The Ninth Circuit also instructs that “the PPIA targets the slaughtering, processing, and distribution of poultry products, 21 U.S.C. §§ 451–452, but it does not mandate that particular types of poultry be produced for people to eat. Its preemption clause regarding ‘‘ingredient requirements’’ governs only the physical composition of poultry products. Nothing in the federal law or its implementing regulations limits a state’s ability to regulate the types of poultry that may be sold for human consumption.”[18] In other words, the Ninth Circuit believes that section 25982 cannot be preempted because it is governing a process and not a product, which would be governed by the PPIA.


Treading a fine line, the Ninth Circuit determines that the process as proscribed by section 25982 is not an “ingredient requirements (or storage or handling requirements . . . [that] unduly interfere with of poultry products in commerce) in addition to, or different than, those made under this chapter [of the PPIA].”[19]


While foie gras and federal preemption are not the most obvious pairing, the Supreme Court of the United States will have to eventually determine whether the California ban should continue to stand—whether states have the right to govern the process of force-feeding geese.

[1] Wall Street Journal, A Short History of Foie Gras, The Wall Street Journal (2008), https://www.wsj.com/articles/SB121207726422829649 (last visited Mar 5, 2018).

[2] Id.

[3] Foie Gras, Merriam-Webster, https://www.merriam-webster.com/dictionary/foie%20gras (last visited Mar 5, 2018).

[4] n ° 2006-11 of January 5th, 2006 – art. 74 JORF January 6, 2006, https://www.legifrance.gouv.fr/affichCodeArticle.do;jsessionid=943EF0198AA70E691D551179EB5E5A83.tpdjo05v_3?idArticle=LEGIARTI000006584967&cidTexte=LEGITEXT000006071367&dateTexte=20091223 (last visited Mar 5, 2018).

[5] See passim Julia Child & Simone Beck, Mastering the art of French cooking: volume 2 (2009); Emeril Lagasse, Foie Gras Terrine, Cooking Channel (2017), https://www.cookingchanneltv.com/recipes/emeril-lagasse/foie-gras-terrine-3644369 (last visited Mar 5, 2018).

[6] Foie Gras: Cruelty to Ducks and Geese, PETA, https://www.peta.org/issues/animals-used-for-food/factory-farming/ducks-geese/foie-gras/ (last visited Mar 5, 2018).

[7] Signing Message of Governor Arnold Schwarzenegger, Sen. Bill 1520, 2003–2004 Reg. Sess. (Sept. 29, 2004).

[8] CAL. HEALTH & SAFETY CODE § 25981 (2004).

[9] CAL. HEALTH & SAFETY CODE § 25982 (2004).

[10] Ass’n des Éleveurs de Canards et d’Oies du Québec v. Becerra (Ass’n des Éleveurs), 870 F.3d 1140 (9th Cir. 2017) (in which the California’s foie gras sales prohibition is not preempted by the Poultry Products Inspection Act (PPIA)), reversing 79 F. Supp. 3d 1136 (C.D. Cal. 2015).

[11] 21 U.S.C. Sections 451-470.

[12] Ass’n des Éleveurs, 79 F. Supp. 3d at 1138.

[13] Id.

[14] 21 U.S.C. Section 476e (as quoted in 79 F. Supp. 3d at 1144).

[15] Ass’n des Éleveurs, 79 F. Supp. 3d at 1145.

[16] Id. at 1146.

[17] Id.

[18] Id. at 1150.

[19] 21 U.S.C. Section 476e (as quoted in 79 F. Supp. 3d at 1144).