Scanning for Justice: Using Neuroscience to Create a More Inclusive Legal System

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Hilary Rosenthal is a 2019 graduate of Columbia Law School; B.A. 2012, Brown University. The author would like to thank Professor Kristen Underhill for her exceptional guidance on this piece, the staff of the Columbia Human Rights Law Review, and especially Ruth O’Herron, for their invaluable assistance, and the author’s peers at Columbia Law School for their unwavering support.

Abstract

Although they may seem to be worlds apart, on further inspection, neuroscience and the law are not so discordant. Neurolaw is an emerging interdisciplinary field that undertakes to examine how an increased understanding of the human nervous system can lead to a more precise explanation for human behavior, which in turn could inform the law, legislation, and policy. While increased dependence on neuroscience in the courtroom raises evidentiary and normative concerns, its use can also have significant implications for civil and human rights by opening doors for plaintiffs to bring claims that historically have been difficult to prove. One such example is the way neuroscience can obviate the outmoded physical-mental divide in tort law. Courts in the United States have been skeptical of awarding damages for “invisible” injuries, such as PTSD, concussions, neurodegenerative diseases, and emotional pain and suffering, all of which can alter brain structure and function, but often do not manifest physically until it is too late for a person suffering those harms to recover damages in a courtroom. However, as neuroscience technology improves, it can help detect these previously hidden or latent injuries, especially for those in marginalized communities, and begin to uproot entrenched policies that perpetuate health inequality. This Note argues that neuroscience, while not without its shortcomings, has become an increasingly important tool to create a fairer, more just, and more rehabilitative justice system.

Introduction

“The age of scanning has dawned in our courtrooms. This is not a technological genie we are going to be able to put back in the bottle.”[1]

Imagine you are a young child on your way home from your first day of the second grade. You are riding on the school bus, and are excited, if a little nervous, because it is your first time riding on your own. It has been a long day, and you accidentally fall asleep and miss your stop. You awake later to find yourself in an empty bus, parked in a lot nowhere near your home. For many of us, this might incite feelings of fear, anxiety, and distrust. You might be afraid of going to school the next day, perform poorly if you do, or even become unwell when faced with the prospect of getting on a bus again.

If you brought an action in negligence against the bus driver for an incident like this, it might be difficult to prove in court just how much the experience distressed you. You may not have any outward physical symptoms, but anyone who has had an experience like this can tell you that the lasting psychological effects do not easily fade from the mind. What if those processes going on in your brain causing you to feel fear, anxiety, or distrust could be mapped and shown to prove your distress?

For a young boy named Daniel, this kind of evidence could have been helpful. A psychologist diagnosed Daniel with post-traumatic stress disorder (hereinafter PTSD) after a traumatic experience of being abandoned on a school bus.[2] While the court acknowledged his distress as a real, debilitating injury, it did not find that it qualified as a “physical injury” as required under Kansas tort law and, therefore, Daniel could not recover damages.[3] But what if there was a way to show that the psychological effects from which Daniel was suffering were not based in some existential ether, but had physiological roots in the brain?

The field of cognitive neuroscience has the potential to do just that. Recent advancements in this field should change the way we think about the physical-mental divide in tort law. As a judge wrote in dissent in Daniel’s case,

[R]esearch does not support a categorical distinction between emotional and physical harm . . . “Whatever the best minds of the day might have thought about the difference in physical and emotional harm when tort law came of age, the best minds of today do not support such a stark mind-body dichotomy.”[4]

Severe emotional distress is just one type of injury that people all across the world suffer but may not visibly display, even though it can significantly affect one’s daily life. Other injuries, such as concussions and neurodegenerative diseases, can also alter brain structure and function, but often do not manifest physically until it is too late for a person suffering those harms to recover damages in a courtroom.[5] Courts in the United States have been skeptical of awarding damages for these injuries for evidentiary and normative purposes, as in Daniel’s case. Historically, there has been a lack of adequately objective evidence for claims that we cannot see with the naked eye. In a legal system where resources are limited, courts have required some sort of dividing line to determine harms worthy of compensation. But as technology that analyzes the brain and its functions improves, we can start identifying these previously hidden or latent injuries and rectify gaps for redress in tort and other bodies of law.

This Note focuses primarily on tort law as an essential mechanism for enforcing civil rights in a common law system and a means by which citizens can maintain their human rights on a transnational scale. These rights include, among others, the rights to health,[6] equality before the law,[7] and dignified treatment,[8] as well as a right to due process and to a fair trial in a domestic setting.[9] Neuroscience has become increasingly important in ensuring these rights are protected, and may prove useful as a tool to create a fairer, more just, and more rehabilitative legal framework.[10]

This Note argues that, despite some very serious evidentiary and normative concerns, as neuroscience technology becomes increasingly accurate, less expensive,[11] and more precise[12] in illustrating the ways in which people suffer harm, traditional dichotomies of injury compensation, such as the physical-mental divide, are no longer valid. Instead, the law should compensate based on severity of harm rather than type of injury. Redefining this line in tort law will uphold and advance individual autonomy and normative values inherent in our tort system, resulting in more accurate and objective compensation that utilizes modern technology to help people who would otherwise go without just compensation.

Part I of this Note provides a general overview of the intersection between neuroscience and law and the different technologies involved in examining injury, pain, and emotion in the brain. It then details some of the ways that neuroscience technology is already used or discussed in courtrooms and in legislation. Part II describes how neuroscience technology can be used to advance human and civil rights, particularly in tort law, by helping plaintiffs receive compensation for invisible injuries that previously have been difficult to prove, focusing on case studies of PTSD, mild traumatic brain injuries, and neurotoxicity. Part III of this Note explains a few of the ways that neuroscience technology and its use in the courtroom could backfire or hurt some litigants. It also describes some complications of this technology and explains how it can nonetheless be useful if certain precautions are taken. Part III also suggests a few procedural options for regulating or evaluating neuroscience evidence in civil courtrooms, advocating in particular for a working group that could research, draft, and oversee policy proposals. This Note ultimately argues that, as brain scanning technology becomes increasingly precise and research surrounding it increasingly refined, lessons learned from neuroscience will inevitably influence the law and that, overall, inclusion of neuroscientific evidence in the courtroom is advantageous and desirable for tort litigants whose claims until recently have been unverifiable.

I. Neurolaw: What It Is and How It Is Used

At first glance, neuroscience and the law may seem to be odd bedfellows. However, an increasing amount of scholarship and attention is being addressed to the ways that neuroscience—the scientific study of the structure and function of the nervous system and the brain[13]—may impact law, legislation, and policy.[14] Neuroscience research is rapidly developing and illuminating our understanding of human behavior, motivation, intention, and cognition.[15] Understanding how our brains function from a physiological viewpoint should affect how we think about and normatively construct the law. Because neuroscience is the study of the cognitive processes that underlie human behavior, it ought to have significant implications for legal systems, which are ultimately concerned with the regulation of human behavior. Indeed, it already has.[16]

This Part discusses the intersection of neuroscience and law. Section A describes the neuroscience technologies involved in examining injury, pain, and emotion in the brain. Section B provides background and a general overview of the use of neuroscience in legislation, policy, and the courtroom. Section C addresses some of the ways that these technologies can be used in tort and human rights law specifically, focusing on how they can substantiate the invisible injuries affecting people across the world.[17]

A. Types of Neuroscience Technology

Among the various neuroscience technologies used to examine injury, pain, and emotion in the brain, courts and scholarship to date have focused mostly on functional magnetic resonance imaging (hereinafter fMRI) and positron emission tomography (hereinafter PET) scans and how they reflect the physical processes that take place in the brain.[18]

An fMRI measures blood oxygenation levels in the brain and enables scientists to detect which brain regions are receiving more blood flow.[19] When there are changes in brain activity, such as when a patient feels a painful stimulus, blood flow throughout the brain changes as hemoglobin in the blood carries oxygen to the areas of the brain that are working harder.[20] When the hemoglobin releases oxygen to those areas, it becomes paramagnetic,[21] which triggers a magnetic field located inside a magnetic resonance imaging (MRI) scanner.[22] Neuroscientists can track these signals, referred to as the BOLD (blood-oxygen-level dependent) signals, and see how they flow to different areas of the brain over time.

PET scans also measure blood flow in the brain. PET researchers inject a radioactive tracer into the bloodstream and, by tracking its path, can identify neural brain activity in particular areas of the brain.[23] PET and fMRI scans therefore identify the portions of the brain that are activated when a person is experiencing or thinking something, based on the increased quantity of freshly oxygenated blood the regions draw. During a scan, a researcher can measure and correlate the brain areas receiving more blood flow at different time intervals as a participant is asked questions or given a stimulus, such as pain.

Other types of neuroscience technology used to measure abnormalities or disorders in the brain include single-photon emission computed tomography (SPECT), electroencephalography (EEG), quantitative electroencephalography (qEEG), and magnetoencephalography (MEG) scans. These various types of scans can be used, respectively, to distinguish between different types of seizures, to pinpoint defects in auditory and somatosensory areas, to diagnose sleep disorders, and to examine head injuries, tumors, infections, and neurodegenerative diseases.[24] These neuroimaging methods are largely non-invasive, safe, increasingly accessible,[25] and less expensive[26] than other types of scans, such as fMRIs.[27]

However, it is important to keep in mind that functional brain imaging is not necessarily the same thing as mind reading. Researchers warn that “[w]hile fMRI can accurately measure changes in blood flow and oxygen levels, interpreting those changes as reliable indicators of particular types of thought, or as reliable indicators of what a region of the brain is actually doing, requires a series of inferential steps that are not entirely straightforward.[28] Perhaps even more critical is that this technology cannot prove causation. Although differences in brain scans after an emotionally disturbing event may have a corollary relation, this does not mean that the emotionally disturbing event was the cause of those differences, and other events may have contributed to the injury since. Similarly, when trying to image how a plaintiff’s pain or injury has changed over time, researchers may need a baseline scan of the plaintiff’s pain level before a defendant’s wrongful action, which is often absent.[29]

Despite these weaknesses, neuroscientific evidence from fMRIs, PET scans, and other tests is increasingly used in U.S. courtrooms under certain evidence standards,[30] and the rapid growth of neuroscience technology will likely only improve its accuracy and reduce its price.

B. The Intersection of Law and Neuroscience

The intersection of law and neuroscience, often dubbed “neurolaw,”[31] has featured prominently in a number of cases and policy debates in the U.S.[32] Scholars, advocates, and judges have invoked neurolaw in a variety of legal fields, including criminal responsibility and sentencing,[33] lie detection,[34] adolescent brain development and juvenile justice,[35] morality,[36] free will,[37] risk and information processing in addicts,[38] brain death and injury,[39] judge and jury bias,[40] and tort law,[41] among others. The use of neuroscience data as evidence in U.S. courtrooms has risen sharply in the past decade.[42] Outside of the courtroom, neuroscience is also widely cited in various types of legislative bills,[43] especially relating to brain injury, medical insurance,[44] mental health, education and early childhood interventions, and veterans’ affairs.

Neuroscience technology has had varying influence in the criminal courtroom context thus far.[45] Brain scans have been presented to mitigate a defendant’s sentence,[46] to show that a defendant is incompetent to stand trial, and to prove that a defendant did not have the requisite mens rea at the time of the crime, though the scans are not uniformly admitted or successful. Sometimes the scans merely demonstrate correlation rather than causation—at least in a courtroom’s eye. For instance, in People v. Goldstein, a defendant who pushed a woman in front of a subway train to her death sought to introduce a PET image of a brain abnormality in an effort to prove an insanity defense of schizophrenia.[47] While the prosecution conceded that Goldstein suffered from schizophrenia, the court excluded the PET scan from evidence because even though it demonstrated a brain abnormality, it would not actually be probative as to the mens rea element of the crime, “since a diagnosis of schizophrenia does not preclude per se that a defendant is capable of such comprehension.”[48] Cases such as this one illustrate that, at least in criminal contexts in the United States, neuroscientific data can be useful as an evidentiary tool, though a court may reject the admissibility of the data if it cannot prove a causal basis for a defendant’s actions or if it is not used in conjunction with corroborating evidence.

Neuroscience evidence has also been used in various cases and legislation[49] concerning juvenile justice. In Miller v. Alabama, the United States Supreme Court cited brain science findings regarding impulse control, planning, and risk avoidance in holding that mandatory sentences of life without the possibility of parole are unconstitutional for juvenile offenders.[50] That case, and at least twenty others, have relied on an affidavit written by Ruben Gur, a national PET expert, arguing that adolescents are not as capable of controlling their impulses as adults because the development of neurons in the prefrontal cortex is not complete until the early 20s.[51] Similarly, in Graham v. Florida the Supreme Court cited neuroscientific and psychological data on adolescent development when it struck down, under the Eighth and Fourteenth Amendments, sentencing juveniles to life in prison without parole for non-homicide crimes.[52]

Courts have also considered neuroscience evidence in civil matters. In his dissent in Brown v. Entertainment Merchants Association, Justice Breyer cited “cutting-edge neuroscience” to support the argument that violent video games are linked to more aggressive behavior.[53] In other cases, neuroscientific evidence has been successful in proving mental incapacity. For example, in Van Middlesworth v. Century Bank and Trust Co., a defendant introduced brain scans to prove his mental incompetency, resulting in the court ruling that the real estate contract that he signed was void.[54]

C. Neuroscience as a Burgeoning Tool in Tort and Human Rights Claims

Scholars have debated the use of neuroscience evidence in criminal sentencing mitigation at length,[55] but an increased reliance on neuroscience in the courtroom, in legislation, and in regulation can also have significant implications for civil and human rights[56] and can open many new doors for plaintiffs to bring claims, such as in tort law.[57] By pinpointing cognitive responses with objective technology, neuroscience tools and research can provide substantiation for “invisible” tort injuries[58] that historically have been difficult to prove beyond a plaintiff’s testimony, such as PTSD, mild traumatic brain injuries (hereinafter mTBIs), toxic exposure, and emotional pain and suffering. Neuroscience technology’s ability to reveal the pain response in an individual’s brain could reform how we think about tort law and what compensation may be due to litigants. Incorporating this emerging field into law would be especially beneficial for the rights of people in marginalized communities, such as racial and ethnic minorities,[59] prison inmates, indigent people,[60] abuse victims, and invisible injury victims,[61] whose pain and suffering traditionally is underreported.

PET, fMRI and other brain science technologies can shed light on how a person’s experiences affect cognitive functions that are outwardly undetectable or produce visible symptoms only after it is already too late for a plaintiff to be made whole.[62] In tort law specifically, it is generally more feasible for plaintiffs to recover damages for physical injuries than for psychological or invisible injuries, with limited exceptions.[63] However, with the advent of neuroscientific data, more courts and lawmakers are beginning to see the physical mechanisms underlying pain and humans’ experience of it, expanding plaintiffs’ ability to seek redress for genuine injuries through tort law.[64] Though the experience of pain and emotion is inherently subjective, this technology can help expose and quantify harms in ways we have not seen before. Furthermore, preventing the worsening of an injury by detecting it at its earlier stages may reduce individual medical treatment costs and curb future litigation.

The next part of this Note will argue why there is inherent value in using this technology to help litigants demonstrate their invisible injuries and finally receive legal recognition.

II. Neurolaw’s Potential to Advance Human Rights in Tort Cases

This Part describes how neuroscience technology can be used to advance human and civil rights, particularly in the context of tort law. Section A describes the current state of tort standards, and Section B describes how neuroscience is already being presented in courtrooms regarding detection of pain. Sections C, D, and E then explain how neuroscience technology may be useful in helping plaintiffs receive compensation for other invisible injuries, focusing on case studies of emotional distress and PTSD, concussions, and neurotoxicity.

A. Tort Law and the Decline of Substance Dualism

Tort law serves a variety of purposes in society, providing compensation, insurance, and deterrence through an economic model in which those who have caused harm monetarily compensate those who have been injured.[65] But what counts as “harm” is not always straightforward. In the United States, “physical” harm has traditionally been distinguished from “mental” harm in tort suits, and courts are much more likely to award damages for physical injuries than for emotional and invisible injuries, largely because the latter two have traditionally been difficult to prove.[66] Relatedly, courts are worried about malingering litigants and are fearful that allowing compensation for less outwardly verifiable injuries could bring a flood of cases that would absorb “resources better left available to those more seriously harmed.[67] Whether it is in statutory law generated by legislatures, common law interpreted by courts, or insurance contracts agreed to between private parties, the law consistently makes this physical-mental distinction.

The theory that mental experiences are something wholly different from bodily ones is known as “substance dualism.” Implicit in substance dualism is a societal belief that claims of emotional or mental harm are less deserving of compensation than those with physical consequences.[68] International institutions[69] and American courts, to varying degrees, have recognized that tortfeasors should be held responsible for causing emotional distress injuries such as anxiety, loss of tranquility, loss of autonomy, and diminished enjoyment, but have treated these proffered injuries as “second class citizens.[70] Yet nearly all brain researchers and philosophers reject substance dualism in favor of monism, the view that “conscious experience is inseparable from the physical brain.”[71] Insights from neuroscience, psychology, and psychiatry have exposed dualism as “empirically flawed and conceptually bankrupt . . . a person cannot be reduced to his mind or separated from his body. He is, inescapably, both at once.”[72]

The physical-mental bifurcation in tort law does not sufficiently take into account modern developments in the understanding, diagnosis, and verification of illnesses and trauma that affect brain structure and function.[73] This distinction assumes that medical professionals cannot identify the underlying biological bases of most psychiatric disorders, as opposed to the more discernible pain of an outwardly obvious injury like a broken leg. As we continue to discover the physiological origins of emotional harm through brain imaging evidence,[74] the distinction becomes outmoded.[75] As advancements in neuroscience grant us greater ability to quantify emotional harm claims, tort litigants may be able to introduce neuroimaging evidence as objective proof of injury, and courts and legislatures should begin to see emotional injuries’ capacity to harm litigants and rethink this anachronistic distinction.[76] Many of these litigants are members of populations that are underprivileged or that have historically been undercompensated in their legal rights.[77] If neuroscience technology continues to be increasingly precise and reliable, then many litigants whom have suffered trauma that has otherwise been overlooked by the legal system may at least be able to get their day in court.

Indeed, neuroscience research has begun to shed light on the specific neural correlates of emotional pain, proffering concrete evidence that these injuries may not be so second-class. Individuals with emotional trauma or psychiatric disorders have abnormalities in a number of brain regions, including the adrenal systems, the amygdala, the hippocampus, and the cortices, and exposure to traumatic events can change this circuitry in previously healthy individuals.[78] Studies have confirmed that, in certain instances, pugnacious words or tones, verbal threats, bullying, or emotional abuse can cause neurochemical changes in the amygdala and atrophy in prefrontal cortical function.[79] This can influence students’ ability to perform in school and affect an individual’s likelihood of future disease or even one’s lifespan.[80] fMRI scans show that emotional pain physically affects the same brain area as bodily injuries and that emotional harm can be at least as painful as physical harm.[81] Emotional pain can also be more prolonged or more debilitating than physical pain.[82]

As diagnostic imaging techniques are increasingly able to provide more objective evidence of these kinds of brain-based distress, there is less justification for entrenched laws and policy that make it harder to recover for invisible injuries than physical ones.[83] Limiting tort claims to outwardly visible injuries fails to recognize the progress that our society has made in understanding mental health matters and that non-visible injuries can be as real and debilitating as visible ones.[84] How neuroscientific evidence is used in courtrooms and translated into policy may thus have significant ramifications for civil recovery, especially for those litigants who have been effectively disparaged because they had no objective evidence to substantiate their claims.[85] At the very least, the increased ability to detect and quantify emotional pain should force courts and legislators to reexamine this divide. The following are examples of ways that neuroscience can help detect evidence of invisible injuries and preserve the deterrent and corrective justice functions of civil law, particularly in the field of torts.

B. Neuroscience and the Identification of Pain

One area of civil litigation in which neuroscience increasingly plays a role is in the determination and valuation of pain. About $150 billion[86] and hundreds of thousands of legal proceedings each year[87] in the United States turn on the existence and extent[88] of a litigant’s pain, often in disability, insurance, product liability, medical malpractice, workers’ compensation, personal injury, and pain and suffering[89] proceedings. Yet, evaluation of pain largely depends on subjective self-reporting that can frequently be difficult to express, relatively easy to exaggerate, and hard for others to understand.[90]

Neuroscience may be able to corroborate a person’s described experience of pain or provide evidence about pain for those who are unable to verbally communicate, such as infants or the unconscious. The use of brain imaging technology can demonstrate where in the brain litigants’ self-reported pain correlates with neural activity and how particular pain conditions result in the reshaping of certain brain structures and neural circuitry.[91] Researchers have found, for example, that chronic headaches, back pain, and phantom limb pain are associated with decreased grey matter density in the prefrontal cortex and thalamus of the brain.[92] Scholars have advocated that neuroimaging of chronic pain should lead to modifications of mental and physical disability regulations as well as workers’ compensation regimes.[93]

Although technology has allowed researchers to discover structures of the brain that are responsible for pain perception, whether this is enough to prove pain and suffering in court is more tenuous, especially under the Daubert and Frye standards[94] for the admission of expert evidence.[95] Expert opinions diverge on whether neuroimaging technology’s ability to determine precise levels of pain is reliable enough for courtroom use. Some argue that many external factors affect an individual’s pain perception[96] and that sensitivity to pain varies significantly from one individual to another. Professor Amanda Pustilnik believes that aggregate pain neuroimaging evidence ought to be admissible under the federal, state, and administrative evidence regimes for limited purposes, but that brain scanning technology is not, or at least not yet, a “fraud-o-meter, pain-o-meter, or mind-reading machine;” it is better used as a tool for increasing understanding about these complex phenomena and for educating judges and jurors.[97] A number of private entities,[98] scientists,[99] and courts[100] have taken more lenient views, and the use of pain-scanning techniques for tort litigation has risen.[101]

fMRI pain scans may not meet the requisite level of certainty to make them useful in all cases. Even so, the reliability of the technology has increased markedly in a very short period of time. While today’s neuroscience has not yet produced a foolproof “pain-o-meter,” it can map brain pathways and offer increasingly tailored treatment, explanation, and measurement of pain in individuals.[102] It “now shows that distinct chronic pain conditions produce characteristic patterns of structural brain alteration, with the degree of visible brain alteration correlating with the duration, severity, and type of chronic pain,”[103] which can offer some visibility to litigants’ previously discounted claims of pain.

C. Neuroscience and PTSD

Cases involving PTSD illustrate how broken the physical-mental division in tort law is.[104] Neuroscience research has begun to document structural changes to the brains of PTSD-diagnosed participants by showing how PTSD results from disrupted circuitry between the amygdala, the brain region stimulated when an individual experiences stress or trauma, the hippocampus,[105] which plays a central role in the formation of memory, and the pre-frontal
cortex, which regulates emotional responses to fear and stress. Neuroscientists have found that PTSD can also cause disruption of neurotransmitter networks such as the noradrenergic system, the serotonergic system, and the hypothalamic-pituitary-adrenal axis.[106]

Many types of psychological trauma can cause PTSD, such as car accidents, military combat, childhood abuse, rape, and assault.[107] Patients with PTSD can suffer from a wide array of symptoms that reflect stress-induced changes in neurobiological systems, including “intrusive memories, flashbacks, hyper-vigilance, sleep disturbance, avoidance of traumatic stimuli, physiological hyperresponsivity, numbing of emotions, and social dysfunction.”[108] While such symptoms are commonly understood to be psychological problems, some or all of them may well be related to the physical effects of extreme stress on the brain resulting from a dysfunction of the neural networks that regulate memory and fear.

Neuroscience evidence can play a critical role in determining whether PTSD is understood as a mental or a bodily injury, the latter of which is often required for plaintiffs to recover damages in tort claims as well as in insurance policies, contracts, or claims against the government. To receive damage awards in PTSD litigation, a plaintiff must establish the existence of PTSD as well as specific causation between the defendant’s actions and that injury. Neuroscience findings can help fortify that chain.[109] Documenting real-time neurochemical changes can help clarify that there is at least some physical damage that correlates with PTSD in an individual. These advances might be particularly salient for victims of domestic violence as medical professionals are becoming increasingly cognizant of the neurobiological consequences of battering.[110] Furthermore, while society might consider military veterans or victims of domestic violence to be “deserving victims” of compensation for PTSD, what about victims of PTSD triggered by their imprisonment or participation in gang violence?[111] Should social disapproval of these stressors allow the criminal justice system to withhold sentencing mitigation of these defendants even though they too suffer from PTSD? Neuroscience can offer credence to the claims of such victims and to people of all backgrounds, regardless of their status in society.

This increasingly substantial research suggests that maybe it is time to stop disfavoring tort liability for emotional distress, or at least reconsider it for particularly vulnerable populations.[112] The capacity of functional neuroimaging to identify the biological correlates of emotional experience makes it clear that being subjected to stress or abuse can lead to objectively identifiable changes in the brain and can play a role in substantiating subjectively reported pain. We must critically examine and clarify the normative foundations for the distinctions we have historically taken for granted.[113] If dualism is outmoded, how might we, and should we, distinguish mental and psychological torts from other types of torts?[114] While a bright line might be necessary, the physical-mental distinction may no longer be the most appropriate point on which to divide it.

D. Neuroscience’s Potential to Identify Mild Traumatic Brain Injury

Litigation and national public health concerns over mild Traumatic Brain Injury (mTBI) and Traumatic Brain Injury (TBI)[115] have gained prominence as reliance on brain scanning has increased.[116] The terms “concussion” and “mTBI” are often used interchangeably. mTBI currently stands as a subjective clinical diagnosis based primarily on patient history and observable behavioral symptoms, which may include concussions and loss of consciousness, confusion, dizziness, fatigue, nausea, and trouble with learning and memory.[117] Sometimes symptoms might endure for weeks or longer, manifesting in persistent headaches, sleep disturbance, poor concentration, irritability, and depression.[118] The Centers for Disease Control and Prevention estimates that, in the United States, 1.7 million people suffer a TBI each year, and it is likely that many more go unreported.[119] With an estimated total cost to society exceeding $76 billion per year, the epidemic has far-reaching consequences.[120]

Unfortunately, because mTBI manifests in no particular physically distinct way, there is presently a lack of unequivocal metrics to detect it.[121] Thus, the millions of professional and youth athletes, as well as victims of head trauma in transportation accidents, military combat,[122] domestic abuse, and workplace injuries, can find tort claims difficult to prove in court.[123] This is especially so when debilitating symptoms, which can be extremely severe in some cases,[124] do not manifest immediately. For those that suffer from chronic traumatic encephalopathy (CTE), their diagnosis and resulting redress may come too late.[125]

Over the past few years, however, neuroscientific research has begun to develop more nuanced, objective diagnostic measures[126] of mTBIs by, for instance, evaluating levels of proteins that regulate cell development and degradation and act as an indicator of TBI.[127] Neuroscientists also scan eye movements of patients to detect signs of mTBI via magnetoencephalography, a functional brain imaging technique that measures neuronal currents. A variety of other neuroimaging techniques are also being investigated for providing biomarkers of mTBI.[128] In the fall of 2017, a group of researchers at Boston University discovered a possible means of detecting CTE in living plaintiffs;[129] studies are increasingly finding that diffusion tensor imaging may also be useful in detecting mTBI.[130] This is one example of an advancement in neuroscience enabling a far larger class of plaintiffs to litigate. These methods are in their infancy, however, and more studies are needed before they can be used as definitive ways to diagnose mTBI, TBI, and CTE in living patients.

As the science improves, more precise brain scans may significantly inform courts and policymakers as they wrestle with complex questions regarding the nature of concussive injury, the need for regulation in the area, and the allocation of fault and duties with regard to head injuries. Indeed, all fifty states now have legislation to prevent concussions and to limit further injury to student-athletes who sustain concussions.[131] Moreover, with increasingly accurate brain scanning technology, more claims may be made in professional malpractice lawsuits and in negligence claims against entities sponsoring athletic events. Plaintiffs may also pursue latent injury claims,[132] which have been causally difficult to substantiate. These developments might also prompt courts to hold coaches, trainers, and parents to a higher standard of care. The findings will help scientists better define the type of damage that can lead to long-lasting memory and emotional problems, as well as help identify those who are most vulnerable to further trauma.

Ultimately, neuroscience will inform the debate as to what risks are acceptable for whom, and it will allow individuals to better understand how their brains have been affected. It will also prompt more just compensation, especially considering the coercive social and economic pressures to underreport symptoms or to ignore the risks of these activities,[133] which are often inevitably linked to issues of social and racial justice.[134]

E. Neuroscience’s Potential to Identify Neurotoxins in the Brain and Nervous System

Exposure to toxins can cause neurophysiological changes in the brain, which can lead to cognitive impairment, neurodegenerative diseases, or the onset of psychiatric disorders such as ADHD or autism—even though these effects are typically invisible to the naked eye.[135] Common pesticides and chemicals such as lead,[136] arsenic, organophosphates, and mercury have been closely associated with cognitive impairment, and more than 200 chemicals have been shown to be neurotoxic in humans.[137] It is not just factory pollutants that can have deleterious effects on the brain—chemicals that are found in children’s toys, in food, and even in household furniture and appliances can also affect neural development.[138] “[T]he vast majority of chemicals in commerce remain untested for their impacts on neurodevelopment,”[139] and it is quite possible that there are more neurotoxins whose effects have not yet been identified.

The prevalence of neurotoxins and their often-deleterious effects on the body and mind can elude public, and certainly legal, discourse. In fact, the magnitude of neurotoxicity is not exactly known and its impact on human health can be understated; even in more developed countries, it is estimated that over 30 million individuals suffer from neurobehavioural illness, but only 20% of these individuals seek medical attention related to such illness.[140] Because many neurotoxins cause non-distinct clinical manifestations—such as nausea, headaches, pain, irritability, dizziness, fatigue, and difficulty concentrating—it is often difficult to diagnose with reasonable certainty, as is required in tort law to recover damages, whether someone is suffering from exposure to toxins. Aside from issues related to proving causation, toxic tort litigation can also require extensive preparation and testing, substantial financial resources, and expert testimony to interpret the evidence, which can be prohibitively expensive for many litigants.

As reliance on neuroscience technology and neurobiological research gain is augmented, more litigants will be able to overcome these obstacles and bring suit,[141] which may in turn affect legislation or discourse about the acceptable levels of toxic chemicals that can be discharged into the environment.[142] Chronic levels of exposure to toxins such as pesticides, even at low levels, can have profound impacts on the nervous system, especially for children and infants.[143] Health effects may occur years after minor exposure to toxins in the environment or in residues ingested through food and water.[144] Neuroscience studies illustrate dysfunctions in brain and behavior[145] that may be attributable to ecological toxins, and such studies have found that a number of toxins are risk factors for the development of neurodegenerative diseases such as Alzheimer’s or Parkinson’s later in life.[146] Chronic exposure to neurotoxic substances can also be associated with violence, depression, and substance abuse.[147]

Similar to victims of emotional trauma, PTSD, and mTBIs, neurotoxin victims often face difficulties—whether under common law, contract, or policy—when their injuries are not physically visible and thus have been historically difficult to demonstrate.[148] In cases of asbestosis, for example, insurance coverage is often triggered only when the disease causes “bodily injury” even though the policy does not delineate exactly what counts as such injury and when it occurs.[149] Some courts have ruled that the microscopic tissue damage caused by asbestos exposure constitutes bodily injury, whereas others have ruled the opposite, finding that a bodily injury must be “an injury, sickness, or disease,” when one’s sense of well-being is adversely affected or impaired, and thus have preferred a principle of severity.[150] The problem with this is that many neurological injuries are insidious, and not severe or compensable until it is too late—that is, their debilitating effects have already begun and may not be curable by the time a litigant can prove their existence in court.[151]

The existence of these toxins in the environment represents an important challenge to environmental justice and human rights. There are gross inequities between resource-poor and industrialized countries[152] as well as between different socioeconomic and racial groups[153] within countries.[154] Those with lower socioeconomic status are more likely to live in areas where toxins are present, to have occupations that involve direct contact with toxins, and to have overall less bargaining power and access to education to treat or prevent them. The incidence of lead poisoning, for example, is associated with “socioeconomic status, rurality, race, age, and the date one’s residence was built.”[155] Poorer urban children are at the highest risk for neurotoxicity, “presumably due to the presence of lead in older building materials and reduced access to sources of nutrition.”[156] Exposure to these toxins can further magnify inequalities and hamper educational opportunities, especially considering the young age of many lead poisoning victims.[157]

Although there is substantial evidence demonstrating the impact of certain pesticides on brain and mental health, the synergistic and cumulative effects of many toxins can be difficult to measure and might persist for years before detection. We need better and more preventative methods to determine which chemicals have neurotoxic effects, and neuroscience research and scanning technologies can advance that goal.[158] Various domestic laws[159] and international agreements[160] demand a right to a healthy environment, including one free of neurotoxins, but the results are imperfect.[161] As the technology becomes more accessible and less expensive, litigants using neuroscience can be the catalysts to show just how detrimental exposure to these toxins can be. Neuroscience evidence could bolster a possible public nuisance action for use of pesticides, metals, and other chemicals: whereas in the past the consequences of toxins in the environment might be felt too late and a litigant could only recover if he or she had an increased risk of future harm, neuroscience can show effects in the brain in real time. We must also ensure that these technologies are as accessible as possible to all; that detecting, predicting, and screening for neurotoxicity is not prohibitively costly for those with lower incomes; and that the public receives better education on potentially harmful substances

III. Challenges to and Weaknesses of Neuroscience’s Use in the Law

While neuroscience technology may lead to a fairer legal system, it is still evolving, and despite how tempting it is to draw conclusions from its seductive, technical medical data and graphs, it cannot yet be relied on as a mind reader, predictor of future actions, or litmus test.[162] While understanding the circuitry and cognition processes of the brain may lead to increased knowledge of human behavior, neuroscience, like any other scientific field, does not always isolate a specific cause that leads to a specific effect. Indeed, the potential value of neuroscience to improve decision-making accuracy and to advance justice must be reconciled with the potential for exaggeration, hype, and premature application of scientific theses that are not yet repeatedly validated. Moreover, incorporating neuroscience into the law is not without its ethical and policy concerns, raising apprehensions regarding conceptions of free will, mental privacy, and personal liberty.[163] Additionally, traditional dichotomies in tort recovery might become superfluous if litigants can demonstrate suffering from emotional injuries using brain scans.[164]

The use of neuroscience technology in the courtroom and in legal policy presents two main categories of concerns: one regarding the reliability and readiness of this technology for use as evidence, and another encompassing the normative, ethical, and policy concerns we might have about the use of this technology. Sections A and B of this Part examine each of these in turn. Section C explains why, despite these concerns, neuroscience is ultimately a useful tool for policymakers and potential litigants. This Section also proposes a number of strategies for legislatures, courts, and society to take to regulate the use of neuroscience data in civil courtrooms.

A. Evidentiary Concerns

From an evidentiary standpoint, it is vital to consider criticisms and weaknesses of utilizing neuroscientific data in the courtroom. Primarily, neuroscience must wrestle with meeting a threshold of reliability before courts can accept its use in factfinding.[165] Some of those problems include a lack of a baseline, extrapolating information gleaned in generalized studies to a specific instance, confounding social and environmental factors that might influence the data, and the unknown rate of false positive and false negatives. This Section will address each of these limitations.

A significant problem in using neuroimaging evidence is establishing a plaintiff’s baseline brain function.[166] For example, without some evidence of an individual’s condition prior to an incident, it is hard to evaluate whether a particular incident actually caused the individual psychological harm or aggravated it further, or whether the individual was suffering from a pre-existing condition. It is unlikely that a plaintiff will have had previous brain scans to compare to the current scan.[167] Similarly, brain scans taking place long after a particular incident occurred may be of limited diagnostic or forensic use.[168] Although the plaintiff may still be experiencing injury or harm, a number of other causes between the injury and the scan could have contributed to the neuroimaging results.

Establishing a baseline goes to the issue of causation; that is, whether a plaintiff’s harm is really due to the event in question.[169] Although neuroscience has made great strides, we still possess limited understanding of the physical link between brain activity and behavior and must continue to emphasize the distinction between correlation and causation when using neuroimaging data in court. Though fMRIs can accurately measure changes in oxygenated blood flow, interpreting those changes as reliable indicators of particular types of thought, or as reliable indicators of what a region of the brain is actually doing, requires a series of inferential steps that involve statistical analysis, interpretation, and comparison to other information. In fact, studies from psychology, psychiatry, and public health have shown that a traumatic event may be a cause of a mental disorder but may not be the proximate or sole cause.[170]

As insightful as brain scanning techniques are, it is crucial to remember that they are proxy measures of brain activity. There is substantial “human judgment” between data acquisition and the creation of the “eye-catching fMRI images that we have become accustomed to seeing.”[171] Experts’ analyses can help interpret neuroscience data, but they can also lead to distortions of it. In the courtroom, judges must consider the credibility of the neuroscience evidence, the ways in which it might be interpreted or manipulated, and its potential impact on jurors.

Another criticism of reliance on this technology is that there is a significant difference between how a brain functions in laboratory experiments and how a brain experiences the real world in the midst of an incident.[172] It may be difficult, if not impossible, to approximate the real-world context during a brain scan. Additionally, most of what we know about brain function comes from studies that average results from groups of individuals; as a result, it is challenging to predict the exact nature of brain dysfunction in individual subjects. Brains and their responses vary not just across individuals but also within particular individuals over time due to external contextual factors like mood, medication, or sleep deprivation.[173] It is imperative to consider false positives and false negatives: a person could subjectively experience pain because of a low pain threshold even though it may not manifest on a scan, or she could feel no pain while a scan indicates that she should be feeling it.

Keeping these limitations in mind, we must weigh the probative value of neuroscience evidence against potential prejudicial impact on judges and juries.[174] In other words, fact finders may tend to trust brain scans simply because they are impressed by the images and believe them to be scientifically objective.[175] According to Federal Rule of Evidence 403, the court may “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”[176] Colorful neuroimaging in a courtroom may seem more reliable to a jury than is justified. On the other hand, this is nothing new: all scientific evidence, particularly when it comes from more novel technologies, can lead to confusion and is rarely, if ever, 100% dispositive.[177]

Neuroscience technologies are still developing and require further corroboration before they are ready for widespread use in the courtroom. Ensuring scientific reliability, commissioning larger and more diverse sample pools, developing theories to help explain and test correlations, and increasing scientific literacy among decisionmakers will contribute to increasing neuroscience’s legal value and to decreasing skepticism. Still, it is important to note how advanced brain scan technology has become—for example, scientists are now able to evaluate specific structures, chemical levels, and individual receptors in the brain.[178] Perhaps the best way to approach the power of these technologies is to use neuroscience as only one factor among
others—as a piece of evidence added to the whole puzzle that the triers of fact consider in reaching a decision. Neuroscientific data alone may not always be conclusive but could be corroborated with litigants’ self-reports and behavior.[179]

While the limitations outlined in this Section may support evidentiary challenges or grueling cross-examination, they do not justify an absolute legal barrier to the use of brain scan technology in the legal arena, especially considering the probative value that the data can provide. Although neuroscientific imaging methods may never be infallible or definitive enough to supersede other forms of evidence, there are many suffering people to whom these methods can finally give credence and validation.

B. Normative, Ethical, and Policy Challenges to Neuroscience in the Courtroom

Science may inform the law but it does not dictate it. As a society, we may want to maintain distinctions between physiologically similar harms for normative reasons. Courts are skeptical of recognizing invisible injuries for several reasons other than the evidentiary difficulties discussed in Section A. They may fear that eliminating the distinction between awarding economic damages for physical but not invisible injuries is the first step in a slippery slope.[180] A number of scholars defend the relevance of the distinction between physical and emotional harm, especially in tort law, by asserting that a duty to maintain one’s own emotional well-being can benefit both tort plaintiffs and defendants because it incorporates normative ideals about identity, consent, autonomy, social justice, and social welfare.[181] After all, not everything that we “dislike or resent, and wish to avoid, is harmful to us,”[182] including unpleasant but not unequivocally debilitating mental states such as disappointment, hurt feelings, broken hearts, and shame. Not all stress is bad and negative experiences or emotions can be helpful and constructive; these types of injuries are inherent in the experience of being human and may not be worthy of compensation in the courtroom.

Additionally, the use of neuroscience technology in the courtroom or its incorporation into legislation could backfire and hurt some litigants.[183] It is imperative to consider whether we, as a society, want to develop new standards of objectively measuring injury or harm. While using brain imaging technology might allow compensation for some litigants who would otherwise be unable to demonstrate an objective measure of their pain and suffering, a reliance on these technologies might exclude other litigants who are unable to show this harm on a device.[184] As neuroscience evidence becomes a norm in the courtroom, litigants unable to proffer this evidence—whether due to cost or other involuntary means—may be disadvantaged or their lawyers charged with ineffective assistance of counsel.[185]

If some type of neuroimaging evidence is admissible and becomes expected, can a litigant be penalized for not proffering such evidence? In one case, the United States Court of Appeals for the Eighth Circuit suggested that a plaintiff’s expert should have ordered a PET or SPECT scan of the plaintiff’s brain to support a PTSD claim.[186] Because the expert failed to do so, the court rejected the argument that the plaintiff suffered physical injury to her brain. It is not farfetched to imagine a future where defense counsel routinely requests fMRI tests or requires that a plaintiff be made available for an fMRI, as is currently done in DNA or other forensic tests, to substantiate claims of pain and suffering.

Increased use of neuroscience data in the courtroom could also backfire by creating a problematic perception that a claimant has a duty to mitigate his or her own harm. Might victims of tortious wrongdoing be required to avert the aggravation of their own injuries? Expecting invisible injury victims to, say, go to a therapist or take medications or painkillers, and penalizing them with a lower damage award if they do not, could infringe upon cognitive liberty and other societal or cultural notions of autonomy.

Socioeconomic obstacles to using this technology to boost litigants’ claims are also concerning. The cost of neuroimaging scans may be prohibitive for some tort litigants.[187] A preference for scans might prejudice decisionmakers against claimants who cannot afford the technique or whose condition cannot reliably be discerned by a scan.

Neuroscience and its potential to eliminate the physical-mental divide in our legal system can also raise a number of constitutional issues, possibly implicating the First, Fourth, Fifth, Seventh, Eighth, or Fourteenth Amendments. First Amendment doctrine relies on the notion that speech that causes emotional harm should be less susceptible to regulation than conduct that causes physical harm, a norm that neuroscientific insights might challenge. A brain scan could also constitute a search of the person, implicating the Fourth Amendment.[188] The Fifth Amendment protects individuals from being forced to incriminate themselves—can a brain scan disrupt that notion? To the extent we have a right to mental privacy and cognitive liberty, who should be entitled to access this information, and is this right protected in the Constitution? The ways use of neuroscience in the courtroom could implicate the right of trial by jury, protected by the Seventh Amendment, and due process and equal protection rights, protected by the Fourteenth Amendment, are numerous and complex, and likely will become relevant as its use in the courtroom becomes more prevalent. Finally, punishing people for their neurobiological thoughts rather than for their actions could violate the Eighth Amendment’s ban on cruel and unusual punishment.[189] These questions are beyond the scope of this Note, but remain important to consider.

C. The Way Forward: Creating Law and Policy Informed by Neuroscience Research

Although neuroscience research and tools will never provide all of the answers about a given case or person, its probative value outweighs the risks mentioned in Sections A and B. Insights from functional neuroimaging evidence are increasingly illuminating, relevant, and reliable, and they can at least supplement more conventional evidence. Neuroscientific data can increase confidence in the law’s conclusions and in some cases challenge our confidence in those conclusions, and it can inform how we define tortious behavior. Neuroscience and law will inexorably continue to intersect as our understanding of the brain becomes more sophisticated and as lawyers become more familiar with neuroscientific evidence’s potential. Therefore, it is important to discuss regulatory, judicial, and doctrinal options for neuroscience in the legal field.

Because careful consideration is required to determine when the use of neuroscience evidence is appropriate, it might be helpful to establish a working group or commission to develop rules of evidence to accommodate the technological developments. There is already an organization focused on using neuroscientific insights to inform legal policy in the criminal law context,[190] but perhaps one focused on civil and tort contexts should be established as well. This group could include neuroscientists, psychologists, economists, and lawyers, among others, and should be socioeconomically inclusive so that all parts of society are allowed equal input. This group could discuss the various ways that neuroscience might be used and especially how it might be misused in the courtroom. Researchers and scientists could present their findings and explain the limitations of their findings (such as making it clear that a study consisted of, say, mostly college-age students and that an averaged data point might not extrapolate to a particular individual); behavioral psychologists and economists could interpret these findings and offer predictions about how they might play out in society; and lawyers could offer their perspective on how a judge or jury might consider and respond to that data. Policymakers could then propose model laws to accommodate these pieces of evidence or perhaps offer guidelines for courts interpreting neuroscience evidence in Daubert proceedings. It might be beneficial to craft a standard for the use of neuroscience evidence in court and for policy determinations similar to the standards used for genetic data or forensic testing and to consult methods employed by groups such as the National Conference of Commissioners on Uniform State Laws,[191] including research, drafting, and oversight committees.[192]

In judicial proceedings, consulting neuroscience and cognitive psychology experts will be crucial. Under federal evidentiary standards, neuroscience data should be viewed with caution, but should still be considered as one of the factors in an overall evaluation of harm. The evidentiary concerns listed in Section A can be mitigated by instituting clear jury instructions on how to analyze neuroscience evidence objectively and meticulously. As long as juries and judges are instructed to consider neuroscience data with a critical eye, neuroscience evidence should be accepted in court as substantiation of invisible injuries and it should be viewed as helpful, though not dispositive. A variety of indicators could be used to evaluate the neuroscience evidence—such as how reliable the data is or who exactly the data comes from—and could thereby inform a court or a jury on how much weight they should give the evidence.

Courts and legislatures will increasingly be called upon to articulate new boundaries of liability in the area of invisible harms, but so will society at large. At the very least, neuroscience will force a reconsideration of what some see as outmoded distinctions in the law. As Betsy Grey asserts, “if there is to be no or lesser recovery for mental distress claims, then this choice should be better explained by policy concerns about ruinous liability and a desire to reserve funds for victims of other harms rather than based on an unexamined physical-mental boundary.”[193] Furthermore, taking into account how research has chronicled the damaging neurobiological effects of harms such as PTSD, mTBIs, and neurotoxins, neuroscience might change what we see as reasonably foreseeable for the purposes of determining proximate causation in tort law. If neuroscientists can show a strong correlation between these harms and neurological and psychological injuries, plaintiffs may find the causation prong of a tort claim easier to prove.

Ultimately, we may not want to remedy every harm that one can experience in society. But more objective, measureable information that is rooted in the physiology of invisible injuries could reveal that some actions injure more than others. We might want to protect against these actions by redrawing the lines in our tort system. Neuroscience might be able to tell us what traditionally unprotected tortious harms can cause long-term damage or have other harmful effects. For example, a physical disability or injury is generally seen as more debilitating than a bully’s harsh words, but what if a reliable brain scan showed that those words affected a particular individual so greatly that he could not attend school, sleep, or socialize?[194] While we might not want to bring hurt feelings or broken hearts into litigation, neuroscience shows that words, in some instances, can hurt in a quantifiable way.[195] Once neuroscience technology is able to verify injuries like this—and the technology is close if not there already—tort law should depend less on the arbitrary physical-mental divide and focus more on an individual’s particular experience of harm, its severity for the particular litigant, and the extent to which the harm can be attributed to the offender’s conduct.

It may be difficult to assess damages for some of these torts, and financial compensation alone cannot necessarily restore an invisibly injured plaintiff. However, financial compensation can still serve the important purpose of reifying social norms against the harm and affirming a plaintiff’s bodily integrity.[196] Indeed, the insights from this technology can help, protect, and dignify[197] people who experience injury and impairment, especially for those who previously have never been given such a platform.

Conclusion

Just as neuroscience technology can be used to rehabilitate or sentence defendants more fairly in criminal law,[198] it can also yield a more just allocation of resources in civil and human rights law.[199] Not only will it provide more objective evidence for invisible injuries, but it can also provide due process to those who traditionally have not had access to courts, particularly for those in more vulnerable populations. Despite some critical limitations, the aggregate of insights produced by neuroimaging is impressive and is only improving in reliability. More studies, with more diverse populations and greater attention to possible countermeasures, as well as some testable predictive theories about expected activation patterns, would greatly increase confidence in neuroscience data. Additionally, suggestions like the ones made above—for a working group to propose model laws or ways to interpret neuroscience evidence in the courtroom—are concrete ways to incorporate insights from neuroscience into the law in a sensible and scrupulous manner.

Neuroscience can offer a better understanding of human behavior and the potential for improved policymaking, increased accuracy, and decreased oversights in advancing justice. Its insights challenge our traditional tort doctrine and policy, forcing us to clarify our reasons for allowing or barring compensation in various contexts, and by extension, which human rights our society most values. Advances in neuroscience help eliminate preconceived assumptions about invisible injuries and suggest that failure of proof is no longer a sufficient excuse to cling to old, outdated doctrines. If tort law is about rectifying a harm inflicted upon someone in society, and as a society we value not only physical but also emotional and mental well-being, then this distinction undervalues the amount of pain and suffering that some people feel and it should be revisited.[200]

  1. Zachary Weiss made this prediction after serving as prosecutor in People v. Weinstein, 591 N.Y.S.2d 715 (N.Y. Sup. Ct. 1992), one of the earliest cases to feature neurological scans in a trial. See Zachary Weiss, The Legal Admissibility of Positron Emission Tomography Scans in Criminal Cases: People v. Spyder Cystkopf, 1 Seminars in Clinical Neuropsychiatry 202, 202 (1996).
  2. Ware v. ANW Special Educ. Coop., 180 P.3d 610, 612 (Kan. Ct. App. 2008).
  3. Id. at 619.
  4. Id. at 621 (Green, J., dissenting) (internal citations omitted) (quoting Daniel W. Shuman, How We Should Address Mental and Emotional Harm,
    90 Judicature 248, 248 (2007)).
  5. By the time the damages are identified, a victim might be beyond repair. See, e.g., Emily Kelly, I’m the Wife of a Former N.F.L. Player. Football Destroyed His Mind, N.Y. Times (Feb. 2, 2018), https://www.nytimes.com/2018/02/02/opinion/sunday/nfl-cte-brain-damage.html (on file with the Columbia Human Rights Law Review) (chronicling just one of many accounts of former professional athletes suffering permanent brain injuries).
  6. G.A. Res. 217 (III) A, art. 25, Universal Declaration of Human Rights (Dec. 10, 1948).
  7. Id. at art. 7.
  8. Id. at art. 1.
  9. U.S. Const. amends. V, VI.
  10. See Nancy Gertner, Neuroscience and Sentencing, 85 Fordham L. Rev. 533, 544 (2016) (explaining how neuroscience can help inform a more rehabilitative criminal justice regime).
  11. Brain scanning technologies, although still relatively expensive, have been dramatically decreasing in cost. Ian Sample and David Adam, The Brain Can’t Lie, Guardian, Nov. 20, 2003, https://www.theguardian.com/science/2003/
    nov/20/neuroscience.science [https://perma.cc/J4QG-PTW3].
  12. Adam J. Kolber, Will There Be a Neurolaw Revolution?, 89 Ind. L.J. 807, 822 (2014) (arguing that neuroscience technology has become increasingly reliable. For example, functional magnetic resonance imaging scans can, at least in controlled experimental contexts, predict with 80% accuracy whether or not a particular subject is in pain).
  13. Neuroscience, Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/neuroscience [https://perma.cc/VXH3-NTUK].
  14. See, e.g., Kolber, supra note 12, at 808 (“[T]here will indeed be a neurolaw revolution. It may arise . . . from a wave of new brain technologies that will change society and the law in a wide variety of ways.”).
  15. See generally Martha J. Farah, Neuroethics: the ethical, legal, and societal impact of neuroscience, 63 Annu. Rev. Psychol. 571 (2012) (exploring how advances in neuroscience impact other fields and discussing the various ethical, legal, and societal implications).
  16. There are increasing signs of neuroscience technologies becoming less of a science fiction plot and more of a reality. For example, in the United States, at least two companies, No Lie MRI and Cephos Corp., have offered magnetic resonance imaging-based lie-detection services. Richard Birke, Neuroscience and Settlement: An Examination of Scientific Innovations and Practical Applications, 25 Ohio St. J. on Disp. Resol. 477, 482–83 (2010); Eli Aharoni et al., Neuroprediction of Future Rearrest, 110 Proceedings of the National Academy of Sciences 6223 (2013).
  17. Notably, the Office of the United Nations High Commissioner for Human Rights recognizes the “human right of everyone to the enjoyment of the highest attainable standard of physical and mental health” (emphasis added). See Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, U.N. Doc. A/HRC/35/21 (March 28, 2017).
  18. These technologies in particular can illustrate the physical processes occurring in our brains in real time. Our brains hold about 100 billion neurons, each one making 1,000 or more connections—“synapses”—to other neurons in which they are constantly giving off and picking up chemicals called neurotransmitters, which communicate information throughout the brain and body. Henry T. Greely, Neuroscience, Mindreading, and the Courts: The Example of Pain, 18 J. of Health Care L. & Pol’y 171, 171 (2015).
  19. John C. Gore, Principles and practice of functional MRI of the human brain, 112 J. Clinical Investigation 4 (July 2003), https://www.ncbi.
    nlm.nih.gov/pmc/articles/PMC162295/pdf/JCI0319010.pdf [https://perma.cc/XDG5-7E8L].
  20. Id. at 5.
  21. Deoxyhemoglobin, present in deoxygenated blood, is paramagnetic; that is, its presence causes a decrease in a magnetic resonance signal. O. Carter Snead, Neuroimaging and the “Complexity” of Capital Punishment, 82 N.Y.U. L. Rev. 1265, 1285 (2007).
  22. Id. at 7.
  23. Abi Berger, Positron emission tomography, BMJ Volume 326 (2003), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1126321/pdf/3261449.pdf [https://perma.cc/JSP5-J4BR].
  24. Judy Illes, A Picture is Worth 1000 Words, but Which 1000?, in Neuroethics: Defining the Issues in Theory, Practice, and Pol’y 151 (Oxford University Press ed., 2006).
  25. Id. In numerous countries, including the United States, the prevalence of fMRI machines per population has been steadily increasing. Number of magnetic resonance imaging (MRI) units and computed tomography (CT) scanners: Selected countries, selected years 1990–2009, Centers for Disease Control and Prevention (2011), https://www.cdc.gov/nchs/data/hus/2011/123.pdf [https://perma.cc/Q9VH-7494].
  26. Greely, supra note 18, at 190 (“EEG . . . has many advantages over fMRI—it is cheap, portable, and easy to operate.”).
  27. Although fMRI scans are increasingly inexpensive, the costs of obtaining fMRIs may deter litigants from using them or may be prohibitively expensive for many plaintiffs. See Stephen J. Morse, Neuroimaging Evidence in Law: A Plea for Modesty and Relevance, in Neuroimaging in Forensic Psychiatry: From the Clinic to the Courtroom 341, 342 (Joseph R. Simpson ed., 2012).
  28. Owen D. Jones & Francis X. Shen, Law and Neuroscience in the United States, in International Neurolaw 353, 356 (Tade Matthias Spranger ed., 2012).
  29. Floyd Bloom et al., Does Neuroscience Give Us New Insights into Drug Addiction?, in A Judge’s Guide to Neuroscience: A Concise Introduction 34 (2010), https://www.sagecenter.ucsb.edu/sites/staging.sagecenter.ucsb.edu/files/file-and-multimedia/A_Judges_Guide_to_Neuroscience%5Bsample%5D.pdf [https://perma.cc/L2L7-SQT2] (“To determine the pattern of activity, the fMRI BOLD signal during pain has to be compared with a baseline condition when there is no pain”).
  30. See Fed. R. Evid. 401, 702; Daubert v. Merrill Dow Pharm., Inc., 509 U.S. 579, 589 (1993) (holding that trial judges must determine whether expert testimony is both “relevant” and “reliable”); Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (holding that expert testimony must be based on knowledge that has “gained general acceptance in the particular field”). The Daubert standard is the law in federal court and over half of the states, while the Frye standard is preferred in some jurisdictions including California, Illinois, Maryland, New Jersey, Pennsylvania, and Washington. Amanda C. Pustilnik, Imaging Brains, Changing Minds: How Neuroimaging Can Transform the Law’s Approach to Pain, 66 Ala. L. Rev. 1099, 1148 (2014).
  31. “Neurolaw” is the application of neuroscience findings to legal topics such as criminal, tort, and administrative litigation and justice, agency, intent, and policy. Neil Aggarwal & Elizabeth Ford, The Neuroethics and Neurolaw of Brain Injury, 31 Behav. Sci. L. 789, 790 (2013).
  32. See generally Francis X. Shen, The Overlooked History of Neurolaw, 85 Fordham L. Rev. 667, 1043–49 (2016) (discussing how the intersection of neuroscience and the law is centuries old). The number of cases in the U.S. involving neuroscientific evidence doubled from 2006 to 2009 and there are a growing number of criminal cases involving neuroscientific evidence. Jones & Shen, supra note 28, at 353.
  33. In State v. Nelson, F05-846 (Fla. 11th Cir. Ct. 2010), qEEG evidence was admitted into evidence in a U.S. court for the first time, and contributed in part to the jury voting to sentence the defendant to life in prison instead of the death penalty. One juror commented that “the technology really swayed me . . . after seeing the brain scans, I was convinced this guy had some sort of brain problem.” David Ovalle, Novel defense helps spare perpetrator of grisly murder, Miami Herald (Dec. 2, 2010), https://www.floridacapitalcases.state.fl.us/Documents/Enewsletter/
    2010_Articles_December/Novel%20defense%20helps%20spare%20perpetrator%20of%20grisly%20murder.pdf [https://perma.cc/KJ3D-RMG7].
  34. There have been various instances in which fMRI and EEG-based lie detection evidence was proffered in U.S. courts. United States v. Semrau presented the first evidentiary hearing in federal court on the admissibility of fMRI lie-detection evidence. 693 F.3d 510, 521 (6th Cir. 2012). Although Magistrate Judge Pham ultimately did not admit the evidence under Federal Rule of Evidence 702, he wrote that “in the future, should fMRI-based lie detection undergo further testing . . . this methodology may be found to be admissible.” Amended Report and Recommendation, United States v. Semrau, 2010 WL 6845092, at *12 n.18 (W.D. Tenn. June 1, 2010).
  35. See Graham v. Florida, 560 U.S. 48, 117 (2010) (majority opinion by Justice Kennedy explicitly citing “brain science” research when considering juvenile offenders).
  36. Neuroscience has shed light on some of the ways people think about moral conundrums, such as the classic trolley hypothetical. Experimenters found that the brain region associated with deliberate problem solving and self-control, the dorsolateral prefrontal cortex, was especially active in an fMRI scan when subjects contemplated the utilitarian option of pulling the lever and saving the greatest number of lives. By contrast, the ventral medial prefrontal cortex, an emotional center of the brain, was active when subjects imagined harming the one individual even if it would have saved others. Jeffrey Rosen, The Brain on the Stand, N.Y. Times Mag. (Mar. 11, 2007), https://www.nytimes.com/2007/03/11/magazine/11Neurolaw.t.html (on file with the Columbia Human Rights Law Review).
  37. See Steven K. Erickson, Blaming the Brain, 11 Minn. J.L. Sci. & Tech. 27, 28 (2010) (evaluating how cognitive neuroscience research may disrupt long-standing norms of personal responsibility).
  38. See Brent Garland & Mark S. Frankel, Considering Convergence: A Policy Dialogue About Behavioral Genetics, Neuroscience, and Law, 69 Law & Contemp. Probs. 101, 104 (2006) (noting that “[n]euroscience has shown that the brains of addicts are distinct from those of non-addicts”).
  39. See Davinia Fernández-Espejo & Adrian M. Owen, Detecting Awareness After Severe Brain Injury, 14 Nature Reviews Neuroscience 801, 807 (2013).
  40. Lisa G. Aspinwall et al., The Double-Edged Sword: Does Biomechanism Increase or Decrease Judges’ Sentencing of Psychopaths?, 337 Science 846, 846 (2012). One study found that certain extraneous variables, such as the time of day, affect a judge’s decision to grant parole. Areas of the brain that are used for more complex reasoning, such as the dorsolateral prefrontal cortex, show less activity when other areas concerned with more basic bodily needs like hunger, such as the temporal lobe, are more active. Shai Danziger et al., Extraneous Factors in Judicial Decisions, 108 Proc. Nat’l Acad. Sci. 6889, 6892 (2011).
  41. Jean M. Eggen & Eric J. Laury, Toward a Neuroscience Model of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine, 13 Colum. Sci. & Tech. L. Rev. 235, 274 (2012).
  42. Nita A. Farahany, Neuroscience and Behavioral Genetics in US Criminal Law: An Empirical Analysis, 2 J.L. & Biosciences 485, 486 (2016) (finding that the number of judicial opinions citing some sort of neuroscientific defense more than doubled between 2007 and 2012).
  43. Francis X. Shen, Neurolegislation: How U.S. Legislators Are Using Brain Science, 29 Harv. J.L. & Tech. 495, 498 (2016) (finding that “from 1992 through 2009 . . . brain science has been mentioned in nearly 1000 bills”).
  44. Stacey A. Tovino, Will Neuroscience Redefine Mental Injury? Disability Benefit Law, Mental Health Parity Law, and Disability Discrimination Law, 12 Ind. Health L. Rev. 695, 697–727 (2015) (exploring the role that brain scanning technologies play in securing health insurance coverage, social security eligibility for mental health conditions, and in officially recognizing gender-specific mental health conditions like premenstrual syndrome and postpartum depression).
  45. Eggen & Laury, supra note 41, at 238 (“[The] criminal courtroom has become an early testing ground for the application of the studies to cognitive mental states in the law. The courts have shown interest, tempered by caution, and suspicion of the evidence’s reliability.”).
  46. Introducing evidence to demonstrate brain abnormalities or injuries for the purpose of mitigating sentencing has been one of the more common uses of neuroscience in the courtroom. For example, an Oregon boy convicted of killing and injuring fellow students introduced images showing brain abnormalities and was granted a more lenient sentence due to his mental illness. State v. Kinkel, 56 P.3d 463, 467 (Or. Ct. App. 2002).
  47. People v. Goldstein, 786 N.Y.S.2d 428, 432 (N.Y. Sup. Ct. 2004), rev’d on other grounds, 843 N.E.3d 119 (N.Y. 2005).
  48. Id.
  49. For instance, the neuroscience of adolescent development featured prominently in a 2011 California Senate Bill which allowed juveniles sentenced to life without parole to submit a request to have a new sentencing hearing. Cal. Penal Code § 1170(d) (West 2011).
  50. Miller v. Alabama, 567 U.S. 460, 471–73, 472 n.5 (2012) (favorably citing neuroscience evidence presented in amicus briefs, Justice Kagan wrote for the majority, “We reasoned that those [neurological] findings—of transient rashness, proclivity for risk, and inability to assess consequences—both lessened a child’s ‘moral culpability’ and enhanced the prospect that, as the years go by and neurological development occurs, his ‘deficiencies will be reformed’”).
  51. Declaration of Ruben C. Gur, Ph.D. at 15, Patterson v. Texas, 536 U.S. 984 (2002), https://www.americanbar.org/content/dam/aba/publishing/criminal_
    justice_section_newsletter/crimjust_juvjus_Gur_affidavit.authcheckdam.pdf [https://perma.cc/6DA6-88CW] (“The evidence now is strong that the brain does not cease to mature until the early 20s in those relevant parts that govern impulsivity, judgment, planning for the future, foresight of consequences, and other characteristics that make people morally culpable.”).
  52. Graham v. Florida, 560 U.S. 48, 68 (2010) (“[D]evelopments in psychology and brain science continue to show fundamental differences between juvenile and adult minds.”). See also Roper v. Simmons, 543 U.S. 551 (2005), in which the Supreme Court struck down the death penalty for offenders who committed crimes when they were under the age of 18 partially based on an affidavit that argued that because adolescents’ prefrontal cortices are not fully developed, they are less able than adults to control their impulses and should not be held fully accountable “for the immaturity of their neural anatomy . . . [because] [t]o a degree never before understood, scientists can now demonstrate that adolescents are immature . . . in the very fibers of their brains.” Brief for American Medical Association et al. as Amici Curiae Supporting Respondent at *10, Roper v. Simmons, 543 U.S. 551 (2005) (No. 03-633).
  53. Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 852 (2011) (Breyer, J., dissenting).
  54. Van Middlesworth v. Century Bank & Tr. Co., No. 215512, 2000 Mich. App. LEXIS 2369, at *6 (Ct. App. May 5, 2000).
  55. Francis X. Shen, Law and Neuroscience 2.0, 48 Ariz. St. U. L. Rev. 1043, 1049–50 (2016) (remarking that neurolaw often focuses only on criminal law, and that many of its other intersections with the law are ripe for discussion).
  56. Even President Barack Obama called attention to the potential impact of neuroscience on human rights and how it might be used appropriately in matters relating to moral responsibility, personal agency, and the criminal justice system. See Presidential Comm’n for Study of Bioethical Issues, Gray Matters: Integrative Approaches for Neuroscience, Ethics and Society vi–vii (vol. I, 2014). In 2013, he called on Congress to invest millions of dollars in new brain research. Press Release, White House Office of Science and Technology Policy, Obama Administration Proposes Doubling Support for The BRAIN Initiative (March 2014), https://obamawhitehouse.archives.gov/sites/default/files/microsites/
    ostp/FY%202015%20BRAIN.pdf [https://perma.cc/E3TR-XH55].
  57. Marcello Ienca & Roberto Andorno, Towards New Human Rights in the Age of Neuroscience and Neurotechnology, 13 Life Sci., Soc’y & Pol’y, Apr. 26, 2017, at 2, 8 (writing that “international human rights law does not make any explicit reference to neuroscience. In contrast to other biomedical developments . . . neurotechnology still largely remains a terra incognita for human rights law”).
  58. “Invisible injuries” may be defined as those that affect a person’s enjoyment of life but are not visible to the naked eye or do not readily show up on traditional technologies such as X-rays. Some examples include mTBIs, PTSD, chronic pain, fibromyalgia, emotional distress, and neurobiological toxins. See Betsy J. Grey, The Future of Emotional Harm, 83 Fordham L. Rev. 2605, 2651 (2015).
  59. It is well-documented that lower-income and racial minority communities, particularly in urban areas, experience an elevated risk for health issues that stem from invisible or late-manifesting harms such as neurotoxins. This Note argues that entrenched policies such as the physical-mental divide in tort law perpetuate these health inequities, since individuals in these communities are also often less able to acquire adequate data to prove the injuries they are suffering from and, moreover, tend to underreport their pain. Emily A. Benfer, Contaminated Childhood: How the United States Failed to Prevent the Chronic Lead Poisoning of Low-Income Children and Communities of Color, 41 Harv. Envtl. L. Rev. 493, 503–04 (2017); Jana Mossey, Defining racial and ethnic disparities in pain management, 469 Clinical Orthopaedics & Related Research 1859, 1859 (2011).
  60. Peter S. Spencer & Valerie S. Palmer, Interrelationships of Undernutrition and Neurotoxicity: Food for Thought and Research Attention, 33 Neurotoxicology 605, 606 (2012).
  61. Neuroimaging evidence provides experts with scientific facts upon which they can draw inferences “that not only support the [litigant’s] story but may be the only source for it.’ Excluding such evidence would ‘deprive the [litigant] of the voice the Constitution guarantees.’” Adam Teitcher wrote this about criminal defendants but it holds true for civil litigants as well. Adam Teitcher, Note, Weaving Functional Brain Imaging into the Tapestry of Evidence: A Case for Functional Neuroimaging in Federal Criminal Courts, 80 Fordham L. Rev. 355, 393 (2011) (footnote omitted) (quoting Christopher Slobogin, Proving the Unprovable: The Role of Law, Science, and Speculation in Adjudicating Culpability and Dangerousness 55 (2007)).
  62. For example, neurocognitive impairment as a result of concussions or neurotoxins may not outwardly manifest until days, weeks, or years later. See infra Part II.
  63. Two exceptions to the physical-emotional distinction are intentional infliction of emotional distress and negligent infliction of emotional distress, which apply only in rare circumstances, although their allowance has expanded over time and varies by jurisdiction. See Restatement (Third) of Torts: Liability for Physical & Emotional Harm §§ 46, 47 (Am. Law Inst. 2012).
  64. “I am confident that we will soon be able to predict, with a high degree of accuracy, some neurological and mental illnesses. Then we will have to answer the question, ‘What do we do now?’” Henry T. Greely, Keynote Address, Law and the Revolution in Neuroscience: An Early Look at the Field, 42 Akron L. Rev. 687, 691 (2009).
  65. Courts grant compensatory damages for things such as lost wages, medical costs, and loss of earning potential to restore an injured party to his preinjury position. Tort compensation may also “serve an expressive or symbolic function, demonstrating that harming others is a wrongful act that causes dignitary harm beyond the physical and emotional damages.” Rick Swedloff & Peter H. Huang, Tort Damages and the New Science of Happiness, 85 Ind. L.J. 553, 588 (2010).
  66. Restatement (Third) of Torts: Liability For Physical & Emotional Harm § 47 (Am. Law Inst. 2012). Many insurance policies, criminal statutes, and government immunity statutes also have a mental-bodily distinction. Francis X. Shen, Monetizing Memory Science: Neuroscience and the Future of PTSD Litigation, in Memory And Law 325–26 (Lynn Nadel & Walter P. Sinnott-Armstrong eds., 2012).
  67. Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 442 (1997).
  68. Comments to the Restatement of the Law (Third) of Torts explain the reasoning behind the distinction: “emotional distress is less objectively verifiable than physical harm and therefore easier for an individual to feign, to exaggerate or to engage in self deception about the existence or extent of the harm.” Advances in neuroscience may call this distinction into question as harms such as emotional distress are shown to have a physiological basis. Restatement (Third) of Torts (Am. Law Inst. 2012).
  69. Notably, the Office of the United Nations High Commissioner for Human Rights recognizes the obligation of states “to protect against [emotional] harm by third parties, including the private sector. . .” See Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health § 41, U.N. Doc. A/HRC/35/21 (March 28, 2017); see also Lisa J. Laplante, Human Torts, 39 Cardozo L. Rev. 245, 247 (2017) (arguing that emotional distress suits can “be reframed as violations of the most basic human rights such as the right to physical and mental integrity under international human rights law, grounded in treaty and international customary law”).
  70. Grey, supra note 58, at 2605–08.
  71. James W. Kalat, Introduction to Psychology 6 (9th ed. 2010). As a “learned author” quoted by Judge Clark in Young v. W. Union Tel. Co. puts it, “the mind is no less a part of the person than the body, and the sufferings of the former are sometimes more acute and lasting than those of the latter.” 107 N.C. 370, 385, 11 S.E. 1044, 1048 (1890).
  72. Dov Fox & Alex Stein, Dualism and Doctrine, 90 Ind. L.J. 975, 975–1010 (2015).
  73. Scientists and scholars are moving away from treating “mental” and “physical” as separate categories. See Peter A. Alces, The Moral Conflict of Law and Neuroscience 131–32 (University of Chicago ed., 2018) (“Once we have a way to ‘see’ emotional injury as clearly as we can ‘see’ a broken bone . . . there would be no reason to maintain the tort law’s distinction between physical and emotional injury.”); see also Govind Persad, Law, Science, and the Injured Mind, 67 Ala. L. Rev. 1179, 1215–16 (2016) (“Our improved understanding of the biological correlates of mind-dependent harms suggests that the line between ‘body’ and ‘mind’ is no longer sufficient to support the differential legal treatment of these harms.”).
  74. See Joseph E. LeDoux, Emotional Circuits in the Brain, 23 Ann. Rev. Neuroscience 155, 156 (2000).
  75. See Betsy Grey, Implications of Neuroscience Advances in Tort Law: A General Overview, 12 Ind. Health L. Rev. 671, 689–90 (2015) (arguing that distinctions between emotional and physical pain are false because of the changes in the brain that result from emotional pain). The court’s analysis in Allen v. Bloomfield Hills School District, 760 N.W.2d 811 (Mich. Ct. App. 2008), may signal the beginning in rethinking the physical-emotional divide. Allen, diagnosed with PTSD stemming from an accident in which he suffered no bodily injuries, submitted a PET scan of his brain depicting abnormal decreases in frontal and subcortical activity which the Court of Appeals said represented “objective medical evidence that a mental or emotional trauma can indeed result in physical changes to the brain” and found that “[t]he brain is a part of the human body, so ‘harm or damage done or sustained’ is injury to the brain and within the common meaning of ‘bodily injury’ in MCL 691.1405 . . . . What matters for a legal analysis is the existence of a manifest, objectively measured injury to the brain.” Allen, 760 N.W.2d at 815. See also Pekin Ins. Co. v. Hugh, 501 N.W.2d 508, 512 (Iowa 1993) (finding that whether a claimant suffered “bodily injury” involved “a medical or psychological problem of proof rather than purely a question of law . . . . [Compensation] should not therefore turn on any artificial and arbitrary classification such as ‘physical’ or ‘psychological’”). The distinction is also losing traction in the international sphere: The Supreme Court of New South Wales ruled that a woman who experienced PTSD as the result of an airplane crash could recover damages under the Montreal Convention because it deemed PTSD was in and of itself “bodily injury,” unlike previous rulings under the international agreement. Victoria Gallanders, Australia: Post Traumatic Stress Disorder (PTSD) ruled as bodily injury in landmark case, Mondaq (July 7, 2015), https://www.mondaq.com/australia/x/410418/Personal+Injury/Post+Traumatic+Stress+Disorder+PTSD+ruled+as+bodily+injury+in+landmark+case [https://perma.cc/N3N6-VGTW].
  76. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (incorporating a broadened view of mental injury as a result of these neuroscientific advances).
  77. For example, neuroscience can help inform administrators about the emotional impact of solitary confinement on prisoners and the emotional effect of prison violence, which could lead to a more rehabilitative and effective criminal justice system. See Gertner, supra note 10, at 544–46.
  78. Martin P. Paulus, The Role of Neuroimaging for the Diagnosis and Treatment of Anxiety Disorders, 25 Depression & Anxiety 348, 350 (2008). Neuroimaging has found that subregions of the limbic system, the cortices, the amygdala, and the hippocampus are involved in the processing of emotional trauma. Research suggests that dysfunction in this circuitry triggers and maintains emotional disorders.
  79. Id.
  80. See, e.g., Jennifer Knack et al., Worse than Sticks and Stones? Bullying is Linked with Altered HPA Axis Functioning and Poorer Health, 77 Brain & Cognition 183, 183 (2011) (finding that peer victimization may be linked to poor physical health as displayed by particular neuroendocrine functions in a group of adolescents).
  81. Naomi I. Eisenberger, Broken Hearts and Broken Bones: A Neural Perspective on the Similarities Between Social and Physical Pain, 21 Current Directions Psychol. Sci. 42, 45 (2012) (noting “experiences of social and physical pain actually rely on some of the same neurobiological and neural substrates”).
  82. Id. Neuropsychological evidence shows that “emotional harm can be longer lasting than physical harm” because one can “relive the experience of the emotional pain and feel it again.” Id.
  83. Adam J. Kolber, The Experiential Future of the Law, 60 Emory L.J. 585, 585 (2011) (averring that technological advances in neuroscience “will improve our assessments of physical pain, emotional distress, and a variety of psychiatric disorders” that are largely subjective experiences).
  84. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders xxx (4th ed. text rev. 2000) (stating “the term mental disorder unfortunately implies a distinction between ‘mental’ disorders and ‘physical’ disorders that is a reductionistic anachronism of mind/body dualism. A compelling literature documents that there is much ‘physical’ in ‘mental’ disorders and much ‘mental’ in ‘physical’ disorders”). Judge Totenberg referenced this passage in her decision in Reid v. Metro. Life Ins. Co., 944 F. Supp. 2d 1279, 1305 (N.D. Ga. 2013).
  85. Mark Anderson, who served as a mental health policy advisor in the Senate, stated that “a health care system that does not treat the brain with the body is outmoded.” Francis X. Shen, Mind, Body, and the Criminal Law, 97 Minn. L. Rev. 2036, 2061 (2013). This has gained some traction at least in the health law sphere as there has been a sustained movement to enact mental health parity laws that recognize “biologically based mental illness.” Id. at 2060; see also Reid, 944 F. Supp. 2d at 1323, in which a plaintiff used neuroscientific data to demonstrate that her diagnosis of dementia is based in physical processes in order to receive longer-term disability benefits. Judge Totenberg placed great weight on an MRI of Ms. Reid’s brain, stating that Ms. Reid’s dementia was “confirmed by her neuroimaging results showing cerebral atrophy,” and that MetLife’s failure to consider the MRI as evidence of dementia was arbitrary and capricious. Id.
  86. Irene Tracey & M. Catherine Bushell, How Neuroimaging Studies Have Challenged Us to Rethink: Is Chronic Pain a Disease?, 10 J. Pain 1113, 1114 (2009).
  87. Adam Kolber estimates that pain is an issue in about half of all tort cases. Greg Miller, Brain Scans of Pain Raise Questions for the Law, 323 Sci. 195, 195 (2009).
  88. Amanda C. Pustilnik, Pain as Fact and Heuristic: How Pain Neuroimaging Illuminates Moral Dimensions of Law, 97 Cornell L. Rev. 801, 801 (2012) (“Important legal distinctions turn on the presence and degree of physical pain. [For example, some] statutes refer to degrees of physical pain to define criminal offenses like torture-murder, while pain that rises to the level of cruelty draws the boundary between constitutionally permissible and impermissible punishment.”).
  89. “Pain and suffering” includes fright, nervousness, grief, anxiety, worry, mortification, shock, humiliation, indignity, embarrassment, apprehension, terror or loss of enjoyment of life that a tort victim suffers because of the civil wrongdoing of another. Adam J. Kolber, Pain Detection and the Privacy of Subjective Experience, 33 Am. J.L. & Med. 433, 441 (2007).
  90. “[P]ain is largely invisible, unquantifiable, and often grossly misunderstood, leading to unnecessary suffering on the part of people whose pain is not credited and to unnecessary expense when the legal and medical systems function inefficiently or the wrong claimants are compensated.” Amanda C. Pustilnik, Painful Disparities, Painful Realities 3 (U. Md. Legal Stud. Res. Paper No. 2014-18, 2014).
  91. Id. at 4.
  92. A. Vania Apkarian et al., Chronic Back Pain Is Associated with Decreased Pre-frontal and Thalamic Gray Matter Density, 24 J. Neurosci. 10410, 10412 (2004). PET, electroencephalography, and fMRI scans have shown that the cortical and subcortical regions, regions responsible for handling sensory perceptions, activate during pain stimulation and are referred to as the “pain matrix.” Parts of these regions can discern the location and intensity of painful stimuli while others are involved in the experiential and perceiving aspect of pain. Tor D. Wager et al., An fMRI-Based Neurologic Signature of Physical Pain, 368 New Eng. J. Med. 1388, 1388 (2013).
  93. See generally Kolber, supra note 83, at 587 (noting that technological advances in neuroscience will improve assessments of physical pain, emotional distress, and psychiatric disorders that are subjective experiences) and Tovino, supra note 44, 697–727 (exploring role that brain scanning technologies play in health insurance coverage, social security eligibility and recognizing gender-specific mental health conditions).
  94. See supra note 30 (defining the Daubert and Frye standards).
  95. It is also important to note that a majority of pain-related claims are heard in administrative settings for matters such as workers’ compensation and disability claims, in which the “rules of evidence are slacker, and in some cases close to non-existent, and there is no jury, and there are no instructions.” David Seminowicz et al., Panel 1: Legal and Neuroscientific Perspectives on Chronic Pain, 18 J. Health Care L. & Pol’y 207, 225 (2015). Administrative law judges are not bound by Daubert and can be crucial decision makers in applying the law relative to evidence of chronic pain. Id. at 226.
  96. Psychological factors including anxiety, attention, and distractions may alter signals in fMRIs. Miller, supra note 87, at 195.
  97. Pustilnik, supra note 88, at 6.
  98. A number of private companies, such as Connecticut-based company Millennium Magnetic Technologies, offer brain scanning services for litigants to validate the presence of pain. See Use of Functional MRI to Validate the Presence of Pain, MMT Neurotech, www.milmag.net/document-pain [https://perma.cc/
    6VSP-JUVL].
  99. Studies by neuroscientists such as Tor Wager at the University of Colorado and Sean Mackey at Stanford University have also determined, at least in controlled experiments, that fMRIs were able to determine with 80% accuracy whether or not a particular subject is in pain. Sara Reardon, Neuroscience in Court: The Painful Truth, 518 Nature 474, 475 (2015).
  100. Carl Koch, whose wrist was burned by molten asphalt, sued his former employer for damages for his chronic pain over a year after the burn. Judge Chon-Lopez admitted Koch’s brain scan indicating his pain. Id. The case ultimately settled for $800,000. Id.
  101. Id.
  102. Karen D. Davis et al., Brain Imaging Tests for Chronic Pain: Medical, Legal and Ethical Issues and Recommendations, 13 Nature Rev. Neurology 624, 634 (2017) (asserting that “[neuroscience] research can guide the crafting of more accurate and precise laws that relate to pain as a source of disability, and can assist the evaluation of evidence in individual cases”).
  103. Pustilnik, supra note 30, at 1117.
  104. Since its official recognition in 1980 by the American Psychiatric Association, PTSD has become prevalent in much personal injury litigation. From 1999 to 2004, there was nearly an 80% increase in PTSD cases, with payments reaching over $4 billion, and those numbers have continued to expand. Harvard professor Alan Stone has remarked that “no diagnosis in the history of American psychiatry has had a more dramatic and pervasive impact on law and social justice than . . . PTSD.” Shen, supra note 85, at 2159 (footnote omitted).
  105. Research has shown that stress impairs the hippocampus’s capacity to regenerate neurons as part of its normal functioning. Studies of children with PTSD in particular have found that these impairments can lead to problems with learning, memory, and academic achievement. Child Welfare, Understanding the Effects of Maltreatment on Brain Development 8–9 (2015), https://www.childwelfare.gov/pubPDFs/brain_development.pdf [https://perma.cc/6KGN-Y6UH].
  106. PTSD “causes significant changes in brain chemistry, brain function, and brain structure. The brain becomes ‘rewired’ to over-respond to circumstances that are similar to the traumatic experience.” Allen v. Bloomfield Hills Sch. Dist., 760 N.W.2d 815, 816 (Mich. Ct. App. 2008) (footnote omitted).
  107. V. Francati et al., Functional Neuroimaging Studies in Posttraumatic Stress Disorder: Review of Current Methods and Findings, 24 Depression & Anxiety 202, 202 (2007).
  108. Id.
  109. Shen, supra note 66, at 332.
  110. See generally Jozsef Meszaros, Achieving Peace of Mind: The Benefits of Neurobiological Evidence for Battered Women Defendants, 23 Yale J. Law & Feminism 117 (2011) (describing how neurobiological evidence can provide insight into the effects of battering, at both an individual and ecological level).
  111. This issue has come up in international settings as well. In a 1998 trial of a Bosnian-Croatian soldier, experts for both the defense and the prosecution relied on neuroscientific evidence to argue whether a torture victim was suffering from PTSD. Shen, supra note 66, at 333.
  112. Vulnerable populations might include those that have traditionally had limited access to courts or have been relatively neglected; they might include persons of lower economic backgrounds, racial, gender, or ethnic minorities, or those in overlooked areas of society. Prisoners, for example, are potentially given less credence in courtrooms than other citizens: the Prison Litigation Reform Act prohibits prisoners from suing for emotional injury without being able to show physical injury or sexual misconduct. 42 U.S.C. § 1997e (2012). See also Persad, supra note 73, at 1199 (discussing how U.S. courts tax the damages victims of emotional injury receive, while leaving damages for physical injury untaxed).
  113. Betsy Grey, Neuroscience and Emotional Harm in Tort Law: Rethinking the American Approach to Free-Standing Emotional Distress Claims, in 13 L. & Neuroscience: Current Legal Issues 203, 225 (Michael Freeman ed., 2011) (arguing that “the availability of neuroimaging evidence should argue in favor of abandoning the more artificial and arbitrary tests for limiting emotional harm claims such as physical impact, physical manifestation and zone of danger”).
  114. Cass Sunstein proposes, for example, that we differentiate injuries along a permanent-temporary divide, rather than a mind-dependent-mind-independent divide. Cass R. Sunstein, Illusory Losses, 37 J. Legal Stud. 157, 163 (2008).
  115. Traumatic brain injury occurs when an external force or impact causes damage to the brain, which can result in chemical changes in nerve cells, mechanical disruption of axons, changes in brain blood flow, and neuro-inflammation. Thomas W. McAllister, Neurobiological consequences of traumatic brain injury, Dialogues in Clinical Neuroscience (2011), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3182015/ [https://perma.cc/XDG5-7E8L].
  116. Betsy J. Grey and Gary E. Marchant claim that the United States is currently facing a “concussion epidemic.” Betsy J. Grey & Gary E. Marchant, Biomarkers, Concussions, and the Duty of Care, 2015 Mich. St. L. Rev. 1911, 1911 (2015). This is evident in the more than 5,000 former National Football League (NFL) players suing the NFL, claiming it failed to take reasonable steps to protect them from concussive brain injuries and that it concealed the long-term risks associated with concussion. See In re Nat’l Football League Players Concussion Injury Litig., 821 F.3d 410, 423 (3d Cir. 2016). The National Collegiate Athletic Association, the National Hockey League, Federation Internationale de Football Association, World Wrestling Entertainment, and even high schools are all currently embroiled in lawsuits involving athletes’ head injuries. See In re Nat’l Collegiate Athletic Ass’n Student-Athlete Concussion Injury Litig., 314 F.R.D. 580, 583 (N.D. Ill. 2016); In re Nat’l Hockey League Players’ Concussion Injury Litig., 189 F. Supp. 3d 856, 860 (D. Minn. 2016); Mehr v. Féderation Internationale De Football Ass’n, 115 F. Supp. 3d 1035, 1043 (N.D. Cal. 2015); Haynes v. World Wrestling Entm’t Inc., 2015 WL 3905281, at *1 (D. Or. June 26, 2015); Bukal v. Illinois High School Ass’n, No. 2014-CH-19131 (Cook Cty. Cir. Ct., Ill., Dec. 1, 2014). As of 2018, researchers have discovered chronic traumatic encephalopathy (CTE) in more than 100 former NFL players, a handful of whom have committed suicide. Adam Kilgore, Aaron Hernandez suffered the most severe case of CTE ever discovered in a person his age, Washington Post (Nov. 9, 2017), https://www.washingtonpost.com/sports/aaron-hernandez-suffered-from-most-severe-cte-ever-found-in-a-person-his-age/2017/11/09/fa7cd204-c57b-11e7-afe9-4f60b5a6c4a0_
    story.html [https://perma.cc/F6GP-S7C9]; Jesse Mez, Daniel H. Daneshvar and Patrick T. Kiernan, Clinicopathological Evaluation of Chronic Traumatic Encephalopathy in Players of American Football, JAMA 318(4), 360–370 (2017).
  117. Richard P. Dutton et al., Diagnosing Mild Traumatic Brain Injury: Where Are We Now?, 70 J. Trauma 554, 554 (2011).
  118. Id.
  119. Centers for Disease Control and Prevention, Get the Stats on Traumatic Brain Injury in the United States, https://www.cdc.gov/traumatic
    braininjury/pdf/bluebook_factsheet-a.pdf [https://perma.cc/2YHD-7HYC].
  120. Centers for Disease Control and Prevention, Severe TBI, https://www.cdc.gov/TraumaticBrainInjury/severe.html [https://perma.cc/6NWB-9774].
  121. “[m]TBIs often do not show up on . . . CT . . . or MRI [scans], since the injuries are typically not structural injuries to the brain, but rather, are functional problems caused by swelling or bruising.” Grey & Marchant, supra note 116, at 1924. Neuroscientist Michael Selzer has said that “cognitive deficits can be subtle, even to a neurologist.” Emily Singer, Detecting Subtle Brain Injuries, MIT Technology Review (Nov. 18, 2008), https://www.technologyreview.com/s/411201/detecting-subtle-brain-injuries/ [https://perma.cc/LMX7-PGKJ].
  122. See Megan Osborn, Healing the Invisible: How the VA Fails to Adequately Compensate Veterans for Mild Traumatic Brain Injury, 26 Fed. Cir. B.J. 379, 384–85 (2017).
  123. See Boyd v. Bert Bell/Pete Rozelle NFL Players Ret. Plan, 410 F.3d 1173, 1177 (9th Cir. 2005) (noting that Boyd’s SPECT scan revealed decreased brain activity consistent with head trauma and was admitted into court under Daubert, but the physician for the defense claimed that, based on this evidence, the head injury in question “could not be organically responsible for all or even a major portion of the neurologic and/or neuropsychologic problems that Mr. Boyd is experiencing now, to a reasonable degree of medical probability”). As neuroscience imaging becomes more precise, however, this type of evidence may help plaintiffs with similar injuries in the future.
  124. The estate of former NFL player Aaron Hernandez filed a lawsuit against the New England Patriots and the NFL, claiming that Hernandez’s injuries and death were a direct result of his participation in football and that the Patriots knew hits to the head could lead to brain damage and failed to protect him. See Nathan Fenno, Disgraced ex-Patriots player Aaron Hernandez found to have CTE and early brain atrophy, L.A. Times (Sep. 21, 2017), https://www.latimes.com/sports/sportsnow/la-sp-aaron-hernandez-cte-20170921-story.html [https://perma.cc/7DXG-8LYC]. Similarly, Chris Benoit, a professional WWE wrestler who murdered his wife and seven-year-old son and then hanged himself, was found to have a brain that was “severely damaged and, like an Alzheimer’s patient, [riddled] with aggregates of a neural protein called tau . . . consistent with severe [CTE].” Grey & Marchant, supra note 116, at 1914.
  125. Symptoms of CTE, which include memory loss, depression, suicidal thoughts, and aggressive behavior, have been noted in ice hockey players, soccer players, boxers, and football players, among others. CTE symptoms in the brain reflect those found in Alzheimer’s patients and can take years or even decades after the brain trauma has occurred to manifest. CTE currently can be diagnosed definitively only through autopsy. Grey & Marchant, supra note 116, at 1914–15, 1918.
  126. These include MRIs, diffusion tensor imaging, magnetization transfer ratio, susceptibility weighted imaging, myelin water imaging, ultrashort echo time, and proton magnetic resonance spectroscopy that detects white matter injury. Ponnada A Narayana, White matter changes in patients with mild traumatic brain injury: MRI perspective, 2 Concussion 2 (2017).
  127. Grey & Marchant, supra note 116, at 1937.
  128. Id. at 1936. Researchers used PET scans after injecting a radioactive tracer that binds to deposits of tau, a protein secreted by the axons of unmyelinated nerve cells when they are injured. Using these PET scans, the researchers were able to pinpoint where in the brain these abnormal proteins accumulated and identify distinctive patterns of tau tangles in the amygdala and subcortical regions of the former football players that did not appear in the normal brains of the study’s controls. Other studies have used S100B and glial fibrillary acidic protein and found that increased levels of SNTF, a protein that increases in the blood after some concussions, were strongly correlated with diffuse axonal injury and long-term cognitive dysfunction.
  129. Maggie Fox, Test Might Diagnose Brain Damage in Living Football Players, NBC News (Sep. 27, 2017), https://www.nbcnews.com/health/health-news/test-might-diagnose-brain-damage-living-football-players-n804916 [https://perma.cc/D7JQ-QUXW]. See also Bennet Omalu et al., Postmortem Autopsy-Confirmation of Antemortem [F-18]FDDNP-PET Scans in a Football Player with Chronic Traumatic Encephalopathy, 82 Neurosurgery 237, 237 (2018) (identifying a modality that could allow for definitive diagnosis of CTE in living patients based on brain autopsies).
  130. Martha E. Shenton et al., Mild Traumatic Brain Injury: Is DTI Ready for the Courtroom?, 61 Int’l J.L. & Psychiatry 50, 50–63 (2018).
  131. Grey & Marchant, supra note 116, at 1946.
  132. “Latent injury claims permit a claimant to receive compensation before a serious disease has manifested.” Id. at 1958.
  133. Some athletes, for example, feel they have no other choice but to sacrifice their bodies and minds to make money or have a future, if they are even aware of the risks in the first place. See Jesse Dougherty, Former Alabama player Les Williams is one of more than 100 suing NCAA over brain injuries, Wash. Post (July 2, 2018), https://www.washingtonpost.com/news/sports/wp/2018/07/02/
    feature/former-alabama-player-les-williams-is-one-of-more-than-100-suing-ncaa-over-brain-injuries/?utm_term=.b8960128a6e9 [https://perma.cc/6DFG-BGTV].
  134. Alana Semuels outlines where many of the fault lines occur, particularly in football and other high-contact sports, for those who have the opportunities to avoid the grave repercussions playing football might bring, and those who do not: “the divide on the football field makes it hard not to see how inequality in America is worsening health disparities and raising the specter of another, darker era of American history.” Alana Semuels, The White Flight from Football, Atlantic (Feb. 1, 2019), https://www.theatlantic.com/health/
    archive/2019/02/football-white-flight-racial-divide/581623/ [https://perma.cc/M2BG-FMNU].
  135. Arielle R. Baskin-Sommers & Karelle Fonteneau, Correctional Change Through Neuroscience, 85 Fordham L. Rev. 423, 431–32 (2016).
  136. “Chronic exposure to lead has measurable effects on the nervous system due to lead’s propensity to accumulate in bone over time. For instance, in an MRI study of 532 former lead workers, high tibia lead was associated with reduced total brain volume, lower volume of gray matter in the insula and cingulum, and diminished white matter volume in the parietal lobes.” Despite the fact that lead levels have been largely reduced in the United States, thanks in great deal to better science detailing its deleterious effect on brain development, the presence of lead in water, soil, and wall paint continues to affect many. Lisa H. Mason et al., Pb Neurotoxicity: Neuropsychological Effects of Lead Toxicity, BioMed Res. Int’l, Jan. 2, 2014, at 2.
  137. Gennaro Giordano & Lucio G. Costa, Developmental Neurotoxicity: Some Old and New Issues, 12 ISRN Toxicology 1, 3 (2012). Exposure to subclinical levels of toxins such as manganese, methylmercury, polychlorinated biphenyls, ethanol, lead, arsenic, toluene, fluoride, chlorpyrifos, and tetrachloroethylene has been shown to disrupt brain development and normal neurotransmitter function. See James Hamblin, The Toxins That Threaten Our Brains, Atlantic (Mar. 18, 2014), https://www.theatlantic.com/health/archive/2014/03/the-toxins-that-threaten-our-brains/284466/ [https://perma.cc/668B-EBVG].
  138. Bisphenol A, a ubiquitous chemical found in many plastics, has neurobiological effects. Linda S. Birnbaum et al., Environmental Health Science For Regulatory Decisionmaking, 21 Duke Envtl. L. & Pol’y F. 259, 279 (2011).
  139. Id.
  140. Adeniyi Anetor et al., Environmental Chemicals and Human Neurotoxicity: Magnitude, Prognosis and Markers, 11 Afr. J. Biomedical Res. 1, 1 (2008).
  141. “It is a given that many subclinical events, once considered invisible and thus speculative, will become detectable and hence objectively verifiable.” Jamie A. Grodsky, Genomics and Toxic Torts: Dismantling the Risk-Injury Divide, 59 Stan. L. Rev. 1671, 1704 (2007). Grodsky wrote this about genetic testing, but it remains true for neuroscientific testing as well. See, e.g., Hose v. Chi. Nw. Transp. Co., 70 F.3d 968, 973 (8th Cir. 1995) (finding no abuse of discretion where the district court admitted PET evidence to show injuries consistent with manganese encephalopathy); In re Welding Fume Prods. Liab. Litig., 245 F.R.D. 279, 298 n.111 (N.D. Ohio 2007) (considering MRI and PET scans demonstrating whether exposure to welding fumes and manganese can cause, contribute to, or accelerate a Parkinsonian syndrome).
  142. For example, researchers have used fMRIs to detect the effect of prenatal methylmercury exposure in adolescents and have used MRIs to examine how the chemicals appear to cause thinning of the cortex in children’s brain structure. Hamblin, supra note 137.
  143. See Laura Y. Cabrera, Pesticides: A Case Domain for Environmental Neuroethics, 26 Cambridge Q. Healthcare Ethics 602, 603 (2017) (“[P]esticides readily cross the placenta and bioconcentrate in breast milk, resulting in early-life exposure during critical prenatal neurodevelopment. . . . Research indicates that children born to mothers exposed to pesticides during pregnancy . . . [can]
    lag . . . two years behind in motor and spatial development when compared with children of mothers without [this] exposure. Other studies have found an association between residential proximity to agricultural fields where exposure to pesticides during pregnancy was correlated with autism spectrum disorder.”) (footnotes omitted).
  144. In the case of organophosphates, for example, individuals might develop impaired cognitive and psychomotor function a few weeks after exposure, and, in some cases, effects were observed ten or more years after poisoning, suggesting that the residual damage is permanent. Id. at 605.
  145. For example, neuroscientists use brain scans to assess the patient’s sensory, motor, reflex and cranial nerve function to diagnose and monitor substances like lead and mercury on the peripheral nervous system. Anetor et al., supra note 140, at 10.
  146. Baskin-Sommers & Fonteneau, supra note 135, at 431 (“Research attributes exposure to synthetic chemicals, including those found in drugs and pesticides, to damage of dopaminergic neurons in the nigrostriatal system . . . depletion of dopamine in the SN pars compacta and subsequent cell death . . . . Additionally, beta-amyloid protein plaques and intracellular neurofibrillary tangles are linked to toxic environmental exposure, as is inflammation of the brain and accumulation of trace metal elements in brain regions, such as the basal ganglia.”).
  147. Herbert L. Needleman et al., Bone Lead Levels and Delinquent Behavior, 275 JAMA 363, 367 (1996).
  148. Daniel A. Farber, Toxic Causation, 71 Minn. L. Rev. 1219, 1247 (1987) (“The only real difference between the automobile case and the toxics case is that better information is available about the events in the automobile case whereas the relevant biological events in the toxics case are unobservable.”).
  149. Shen, supra note 85, at 2118. Asbestos is a prime example of a latent injury claim.
  150. Am. Home Prods. Corp. v. Liberty Mut. Ins. Co., 565 F. Supp. 1485, 1489 (S.D.N.Y. 1983).
  151. This latency is exacerbated by the sluggish, and often ineffective, review process that the Environmental Protection Agency (EPA) and other agencies go through to determine whether to ban a substance or not, such as in the case of the highly toxic insecticide, chlorpyrifos. Megan K. Horton et al., Neuroimaging is a novel tool to understand the impact of environmental chemicals on neurodevelopment, 26.2 Current Opinion in Pediatrics 230, 233–34 (2014).
  152. Resource-poor countries often have rudimentary pesticide registration, regulation, handling, and enforcement requirements. Unsurprisingly, they can experience pesticide overload per capita, including from pesticide products that are banned elsewhere. Furthermore, pesticide labels often are not listed in the local language nor are written in a manner easily understandable by average consumers. Cultural and contextual considerations are often overlooked as well when distributing pesticides to these locations. For example, climatic conditions or limited budgets might make it impractical to wear suggested protective clothing. Discrepancies such as these contribute to further disparities in pesticide burden. Cabrera, supra note 143, at 606.
  153. For example, it is well documented that there are disproportionate levels of lead paint and landfills (from which toxic substances such as mercury can seep) located in communities of color or lower-income populations. People in these communities may already be at a disadvantage in obtaining costly medical evidence and are prone to suffering long-term neurological illnesses. Disparities such as these are but one window into the type of neurological injuries that some communities disproportionately face, and could be remedied by tort law that is more proactive in recognizing invisible injuries. See generally Benfer, supra note 59 (documenting above); Robert D. Bullard, Race and Environmental Justice in the United States, 18 Yale J. Int’l L. 319, 334 (1993) (explaining that low-income and minority communities suffer most from the nation’s environmental problems and have not had success in preventing construction of waste and other polluting facilities).
  154. Prisoners, and those who live and work near prisons, for example, are particularly vulnerable to toxin exposure. See Prison Ecology Project, Nation Inside, https://nationinside.org/campaign/prison-ecology/ [https://perma.cc/C3N7-FKKH].
  155. Mason et al., supra note 136, at 3.
  156. In the 1970s, the average U.S. preschool child had 15 micrograms of lead per deciliter of blood, eighty-eight percent of children had a level exceeding 10 μg/dL—twice what the CDC currently considers toxic—and the average level was markedly higher at 23 μg/dL for poor black children. Hamblin, supra note 137, at 11.
  157. For instance, scientists have determined that pesticides might be implicated in the rise in children’s neurodevelopmental disorders. Cabrera, supra note 143, at 606.
  158. In the European Union, for example, if a chemical is deemed potentially neurotoxic from testing, it will be strictly regulated. Those regulations “can [later] be relaxed if subsequent testing shows less harm than initially anticipated.” Cabrera, supra note 143, at 609.
  159. The Toxic Substances Control Act is the primary U.S. law regulating chemicals used in everyday products. It requires testing for only a small percentage of chemicals deemed as “unreasonable risks” and has grandfathered over 62,000 chemicals already on the market in the 1970s. Toxic Substances Control Act of 1976, 15 U.S.C. § 2601 (2016). Neuroimaging for these chemicals can be an impetus for stronger chemical safety regulation or policy. Sarah A. Vogel & Jody A. Roberts, Why the Toxic Substances Control Act Needs an Overhaul, and How to Strengthen Oversight of Chemicals in the Interim, 30 Health Affairs 898 (2011), https://www.healthaffairs.org/doi/pdf/10.1377/hlthaff.2011.0211 [https://perma.cc/EXH9-UDXH].
  160. See, e.g., United Nations Conference on the Human Environment, G.A. Res. 27/2994, U.N. Doc. A/RES/27/2994 (Dec. 15, 1972) (issuing a statement “[r]eaffirming the responsibility of the international community to take action to preserve and enhance the environment and, in particular, the need for continuous international co-operation to this end”).
  161. For example, chlorpyrifos, which can affect fetal brain development, is classified as “very highly toxic” to birds and fish, and “moderately toxic” to mammals, but is still used widely in agriculture, greenhouses, wood products, and golf courses. Hamblin, supra note 137, at 4.
  162. Aspinwall et al., supra note 40, at 846.
  163. See, e.g., Giulio Mecacci & Pim Haselager, Identifying Criteria for the Evaluation of the Implications of Brain Reading for Mental Privacy, Sci. & Engineering Ethics 1 (Dec. 15, 2017), https://link.springer.com/content/pdf/10.1007%2Fs11948-017-0003-3.pdf [https://perma.cc/2A7H-PG42] (analyzing how contemporary brain scanning technologies may impact private character of mind).
  164. See Erica Goldberg, Emotional Duties, 47 Conn. L. Rev. 809, 824–25 (2015) (arguing that tort law embeds normative ideals about which harms are protectable in society, and therefore, the line between protectable and un-protectable harm should not be determined by the latest trends in neuroscience).
  165. Scientific consensus on how to interpret the relationship between the observable BOLD response in fMRIs and conclusions regarding mental states of subjects is “still evolving.” Eggen & Laury, supra note 41, at 302.
  166. In some cases, as reliance on neuroscience increases and gains popularity, the lack of an individual baseline scan to compare to a post-injury scan may cease to be as problematic. In fact, the NFL and NCAA now give baseline neurological exams to prospective players before they ever play in a game. Carl Zimmer, The Brain: What Happens to a Linebacker’s Neurons?, Discover Mag. (Aug. 18, 2010), https://discovermagazine.com/2010/jul-aug/18-brain-what-happens-to-a-linebackers-neurons [https://perma.cc/6XS2-HD57].
  167. Perhaps institutionalizing periodic brain scans for professional and amateur athletes would be one way to implement such an idea. Alternatively, other measures can help paint a “before” picture, such as circumstantial evidence including school, employment, and medical records.
  168. Jonathan Brodie, a New York University psychiatrist, testified against an expert using fMRI scans to exculpate a defendant, saying, “the scans are of wonderful technical quality, but so what? They’re not relevant here . . . . Using an fMRI scan done in September of 2009 . . . to indicate a thought process that was going on in 1983 could hardly be more silly.” Greg Miller, fMRI Evidence Used in Murder Sentencing, Science Mag. (Nov. 23, 2009), https://www.sciencemag.org/news/2009/11/fmri-evidence-used-murder-sentencing [https://perma.cc/Z6QU-9P24].
  169. In tort law, in order to successfully recover monetary damages, a plaintiff must not only demonstrate an injury, but also that the defendant’s action caused the injury. Cornell L. Sch., Tort, Legal Info. Inst., https://www.law.cornell.edu/wex/tort [https://perma.cc/XJR9-TUL6].
  170. Oliver R. Goodenough & Micaela Tucker, Law and Cognitive Neuroscience, 6 Ann. Rev. L. & Soc. Sci. 61, 66 (2010) (arguing that the brain is a composite of influences incorporating numerous social, cultural, and personal experiences; even medication can alter fMRI signals).
  171. Owen D. Jones & Christopher S. Sudby, Neuroscience in the Law, 11 SciTech Law. 4, 4 (2015).
  172. Many neuroscience studies are done on compliant test subjects, often college students. Cost, the availability of volunteers, and ethical and practical hurdles make it difficult to generate more realistic or diverse studies. Jay Aronson, The Law’s Use of Brain Evidence, 6 Ann. Rev. L. Soc. Sci. 93, 100 (2010).
  173. Greely, supra note 18, at 182 (“Brains are complicated and individual . . . . It is unlikely that everyone’s brain will react the same way to exactly the same stimulus.”).
  174. Teneille Brown & Emily Murphy, Through a Scanner Darkly: Functional Neuroimaging as Evidence of a Criminal Defendant’s Past Mental States, 62 Stan. L. Rev. 1119, 1203 (2010) (arguing that presentation of brain images might be misinterpreted by or confuse jurors).
  175. While it is difficult to estimate how influential neuroscience evidence can be in the courtroom, Nita Farahany found that in cases where defendants used neuroscientific evidence, they received a slightly more favorable outcome. Greg Miller, The Brain Gets Its Day in Court, Atlantic (Mar. 1, 2016), https://www.theatlantic.com/science/archive/2016/03/neurolaw-brain-scans-court/471615/ [https://perma.cc/3GYZ-LZSK].
  176. Fed. R. Evid. 403. Rule 403 has been invoked to exclude evidence from polygraph tests. Greg Miller, Brain Scans of Pain Raise Questions for the Law, 323 Sci. 195 (2009).
  177. Hank Greely points to the forensic use of DNA, unreliable eyewitnesses, and even the introduction of PowerPoint slides as examples of controversial or imperfect pieces of evidence in the past. Seminowicz et al., supra note 95, at 230–31. Moreover, there is evidence that neuroscience evidence may not be as excessively persuasive as some believe it to be. Nicholas J. Schweitzer et al., Neuroimages As Evidence in a Mens Rea Defense: No Impact, 17 Psychol. Pub. Pol’y & L. 357, 366 (2011) (finding no evidence that neuroimaging unduly influences juries over verbal neuroscience-based evidence).
  178. Greely, supra note 18, at 181.
  179. One could envision, for example, an expert using generalized neuroscience statistics as a guide against an individual’s data and say something like, “when we see this pattern of brain activation, in similar circumstances, 90 percent of people we believe to be honest report that they’re in pain” rather than conclusively decide that the data says something certain about the individual. See Greely, supra note 18, at 182–83.
  180. See, e.g., Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424, 442 (1997) (expressing concerns about recognizing “unlimited and unpredictable” liability and rejecting the plaintiff’s claims to damages and monitoring services on the grounds that he could only recover them if and when he manifested symptoms of a disease).
  181. Erica Goldberg, Emotional Duties, 47 Conn. L. Rev. 809, 811 (2015) (maintaining that the distinction between physical and emotional harm “should be based on a duty that we all have to reasonably regulate our own emotional well-being”).
  182. Joel Feinberg, 1 The Moral Limits Of The Criminal Law: Harm To Others 45 (1984).
  183. For example, increased reliance and insistence on brain scanning techniques in litigation might even prolong PTSD. L. H. Field, Post-traumatic stress disorder: A reappraisal, 92 J. Royal Soc’y Med. 35, 35 (1999) (“[O]ngoing litigation acts as an artificial reinforcing factor for unpleasant memories and their accompanying affect.”).
  184. For example, some litigants might be unable to show harm due to false positives or false negatives. See supra Part III.A.
  185. Deborah W. Denno, The Myth of the Double-Edged Sword: An Empirical Study of Neuroscience Evidence in Criminal Cases, 56 B.C. L. Rev. 493, 494 (2015).
  186. Lloyd v. American Airlines, 291 F.3d 503, 511 (8th Cir. 2002).
  187. Costs for fMRI, PET, and other scans vary by region and by insurance plans. According to one source, an fMRI scan costs $525 per hour. Yale Sch. of Med., Usage Charges, Magnetic Resonance Res. Ctr. (July 1, 2018), https://mrrc.yale.edu/users/charges.aspx [https://perma.cc/8WT3-DZ38].
  188. Rosen, supra note 36 (asking whether police can “get a search warrant for someone’s brain”).
  189. The idea of holding people accountable for their predispositions rather than their actions “poses a challenge to one of the central principles of Anglo-American jurisprudence: namely, that people are responsible for their behavior, not their proclivities—for what they do, not what they think.” Id.
  190. See MacArthur Found. Research Network on Law and Neuroscience, https://www.lawneuro.org/ [https://perma.cc/RJT3-GEXU].
  191. One possible avenue would be for the National Conference of State Legislatures (NCSL) to publish a uniform state law regarding how to interpret neuroscience research in a courtroom.
  192. See, e.g., Ctr. for Law & the Pub.’s Health at Georgetown and Johns Hopkins Univs., The Model State Emergency Health Powers Act (2001), https://www.aapsonline.org/legis/msehpa2.pdf [https://perma.cc/RJN4-AKQ9] (a proposed act written to help the NCSL formulate law accordingly). A similar method could be used in the neuroscience field.
  193. Grey, supra note 113, at 27.
  194. “If the plaintiff is to recover every time that her feelings are hurt, we should all be in court twice a week. . . . But this is a poor reason for denying recovery for any genuine, serious mental injury. It is the business of the law to remedy wrongs that deserve it, even at the expense of a ‘flood of litigation.’”). William L. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Mich. L. Rev. 874, 877 (1939).
  195. Eisenberger, supra note 81, at 42.
  196. Nita A. Farahany, The Costs Of Changing Our Minds 12 (June 8, 2014) (unpublished manuscript) (on file with the Columbia Human Rights Law Review) (noting that tort compensation for the emotional suffering resulting from rape, for example, “recognizes the enduring impact on victims, and expresses social condemnation of the act and its consequences”).
  197. Tommy Jarrett, who suffered from PTSD and lost wages after witnessing a young girl die in a car accident, is one such litigant whose day in court helped restore his life and dignity. Invisibilia: Emotions, National Public Radio (June 1, 2017), https://www.npr.org/templates/transcript/transcript.php?storyId=
    530928414 [https://perma.cc/ZA4N-E9K4] (“[E]motional distress is the same thing as physical damage. It can wreak havoc on somebody’s life, and it can destroy them.”).
  198. See generally Gertner, supra note 10 (examining how neuroscience can help develop a more informed sentencing approach and reduce the rate of incarceration).
  199. If neuroscience “does eventually provide significant insights into the mind, it may well be necessary to revamp our thinking on the Anglo-American system of criminal justice and perhaps our approach to the law entirely.” Elizabeth Bennett, Neuroscience and Criminal Law: Have We Been Getting It Wrong for Centuries and Where Do We Go from Here?, 85 Fordham L. Rev. 437, 451 (2016).
  200. To echo Judge Green, “For Daniel to be left without a remedy under all the undisputed facts in this case is antithetical to the general policy of tort liability in Anglo-American jurisprudence: those who are legitimately injured due to the act or omissions of others should have a remedy in our courts.” Ware v. ANW Special Educ. Coop., 180 P.3d 610, 622 (Kan. Ct. App. 2008) (Green, J., dissenting).

Thick Enough to Stop a Bullet: Civil Protection Orders, Social Media, and Free Speech

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Benjamin Paul Bennett is a 2019 graduate of Columbia Law School.

Domestic violence occurs in private and public spaces, including the virtual spaces social media platforms create. This Note examines the role domestic violence Civil Protection Orders can play in regulating social media behavior. Contrary to scholars who have argued that injunctions and criminal statutes should rarely, if ever, prohibit “speech about” an individual, this Note argues that Civil Protection Orders prohibiting an abuser from mentioning his victim over social media are appropriate in some circumstances. In examining what circumstances justify such orders, and how those orders should be issued and enforced, this Note considers constraints set by First Amendment free speech principles and a desire to combat mass incarceration.

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This Article examines the European Court of Human Rights’ intervention in the detention of involuntary migrants. It analyzes the use of “carceral migration control” in response to a migration “crisis,” and argues that the actual crisis in the region is one of politics and policies rather than the magnitude of migration. It explores the consequences of a crisis moniker for migration, including shortsighted migration policies, entrenched caricatures of migrants as threatening, and excessive emphasis on punitive rather than humanitarian responses. Responding to migration as a crisis has led states in Europe and elsewhere to shift the movement of people across national borders from a human security issue—protecting people and providing assistance—to a national security issue.

This Article applies the migration crisis framework to analyze the European states’ responses to the most recent rise in involuntary migration to the region. It examines the foundational principles of the European human rights system with respect to migrants. Because both the original text of the European Convention on Human Rights and the early judgments of the European Court of Human Rights strongly favored state sovereignty over migrants’ rights, the Court’s recent decisions on migrant detention in part have gone in a somewhat surprising direction.

An analysis of the European Court of Human Rights’ post-crisis migrant detention judgments reveals that the Court held steadfast to the applicability of the Convention’s prohibition of deprivation of liberty, namely that migrant detention is in fact detention. The case law also shows that the Court has not deviated from its relatively recent and more migrant-protective analysis of whether states’ method of carceral migration control is lawful. Crisis discourse has, however, affected the Court’s treatment of migrant detention claims in judgments regarding the conditions in which states have held involuntary migrants under the specter of migration crisis control. This overall picture illustrates the potential of the European system to extend human rights protections to migrants, but also the power of persistent, ubiquitous crisis discourse to forgive human rights violations.

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This article analyzes the scope and content of the International Labour Organization’s fundamental labour standards and tracks the way in which they are increasingly included and applied in the context of different international instruments with a public, private, binding, or voluntary character. The contemporary proliferation of these standards can lead to improved protection of workers’ rights. Nevertheless, the fragmentation and diversification of instruments may also include a risk of incoherent application. Securing fundamental labour standards—the prohibition of child labour, the prohibition of forced labour, non-discrimination and equal treatment, and freedom of association and the right to collective bargaining—is immensely important for vulnerable groups that are affected by the negative effects of economic globalization. This article charts the diversity of instruments and their relation to human rights law. Furthermore, it provides an examination of the different supervisory or enforcement mechanisms attached to these instruments. It argues that the increased diversity of initiatives that contain fundamental labour standards may expand the protective scope of core workers’ rights, especially if they are applied consistently and in line with the original ILO standard-setting. This assessment of public international sources such as ILO Conventions, UN Human Rights Treaties, free trade agreements, and voluntary guidelines in the context of the business and human rights discourse, as well as private instruments, such as corporate codes of conduct, multi-stakeholder initiatives, and global framework agreements—all of which refer to and apply fundamental labour standards – hopes to contribute to a more coherent understanding of the fundamental labour standards, which is urgently needed if they are to provide effective protection for those worst of in today’s global workplace.

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Withholding Protection

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In June 2018, President Trump wrote a pair of tweets en route to his golf course, calling for “no Judges or Court Cases” at our border and swift deportation of immigrants, essentially without due process. While immigrant advocates were quick to explain the myriad constitutional problems with this proposal, elements of Trump’s dream are already a reality. This Article reveals how a single Customs and Border Protection officer can short-circuit the checks and balances prescribed by U.S. and international law to protect refugees from being returned to harm, and cast a long shadow over a future, meritorious asylum claim.

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Columbia Human Rights Law Review Fiftieth Anniversary Issue: Foreword

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Robert A. Katzmann is the Chief Judge of the United States Court of Appeals for the Second Circuit.

With this issue, the Columbia Human Rights Law Review—the first law school publication dedicated to human rights—completes its fiftieth volume. When its first volume went to print during the 1967–68 term, the academic study of international human rights was in its early years, the movement itself only a few decades old. In the years since, and under the watchful eye of the late great Louis Henkin, the father of the field, the Review has established itself as a distinguished journal in the legal academy, devoted to studying human rights and promoting human rights throughout the world.

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Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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Suing for the City: Expanding Public Interest Group Enforcement of Municipal Ordinances

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Scott Ferron is a 2019 graduate of Columbia Law School.

This Note proceeds in three parts. Part I explains the concept of a private right of action, demonstrates how it has been used in the municipal context, and describes a developing form of the private right of action: the third-party private right of action. Part II discusses the legal framework that allows cities to create third-party private rights of action, as well as the legal limitations that constrain cities should they attempt to do so. Part III addresses the policy considerations in support of municipal third-party private rights of action, as well as potential criticisms. It concludes that cities should experiment further with this method of enforcement and suggests legislative areas where cities could benefit from creating third-party private rights of action.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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This Time I’ll be Bulletproof: Using Ex Parte Firearm Prohibitions to Combat Intimate-Partner Violence

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Aaron Edward Brown is an Associate attorney with Ballard Spahr.

Domestic violence is a serious public health problem. According to the Centers for Disease Control and Prevention (“CDC”), intimate-partner violence affects an estimated 5.5 million people every year in the United States. The CDC also projects that around one in four adult women and one in seven adult men will experience severe physical violence from an intimate partner in their lifetime. But more concerning than just severe physical violence is the large number of victims who are killed each year by their intimate partner. Currently, about 1,100 victims are killed each year by an intimate partner. Although the United States’ rates of intimate-partner violence are similar to other high income, industrialized countries, our per-capita rate of intimate-partner homicides vastly exceeds all of our peer countries. This disparity is at least partially attributable to the fact that well over fifty percent of all intimate-partner homicides in the United States are committed with a firearm, which is an exceedingly lethal weapon in the hands of an abuser.

This article is a comprehensive review of one of the main types of regulations used to combat intimate-partner violence: ex parte order for protection (“OFP”) firearm prohibitions. Ex parte OFP firearm prohibitions act to curb firearm access by temporarily prohibiting ownership, possession, and purchase of firearms after a victim of domestic violence files a petition seeking an order for protection. In some states, ex parte OFP firearm prohibitions can also allow for mandatory relinquishment or confiscation of firearms after a judicial officer has issued an ex parte OFP. Ex parte OFP firearm prohibitions have the potential to be particularly transformative because their targeted function is to address the immediate safety of a victim of domestic violence before a formal hearing can take place to address the merits of the victim’s claims. This type of immediate intervention can be a lifesaving measure as we now know that the single most dangerous moment for a victim of domestic violence is the point at which he or she leaves his or her abuser.

This article details the various types of ex parte firearm prohibitions and their distinguishing provisions and discusses other closely related gun-violence prevention laws. It concludes by discussing different types of solutions that would expand ex parte OFP firearm prohibitions, including a federal-level ex parte OFP firearm prohibition and a model ex parte firearm statute that can be enacted on the state level.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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Conceptualizing Victimization at the International Criminal Court: Understanding the Causal Relationship Between Crime and Harm

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Nema Milaninia is a trial attorney with the Office of the Prosecutor of the International Criminal Court.

One of the hallmark achievements of the International Criminal Court (ICC) is to give voice to victims—making them part of the criminal process as opposed to mere observers. Yet, that unique strength has also created unique difficulties that overwhelm the Court and its various branches with the onerous task of ascertaining who should actually qualify as a “victim” accorded the myriad of accompanying participatory benefits. And while the Court has had ample opportunity to define criteria for determining qualifying “victims,” as putative victims have submitted tens of thousands of applications since 2006, the Court has failed to do so. More specifically, the Court has failed to provide a clear definition of the most central aspect of what constitutes a “victim”: namely, what causal relationship is required between the charged crimes and the putative victim’s resulting harm.

This Article confronts the need to determinedly define “victims” under the Rome Statute, the ICC’s founding treaty, by identifying two conceptual models used in the jurisprudence of the United States Crime Victims’ Rights Act (CVRA). This Article utilizes the CVRA’s framework because the federal law contains a causal requirement for victimhood substantially like that required by the ICC. The first conceptual model looks at the elements of the charged offense and evaluates whether the victim’s harm is a natural and foreseeable result of those elements. The second model looks at the facts underlying the elements and whether the victim’s harm was a natural and foreseeable consequence of the crime as alleged to have been committed. When examined under the CVRA’s two models, the Court’s jurisprudence shows conflicting and inconsistent approaches to addressing the required causation between the charged crimes and a putative victim’s resulting harm. This paper illustrates that inconsistency and identifies the model it believes best comports with the ICC’s Rome Statute and its principal aims.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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Chutes and Ladders: Nonrefoulement and the Sisyphean Challenge of Seeking Asylum in Hungary

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Ashley Binetti Armstrong is the Dash-Muse Teaching Fellow at Georgetown University Law Center’s Human Rights Institute.

Recent developments in Hungary’s asylum law and policy demonstrate an extraordinary subversion of the refugee rights regime and serve as a case study of how a State can pervert its national laws to shirk its international and regional treaty obligations. This Article has two major goals. First, it traces the devolution of Hungarian asylum law from the height of the 2015 refugee crisis to July 2018 through a critical lens. Second, it argues that Hungary is in violation of its nonrefoulement obligations, which prohibits States from returning refugees to countries where they will likely face harm. This Article focuses its nonrefoulement analysis on Hungary’s designation of Serbia as a safe third country. However, in showing that Serbia is not safe for refugees, this Article concludes that Hungary’s entire “Chutes and Ladders” asylum system violates its nonrefoulement obligations, as Hungary expels or pushes back almost all asylum seekers to Serbia.

The international community must study how countries like Hungary evade the global norm of responsibility-sharing, and devise solutions to hold rogue States accountable—particularly if there is any hope for coordinated efforts to manage refugee crises and uphold the rights of asylum seekers enshrined in the 1951 Refugee Convention and human rights treaties.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts

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Kit Johnson is an Associate Professor at the University of Oklahoma College of Law.

The U.S. Supreme Court issued a bombshell opinion regarding immigration court procedure on June 21, 2018: Pereira v. Sessions. On its face, the case is a boon for certain noncitizens seeking relief from deportation. Yet, as this Essay explains, Pereira’s implications are far greater. Although the Court’s opinion never mentions jurisdiction, Pereira necessarily means that immigration courts lack jurisdiction over virtually every case filed in the last three years, plus an unknown number of earlier-filed cases. This situation arises from the chronic failure of the Department of Homeland Security (DHS) to comply with the law in commencing deportation proceedings. With the clarity afforded by Pereira, the result is that these pending removal cases should be dismissed.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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The Emerging Doctrine of State/Municipal Liability

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Martin Lockman is a 2019 graduate of Columbia Law School.

This Note contributes to the literature in three ways. Part I of this Note defines and describes the targeted context, provides examples of state/municipal delegation, discusses the underlying tension between vindicating federal rights and respecting states’ rights to structure their own internal governance, and observes that courts have taken a nuanced approach to resolving this tension analogous to § 1983’s standards supervisory liability. Part II describes judicial approaches to state/municipal liability and analyzes two proposed theoretical frameworks. Part III examines the history and function of § 1983’s “supervisory liability” standards, looks at recent state/municipal delegation cases through the lens of supervisory liability, and argues for the adoption of an analogous standard to govern state/municipal delegation.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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The Ring of Truth: Demeanor and Due Process in U.S. Asylum Law

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Nicholas Narbutas is a 2019 graduate of Columbia Law School.

Whether to believe an asylum applicant is one of the most critical issues in asylum law. Many competing interests are in direct conflict: the need to protect people from persecution, the government’s desire to control entry into the country as an exercise of sovereignty, the extreme difficulty of gathering documentary proof of one’s persecution, and the government’s concerns about allowing security threats into the country. It is essential to strike the right balance between these conflicting priorities. The conflict between national welfare and public safety against individual liberty and personal security is not, however, a matter of mere policy preferences. The Constitution demands that whenever government action threatens to deprive an individual of their liberty, that individual must be provided due process. Unfortunately, policymakers have adopted the rhetoric of “security” and cultivated a climate of fear to justify increasing the burdens on refugees to prove their eligibility for asylum. In 2005, the REAL ID Act, claiming to be an effort to maintain security and identify asylum fraud, dictated the factors immigration judges must consider in determining whether an asylum applicant’s testimony is credible and therefore able to support their claim for asylum. Among these factors is the applicant’s “demeanor.”

This Note argues that the consideration of demeanor is a violation of asylum applicants’ due process rights. Though demeanor evidence is pervasive throughout the American legal system, its validity has been called into question by modern psychological studies, and its use has been sharply criticized by legal scholars. Furthermore, unique aspects of asylum adjudication make the use of demeanor especially damaging. Because corroborating evidence is frequently unavailable to asylum applicants, their claims typically turn on their own testimony. To have that testimony found not credible will almost certainly mean denial of the asylum claim. The extraordinary breadth of ways in which demeanor can be assessed, combined with the lack of meaningful judicial review of demeanor determinations, gives immigration judges overwhelming discretion to deny claims for asylum.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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This is Still a Profession: Special Administrative Measures, the Sixth Amendment, and the Practice of Law

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Katherine Erickson is a Staff Attorney with New York Legal Assistance Group’s LegalHealth Unit.

Special Administrative Measures (“SAMs”) are rules meant to let the government restrict the contact that dangerous prisoners may have with the outside world in order to prevent further harm to society. SAMs can result in extremely harsh conditions on top of lengthy solitary confinement—practices that many groups, including the United Nations, believe may constitute torture. SAMs were initially imposed mainly against high-risk detainees, such as prisoners who had ordered multiple murders from behind bars, and high-ranking terrorists convicted of mass murder. However, since 9/11, the application of SAMs to pre-trial detainees, especially Muslim terrorism suspects, has become alarmingly general, often seeming more punitive than preventative in nature, to the detriment of their Sixth Amendment rights. In light of the very serious threat that SAMs pose to fair trial guarantees, future courts should weigh the defendant’s fundamental right to an adequate defense against the seriousness of the risk of future injury or loss of life ordered by the prisoner from behind bars, ensuring that the SAMs imposed on a given prisoner are narrowly tailored to further the state’s admittedly compelling interest in public safety. Applying heightened scrutiny to pre-trial SAMs will allow judges to uphold restrictions against high-ranking prisoners who are truly likely to cause death or injury, as well as protect the integrity of the legal profession and the Sixth Amendment.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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Detention on Discriminatory Grounds: An Analysis of the Jurisprudence of the United Nations Working Group on Arbitrary Detention

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Leigh T. Toomey was appointed by the Human Rights Council as a member of the Working Group from August 1, 2015. Since April 2016, she has served as Vice-Chair on Follow-Up, with responsibility for the follow-up of recommendations made in Working Group opinions and during its country visits.

Over the last 27 years, the United Nations Working Group on Arbitrary Detention has developed a rich jurisprudence on the circumstances in which individuals have been arbitrarily detained. Until recently, most of this jurisprudence focused on detention resulting from the exercise of rights and freedoms, and serious violations of the right to fair trial. The Working Group is increasingly receiving communications involving detention on discriminatory grounds and its findings are evolving in response. Despite significant progress, there are several issues yet to be resolved by the Working Group as it moves toward a more comprehensive equality-based conception of arbitrary detention. The unresolved issues include the need for greater clarity on what constitutes discrimination; how to deal with laws that are discriminatory; how to distinguish between detention resulting from the exercise of rights and from discrimination; whether protection should extend to a broader range of individuals and groups; why poverty matters in detention practices, and whether the Working Group’s recommendations and follow-up need to be tailored in cases of discrimination. This article offers suggestions on the direction that the Working Group might take in its jurisprudence to resolve these remaining areas of uncertainty, including clarifying the circumstances in which differential treatment will amount to discrimination, determining that detention arising from discriminatory laws has no legal basis, taking a flexible approach to the overlap in the categories it employs to evaluate arbitrary detention, incrementally extending protection to marginalized groups such as those living in poverty, making recommendations to address the structural causes of discrimination, and using its follow-up procedure to highlight cases of detention on discriminatory grounds.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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When Death Becomes Murder: A Primer on Extrajudicial Killing

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William J. Aceves is the Dean Steven R. Smith Professor of Law at California Western School of Law.

International law prohibits the arbitrary deprivation of life, which includes extrajudicial killing. This norm is codified in every major human rights treaty and has attained jus cogens status as a non-derogable norm in international law. In the United States, the Torture Victim Protection Act (“TVPA”) establishes civil liability for extrajudicial killing. As evidenced in the TVPA’s text and legislative history, the definition of extrajudicial killing is based on international law. Despite the clear meaning of the TVPA’s text and the clarity of international law, the TVPA’s definition of extrajudicial killing is still contested in litigation, and some courts express uncertainty about its meaning. This raises a simple question: what constitutes an extrajudicial killing? This Article reviews the status of extrajudicial killing and clarifies its discrete elements under international law. It then considers the status of extrajudicial killings in the case of Mamani v. Berzain, a TVPA case involving the responsibility of the former President and Defense Minister of Bolivia for the killing of civilians in a 2003 government crackdown.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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Constitutional Cities: Sanctuary Jurisdictions, Local Voice, and Individual Liberty

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Toni M. Massaro is Regent’s Professor and the Milton O. Riepe Chair in Constitutional Law at University of Arizona James E. Rogers College of Law.

Shefali Milczarek-Desai is the Director of the Workers Rights Clinic and Professor of Practice at University of Arizona James E. Rogers College of Law.

The United States is deeply divided on matters that range from immigration to religion to fracking. “Blue” states resist “red” federal policies, and intra-state disputes pit state legislatures against recalcitrant local governments. One of these intergovernmental policy flare-ups involves so-called “sanctuary jurisdictions”—government actors that object to more aggressive immigration enforcement by slow walking their voluntary compliance or denying it altogether. In some cases, they have filed lawsuits to voice their dissent.

This Article analyzes the recent wave of sanctuary jurisdiction lawsuits in detail and identifies ways in which they undermine claims that local governments are powerless in the face of federal or state authority. Structural and civil liberty constitutional rights may protect local governments from some state and federal mandates. Local residents too may have resistance options beyond the voting booth and the moving van.

This should matter to all sides of the immigration debate: those who support the federal government’s strict immigration policies, those who favor state-federal cooperation in enforcement, and those who believe local jurisdictions should be given room to resist on policy grounds. But local governments’ right to dissent goes beyond immigration law. The sanctuary jurisdiction controversy may guide local officials in many other areas, and help illuminate how and when they may assert local rights.

This Article outlines the contours of potential local rights and makes three descriptive claims. First, respect for local power is on the firmest ground when it fortifies constitutionally sound government, top to bottom. Second, these tools of local resistance are quite limited. They work only in cases where upper level government mandates are beyond the constitutional pale or debatably so, and where courts can and should play a role in calling the lines. Third, they are available to all local government actors, not merely to progressive urban actors. The Article also makes the following normative claim: preserving constitutional breathing room for local dissent is critical to a healthy interchange between and among federal, state, and local governments. Above all, it promotes fundamental liberty values.

This is not a “city power” manifesto; it is a “constitutional city” manifesto. This Article maintains that the articulation and enforcement of constitutional ground rules is particularly critical in the current moment of hyper-partisanship and centrifugal forces that undermine union and intergovernmental cooperation. A call to these basic principles may offer Americans the hope of a fair game, however intensely and politically the game is fought.

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Introduction to the “Future of the Insular Cases” Special Issue

Lía Fiol-Matta

Saying What Everyone Knows to Be True: Why Stare Decisis Is Not an Obstacle to Overruling the Insular Cases

Adriel I. Cepeda Derieux & Rafael Cox Alomar

Making the Constitutional Case for Decolonization: Reclaiming the Original Meaning of the Territory Clause

Cesar A. Lopez-Morales
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Mandating Justice: Naranjo v. Thompson as a Solution for Unequal Access to Representation

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Sarah B. Schnorrenberg is a 2019 graduate of Columbia Law School.

Introduction

Many Americans today are unable to access legal representation. Like their higher income counterparts, low-income Americans require legal services in many areas.[1] Yet, low income Americans only seek legal help for 20% of legal problems they face,[2] and they likely will be unable to find a lawyer to represent them in the vast majority of cases for which they do seek help.[3] Private attorneys tend to take on far fewer pro bono cases than recommended by the American Bar Association and state bar associations.[4] Legal aid services, like the Legal Services Corporation (“LSC”), face funding restrictions that bar them from providing aid to over half of the Americans that approach them with requests.[5] LSC’s budget has fluctuated since it was incorporated in the 1980s.[6] The restraints on the few methods by which low income Americans access representation mean there is a large justice gap in which the poor simply do not have access to legal aid.[7] This problem is exacerbated for prisoners, who are barred from receiving help from many legal aid services[8] and are often unable to retain private attorneys.[9]

One prisoner in Texas recently found himself in this specific justice gap. While incarcerated at Reeves County Detention Center in Pecos, Texas, Mario Naranjo sued prison management for a host of constitutional violations, for overcrowding the prison, and for failing to keep sanitary conditions.[10] The case turned on prison schematics, which were sealed so Naranjo was unable to access them.[11] The district court judge ruled that, because Naranjo could not access the documents to review them and was unable to properly cross-examine witnesses, he merited assistance from an attorney.[12] However, the court could not find any attorney or legal aid service in the area who was willing and able to take the case, and thus ultimately denied Naranjo’s motion for the appointment of counsel.[13] On appeal, the Fifth Circuit vacated this denial. According to the Fifth Circuit, if a court has found exceptional circumstances meriting appointment of counsel and cannot find a willing lawyer to take the case pro bono, the court has the inherent power to compel counsel to accept an uncompensated appointment.[14]

This Note discusses the potential impact of the Fifth Circuit’s decision in Naranjo and evaluates whether it could be an effective means of reducing the justice gap that low-income Americans face. Part I provides a background to the federal case law on mandated appointments and courts’ inherent authority and details the Fifth Circuit’s decision in Naranjo. Part II weighs potential strengths and weaknesses of using Naranjo to provide lawyers for indigent parties. It also examines recent cases in the Fifth Circuit that cite Naranjo to determine if a trajectory to the case law surrounding Naranjo has emerged. Finally, in Part III, this Note argues that Naranjo could play an important role in addressing gaps to traditional methods of providing counsel to indigent parties. It also argues that Naranjo could be more effective at ensuring justice if the Fifth Circuit slightly revises its approach to granting counsel under 28 U.S.C. § 1915(e).

I. A Background on Compelling Representation

Since 1989, courts have been foreclosed by the Supreme Court from statutorily compelling counsel to represent an indigent plaintiff under 28 U.S.C. § 1915(e), which states that the court “may request” that an attorney represent a party who is unable to afford counsel.[15] Thus, the only viable option for courts to compel representation has been the use of inherent authority. The question of whether courts may use their inherent authority to mandate an attorney represent an indigent party has seldom been raised in federal court, and the courts that have addressed the question have decided differently.[16] In deciding Naranjo, the Fifth Circuit became the first circuit court to find that courts can compel representation. The decision stems, in part, from the peculiar circumstances of Mario Naranjo’s case. The Fifth Circuit limited the holding of Naranjo to extreme cases where both exceptional circumstances and no other option for obtaining counsel exist.[17] This section provides an overview of 28 U.S.C. § 1915(e), the split on inherent authority’s applicability, and the Fifth Circuit’s holding in Naranjo.

A. 28 U.S.C. § 1915(e) and Mallard

In 1892, Congress passed a statute entitled, “An act providing when plaintiff may sue as a poor person and when counsel shall be assigned by the court.”[18] This act was meant to provide poor Americans access to the judiciary, as evidenced in the House Report, which asked, “Will the Government allow its courts to be practically closed to its own citizens, who are conceded to have valid and just rights, because they happen to be without the money to advance pay to the tribunals of justice?”[19] Today, 28 U.S.C. § 1915 provides the federal rules for proceeding in forma pauperis. In particular, § 1915(e) provides that “[t]he court may request an attorney to represent any person unable to afford counsel.”[20]

Until 1989, it was unclear whether § 1915(e) allowed a court to mandate an attorney to represent an indigent party,[21] or it merely permitted courts to ask attorneys to represent the client.[22] In Mallard v. United States District Court for Southern District of Iowa, the Supreme Court found § 1915(e) only allowed the latter.[23] Mallard was a bankruptcy lawyer, newly admitted to the bar in the Southern District of Iowa in January 1987. In June 1987, he was asked to represent two current inmates and one former inmate in a § 1983 suit.[24] Mallard filed a motion to withdraw after reviewing the case, claiming that he had no familiarity with the legal issues and did not have expertise in deposing and cross-examining witnesses—which would be necessary to the case—but the magistrate judge denied his motion.[25] At the district court level, Mallard argued that the court’s decision to force him to work as a litigator would cause Mallard to violate his ethical obligation to only accept cases he could handle competently.[26] The district court judge upheld the magistrate’s decision to deny the motion to withdraw, and the Eighth Circuit denied the petition without an opinion.[27]

The Supreme Court, reviewing this denial, found that courts may not compel attorneys to accept a case, as the language of § 1915(e) clearly says “request.”[28] The Court explained that “request” is generally synonymous with words like “ask” and not words like “require” or “demand.”[29] The Court also pointed to § 1915(d), which specifically states that “court officers shall serve” and “witnesses shall attend,” and stated that Congress could have used stronger language if they intended to compel representation, but chose not to do so.[30] Finally, the Court stated that the existing state statutes that authorized courts to appoint counsel at the time § 1915 was passed specifically used language like “appoint” and “assign,” so the use of “request” in § 1915(e) should be read as a conscious congressional choice.[31] Justice Brennan, writing for the Court, concluded that § 1915(e) “does not authorize coercive appointments of counsel.”[32] Thus, the Supreme Court foreclosed § 1915(e) as an avenue for courts to solve problems faced in cases like Naranjo. Courts would have to turn to other forms of authority in order to address the problem.

B. Inherent Authority to Compel Representation

The Supreme Court explicitly left open the question of whether inherent authority could be used to compel representation.[33] While inherent authority has not been clearly defined, the Third Circuit has provided some guidance, discussed below, regarding the limits of inherent authority in Eash v. Riggins Trucking Inc.[34] At the time the Fifth Circuit decided Naranjo, only two courts had tackled the question of whether inherent authority allowed courts to compel counsel, and, if so, whether it was appropriate for a court to exercise its inherent authority for such a purpose. However, the courts did not agree. While in Colbert v. Rickmon, the Western District of Arkansas found that courts do not have the inherent authority to compel representation,[35] in Bothwell v. Republic Tobacco Co., the District of Nebraska found that courts did in fact have the inherent authority to compel representation.[36]

1. The Scope of a Court’s Inherent Authority

Inherent powers are the powers a “court can call upon to aid in the exercise of its jurisdiction, the administration of justice, and the preservation of its independence and integrity.”[37] Inherent powers are most often used in criminal cases,[38] but these powers may also be used in certain civil contexts, like regulating the bar[39] or subpoenaing witnesses for an indigent civil litigant.[40] Academics have described inherent authority as “nebulous” and “its bounds as ‘shadowy.’”[41] As there is little case law about inherent powers, there are no clear limits. The one limit that courts have generally agreed upon is that inherent powers are only to be used in rare circumstances when courts have no other recourse.[42]

In Eash v. Riggins Trucking Inc.,[43] the Third Circuit described inherent authority in detail and categorized inherent powers into three main categories. The first category is inherent power given to courts by Article III. These constitutional powers allow the court to act against legislative directive and “are grounded in the separation of powers concept, because to deny this power ‘and yet conceive of courts is a self-contradiction.’”[44] An example of this power is the court’s ability to “void legislation that would virtually prohibit functioning of courts.”[45] The boundaries for this type of power are “not possible to locate with exactitude,” so the Eash court recommended exercising the power with caution.[46]

The second—and most commonly used—category of power Eash identifies encompasses the powers that are “necessary to the exercise of all others.”[47] This language comes from one of the earliest Supreme Court cases on inherent powers, United States v. Hudson, which held that “[c]ertain implied powers must necessarily result to our Courts of justice from the nature of their institution.”[48] This is the type of inherent power a court uses when it sanctions an individual for contempt.[49] According to the Eash court, this power may be regulated to some extent but it cannot be “abrogated nor rendered practically inoperative.”[50]

The final type of a court’s inherent power stems from the court’s equitable powers. These powers are not necessary for performing the duties of the court but are used by courts to achieve a “just result.”[51] According to the Eash court, this power is only available to courts when Congress has not provided contrary legislation.[52] If courts were to compel attorneys to accept judicial appointments, they would need to use this type of inherent power because appointed counsel is not “necessary” in civil cases.[53] Proponents of the power to mandate representation would have to argue that appointing counsel is necessary to provide a just and fair result for indigent civil plaintiffs.[54]

2. Colbert v. Rickmon: Against the Use of Inherent Authority to Compel Counsel

A year after Mallard, the Western District of Arkansas found that federal courts do not have the inherent authority to compel attorney representation of indigent civil litigants in the case Colbert v. Rickmon.[55] After reviewing the background of compelled representation and the use of inherent powers to compel representation of indigent civil litigants, the court decided that federal courts do not possess this power because if they did, § 1915(e) would be superfluous. According to the court, if Congress believed courts had the power to inherently appoint counsel, Congress would have had no reason to pass a statute allowing courts to “request” counsel.[56] The court also stated that any inherent powers federal courts possess must come from Article III of the Constitution,[57] but declined to find the power to appoint counsel to incarcerated civil litigants within Article III’s reach.[58] Furthermore, even if the court had the inherent authority, the court suggested that the Fifth Amendment’s Due Process, Takings, and Equal Protection Clauses would limit this power.[59] Ultimately, the court found it could do no more than request the services of attorneys.[60]

The Colbert court was very opposed to appointing counsel in this particular case, and censured appointing counsel in general. In part, the court did not want to impose on attorneys by compelling them to represent indigent plaintiffs.[61] However, the court also emphasized the implementation problems that arise from compelling representation. It suggested that courts would have to spend time and resources that they do not have on either “strong arming” attorneys into serving, or calling attorneys until one accepted the position.[62] The court refused to take this route, stating that it was “not equipped with the machinery or the manpower to act as a telephonic lawyer-referral service.”[63] Unsurprisingly, the court opted not to request counsel in Colbert.[64]

3. Bothwell v. Republic Tobacco Co.: Recognizing Court’s Inherent Authority

Bothwell v. Republic Tobacco Co.[65] also addressed the court’s inherent authority to appoint counsel in civil cases. In Bothwell, the court was “convinced that a federal district court does possess the inherent power to compel an unwilling attorney to accept a civil appointment.”[66] Unlike in Colbert, Bothwell addressed all three categories of inherent power and found that this power falls under the penumbra of the third category, a court’s equitable powers.[67] The court explained that the third category of inherent power exists for two purposes: ensuring a “fair and just” process, and maintaining the integrity of the judiciary.[68] The inherent authority to compel representation of indigent civil litigants would further both purposes. First, the court stated that the adversarial system may not be effective when one side cannot access representation, and the inability of a party to get counsel because of their indigency “clearly offends the principle of ‘equality before the law’ underlying our system.”[69] Second, the court suggested that the court’s integrity is eroded when it is not fully accessible by all groups.[70] Because both purposes of the third category of inherent power were at play, the court concluded that federal courts do have the inherent authority to mandate an attorney to represent an indigent civil litigant.

Like Colbert, Bothwell considered the implementation of this inherent power. However, while the court in Colbert did not want to impose on attorneys at all, the court took a more pragmatic perspective, suggesting that courts should take into account attorneys’ ethical obligations and actually enforce bar associations’ “platitudes” about pro bono goals.[71] According to him, “if these aspirational ‘goals’ are to be achieved and to have any meaning in fact, there must be some mechanism for gaining compliance.”[72]

Courts could serve as the mechanism for achieving compliance with bar association goals. However, in Bothwell, the court refrained doing so. The court stated that courts must exercise inherent powers with restraint.[73] The court suggested counsel should be appointed in marketable cases in which a private attorney might consider taking a case but the plaintiff is unable to obtain a lawyer because he is indigent.[74] In this case, since the plaintiff was unable to obtain counsel not because he was an indigent but because his case was unmarketable to attorneys, the court concluded it was not reasonably necessary to the administration of justice to compel an attorney to represent him.[75]

4. Other Jurisdictions on the Question of Compelled Representation

No other courts have explicitly addressed whether inherent authority allows federal courts to compel attorneys to represent indigent civil litigants. However, various circuits have concluded that courts cannot compel attorneys and do not turn to inherent authority. For instance, the Third Circuit has stated that “courts have no authority to compel counsel to represent an indigent civil litigant[,]” but did not discuss inherent authority.[76] Courts in the Second[77] and Sixth[78] Circuits have similarly failed to address their potential inherent authority to appoint counsel when stating that they could not compel counsel. In concluding that they have no authority to compel attorneys, these courts have implicitly suggested they have no inherent authority to compel representation of indigent civil litigants.

Nevertheless, courts may be more open to this use of inherent powers if a circuit court were to explicitly allow such action. A decision from the Middle District of North Carolina found that “[i]n the absence of controlling authority recognizing any . . . inherent authority,” the court could only request attorney services.[79] This may mean that, were an appellate court decision to permit using inherent authority to appoint counsel to indigent litigants, district courts would be willing to use this power. However, with little precedent concerning inherent authority, courts may be reticent to do so.[80]

C. Naranjo v. Thompson[81]

1. Exceptional Circumstances Calling for Appointment of Counsel in the Fifth Circuit

Like many circuits,[82] the Fifth Circuit requires courts to find a litigant’s case presents exceptional circumstances before the court may decide whether to appoint counsel to an indigent civil litigant’s case under § 1915(e).[83] In Branch v. Cole, the Fifth Circuit held that if exceptional circumstances exist, the court must appoint counsel.[84] The court in Branch declined to enumerate factors to be considered in determining whether exceptional circumstances exist because “[n]o comprehensive definition of exceptional circumstances is practical.”[85] Instead, the court stated that the existence of exceptional circumstances would depend on the type and complexity of the case and the abilities of the individual bringing the case.[86]

Less than two months later, the Fifth Circuit held in Ulmer v. Chancellor that if exceptional circumstances are found, a district court abuses its discretion by failing to appoint counsel.[87] In Ulmer, the court elaborated on the factors to be considered when ruling on requests for counsel. [88] These factors included the type and complexity of the case, whether the indigent is capable of adequately presenting his case, whether the indigent is in a position to investigate his case adequately, and whether the evidence will mostly consist of conflicting testimony that will require skill in presenting evidence and cross-examination.[89] By the time Naranjo was decided, the Fifth Circuit further required district courts to consider the “likelihood that appointment will benefit the petitioner, the court, and the defendants by ‘shortening the trial and assisting in just determination.’”[90] Courts can also consider the extent of the plaintiff’s independent efforts to obtain private counsel.[91] Using these factors, the district court in Naranjo found that exceptional circumstances existed, warranting the appointment of counsel to Naranjo’s case.[92]

2. Mario Naranjo’s Case

Naranjo, while incarcerated at Reeves County Detention Center (“Reeves III”) in Pecos, Texas, brought a variety of claims against the company managing the prison and several of its directors and employees.[93] He alleged that prison officials had violated his Fifth Amendment due process rights by responding with indifference to his grievances; that they violated his Eighth Amendment right to be free from cruel and unusual punishment by maintaining the prison at 166% of its capacity; that they did not maintain proper fire safety procedures; that they failed to maintain sufficient sanitary conditions; that they provided insufficient medical care to inmates; that they forced Naranjo to perform labor on their behalf; and that they denied him equal protection by transferring him to Reeves III because he is Hispanic.[94] The case was referred to a magistrate judge, and Naranjo moved for appointment of counsel under § 1915(e)(1). The magistrate judge denied this motion.[95] Naranjo proceeded to file requests for documents relevant to his claims from the defendants, who objected to all three discovery requests on prison security grounds. In response, the magistrate judge ordered that the documents all be filed under seal, so Naranjo could not see them himself.[96]

The magistrate judge recommended that the district court grant summary judgment on all of Naranjo’s claims, but the district court judge denied summary judgment on three of Naranjo’s claims.[97] The magistrate judge proceeded to schedule an evidentiary hearing on the remaining claims. Naranjo moved again for appointment of counsel, writing that he could not “participate because to do so properly would require more legal skills than the Plaintiff has or can develope [sic].”[98] At the evidentiary hearing, Naranjo repeatedly expressed that he was unqualified, as he was not a trained attorney. When the magistrate judge asked if Naranjo had any evidence he wanted to produce, Naranjo responded,

Your Honor, with all due respect, I’m going to be standing by my declaration, the sworn pleadings that I’ve also put in throughout the hearing—proceedings, and that’s as far as I’m going to—I have no other evidence. I have been denied access to any reports, I do not—I’m not a trained attorney, I do not know how to conduct an evidentiary hearing, so I have to stand by my sworn declaration and my verified pleadings.[99]

Similarly, when asked whether he wanted to cross examine the warden, he said, “Your Honor, I have no questions for Warden Thompson. I’m certainly not an attorney; I wouldn’t know where to begin[,]” and when asked if he had objections to a set of exhibits, he replied, “Your Honor, I—I don’t have a clue as to what they mean, to be honest with you.”[100] Finally, when the magistrate judge asked Naranjo if he had any outstanding discovery issues, Naranjo said he did not know, as he was not a professional lawyer, and “these discovery issues are just very confusing to [him].”[101]

The district court, when reviewing Naranjo’s second motion to appoint counsel, found that exceptional circumstances were present. The district court found that Naranjo’s inability to view the documents and participate in discovery impeded his ability to investigate the case and that his claims would likely involve conflicting testimony that would require cross-examination skills that Naranjo did not possess.[102] The district court also “agree[d] that the appointment of counsel w[ould] expedite the lawsuit, promote judicial economy, and [wa]s ultimately justified under the circumstances.”[103]

However, the district court ultimately denied the motion to appoint counsel. The district court stated that it had no funding to compensate an attorney, and it could find “no attorneys in the area willing or able to take the case pro bono.”[104] The Western District of Texas provided no special budget for appointing counsel under 42 U.S.C. § 1983 and the court’s discretionary budget was limited, so the district court could not fund counsel.[105] In addition, the court had reached out to all seven of the licensed attorneys practicing in Pecos and all three of the attorneys admitted in the Western District of Texas who practiced in Reeves County, as well as legal aid organizations including the Texas Civil Rights Project. None of the lawyers or organizations were able to take the case pro bono.[106] Since the court understood Mallard as preventing federal courts from compelling attorneys to take cases pro bono, the district court held that it had no way of appointing counsel for Naranjo.[107] In its holding, the district court urged Naranjo to appeal so that “the Fifth Circuit [could] provide guidance on the appointment of counsel” in this situation.[108]

3. The Fifth Circuit’s Recognition of Inherent Authority

On appeal, the Fifth Circuit found that the district court did not clearly err in finding that the sealed discovery and likelihood of conflicting testimony provided exceptional circumstances weighing in favor of appointing counsel.[109] Since the district court properly found exceptional circumstances, the Fifth Circuit found that the district court had erred in declining to appoint counsel.[110] The Fifth Circuit stated that when the conventional methods of finding counsel fail, courts may use their “inherent power to compel counsel to accept an uncompensated appointment.”[111]

The Fifth Circuit stated that while Mallard refused to answer whether federal courts have the inherent authority to mandate uncompensated representation, “[w]e hold that they do, and that the district court abused its discretion by not considering that option.”[112] The court stated that the inherent authority to compel attorneys stems from necessity and the courts’ duty to maintain a functioning system of civil justice.[113] This power was indispensable because the appointment of counsel in this case was necessary to provide the plaintiff with a meaningful hearing.[114] Furthermore, by exercising this power, the court upheld its duty to maintain a functioning civil justice system because it enforced the ethical obligations attorneys gain when they receive their licenses.[115]

However, this was not a broad ruling. The opinion “emphasize[s] that this is a power of last resort.”[116] The court first pointed to the case law requiring inherent powers to be used with “great restraint and caution.”[117] The Fifth Circuit also predicted district courts would very rarely appoint counsel via inherent powers, as exceptional circumstances “are, by their very definition, exceptional,” and courts should exhaust all other remedies before using such authority.[118] Only in the “rarest of cases” should a district court need to use its inherent powers.[119] Furthermore, the Fifth Circuit allowed district courts to consider additional factors when deciding whether to make a mandatory appointment, beyond those considered when determining whether exceptional circumstances exist.[120] These factors may include the attorney’s assessment of whether the plaintiff’s claims are meritless and whether an attorney has “good cause” to decline an appointment.[121]

II. Naranjo as a Solution to the Justice Gap

As Naranjo has limited applicability, few district court decisions cited the case in the two and a half years following the Fifth Circuit’s decision. Naranjo could help to close the justice gap and provide a new tool for courts to appoint counsel for indigent parties. This section discusses the potential benefits of applying Naranjo and the reasons why courts may not exercise Naranjo to its greatest potential. This section also considers recent district court decisions that discuss Naranjo and the varying manner in which Naranjo is applied in those cases.

A. Potential Strengths to Broad Adoption of Naranjo

The most obvious benefit that Naranjo confers is that it could allow more representation for pro se plaintiffs with potentially meritorious claims and therefore allow for more meaningful court proceedings. The Supreme Court stated in Penson v. Ohio that the adversarial process is key to procedural fairness, as truth is “best discovered by powerful statements on both sides of the question.”[122] The Fifth Circuit emphasized this goal in Naranjo. When an indigent plaintiff lacks access to representation, the court stated a district court “cannot carry out its duties without ordering an attorney to take the case” because “[e]ven the most dedicated trial judges are bound to overlook meritorious cases without the benefit of an adversary presentation.”[123] The option to use inherent powers allows courts to appoint counsel and thereby better serve the interests of justice.

Exercising inherent authority to appoint counsel may provide an option when other methods of providing counsel fail. As legal aid organizations have received decreased funding over the years[124] and lawyers have largely failed to fill that gap via volunteering or donating money,[125] compelling private attorneys to take cases may be one of the few solutions that can match needy parties with legal representation regardless of the limited supply of willing lawyers. Furthermore, inherent authority is a very ambiguous power[126] and therefore may be used to fill interstitial gaps that other legal aid programs may not be able to fill. Legal aid programs with low funding cannot take every potential client, and often must remain selective when taking clients.[127] These internal policies on selecting clients can leave certain pro se parties without any viable option for representation, regardless of their need.

Naranjo provides a perfect example of such a situation—the district court contacted legal aid organizations, like the Texas Civil Rights Project, but none could—or would—accept Naranjo as a client.[128] Exercising the inherent authority of the court to appoint counsel became the only way to provide counsel to Naranjo, a deserving pro se plaintiff. Unlike other external programs for providing counsel to indigent parties, a court’s option to use inherent authority does not depend on the generosity of private lawyers, access to funding, or the political popularity of the case.

Similarly, the use of inherent authority to compel representation may alleviate some supply and demand problems that alternative solutions may face. First, there is not an even distribution of lawyers across the country. While plaintiffs in large cities like New York may find more lawyers to contact, those in rural areas are at a disadvantage. In Naranjo’s case, the court only contacted ten lawyers because there were a total of ten lawyers practicing in either the town of Pecos or in Reeves County.[129] Compounding this, studies have found that somewhere between 15–18% of Texan lawyers participate in voluntary pro bono, potentially leaving less-populated parts of Texas, like Pecos and Reeves, without any lawyers willing to work pro bono.[130] But even if 100% of lawyers met the fifty-hour aspirational pro bono goal set by the Texas Bar,[131] the ten lawyers available in a smaller town would be likely to rapidly hit that limit and may refuse to serve additional pro bono clients.

In addition, private lawyers are often inaccessible for indigent plaintiffs. Most low-income Americans do not think to approach lawyers with many of their legal problems; LSC found that low-income Americans only seek professional help for twenty percent of their civil legal problems.[132] One of the top-cited reasons for not seeking help is not knowing where to look for it.[133] It is no surprise that low-income Americans do not know where to seek help, as most do not interact with lawyers on a regular basis.[134] Most private lawyers work for wealthier individuals and businesses, and fewer than one percent of lawyers represent poor people full-time.[135] Therefore, many indigent plaintiffs may find it hard to find a lawyer who will take their case without help from a court.

If one did find a lawyer willing to work with low-income plaintiffs, this lawyer would likely be more interested in class action suits than individual lawsuits. Individual lawsuits are expensive to bring, but usually recover small amounts relative to their costs.[136] Lawyers typically do not take cases on contingency basis that are likely to recover less than the costs required to bring the case, leaving the plaintiffs in these cases in limbo.[137] Class actions, then, become the major source of legal representation, outside of direct legal services, for low-income Americans.[138] Class action litigation can provide legal aid in situations low-income plaintiffs commonly face, such as predatory lending, excessive student loans, and abusive workplace practices.[139] However, the use of class action litigation to vindicate the rights of low-income Americans has declined in recent years as more consumer financial and employment contracts include arbitration clauses and class action bans.[140] As opportunities for class action suits decrease, so do opportunities for many low-income Americans to obtain representation for some of their more pressing legal issues.

The struggle to access the limited supply of lawyers is only exacerbated for incarcerated plaintiffs. The free market system for indigent plaintiffs, for which Judge Richard Posner advocated, where private attorneys will take meritorious cases on a contingency basis,[141] falls apart when faced with prisoners’ limited abilities to obtain representation. Inmates typically receive low damages due to legislation like the Prison Litigation Reform Act.[142] Even when their claims are successful, they can only recover a limited amount of damages for attorneys’ fees.[143] Ethical limits on contingency fees discourage attorneys from litigating inmates’ cases that will only produce measly rewards.[144]

Even if lawyers were willing to take on cases completely pro bono, the odds that an inmate could contact those lawyers and successfully convince them to take his or her case are low. Inmates often face limits on sending mail, accessing telephones, and the number of lawyers with whom they can keep confidential contact.[145] Realistically, an inmate can only ask a small number of lawyers for assistance. Because such requests cannot be made in person and inmates frequently lack the legal knowledge and literacy skills to fully convey their case, it can often be hard for inmates to convince a lawyer to take their case.[146] Without additional help, many incarcerated pro se plaintiffs with viable cases may be unable to obtain counsel. However, a court does not face the same problems in contacting and obtaining counsel for an incarcerated pro se party with a meritorious case.

B. Potential Obstacles to Naranjo’s Usefulness

1. Precedential and Constitutional Problems

The most immediate obstacle to using inherent authority to appoint counsel is that there is no clear precedent for doing so outside of Naranjo. Since the Supreme Court declined to address the issue of inherent authority in Mallard in 1989,[147] the Court has not elaborated at all on the topic. Only two lower-court decisions have analyzed case law on a court’s inherent authority to determine whether the court could compel representation of an indigent plaintiff.[148] In Colbert v. Rickmon, the district court judge explicitly stated that courts do not have the power to compel counsel—the very power that the Fifth Circuit, in Naranjo, instructed the district court to use.[149] In Bothwell v. Republic Tobacco Co., while the magistrate judge acknowledged courts could use inherent powers to appoint counsel, he declined to do so as it was not reasonably necessary in that case.[150] Thus, apart from Naranjo itself, there is neither clear law guiding courts to compel representation for indigent parties nor guidance for determining which cases merit doing so.

A recent decision from the District of Idaho illustrates how courts may be skeptical of using inherent authority even in light of Naranjo. The court “considered Naranjo and found it unpersuasive,” as the court disagreed with Naranjo’s reasoning, and “concluded that federal courts do not have the inherent authority to compel an attorney to provide pro bono representation in a civil case.”[151] Had more cases beyond Naranjo exercised inherent powers, maybe the District of Idaho court would have been more amenable to the idea. As it stands, however, courts in other circuits are unlikely to produce decisions similar to Naranjo given the dearth of precedent.

In addition, many lawyers will likely claim that mandated pro bono is unconstitutional, similar to the mandated pro bono at issue in Mallard. In the past, lawyers have challenged mandated pro bono on various constitutional grounds. Such mandates are frequently challenged under the Fifth Amendment as a taking of attorneys’ property without compensation.[152] Lawyers have also challenged mandated activity as a violation of the Fifth and Fourteenth Amendments’ requirement of due process[153] and the Thirteenth Amendment’s prohibition of involuntary servitude.[154] If courts were to begin regularly compelling counsel to represent indigent plaintiffs because they could not afford to pay counsel, the courts could face even more expensive lawsuits from compelled attorneys. Both potential constitutional challenges and the lack of precedent could have chilling effects that prevent judges from using their inherent authority as was done in Naranjo.

2. Explicit Narrow Applicability

Even without these considerations, a court will likely be very hesitant to exercise its inherent authority and compel representation. In Naranjo, the Fifth Circuit explicitly stated that inherent authority “must be used with great restraint and caution.”[155] This admonition echoes modern Supreme Court opinions on inherent powers. The Court has advised restraint in using such powers to appoint attorneys to prosecute contempt actions, noting courts should use “only the least possible power adequate to the end proposed.”[156] In 1980, Justice Powell explained the importance of courts using these powers sparingly, stating “[b]ecause inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion.”[157] Courts are likely to be especially reluctant to use inherent authority to appoint counsel in civil cases. The Supreme Court set the precedent for this reluctance in Lassiter v. Department of Social Services,[158] finding that counsel would not have made a determinative difference in a hearing to terminate parental rights.[159] Since that case, lower courts have been reluctant to require lawyers in civil cases.[160] Judges exercise a lot of discretion in determining whether to appoint counsel, and some judges may be more likely than others to make such an appointment.[161] Thus, relying on judges to use inherent authority to appoint counsel is likely to result in only a limited number of appointments of counsel and a very haphazard judge-dependent application of Naranjo.

It is likely any future decisions that apply Naranjo will read it narrowly. The opinion itself suggests a narrow reading is suitable. The court first cautioned that any exercise of inherent powers to appoint counsel must “somehow be indispensable to reaching a disposition of the case”[162] and are only to be used as “a power of last resort.”[163] The court explicitly stated that it “expect[s] that occasions for mandatory appointments will be rare indeed.”[164] According to the Fifth Circuit, there should be few of these appointments because they can only happen when exceptional circumstances are present, and exceptional circumstances “are, by their very definition, exceptional.”[165] In addition, even where there are exceptional circumstances, inherent powers should not be invoked unless the district court has explored and exhausted all other options for obtaining counsel.[166] More recent Fifth Circuit decisions have cited Naranjo for the proposition that inherent powers can only be used in very limited circumstances,[167] illustrating the Fifth Circuit’s intent that Naranjo be read narrowly. Thus, courts will only use inherent powers to appoint counsel in cases presenting exceptional circumstances.

3. Difficulty of Proving Exceptional Circumstances in the Fifth Circuit

It can be very hard for plaintiffs to meet this “exceptional circumstances” standard.[168] In order to find exceptional circumstances, a court must, among other factors, find that the pro se party is unable to fully understand the case, cannot properly present the case, or cannot properly investigate the case; or that the case requires cross-examination and the pro se party is unable to properly cross-examine a witness.[169] However, courts in the Fifth Circuit have often found that cases did not meet the standard for exceptional circumstances because the pro se parties have shown some modicum of ability to file motions and therefore must have the ability to adequately investigate and present their case.

For instance, in Margin v. Social Security Administration,[170] the court stated that, while “every litigant benefits by having an attorney[,]” the plaintiff bears the burden of demonstrating that they will have a particular difficulty.[171] The court then proceeded to analyze Margin’s capabilities to represent himself from the limited knowledge it had. The court found:

Margin is 47-years old and has a high school education and one year of college. He is very articulate and had no difficulty presenting the circumstances of his appeal to the undersigned in the context of the telephone hearing. He was capable of filing his complaint and the in forma pauperis application. Moreover, the investigation appears to be complete, given that the appeal must be decided on the administrative record. As noted above, no trial is necessary here, as no presentation of evidence will be required. Plaintiff has thus failed to make the requisite showing that he is entitled to appointed counsel in this suit.[172]

Thus, because Margin managed to file a complaint, the court found he was completely able to present his case and did not require assistance from an actual attorney.[173]

The court’s analysis in Margin is not unusual when courts in the Fifth Circuit determine the presence of exceptional circumstances. In fact, many decisions dismiss the presence of exceptional circumstances with a sentence and far less reasoning than the court provided in Margin. For instance, in Gill v. State of Texas,[174] the court found Gill’s civil rights action was “not complex,” that he was “educated and able to adequately present his case,” and that “he was not incarcerated or unable to adequately investigate his claims.”[175] The court mentioned just paragraphs before that Gill thought criminal statutes 18 U.S.C. §§ 241 and 242 provided a basis for civil liability. [176] However, despite not knowing the crucial distinction between criminal and civil law, the court still found Gill competent enough that a lawyer was not required.[177]

Other decisions have not even paid attention to the inability of pro se parties to adequately investigate or present cases while incarcerated. When dismissing a motion for appointment of counsel in a case involving alleged Eighth Amendment violations in a prison, the court provided no more reasoning than “the record reflects that he is capable of adequately presenting his claims to the court.”[178] No more information was given, so the public is left to guess what skill the plaintiff presented that led the court to find he could adequately present his claims. Presumably the court found him able to present his claim because he had filed a motion, as that is often sufficient for courts in the Fifth Circuit.[179]

Another case explicitly stated that the plaintiff could adequately develop the facts and present his case solely because he managed to file comprehendible motions and support papers with the court.[180] This tendency to simplify the ability to present and investigate a case to filing motions puts pro se parties in the unenviable position of having to choose between trying to represent themselves adequately in order to win their case and refusing to do so in fear that the court will deem them a sophisticated party.[181] Of course, pro se parties will have to consider that, unless they try to represent their case well, a court will likely dismiss the case as frivolous. Thus, proving that there are exceptional circumstances in the Fifth Circuit often becomes a Catch-22.

As it can be hard to prove exceptional circumstances, and only those with exceptional circumstances are eligible for mandated counsel under Naranjo, Naranjo will remain extremely limited in practice. This limitation may be further exacerbated if courts look to Naranjo for guidance regarding when exceptional circumstances exist. The facts in Naranjo are particularly outstanding, because Naranjo could not physically look at or gain access to documents around which the case revolved.[182] Furthermore, the court found that Naranjo “was essentially a spectator at the evidentiary hearing” because he had the foresight to repeatedly state that he had nothing to add because he was not a lawyer and could not participate.[183] Unlike Naranjo, many litigants put in his position may still try to participate out of a desire to try and win their case. If all cases are compared to Naranjo, many may no longer pass muster for exceptional circumstances, as the facts of Naranjo are hard to replicate.

However, Naranjo does not necessitate a higher standard for exceptional circumstances. While the court stated that basic competency can be enough to foreclose the possibility of exceptional circumstances, it noted that the record “also disclose[d] quite a few mishaps and wire-crossings resulting from Naranjo’s inexpert motions practice.”[184] In contrast to courts that found no exceptional circumstances simply because motions were filed, Naranjo suggests that a court may look more into the quality of the motions and whether they were cohesive. This interpretation may mean that plaintiffs could act in their best interest and file motions on their behalf without the risk of being found competent solely for filing a motion. However, it is unclear whether there would have to be some mishap, like a late motion. This would also depend on the depth of a court’s review of potential exceptional circumstances; if a court gives a one-sentence afterthought regarding appointing counsel, this may have no effect.

C. Judicial Interpretation of Naranjo

It is still uncertain how courts in the Fifth Circuit will apply Naranjo and whether Naranjo will increase the number of court-appointed lawyers. As of January 2018, there were only twenty reported cases that cite Naranjo, and few of these discuss at any length appointment of counsel under Naranjo.[185] None of these cases involve the actual appointment of lawyers. The cases that do discuss exceptional circumstances that call for appointment of counsel under Naranjo provide differing results.

Some cases did not find exceptional circumstances, perhaps because the court has set a high bar for exceptionality. For example, in a case arising in the Western District of Texas, Hawbecker v. Hall,[186] Judge Lamberth found that, unlike in Naranjo, there was no evidence the indigent defendant needed representation in order to respond to evidence.[187] Hawbecker had sued Hall for libel and defamation, and Hall moved for appointment of counsel, stating that she was out of state and unable to review evidence in the trial and, therefore, unable to fully participate without a lawyer.[188] Judge Lamberth compared the case to Naranjo, and stated that counsel was found necessary in Naranjo because of “the security sensitive nature” of the sealed documents that Naranjo could not access.[189] Meanwhile, even though Hall could not travel to Texas and participate in trial, Hall could still technically see and respond to the evidence.[190] Judge Lamberth’s interpretation would thus further limit what qualifies as an exceptional circumstance and require “exceptional circumstances” align more directly with the facts of Naranjo. While Hall could not afford to travel to Texas and see the evidence, and thus was practically prevented from seeing the evidence, the court still found she could adequately represent herself enough for a fair hearing.[191]

Other cases have not set as high of a bar for exceptional circumstances, but have still required certain facts, like an inability to represent oneself, before mandating representation. In a Southern District of Texas case, Dunn v. Davidson, Judge Atlas found exceptional circumstances present.[192] She noted that Dunn “ha[d] done an admirable job representing himself” but because the evidence consisted of conflicting testimony, he would need aid from a lawyer who could cross-examine witnesses.[193] This may suggest that courts will not read Naranjo to require especially exceptional facts, and that simply the inability to advocate for oneself as well as a lawyer could may still suffice. However, the need to cross-examine may be viewed as outside the ambit of basic competency and as a more significant indicator of exceptional circumstances. Furthermore, the court took particular notice of the fact that prison officials had confiscated Dunn’s legal materials, limiting his ability to educate and advocate for himself.[194] Thus, even if this case takes a potentially broader view of exceptional circumstances than Hawbecker did, it could still serve to limit Naranjo’s ruling to cases in which indigent parties are disadvantaged in a tangible way, like if legal materials are stolen or there is sealed evidence.

III. Evaluating Naranjo as a Solution

Regardless of whether district courts take the approach applied in Hawbecker or Dunn, Naranjo provides an important option for district courts in the presence of exceptional circumstances, and it allows courts to appoint lawyers in the interstitial cases where other options have failed. Naranjo can supplement other methods of providing counsel for indigent parties, and this section argues that the benefits of using Naranjo far outweigh the potential problems. Naranjo could also potentially benefit more indigent parties, if combined with a more forgiving standard than the Fifth Circuit’s current standard of exceptional circumstances.

A. Naranjo Could Help Bridge the Justice Gap

If adopted in conjunction with, rather than in the place of, other methods of providing legal aid to indigent parties, Naranjo can help ensure counsel is provided in more cases with indigent plaintiffs. Given the Fifth Circuit’s caution to use inherent powers sparingly and the limited applicability of exceptional circumstances, Naranjo will not lead to a sudden surge in court-appointed counsel. Thus, it is still important to encourage private attorneys to volunteer their services and to fund legal aid organizations, like Legal Service Corporation and the Volunteer Lawyers Project. However, while the actual effect may be relatively small, the solution Naranjo presents may help solve problems faced by other solutions to the justice gap—mainly the ability to fill other programs’ gaps in coverage and the inability of prisoners to access legal aid. Several possible ways courts can utilize Naranjo are discussed below.

1. Using Naranjo, Courts Could Supplement Other Programs in Providing Legal Representation

There is a high demand for low-income legal services in this country, and a large number of those seeking legal aid will not be able to receive it from the traditional routes for obtaining free or reduced legal services.[195] Neither private attorneys nor legal organizations can provide aid for all indigent parties. While the American Bar Association and many state bar associations encourage private lawyers to engage in pro bono work or donate money to pro bono services,[196] these are only aspirational goals. Attorneys donate time and money to pro bono services, but not nearly at the rate that these bar associations encourage.[197] In addition, ethical rules requiring lawyers to accept judicial appointments sans judicial compulsion[198] have not been adopted in all states.[199] Those states that have adopted the rule allow an exception for good cause,[200] and good cause often encompasses a situation in which “representing the client is likely to result in an unreasonable financial burden on the lawyer.”[201]

These rules presume a perfect world in which there are enough lawyers to take every case a court finds deserving of counsel. As demonstrated by the circumstances in Naranjo, this is not the case, and there is often a small pool of attorneys who can take a case. Lawyers cannot take an unlimited number of cases, so when the pool of attorneys is small, fewer judicial appointments can be accepted. Naranjo illustrates this problem; the court in Naranjo attempted to appoint counsel, but quickly found appointing a lawyer was impossible “[g]iven the remote location of Pecos, Texas and its dearth of legal representation.”[202] The court had reached out to all seven licensed attorneys practicing in Pecos, as well as the three lawyers admitted in the Western District practicing in the county, but was unable to find counsel without resorting to compelling representation.[203]

Legal aid organizations suffer from similar budgetary problems as well as other restrictions on the subject matter of cases they can take. According to their 2017 report, Legal Services Corporation (LSC) estimated that, in 2017, they would receive requests to help in 1.7 million legal problems, but would not be able to help or would only be able to provide limited help in an estimated 1.1 million of those cases.[204] LSC cited a lack of available resources as an explanation for 85–97% of the cases it turns away.[205] State legal aid organizations face the same problems.[206] A large number of low-income Americans are therefore left with no aid from attorneys.

Furthermore, these gaps in coverage from legal aid services are exacerbated by congressionally or internally imposed rules dictating how such services spend their limited resources. LSC-funded organizations comprise roughly one-quarter of all civil legal aid providers, but can only take clients earning up to 125% of the federal poverty line.[207] This bright line rule on financial eligibility eliminates the access of many people from the only legal aid they may have been able to afford. Organizations may also impose other rules limiting the subject matter of cases they take.[208] LSC prohibits organizations they fund from assisting in a large range of legal services including voter assistance and voter registration, habeas corpus actions, abortion cases, organizing labor or political activities, and proceedings about desegregation.[209] Congress has also banned LSC-funded organizations from aiding non-U.S. citizens, those evicted from public housing because they face criminal drug charges, prisoners, and class actions.[210] Other legal aid groups may assist citizens facing these problems, but if indigent parties cannot find a willing and able legal aid organization, then they rarely have another accessible option for counsel.

Courts could utilize Naranjo to help fill those gaps left by private attorneys and legal aid services. Of course, courts will not appoint counsel for all 1.1 million low-income Americans that were turned away by LSC. As the Fifth Circuit stated, the court’s inherent authority should only be used as a “last resort.”[211] However, in the exceptional cases in which a court determines a pro se party has a case that particularly deserves counsel, as was the case with Naranjo, the court would have a viable option for getting that party counsel, besides just hoping that a private attorney or legal aid organization has spare time. Since Naranjo charges courts with exhausting other options before using inherent powers,[212] this solution works best in tandem with other opportunities for providing representation for indigent parties.

2. Naranjo May be Especially Beneficial for Prisoners

Naranjo may be particularly adept at addressing the gap in legal representation for prisoners. Pro se prison litigants tend to make up a large proportion of the pro se cases filed in federal courts. In part, this is due to the frequency with which prisoners file suits. One study, for instance, found that filings by prison litigants comprised almost 17% of all new civil rights filings in federal courts over the course of a year.[213] In addition, there are often fewer legal resources available to prison plaintiffs. LSC, for example, forbids all organizations it funds from aiding prisoners in civil suits.[214] Other smaller, independent legal aid programs may aid prisoners,[215] but many do not.[216] Even if there are available programs offering aid to prisoners, prisoners may not be aware of these options.[217]

As a consequence, private attorneys are the main source of assistance for prisoners filing civil suits.[218] However, federal limits on the damages prisoners may receive discourage most private attorneys from taking prisoners’ civil suits on a contingency fee basis.[219] There are also a limited number of attorneys willing to take cases on a pro bono basis,[220] and even fewer attorneys who can take pro bono cases in the rural areas where prisons tend to be located.[221] On top of a limited supply of lawyers, prison rules often make it impossible for inmates to contact multiple lawyers in the hopes of finding one lawyer willing and able to take the case.[222] Thus, it remains unlikely that an incarcerated pro se litigant will be able to locate a lawyer willing to take their case on their own.

By providing courts with an option to appoint counsel in cases where no legal assistance could be otherwise found, Naranjo provides special aid to prisoners. Since prisoners are likely to run out of options for legal assistance before the general low-income population, it is more likely that a court will find both exceptional circumstances and that all other options have been exhausted in cases involving a prisoner. The Fifth Circuit in Naranjo stressed the principle of reliable access to attorneys for meritorious cases, and that “[c]ivil rights do not thin out at the city limits.”[223] A prisoner should not be denied assistance solely because no lawyer volunteered to help. Thus, Naranjo could potentially have a large impact on some prisoners’ requests for counsel, even if the impact is not widespread.

B. Naranjo’s Usefulness Outweighs Potential Problems

Naranjo, of course, is not a flawless solution. Lawyers could foreseeably challenge appointments under Naranjo either as illegitimate exercises of inherent authority or as unconstitutional. These challenges would not be frivolous on their face, but the possibility of such challenges should not deter courts from adopting Naranjo. As explained below, the court can defeat these challenges, if any arise. Furthermore, any application of Naranjo depends on the generosity of the particular judge. This, however, is also a benefit to Naranjo, as it is a flexible standard that allows case-by-case determinations of whether a plaintiff requires representation. Finally, regardless of the flaws of this solution, courts should prioritize the provision of counsel in meritorious cases over the fear of legal challenges.

1. Challenges to Inherent Authority

While a party may challenge the use of inherent powers, such a challenge is unlikely to prevail in light of the case law supporting the Fifth Circuit’s holding in Naranjo. A challenging party might cite Colbert v. Rickmon,[224] or a recent case from the District of Idaho, Veenstra v. Idaho State Board of Correction, [225] both of which found that federal courts do not possess such inherent authority to compel attorneys. However, neither of these cases is binding in the Fifth Circuit, or in any other circuit court—regardless of whether that circuit decides to adopt Naranjo. The Supreme Court explicitly left open the question of whether courts can use their inherent authority to compel attorneys to represent indigent parties,[226] and, until the Supreme Court answers this question, there is no binding authority that prevents the Fifth Circuit or any other circuit from enabling courts to use inherent authority to compel representation. In the meantime, there is plenty of case law suggesting that inherent powers extend beyond those granted by Article III[227] and encompass the power to mandate attorneys represent indigent clients.[228]

2. Constitutional Challenges

A court may also be able to dismiss constitutional challenges. For instance, while a lawyer may claim that forced pro bono violates the Thirteenth Amendment because it is involuntary servitude,[229] the Supreme Court has read the amendment narrowly as applying only to circumstances “akin to African slavery.”[230] The Court has stated that the Thirteenth Amendment will apply to situations that “might have been a revival of the institution of slavery under a different and less offensive name.”[231] In the past, the Supreme Court has declared that the Thirteenth Amendment did not protect individuals from the draft,[232] laws requiring every able-bodied man to work on county infrastructure when summoned,[233] or mandated service as a witness.[234] Given that precedent on this amendment has been settled for over a decade, it seems highly unlikely that a court would now invoke the Thirteenth Amendment to protect a lawyer from representing a single client.

Similarly, a court applying Naranjo could overcome challenges asserting a denial of due process.[235] When bringing a claim for denial of substantive due process, a court requires narrow tailoring of the government action when a fundamental right is involved.[236] However, when there is no fundamental right involved, the court uses a rational basis standard, and only looks at whether there is a “reasonable fit” between the governmental purpose and the means of achieving that purpose.[237] It is not clear whether there is a fundamental interest at play here; while the court has generally been cautious to recognize new fundamental interests,[238] a lawyer bringing a claim can assert that mandated representation violates his right to liberty in seeking employment and that the court has generally sought to protect liberty rights via substantive due process.[239]

Regardless of whether there is a fundamental interest at stake, courts’ applications of Naranjo could pass muster when subjected to strict scrutiny. The court’s purpose in mandating counsel is compelling, as the court is guaranteeing the fair administration of justice by ensuring both parties are properly represented.[240] While the lawyer may have a liberty right at stake, her client also has an established right of access to court.[241] A court has a compelling interest in allowing a fair trial for the indigent plaintiff and preventing unfair proceedings with uneven representation. This solution is also narrowly tailored. Naranjo does not call for all lawyers to be conscripted into mandatory pro bono. Instead, the Fifth Circuit cautions great restraint in applying Naranjo and encourages exercising all other options prior to using Naranjo to appoint counsel.[242] As any mandated representation is only a last resort, Naranjo is narrowly tailored to the government interest of ensuring fair proceedings. Thus, any instance of compelled representation could overcome the strict scrutiny standard in a due process challenge.

Finally, a court applying Naranjo could defeat a Fifth Amendment Takings Clause claim.[243] Generally, services have not been considered property protected by the Fifth Amendment; the Supreme Court has found that the “Fifth Amendment does not require that the government pay for the performance of a public duty it is already owed.”[244] According to the Court, the public duties owed to the government included the representation of an indigent plaintiff by a court-appointed attorney.[245] Thus, the very rare mandated appointment under Naranjo will not rise to the level of taking from the attorney. Instead, it is a public duty that the attorney owes the state after receiving the governmental benefit of a license to practice law.[246]

3. Dependence on Judicial Discretion

As can be seen in the different results in Hawbecker and Dunn, Naranjo’s usefulness is constrained by the discretion of the judges applying it. Some judges are more generous than others and may be more likely to use the court’s inherent power to compel representation.[247] This may lead to an uneven application of Naranjo, as judges like Judge Lamberth cabin the applicability of Naranjo, and others apply it more freely. However, this is, in essence, the benefit of Naranjo.

Unlike the LSC,[248] Naranjo does not depend on a congressional statute or the political popularity of funding representation of indigent parties. The benefit to Naranjo is that it is flexible and can be applied to those plaintiffs who are unable to receive aid from other methods of providing counsel. Naranjo relies on a judicial determination that a particular case merits counsel where traditional legislative solutions have failed. By definition, judicial discretion involves varying results because individual judges make varying decisions, but that is an inherent feature of the American judicial system. A court should not decline to adopt or apply Naranjo for that reason; a court should not deny parties with more generous judges access to counsel simply because other indigent parties have less generous judges.

4. The Importance of Ensuring Justice in Applying Naranjo

But, regardless of the obstacles to Naranjo’s usefulness, a court should still apply Naranjo because its focus should be on ensuring truly adversarial proceedings, rather than potential challenges. Courts have a duty to provide the “proper administration of justice” and the Fifth Circuit instructs courts that they may use inherent powers when necessary to provide that proper administration.[249] Administering justice in U.S. courts has long included the adversarial system, in which two relatively evenly matched parties can confront one another and ultimately discover the truth.[250] When a pro se party is so disadvantaged that the proceedings can no longer be called adversarial, a court has a duty to provide counsel so the hearing can be adversarial and justice can be properly administered.[251] A court should not be cowed by the possibility of a lawsuit when it decides how to best guarantee that justice is served. Potential challenges should not deter a court from adopting and applying the holding of Naranjo.

C. Naranjo May be More Effective at Supplying Legal Representation to Indigent Parties if the Fifth Circuit Rejects the Exceptional Circumstances Test

One of the obstacles to Naranjo’s utility could, however, be minimized. Naranjo is, of course, only intended to be applied in a narrow subset of cases,[252] but by easing the standards for exceptional circumstances, this narrow subset of cases could encompass more meritorious cases that deserve representation under Naranjo.

Other circuits have declined to adopt the exceptional circumstances test. The Third Circuit, for instance, refused to limit appointments under § 1915(d) to a certain set of cases.[253] Instead of a rigid test, the Third Circuit outlined considerations a court should make when determining whether to appoint counsel. As a threshold matter, courts must consider the merits of the plaintiff’s claims. If not frivolous, courts should take into account the plaintiff’s ability to present his case, the difficulty of the particular legal issues, whether the case will require skills in cross examination or testimony from experts, and any practical restraints on appointing counsel (like the lack of funding to do so).[254] This standard, while more lenient, still closely mirrors the Fifth Circuit’s “exceptional circumstances” test. Both circuits require courts to consider the complexity of the legal issues.[255] Both circuits require consideration of the plaintiff’s ability to present and investigate the case adequately,[256] as well as a consideration of whether the case will involve cross-examination.[257] The Third Circuit requires consideration of merit as a threshold matter,[258] while the Fifth Circuit allows courts to consider whether a lawyer would decline to take a case because it is meritless.[259] As these factors are substantially similar to those that the Fifth Circuit already uses, it would not be a major upset for the Fifth Circuit to adopt the Third Circuit’s approach.

The key differential impact of the Third Circuit’s approach is that this approach is more forgiving to indigent parties and stresses a more individualized analysis. It does not hinge on the talismanic phrase “exceptional circumstances,” which may persuade a judge that counsel can only be granted on the rarest occasions.[260] Instead, the Third Circuit emphasizes a more holistic appraisal of the pro se party’s situation in Tabron. Unlike the perfunctory findings the Fifth Circuit makes in deeming a plaintiff is competent,[261] the Third Circuit instructs courts evaluating the abilities of a party to “consider the plaintiff’s education, literacy, prior work experience, and prior litigation experience” as well as the plaintiff’s ability to understand English and whether the plaintiff is constrained in any way because of their status as a prisoner.[262]

In practice, it appears that circuits applying the latter test do so in a far more individualized and inquisitive manner than circuits applying the former. Take, for example, the Seventh Circuit’s application of the same test used by the Third Circuit. In various cases, the Seventh Circuit has suggested counsel may be appointed when the court is presented with evidence that the indigent party lacked understanding of the law or procedural matters, even when these matters were not complex.[263] In contrast, the Fifth Circuit has only found exceptional circumstances when the facts and legal issues are complex, regardless of the plaintiff’s level of understanding.[264] Another Seventh Circuit case admonished a district court for confining its discussion of the plaintiff’s competence to a “boilerplate” analysis,[265] which looked like many of the analyses produced by Fifth Circuit courts.[266] According to the Seventh Circuit, courts must analyze the plaintiff’s competence to litigate his claims, and the “failure to undertake this necessary inquiry is an abuse of discretion.”[267] Perfunctory statements are simply not enough, and the Seventh Circuit states that courts must actually engage with the facts of each case before denying counsel.[268]

If the Fifth Circuit also required more individualized analysis, it might allow more indigent plaintiffs to reap the benefits of Naranjo. By requiring courts to consider the facts of a case more holistically, courts may not write off a case as unexceptional based on a few irrelevant facts.[269] The standard of the Third and Seventh Circuits will not suddenly open the floodgates to more appointments of counsel, and it was not intended to do so.[270] The Seventh Circuit, instead, has highlighted the importance of a consistent framework for appointing counsel and the need for individualized inquiry.[271] The Fifth Circuit could only benefit from a more consistent application of the test for exceptional circumstances. Adopting a more lenient standard, like that of the Third and Seventh Circuits, could allow a more even application of the exceptional circumstances test and perhaps allow more indigent parties with meritorious cases to access counsel under Naranjo.

Conclusion

While it is uncertain how future courts will rule, Naranjo will likely remain a very limited tool, as the Fifth Circuit imagined.[272] Courts will likely remain hesitant to appoint counsel in most cases. Furthermore, the facts of Naranjo are very exceptional, given that Naranjo could not access important evidence in the case and Naranjo adamantly repeated his inability to participate because he was not a lawyer.[273] It seems unlikely that a court will extend the cautious holding in a case with such extreme facts to more pedestrian cases. Thus, Naranjo cannot be expected to completely close the justice gap or even provide attorneys in a significant number of cases.

Even if it is a limited tool, Naranjo still remains an important holding because it can act as a safeguard and provide representation in exceptional cases. Due to the restrained services provided by private attorneys and legal services, not all cases can be represented by counsel. There are some particularly dire cases, like Mario Naranjo’s, where, when the conventional options fail, indigent parties have no other resources to fall back on. Naranjo provides an escape route—in serious cases where no help can be found, the court can provide a lawyer and ensure the adversarial system remains intact. Furthermore, Naranjo could potentially provide counsel in more of these cases that fall through the cracks if the Fifth Circuit were to adopt a broader interpretation of exceptional circumstances.

While it has been over two years since the ruling in Naranjo, it has been cited relatively few times—only twenty cases cite it. It will be interesting to see how, if at all, the case law develops and how courts from other jurisdictions treat Naranjo. As of publication, only one other jurisdiction has cited Naranjo—a court in the District of Idaho addressed Naranjo after prisoner pro se plaintiffs cited it as an authority in their motion for appointment of counsel.[274] In Veenstra v. Idaho State Bd. of Corr., the District Court of Idaho decisively rejected Naranjo, disagreeing with the Fifth Circuit’s reasoning that federal courts have the inherent authority to compel counsel.[275] If prisoners and other indigent parties continue to cite Naranjo in their motions to appoint counsel, other courts may agree with the District of Idaho and decline to find the courts possess the inherent authority to compel counsel. At the same time, if Naranjo continues to pop up in various motions to appoint counsel, other courts and circuits may eventually consider accepting Naranjo’s ruling. This may, of course, take more exceptional facts than those in Veenstra. It took a particularly egregious set of circumstances for the Fifth Circuit to rule that courts had the inherent authority to compel representation, and it may require similarly extreme facts to open the door for other circuits to embrace Naranjo.

  1. 71% of low-income households have experienced at least one civil legal problem in the past year. The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-Income Americans Executive Summary, Legal Servs. Corp. 1 (2017), https://www.lsc.gov/sites/default/files/images/TheJusticeGap-ExecutiveSummary.pdf [https://perma.cc/W6KH-7F4V].
  2. Id. at 2.
  3. See Roger C. Cramton, Delivery of Legal Services to Ordinary Americans, 44 Case W. Res. L. Rev. 531, 541 (1994).
  4. See Deborah L. Rhode, Access to Justice, 69 Fordham L. Rev. 1785, 1809–10 (2001) (discussing national data indicating “most lawyers provide no significant pro bono assistance to the poor”). The ABA recommends attorneys complete at least fifty hours of pro bono work annually. Model Rules of Prof’l Conduct r. 6.1 (Am. Bar Ass’n, 1980).
  5. LSC could not fully aid 1.1 million out of 1.7 million requests for aid in 2017; they cited budget restrictions as the reason for turning away 85–97% of those cases. Legal Servs. Corp., supra note 1.
  6. LSC’s budget has been subject to various congressional cuts over the year, and the amount of funding has varied significantly. LSC’s peak funding was at $771 million in the early 1980s, but it has not received near that much recently. Rachel M. Zahorsky, Everything on the Table: LSC Looks to ABA to Help Meet Legal Needs of the Poor, ABA Journal, Jan. 2012, https://www.abajournal.com/magazine/article/everything_on_the_table_lsc_looks_to_aba_to_help_meet_legal_needs [https://perma.cc/XXT3-UCWW]. LSC often receives far less than requested—it asked for $502,700,000 for fiscal year 2017, but only received $385,000,000. See Fiscal Year 2017 Budget Request, Legal Servs. Corp. 1, https://www.lsc.gov/media-center/publications/fy-2017-budget-request [https://perma.cc/KD69-MSM5]; Fiscal Year 2018 Budget Request, Legal Servs. Corp. app. at B-1 (May 2017), https://www.lsc.gov/media-center/publications/fiscal-year-2018-budget-request [https://perma.cc/A2P6-UR76]. LSC was recently subject to two serious budget cuts in Obama’s second term in office. See House Spending Bill Cuts LSC Budget by 20%, Legal Servs. Corp. (June 3, 2015), https://www.lsc.gov/media-center/press-releases/2015/house-spending-bill-cuts-lsc-budget-20 [https://perma.cc/WQ57-4NP3]; Funding Cuts Expected to Result in Nearly 750 Fewer Staff Positions at LSC-funded Programs, Legal Servs. Corp. (Aug. 15, 2012), https://www.lsc.gov/media-center/press-releases/2012/funding-cuts-expected-result-nearly-750-fewer-staff-positions-lsc [https://perma.cc/7ZT4-8T2G]. It seems that LSC will not fare any better under the Trump administration. Trump has proposed giving LSC only $33 million for the 2018 fiscal year. Deborah L. Rhode, Legal Services Corporation: One of the Worst Cuts in Trump’s Budget, Stanford Law School Blogs (May 31, 2017), https://law.stanford.edu/2017/05/31/six-of-the-worst-cuts-in-trumps-budget/ [https://perma.cc/J8FS-LWCQ]. While Congress has not subscribed to Trump’s proposed cuts, an appropriations bill proposed in spring of 2017 would cut LSC’s budget by 24%. Lee Rawles, Proposed ‘18 budget would cut LSC by 24%, increase funds for law enforcement and immigration court, ABA Journal, (June 30, 2017), https://www.abajournal.com/news/article/proposed_budget_would_increase_funds_for_law_enforcement_and_immigration_bu [https://perma.cc/CS6W-Q2P8].
  7. See Rebecca Buckwalter-Poza, Making Justice Equal, Ctr. for American Progress (Dec. 8, 2016), https://www.americanprogress.org/issues/criminal-justice/reports/2016/12/08/294479/making-justice-equal/ [https://perma.cc/M4QR-JBYG] (last visited Sept. 17, 2018).
  8. LSC, for one, has prohibited any of the organizations it funds from representing prisoners in any matter. LSC Representation of Prisoners, 45 C.F.R. § 1637.1 (1997). LSC funds 25% of all civil legal aid services in the country, so prisoners cannot seek help from a large number of legal aid services. Civil Legal Aid 101, U.S. Dep’t of Justice, https://www.justice.gov/atj/civil-legal-aid-101 [https://perma.cc/6RL6-57KE] (last visited Sept. 17, 2018).
  9. See Jennifer Gerarda Brown, Posner, Prisoners, and Pragmatism, 66 Tul. L. Rev. 1117, 1140–45 (1992); Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555 (2003); Lynn S Branham, Toothless in Truth? The Ethereal Rational Basis Test and the Prison Litigation Reform Act’s Disparate Restrictions on Attorney’s Fees, 89 Cal. L. Rev. 999 (2001).
  10. Naranjo v. Thompson, 809 F.3d 793, 795–96 (5th Cir. 2015).
  11. Id. at 796–97.
  12. Naranjo v. Thompson, No. PE:11-CV-00105-RAJ, 2013 WL 11299564, at *2 (W.D. Tex. Jun. 5, 2013).
  13. Id. at *2–3.
  14. Naranjo, 809 F.3d at 801–04.
  15. See Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 301 (1989).
  16. See Colbert v. Rickmon, 747 F. Supp. 518, 527–28 (W.D. Ark. 1990) (denying Colbert’s motion for appointment of counsel because the court found it lacked the authority to mandate representation); Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1229, 1236 (D. Neb. 1995) (finding that courts possess inherent power to mandate representation and granting the attorney’s motion to withdraw because “plaintiff’s failure to obtain private counsel was not the result of his indigency,” but due to a lack of strength of his claims).
  17. Naranjo, 809 F.3d at 804.
  18. James J. Vinch, Mallard v. United States District Court: Section 1915(D) and the Appointment of Counsel in Civil Cases, 51 Ohio St. L.J. 1001, 1003 (1990) (citing 27 Stat. 252, ch. 209 (1892) (codified as amended at 28 U.S.C. § 1915 (1982)).
  19. Stephen M. Feldman, Indigents in the Federal Courts, 54 Fordham L. Rev. 413, 413–14 (1985) (citing H.R. Rep. 1079, 52d Cong. (1st Sess. 1892)).
  20. 28 U.S.C. § 1915 (2012).
  21. The Eighth and Seventh Circuits held that § 1915(e) allowed courts to mandate representation. See Peterson v. Nadler, 452 F.2d 754, 757 (8th Cir. 1971); McKeever v. Israel, 689 F.2d 1315, 1319 (7th Cir. 1982).
  22. The Sixth and Ninth Circuits found courts only had the power to ask counsel to assist an indigent party. See United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986); Reid v. Charney, 235 F.2d 47, 47 (6th Cir. 1956).
  23. Mallard v. U.S. Dist. Court for S. Dist. of Iowa., 490 U.S. 296 (1989).
  24. Id. at 299.
  25. Id.
  26. Id. at 300; see also Model Rules of Prof’l Conduct r. 6.2 (Am. Bar Ass’n, 1980) (stating that a lawyer shall not seek to avoid appointment by a tribunal to represent a person, except for good cause). Mallard stated, “I do not like the role of confronting other persons in a litigation setting, accusing them of misdeeds, or questioning their veracity. Because of my reluctance to become involved in these activities, I do not feel confident that I would be effective in litigating a case such as the instant case.” Mallard, 490 U.S. at 300. Mallard still felt confident enough to argue this motion up to the Supreme Court.
  27. Mallard, 490 U.S. at 300.
  28. Id. at 301 (“There is little reason to think that Congress did not intend ‘request’ to bear its most common meaning.”).
  29. Id.
  30. Id. at 301–02 (citing 28 U.S.C. § 1915(d) (1996)).
  31. Id. at 302–03.
  32. Id. at 309.
  33. Mallard, 490 U.S. at 310 (“Nor do we express an opinion on the question whether the federal courts possess inherent authority to require lawyers to serve.”).
  34. Eash v. Riggins Trucking Inc., 757 F.2d 557 (3d Cir. 1985).
  35. Colbert v. Rickmon, 747 F. Supp. 518, 528 (W.D. Ark. 1990).
  36. Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1239 (D. Neb. 1995).
  37. Vinch, supra note 18, at 1026 n.161.
  38. See United States v. Dillon, 346 F.2d 633, 638 (9th Cir. 1965) (holding that court had power to order an attorney to represent an indigent criminal defendant and that this was not a taking under the Fifth Amendment); David Moore, Invoking the Inherent Powers Doctrine to Compel Representation of Indigent Civil Litigants in Federal Court, 10 Rev. Litig. 769, 782 (1991) (stating courts can use inherent powers to supervise grand juries and dismiss actions for lack of prosecution in criminal cases).
  39. Vinch, supra note 18, at 1026.
  40. Other examples of inherent authority used in a civil context include appointing technical advisors, preventing unethical conduct by attorneys, disqualifying counsel from a case, ordering an employer to continue paying an employee her full salary during a trial, and protecting a trade secret in an ex parte trial. Moore, supra note 38, at 782.
  41. Eash v. Riggins Trucking Inc., 757 F.2d 557, 561 (3d Cir. 1985) (citing Robert E. Rodes, Jr. et al., Sanctions Imposable for Violations of the Federal Rules of Civil Procedure 179 n. 466 (July 1981) and Maurice Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 Colum. L. Rev. 480, 485 (1958)).
  42. See ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351, 1360 n.20 (5th Cir. 1978) (“Although inherent powers are often referred to as ‘incidental’ powers, they are not sources for mere orders of convenience. Action taken by a federal court in reliance on its inherent powers must somehow be indispensable to reach a disposition of the case.”); Soo Line R. Co. v. Escanaba & Lake Superior R. Co., 840 F.2d 546, 551 (7th Cir. 1988) (finding that inherent powers refer to ability of the court to create common law concerning a particular subject area in the absence of statutes and rules). See also Moore, supra note 38, at 780–81 (“Courts have recognized that they should invoke these powers only in the course of performing essential legal matters”).
  43. 757 F.2d 557, 561–64 (3d Cir. 1985).
  44. Id. at 562 (quoting Felix Frankfurter & James M. Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts—A Study in Separation of Powers, 37 Harv. L. Rev. 1010, 1023 (1924)).
  45. Moore, supra note 38, at 781.
  46. Eash, 757 F.2d at 562.
  47. Id. (citation omitted).
  48. 11 U.S. 32, 34 (1812).
  49. Moore, supra note 38, at 781.
  50. Eash, 757 F.2d at 563 (citation omitted).
  51. Id.
  52. Id.
  53. Courts have not found that counsel is necessary in civil cases and there is no right to be represented. See Lassiter v. Dep’t of Soc. Servs. of Durham Cty, N.C., 452 U.S. 18, 25 (1981) (finding that the constitutional right to counsel “has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation”). See also DiAngelo v. Ill. Dep’t of Public Aid, 891 F.2d 1260, 1262 (7th Cir. 1989) (“Indigent civil litigants have no constitutional right to counsel. . . .”); Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) (stating that although indigents must have “meaningful access” to the courts, no court has found that meaningful access requires that “indigents must always be supplied with counsel in civil as well as criminal cases”).
  54. Moore, supra note 38, at 782.
  55. Colbert v. Rickmon, 747 F. Supp. 518, 526–27 (W.D. Ark. 1990).
  56. Id. at 520. It should be noted that the court in Mallard suggested that § 1915(d) “may simply codify existing rights or powers.” Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 307 (1989). In Naranjo, the Fifth Circuit relied on this suggestion by the Mallard court when it dismissed respondent’s argument that inherent authority would be duplicative of the authority given to courts by § 1915(e). Naranjo v. Thompson, 809 F.3d 793, 804 (5th Cir. 2015).
  57. Colbert, 747 F. Supp. at 526 (“This court, after all, may assert no more power than conferred or allowed by Article III.”). Unlike Eash, the Colbert court fails to consider other sources of inherent powers. See Eash v. Riggins Trucking Inc., 757 F.2d 557, 561–65 (3d Cir. 1985).
  58. Colbert, 747 F. Supp. at 527 (“The court, quite simply, does not believe such power is essential to the judicial function or is within its sphere of responsibility.”).
  59. Id.
  60. Id.
  61. Id. (“It is unfair to single out a class defined as including the legal profession and as a sub-class, the relatively few litigation attorneys qualified and able to represent the poor, to bear a burden that belongs to society as a whole. . . .”).
  62. Id.
  63. Colbert, 747 F. Supp. at 527.
  64. Id.
  65. Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1225–30 (D. Neb. 1995).
  66. Id. at 1225.
  67. Id. at 1227.
  68. Id.
  69. Id. at 1228.
  70. Bothwell, 912 F. Supp. at 1230.
  71. Id. at 1234.
  72. Id.
  73. Id. at 1235.
  74. Id. at 1236.
  75. Id. at 1239.
  76. Tabron v. Grace, 6 F.3d 147, 157 n.7 (3d Cir. 1993).
  77. Chief Judge Colleen McMahon of the Southern District of New York has stated in numerous cases that “[b]ecause this Court does not have a panel of attorneys who can be compelled to take on civil cases pro bono, and does not have the resources to pay counsel in civil matters, the appointment of counsel is a rare event.” According to a search on Westlaw, this sentence is used in 24 different decisions written by Chief Judge McMahon. See, e.g., Colon-Reyes v. Fegs Health and Human Serv. Sys., No. 12 Civ. 2223, 2012 WL 2353732, at *1 (S.D.N.Y. June 13, 2012); Diggs v. Roberson, 16 Civ. 312, 2016, WL 2856007, at *1 (S.D.N.Y. May 10, 2016); Miranda v. City of New York, 14 Civ. 210, 2016 WL 1317952, at *1 (S.D.N.Y. April 1, 2016); Trahan v. City of New York, No. 15 Civ 4129, WL 4469559, at *1 (S.D.N.Y. July 15, 2015); Paulini v. City of New York, No. 15 Civ. 7059, WL 5946189, at *1 (S.D.N.Y. Oct. 7, 2016).
  78. Jackson v. Stoddard, No. 1:13-cv-1297, 2014 WL 2862614, at *3 (W.D. Mich. June 24, 2014).
  79. United States v. Flores, No. 1:10CR332-2, 2012 WL 1463602, at *7 n.9 (M.D.N.C. April 27, 2012).
  80. The district court in Naranjo recognized its decision was not desirable, but did not try to solve this problem on its own. Instead, the court urged Naranjo to appeal so that the Fifth Circuit could “provide guidance on the appointment of counsel” in this case. Naranjo v. Thompson, 809 F.3d 793, 798 (5th Cir. 2015). Other district courts may be similarly hesitant to claim inherent authority for themselves without a controlling opinion by a circuit court.
  81. Id. at 793.
  82. The First, Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits all require that exceptional circumstances exist before a court can appoint counsel for an indigent civil litigant. Kimberly A. Owens, Right to Counsel – The Third Circuit Delivers Indigent Civil Litigants from Exceptional Circumstances, 39 Vill. L. Rev. 1163, 1165 n.9 (1994).
  83. Branch v. Cole, 686 F.2d 264, 265 (5th Cir. 1982).
  84. Id. (“A trial court is not required to appoint counsel for an indigent plaintiff asserting an action under 42 U.S.C. § 1983 unless the case presents exceptional circumstances.”).
  85. Id. at 266.
  86. Id.
  87. See Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982).
  88. Ulmer, 691 F.2d at 213.
  89. Id.
  90. Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992) (citing Murphy v. Kellar, 950 F.2d 290 (5th Cir. 1992)).
  91. Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989).
  92. Naranjo v. Thompson, 809 F.3d 793, 798 (5th Cir. 2015).
  93. Id. at 795–96.
  94. Id. at 796.
  95. Id.
  96. Id. at 796–97.
  97. The district court declined to grant summary judgment on the claims regarding Eighth Amendment overcrowding, fire safety, and sanitation. Naranjo, 809 F.3d at 797.
  98. Id.
  99. Id.
  100. Id.
  101. Id. at 797–98.
  102. Naranjo, 809 F.3d at 798.
  103. Id.
  104. Id. at 798, 800 (quoting Naranjo, 2013 WL 11299564, at *2, vacated, 809 F.3d 793 (5th Cir. 2015)).
  105. Id. at 798.
  106. Id.
  107. Naranjo, 809 F.3d at 798 (quoting Naranjo, 2013 WL 11299564, at *3, vacated, 809 F.3d 793 (5th Cir. 2015)).
  108. Id.
  109. Id. at 800–01.
  110. Id. at 801 (“Having identified [a plaintiff demonstrating exceptional circumstances], a district court cannot then send him off on his own consistent with its duty to advance the proper administration of justice.”).
  111. Id.
  112. Naranjo, 809 F.3d at 802.
  113. Id. at 803.
  114. Id.
  115. Id.
  116. Id. at 804.
  117. Naranjo, 809 F.3d at 804 (quoting Nat. Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 86 F.3d 464, 467 (5th Cir. 1996)).
  118. Id. at 804
  119. Id.
  120. Id. at 805.
  121. Id. at 805–06.
  122. Penson v. Ohio, 488 U.S. 75, 84 (1988) (quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A. J. 569, 569 (1975)).
  123. Naranjo, 809 F.3d at 803 (quoting Bounds v. Smith, 430 U.S. 817, 826 (1977)).
  124. See Rhode, supra note 4, at 1793–94; see also Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1229 (D. Neb. 1995) (describing historical cuts in funding for legal aid organizations).
  125. Rhode, supra note 4, at 1809.
  126. Inherent authority has been referred to as “nebulous” with “shadowy” bounds. Eash v. Riggins Trucking Inc., 757 F.2d 557, 561 (3d Cir. 1985) (quoting Maurice Rosenberg, Sanctions to Effectuate Pretrial Discovery, 58 Colum. L. Rev. 480, 485 (1958)).
  127. See generally Paul R. Tremblay, Acting “A Very Moral Type of God”: Triage Among Poor Clients, 67 Fordham L. Rev. 2475 (1999) (discussing the ethics of how legal services should prioritize clients when they cannot serve all potential clients); Cramton, supra note 3, at 590–91 (considering ways in which lawyers triage cases when demand for services is too high).
  128. Naranjo v. Thompson, 809 F.3d 793, 798 (5th Cir. 2015).
  129. Id.
  130. Rhode, supra note 4, at 1809.
  131. See State Bar of Texas Board of Directors, Pro Bono Policy, Sept. 22, 2000, https://www.texasbar.com/Content/NavigationMenu/LawyersGivingBack/LegalAccessDivision/ProBonoResolution.pdf [https://perma.cc/PB79-QDXN].
  132. Legal Services Corporation, supra note 1.
  133. Id.
  134. See Cramton, supra note 3, at 541.
  135. Id. at 543–44.
  136. Myriam Gilles, Class Warfare: The Disappearance of Low-Income Litigants from the Civil Docket, 65 Emory L.J. 1531, 1535 (2016).
  137. Id. at 1554 & n.119 (discussing the significance of class actions in attracting counsel to represent clients on a contingent basis).
  138. Id. at 1535–36.
  139. Id. at 1540–41, 1545.
  140. Id. at 1553–54, 1555–56.
  141. See Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 429–30 (7th Cir. 1991); Merritt v. Faulkner, 823 F.2d 1150, 1155 (7th Cir. 1987) (Posner, J., concurring); McKeever v. Israel, 689 F.2d 1315, 1323–25 (7th Cir. 1982) (Posner, J., dissenting).
  142. Schlanger, supra note 9, at 1622 (explaining how ordinary rules of tort damages limit compensation for inmates because they cannot claim lost wages or medical damage).
  143. Branham, supra note 9, at 1006; Schlanger, supra note 9, at 1654. See also 42 U.S.C. § 1997e(d) (2012) (placing strict limits on attorneys’ fees in lawsuits awarded under the Prison Litigation Reform Act).
  144. Brown, supra note 9, at 1145.
  145. Id. at 1140–41.
  146. Id. at 1143.
  147. Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989).
  148. See Colbert v. Rickmon, 747 F. Supp. 518 (W.D. Ark. 1990); Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221 (D. Neb. 1995).
  149. Colbert, 747 F. Supp. at 527.
  150. Bothwell v. Republic Tobacco Co., 912 F. Supp. 1221, 1235–36 (D. Neb. 1995).
  151. Veenstra v. Idaho State Bd. of Corr., No. 1:15-cv-00270, 2017 WL 4820353, at *2 (D. Idaho, Oct. 24, 2017).
  152. Beth M. Coleman, The Constitutionality of Compulsory Attorney Service: the Void left by Mallard, 68 N.C. L. Rev. 575, 584 (1990); David L. Shapiro, The Enigma of the Lawyer’s Duty to Serve, 55 N.Y.U. L. Rev. 735, 771 (1980). See also Bedford v. Salt Lake Cty., 447 P.2d 193 (Utah 1968) (holding that a statute providing court shall appoint counsel to represent an alleged insane person was invalid in absence of compensation); Dillon v. United States, 230 F. Supp. 487 (D. Or. 1964) (stating that an order of the court appointing counsel constituted a taking under the Fifth Amendment and, therefore, warranted just compensation), rev’d, 346 F.2d 633 (9th Cir. 1965); Tyler v. Lark, 472 F.2d 1077 (8th Cir. 1973) (denying attorney’s request for fees on the grounds that compelling him to represent indigents did not violate his Fifth Amendment rights).
  153. Shapiro, supra note 146, at 770. See also Lathrop v. Donohue, 367 U.S. 820 (1961); Menin v. Menin, 359 N.Y.S.2d 721 (N.Y. Sup. Ct. 1974) (holding that the policy of appointing uncompensated counsel to litigants violates an attorney’s constitutional rights under the due process clause of the Fourteenth Amendment).
  154. Shapiro, supra note 152, at 767–68; Bedford, 447 P.2d at 195 (explaining that requiring an attorney to provide services without compensation would “impose a form of involuntary servitude on him”). Cf. In re Nine Applications for Appointment of Counsel in Title VII Proceedings, 475 F. Supp. 87 (N.D. Ala. 1979) (stating that the “compulsory rendition of service creates an involuntary servitude”); Davison v. Joseph Horne & Co., 265 F. Supp. 750, 752 (W.D. Pa. 1967) (describing a statute that allows a court to “merely request an attorney to represent indigent persons” but does not “give the court power to compel or coerce and attorney to represent anyone”).
  155. Naranjo v. Thompson, 809 F.3d 793, 804 (5th Cir. 2015).
  156. Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801 (1987) (citation omitted).
  157. Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980).
  158. Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 25 (1981).
  159. Id.; see also Rhode, supra note 4, at 1798 (explaining that “[i]n Lassiter v. Department of Social Services, the Supreme Court interpreted the due process clause to require appointment of counsel in civil cases if the proceeding would otherwise prove fundamentally unfair.”)
  160. Rhode, supra note 4, at 1798. See also Laurence H. Tribe, American Constitutional Law 1652 (2d ed. 1988) (“The states are required to subsidize the most basic civil litigation costs of indigents only when: the state has a complete monopoly on resolution of the dispute, a fundamental interest is at stake, and the resulting burden on the state treasury would be light. Because these decisions contain so many escape hatches for a judiciary not particularly familiar with the plight of the dispossessed and understandably hesitant to spend the states’ revenues, the [F]ourteenth [A]mendment provides only modest relief for poor people who seek a day in court.”).
  161. Rhode, supra note , at 1805 (noting that less than 10% of courts surveyed had established policies on when to assist unrepresented parties).
  162. Naranjo v. Thompson, 809 F.3d 793, 802 (5th Cir. 2015) (citing ITT Cmty. Dev. Corp. v. Barton, 569 F.2d 1351, 1362 n.20 (5th Cir. 1978)).
  163. Id. at 804.
  164. Id.
  165. Id.
  166. Id.
  167. See United States v. Zimmerman, 690 F. App’x 215, 216 n.1 (Mem) (5th Cir. 2017) (finding that inherent powers were not indispensable to reaching the disposition of a case where defendant filed for relief under the inherent powers doctrine when the Government did not file an opposition brief).
  168. See supra Part I.C.1.
  169. Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
  170. Civ. A. No. 08-4605, 2009 WL 3673025 (E.D. La. Oct. 28, 2009).
  171. Id. at *2.
  172. Id.
  173. Id.
  174. 153 F. App’x 261 (5th Cir. 2005).
  175. Id. at 263.
  176. Id. at 262.
  177. Id. at 263.
  178. Taylor v. Jagers, 115 F. App’x 682, 684 (5th Cir. 2004).
  179. Margin v. Soc. Sec. Admin., Civ. A. No. 08-4605, 2009 WL 3673025 (E.D. La. Oct. 28, 2009).
  180. Jackson v. Dallas Police Dept., 811 F.2d 260, 262 (5th Cir. 1986) (“[T]he record demonstrates that Jackson had done a very credible job in presenting motions and in filing support papers on behalf of his case. Jackson has filed ten different items ranging from his original complaint to the notice of appeal that brought this matter before this court. We are convinced that Jackson can adequately develop the facts and present his case in any further proceedings.”).
  181. Howard B. Eisenberg, Rethinking Prisoner Civil Rights Cases and the Provision of Counsel, 17 S. Ill. U. L.J. 417, 444 (1993) (“Courts commonly assert that because a prisoner is ‘experienced’ or ‘sophisticated’ he should be able to plead his case sufficiently to overcome sua sponte dismissal or dismissal as frivolous. Particularly when dealing with repeat prisoner-plaintiffs courts sometimes seem to conclude that because an inmate has filed several previous law suits that this experience means he is sufficiently knowledgeable to draft a viable complaint or proceed without counsel, even if every one of the prior lawsuits was dismissed as frivolous. The fact that a prisoner has done something poorly ten times does not logically lead to the conclusion that he will perform the task competently on his eleventh try.”).
  182. Naranjo v. Thompson, 809 F.3d 793, 798 (5th Cir. 2015).
  183. Id. at 801.
  184. Id. at 800–01.
  185. See Appendix A for a list of all twenty cases (on file with the Columbia Human Rights Law Review).
  186. Hawbecker v. Hall, No. 5:14-cv-1010-RCL, 2017 WL 384382 (W.D. Tex. Jan. 25, 2017).
  187. Id. at *2.
  188. Id. at *1–2.
  189. Id. at *2.
  190. Id.
  191. Hawbecker, 2017 WL 384382, at *2.
  192. Dunn v. Davidson, No. H–15–3767, 2017 WL 514587, at *5 (S.D. Tex. Feb. 8, 2017).
  193. Id.
  194. Id. at *4–5.
  195. See supra II.A.
  196. See Model Rules of Prof’l Conduct r. 6.1 (Am. Bar Ass’n 2018) (“A lawyer should aspire to render at least 50 hours of pro bono public legal services per year.”); State Bar of Texas Board of Directors, Pro Bono Resolution, Sept. 22, 2000, https://www.texasbar.com/Content/NavigationMenu/LawyersGivingBack/LegalAccessDivision/ProBonoResolution.pdf [https://perma.cc/PB79-QDXN] (“[E]ach Texas attorney should aspire to render at least 50 hours to legal services to the poor each year, or make an equivalent financial contribution to an organization that provides legal services to the poor.”).
  197. One study found that only 15–18% of Texas attorneys participated in pro bono work. New York, with the highest rates of pro bono participation, still had rates below 50%. This study also found that private lawyers were not substantially more generous with their money—average donations from lawyers to legal services ranged from $82 per year in New York to $32 per year in Florida. Deborah L. Rhode, supra note 4, at 1809–10.
  198. Model Rules of Prof’l Conduct r. 6.2 (Am. Bar Ass’n 2018) (“A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause”); Tex. Bar Disciplinary Rules for Prof’l Conduct r. 6.01 (2018) (“A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause”).
  199. Kentucky, New York, North Carolina, and Oregon, for instance, have not adopted Rule 6.2 of the ABA rules. Variations of the ABA Model Rules of Professional Conduct, Rule 6.2: Accepting Appointments, Am. Bar Ass’n (2017), https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/mrpc_6_2.authcheckdam.pdf [https://perma.cc/PJR6-YUW6].
  200. Id.
  201. Model Rules of Prof’l Conduct r. 6.2(b) (Am. Bar. Ass’n 2018).
  202. Naranjo v. Thompson, 809 F.3d 793, 798 (5th Cir. 2015) (alteration in original) (citation omitted).
  203. Id.
  204. Legal Services Corporation, supra note .
  205. Id.
  206. For example, while 20% of Idahoans are eligible for civil legal aid, funding restrictions mean that there are fewer than twenty legal aid attorneys in the state. Jodi Nafzger, Bridging the Justice Gap: Judicial Promotion of Pro Bono, 59 Advocate 26, 26 (2016).
  207. U.S. Dep’t of Justice, Civil Legal Aid 101, https://www.justice.gov/sites/default/files/atj/legacy/2014/04/16/civil-legal-aid-101.pdf [https://perma.cc/V3XC-N5QP] (last visited Sept. 17, 2018).
  208. See Tremblay, supra note 122, at 2492.
  209. About Statutory Restrictions on LSC-funded Programs, Legal Servs. Corp., https://www.lsc.gov/about-statutory-restrictions-lsc-funded-programs [https://perma.cc/QTU4-S86K] (last visited Sept. 17, 2018).
  210. Id.
  211. Naranjo v. Thompson, 809 F.3d 793, 804 (5th Cir. 2015).
  212. Id.
  213. Eisenberg, supra note 175, at 419.
  214. Legal Service Corporation, Representation of Prisoners, 45 C.F.R. § 1637.1 (1997) (“This part is intended to ensure that recipients do not participate in any civil litigation on behalf of persons incarcerated in Federal, State or local prisons.”).
  215. Prisoners’ Rights Project, Legal Aid Soc’y, https://www.legal-aId.org/en/lawreform/lawreform/prisonersrightsproject.aspx [https://perma.cc/B5QF-TLJX] (last visited Jan. 4, 2018); Prisoners’ Legal Services of N.Y., https://www.plsny.org/ [https://perma.cc/GC4Y-CQ5J] (last visited Sept. 27, 2018); Incarcerated Mothers Law Project, Volunteers of Legal Service, https://www.volsprobono.org/projects/incarcerated-mothers-law-project [https://perma.cc/7FTL-28ML] (last visited Sept. 27, 2018).
  216. If You Need Legal Help, Volunteer Lawyers Project (Mass.), https://www.vlpnet.org/need-legal-help/ [https://perma.cc/A72R-Q7M3] (last visited Sept. 27, 2018) (“VLP does not handle criminal cases or represent prisoners on any matter whether related to their incarceration or not.”); Queens Volunteer Lawyers Project, Inc., LawHelpNY, https://www.lawhelpny.org/organization/queens-volunteer-lawyers-project-inc/family-juvenile/divorce-and-spousal-support [https://perma.cc/BC5E-Y8GF] (last visited Sept. 27, 2018) (“This program does not serve: prisoners or community groups.”).
  217. See Robert J. Rhudy, Maryland Legal Services Corporation: Promoting Equal Access to Justice, 7 U. Md. L.J. Race, Religion, Gender, & Class 267, 284 (2007) (finding that in Maryland there were over forty separate public and nonprofit federal and state organizations that funded and provided civil legal assistance and that it was not a managed system that was easy for potential clients to understand, access, and use; the many different office locations and phone numbers alone could serve as a barrier to getting in contact with a program that could help).
  218. Eisenberg, supra note 175, at 463.
  219. Branham, supra note 9, at 999; Gerarda Brown, supra note 9, at 1144–45; Schlanger, supra note 9, at 1656.
  220. See supra note 125 and accompanying text.
  221. See Eisenberg, supra note 175, at 459–60, 477. See also Naranjo, 809 F.3d at 798 (stating that the district court had contacted all ten lawyers practicing in the area; there were only three lawyers admitted to the Western District and practicing in Reeves, Texas, where the prison was located).
  222. See supra notes 139–40 and accompanying text.
  223. Naranjo v. Thompson, 809 F.3d 793, 805 (5th Cir. 2015).
  224. 747 F. Supp. at 527 (finding that inherent powers stemmed from Article III, and Article III provides no authority for compelling representation).
  225. No. 1:15-cv-00270, 2017 WL 4820353 at *2 (D. Idaho Oct. 24, 2017).
  226. Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989).
  227. See Eash v. Riggins Trucking Inc., 757 F.2d 557, 561–62 (3d Cir. 1985).
  228. See Eisenberg, supra note 175, at 450 (stating that courts have the inherent power both to set the compensation and terms of employment of court workers as well as determine the needs of their own physical space).
  229. In Pollock v. Williams, 322 U.S. 4, 17 (1944), the Supreme Court held the Thirteenth Amendment was meant “not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States.” Some plaintiffs and courts in the 1960s and 1970s used this language to support unsuccessful arguments against mandatory pro bono. See In re Nine Applications for Appointment of Counsel in Title VII Proceedings, 475 F. Supp. 87, 88–89 (N.D. Ala. 1979); Davison v. Joseph Horne & Co., 265 F. Supp. 750, 752–53 (W.D. Pa. 1967); Bedford v. Salt Lake County, 447 P.2d 193, 194–95 (Utah 1968).
  230. See Butler v. Perry 240 U.S. 328, 332 (1916); see also Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 261 (1964) (stating that it is “difficult to believe that the [Thirteenth] Amendment was intended to abrogate” the common-law innkeeper rule prohibiting discrimination in public accommodations); Slaughter-House Cases, 83 U.S. 36, 69 (1872) (noting that the “obvious purpose” of the Thirteenth Amendment “was to forbid all shades and conditions of African slavery”).
  231. Robertson v. Baldwin, 165 U.S. 275, 282 (1897).
  232. See Selective Draft Law Cases, 245 U.S. 366, 390 (1918).
  233. Butler, 240 U.S. at 330–32.
  234. See Hurtado v. United States, 410 U.S. 578, 589 n.11 (1973).
  235. See Lathrop v. Donohue, 367 U.S. 820, 844–45 (1961); Menin v. Menin, 359 N.Y.S.2d 721, 723–25 (N.Y. Sup. Ct. 1974).
  236. See Reno v. Flores, 507 U.S. 292, 301–302 (1993).
  237. See id. at 305.
  238. See Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) (“As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be members of this Court. That history counsels caution and restraint.”) (footnote omitted).
  239. The right to “pursue a lawful employment in a lawful manner, without other restraint than such as equally affects all persons” has generally been recognized as one of the privileges and immunities U.S. citizens possess. Slaughter-House Cases, 83 U.S. 36, 39 (1872).
  240. Courts have a duty to ensure the proper administration of justice. See Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir. 2015)
  241. See Corfield v. Coryell, 6 F. Cas. 546, 552 (E.D. Pa. 1823); Slaughter-House Cases, 83 U.S. at 39.
  242. Naranjo, 809 F.3d at 804.
  243. See Bedford v. Salt Lake Cty, 447 P.2d 193, 194–95 (Utah 1968); Dillon v. United States, 230 F. Supp. 487, 491–93 (D. Ore. 1964), rev’d, 346 F.2d 633 (9th Cir. 1965); Tyler v. Lark, 472 F.2d 1077, 1080 (8th Cir. 1973).
  244. See Hurtado v. United States, 410 U.S. 578, 588 (1973).
  245. Id. at 589 (citing United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965)).
  246. See Model Rules of Prof’l Conduct r. 6.2 (Am. Bar Ass’n 1983) (“A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause.”).
  247. See Rhode, supra note , at 1805–06. According to Rhode, less than 10% of judges have established policy on assisting unrepresented parties. Additionally, while some judges are more likely to assist unrepresented parties, others refrain from doing so in order to discourage more individuals from filing suit without representation or due to a fear that assisting these parties would compromise their impartiality.
  248. See Zahorsky, supra note 6, at 197–03, and accompanying text.
  249. Naranjo v. Thompson, 809 F.3d 793, 803 (5th Cir. 2015).
  250. Penson v. Ohio, 488 U.S. 75, 84 (1988) (“The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth—as well as fairness—is ‘best discovered by powerful statements on both sides of the question.’” (quoting Irving R. Kaufman, Does the Judge Have a Right to Qualified Counsel?, 61 A.B.A. J., 569, 569 (1975))).
  251. Naranjo, 809 F.3d at 803 (finding that courts have the inherent power to compel attorneys to represent indigent civil rights plaintiffs “when an indigent plaintiff has colorable claims that will not receive a meaningful hearing without counsel (i.e. exceptional circumstances exist) and when all other options for making an appointment have failed.”).
  252. Id. at 804 (“We expect that occasions for mandatory appointments will be rare indeed.”).
  253. Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (“Nothing in this clear language [of § 1915(d)] suggests that appointment is permissible only in some limited set of circumstances. Nor have we found any indication in the legislative history of the provision to support such a limitation. Accordingly, we conclude that the magistrate judge erred as a matter of law in stating that he had no discretion to appoint counsel in the absence of ‘exceptional circumstances.’”).
  254. Id. at 155–57.
  255. See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1892); Tabron, 6 F.3d at 156.
  256. Ulmer, 691 F.2d at 213; Tabron, 6 F.3d at 156.
  257. Ulmer, 691 F.2d at 213; Tabron, 6 F.3d at 156.
  258. Tabron, 6 F.3d at 155.
  259. See Naranjo v. Thompson, 809 F.3d 793, 805–06 (citing Bradshaw v. U.S. Dist. Court for the S. Dist. of California, 742 F.2d 515, 516–18 (9th Cir. 1984)).
  260. See id. at 804 (“[E]xceptional circumstances warranting appointment of counsel are, by their very definition, exceptional.”).
  261. See Taylor v. Jagers, 115 F. App’x 682, 684 (5th Cir. 2004) (denying motion to appoint counsel “because the record reflects that he is capable of adequately presenting his claims to the court”; the court provided no other reasoning).
  262. Tabron, 6 F.3d .at 156.
  263. See Abdul-Wadood v. Duckworth, 860 F.2d 280, 289 (7th Cir. 1988) (holding that the court should consider appointing counsel, even where the legal and factual issues were not complex, because they “evidently exceeded” the inmate’s abilities and the inmate “seemed not to understand that to obtain damages he must specifically allege in his complaint that he is suing [the defendants] in their individual capacities”), overruled on other grounds by Wallace v. Robinson, 940 F.2d 243 (7th Cir. 1991); Hughes v. Joliet Corr. Ctr., 931 F.2d 425, 429–30 (7th Cir. 1991) (holding that a court could appoint counsel where an inmate was unable to follow the procedures for summary judgment motions).
  264. See, e.g., Moore v. Mabus, 976 F.2d 268, 272 (5th Cir. 1992) (holding that HIV/AIDS management in prison was a factually complex issue and merited counsel); cf. Gill v. Texas, 153 F. App’x 261, 263 (5th Cir. 2005) (holding that plaintiff was competent enough to deal with the issues in the case, despite the plaintiff demonstrably not understanding the process for filing an appeal).
  265. Pruitt v. Mote, 503 F.3d 647, 660 (7th Cir. 2007).
  266. The district court in Pruitt wrote three identical orders stating that “neither the legal issues raised in the complaint nor the evidence that might support the plaintiff’s claims [is] so complex or intricate that a trained attorney is necessary.” Pruitt, 503 F.3d at 660. Cf. Taylor, 115 F. App’x at 684 (stating only that “[t]he district court did not abuse its discretion in denying Taylor’s motion for appointment of counsel because the record reflects that he is capable of adequately presenting his claims to the court.”).
  267. Pruitt, 503 F.3d at 660.
  268. Id.
  269. See Woods v. Stancil, No. 1:17-cv-00800, 2017 WL 4248108 (W.D. La. Sept. 25, 2017) (“While the Court has no specific information regarding Woods’s abilities, he has demonstrated that he is capable of drafting a complaint and a motion.”).
  270. See Pruitt, 503 F.3d at 661 (stating that the court is not trying to cause judges to appoint counsel more often, but rather, wants to ensure that “requests for pro bono counsel are resolved according to a consistent framework. . . .”).
  271. Id.
  272. Naranjo v. Thompson, 809 F.3d 793, 804 (5th Cir. 2015).
  273. Id. at 796–97.
  274. Veenstra v. Idaho State Bd. of Corr., No. 1:15-cv-00270, 2017 WL 4820353, at *2 (D. Idaho Oct. 24, 2017). As of August 2018, an appeal is pending in the Ninth Circuit.
  275. Id.