An Integrated Work Law

Workers and their advocates have recently experimented with various hybrid approaches to exercising their rights, combining traditional labor and employment laws with antitrust law, consumer law, and other doctrines. This raises the concept of what one of us has called an “integrated” work law. An integrated work law is both an empirical descriptor of the large swath of laws that regulate work and an assertion that sometimes another body of law can supplement or even take the place of traditional labor and employment law, at least when those laws leave workers inadequately protected. This approach is not new. Reforms dating back to the New Deal combined seemingly disparate legal doctrines to protect workers in all of their capacities as workers, consumers, and market and civic participants.

From Jobs for Life to “Fissured” Labor

When Congress passed the National Labor Relations Act (NLRA) in 1935, the typical workplace scheme was fairly simple. There were the officers who made executive decisions, the managers who oversaw operations, and the employees who were laboring on the shop floor. The dominant mode of income was through wages earned as an employee, and the mutual expectation was that the employee would hope to stay with the firm long-term. The statutory definitions of terms like “employer,” “employee,” and “supervisor” were shaped accordingly. What the NLRA’s drafters likely could not have foreseen at the time was how radically this familiar scheme would transform as the United States careened into the twenty first century.

Now, we live in a world where the employment relationship is all but straightforward. Massive conglomerates have swallowed up smaller competitors, creating ambiguities as to who, if anyone, is the employer of a given worker. Labor economist David Weil has called this the “fissuring” of the workplace. Firms outsource, offshore, and subcontract labor, and frequently misclassify wage-earning employees as independent contractors who receive none of the benefits that attach to the employment relationship. Moreover, the explosion of franchising has allowed firms to profit from their branding while shielding themselves from liability for the employment law violations of their franchisees. And many firms no longer feel the need to cultivate skilled long-term employees as a model for financial success.

The Current State of Work Law

Who can these fissured workers unionize with? Who can they seek relief from if they face abuse in the workplace? Because only formal “employees” are covered under the NLRA and employment laws like the Fair Labor Standards Act (FLSA), and Title VII of the Civil Rights Act of 1964, a growing number of workers are losing essential legal protections. Thus, the NLRA and other foundational workplace laws have not caught up with the realities of the modern fissured workforce, much of which was influenced by firms seeking to avoid liability under those very laws.

Workers’ Advocates and Regulators Using Other Legal Regimes

If workers and the labor movement were allowed to exercise their rights under only one set of laws, this would be highly problematic. Nevertheless, workers, their advocates, and government regulators have turned to other doctrines outside the traditional realm of labor and employment law, making particular use of laws addressing competition and consumers’ rights.

For example, Lina Khan’s appointment in 2021 as Chair of the Federal Trade Commission (FTC) has heralded a new era of pro-labor antitrust pursuits. In Chair Khan’s formulation of antitrust law, employer suppression of labor competition is an antitrust concern within the scope of the FTC’s mandate to address unfair methods of competition. It’s with this understanding that the FTC recently announced a new rule banning non-compete agreements and their functional equivalents, such as Training Repayment Agreement Provisions (TRAPs) that effectively keep workers from leaving before a set period of time due to repayment obligations for ostensible training costs. This is a sea change in a country where close to one in five employees are subject to non-compete agreements. Once, antitrust laws were used to criminalize labor activity. Now they’re being marshalled to protect workers from employer attempts to restrict worker mobility. And, importantly, the FTC rule covers workers like independent contractors who are not classified as formal employees and are thus unprotected under traditional labor and employment laws.

Consumer law is another emerging field of worker protection. Unfair and deceptive acts and practices (UDAP) laws, enacted primarily to protect end-user consumers, are also now being used to protect workers as consumers when a firm sells its workers services like financial products, training, and marketing assistance. For instance, TRAPs are often deceptively advertised to medium- and low-wage workers as providing transferable skills, yet offer minimal training and impose high “quit fees” if the worker leaves in the first few years. Many employees are thus locked into these jobs for years.

Workers are pushing back, though, combining traditional employment and consumer law claims. For example, former PetSmart groomer BreAnn Scally used both California employment and consumer protection laws to challenge PetSmart’s alleged demand for $5,000 to pay back a TRAP for its “Grooming Academy” that she claimed was little more than a few sessions and then regular work grooming pets. She argued that if the training was primarily for PetSmart’s use, state employment laws should require that PetSmart pay for it and, if it was primarily for BreAnn’s personal use, state UDAP laws should declare the TRAP void. In essence, BreAnn asserted, the company could choose which body of law should apply, but it would not be able to escape liability altogether. The FTC has also turned its attention to using its UDAP authority to protect gig workers, who are often misclassified as independent contractors and face deceptive pay policies.

Workers’ Stacked Identities

What are the theoretical justifications for using an assortment of legal doctrines to protect workers? Worker advocates rightly acknowledge that workers stack multiple identities and should be viewed in light of all of them. This perhaps gets us closer to what labor organizer Jane McAlevey calls “whole-worker organizing”: an organizing model that seeks to get workers “to see the connections between corporate domination of their work lives, their whole lives, and their country’s political structure.” This form of organizing acknowledges the worker as more than a worker. Workers are also members of religious institutions, parents, neighbors, and community members. By extension, their formulations as economic participants also vary. For as much as they work, they are also consumers, renters, and student and medical debtors. As forms of corporate domination expand into all areas of life, these roles have become less and less distinct. Hence, we endorse new forms of advocacy that reshape and transform various areas of law into an integrated work law.

An Integrated Work Law is Not New

Though these approaches may seem novel, the effort to integrate different areas of law to benefit workers has a rich tradition going back to the beginnings of New Deal legislation. The National Industrial Recovery Act of 1933 (NIRA) was an all-encompassing attempt to pull the working class from the destitution of the Great Depression by providing competition requirements, consumer protections like price controls, minimum wage guarantees, a right to unionize, and an agency that extended grants to reduce unemployment. Supported by unions, NIRA was labor law (the NLRA is one of its surviving offspring), but it was also a law creating consumer protections and regulating public employment to benefit job seekers. The scope of NIRA’s mandate was expansive and it fell out of favor first with big business, then the Supreme Court. It remained popular with many workers, however. NIRA is regarded by some as a policy failure. However, it would more accurately be described as the baby steps of an integrated law approach to an industrialized economy—one that sought to address the plight of the worker as a whole, not simply through their workplace conditions.

Later, the Civil Rights Act of 1964, enacted as part of President Johnson’s Great Society program, prohibited discrimination on the basis of race, color, religion, sex, or national origin in broad swaths of American public life. The legislation outlawed segregation in businesses and schools and required equal voting rights, striking at deeply embedded prejudices throughout society. As part of that goal, it also prohibited discrimination in the workplace. This Act understood that discrimination was a social concern as much as it was a workplace concern, and that society-wide inequality permeated into workplace conditions. Indeed, Dr. King insisted that workers’ rights and full employment were part and parcel of the Civil Rights Movement.

Worker organizing and advocacy in the modern fissured workplace requires innovative approaches blending different legal fields, especially as the lines between work and other areas of life blur. Outside of the United States, a European “social law” has long eschewed the U.S. compartmentalization of legal doctrines, instead recognizing workers with their stacked identities and protecting them accordingly. We’re seeing new gestures toward this hybrid approach today in the United States. While workers and their advocates chart new territory, though, they do so as descendants of those who fought for such integrated approaches dating from the New Deal.

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Jonathan F. Harris is an Associate Professor at LMU Loyola Law School Los Angeles and a Senior Fellow at the Student Borrower Protection Center.

Dylan R. Holmes is an Associate at the labor law firm Weinberg, Roger & Rosenfeld.

Amazon, SpaceX and Other Companies Are Arguing the Government Agency That Has Protected Labor Rights Since 1935 Is Actually Unconstitutional

Image: Senator Robert F. Wagner of New York, author of the Wagner Labor Relations Act.

Library of Congress, Prints & Photographs Division, photograph by Harris & Ewing, LC-DIG-hec-22542.

This article originally appeared in The Conversation.

Amazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.

SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”

If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since the days of the New Deal – could collapse. That would leave U.S. workers more vulnerable to exploitation.

The Supreme Court upheld the constitutionality of the board nearly a century ago, soon after President Franklin D. Roosevelt signed the law that created the NLRB and made clear that workers have the right to organize and bargain collectively. Justices have also rejected similar arguments in cases involving other agencies.

As a law professor who researches labor law and constitutional law and a former labor organizer, I am deeply concerned, but not surprised, by these attacks on the federal agency that has protected U.S. workers’ right to organize unions and bargain collectively with their employers since the 1930s.

These corporations seem to believe they will find a sympathetic audience before the conservative justices that occupy six of the Supreme Court’s nine seats. In a series of prior cases, the conservative justices have already weakened administrative agencies and cut back on workers’ rights.

Growing support for unions

The corporate attack on the NLRB also seems to be a response to growing support for unions among Americans.

Workers at the companies that are challenging the NLRB’s constitutionality have all begun to organize unions in recent years, with numerous, high-profile, union-organizing wins. Workers across numerous sectors, including auto, education, health care and Hollywood, have recently held successful strikes.

What’s more, the NLRB has been more assertive in prosecuting employers for violating workers’ rights, and it has been revising rules in ways that make it easier for workers to organize.

For example, it has made it possible for the unionization process to move faster and has sought to quickly reinstate workers who are illegally fired for organizing unions, rather than waiting years for litigation to play out.

The Supreme Court and big business

This is not the first time that big business has tried to use constitutional law arguments in an effort to stop union organizing and limit workers’ rights.

From the 1890s to the 1930s, during what is known as the “Lochner era,” corporations argued that laws protecting workers’ rights, including the right to organize unions or be paid a minimum wage, violated their “freedom to contract” and exceeded Congress’ power under the Constitution.

Back then, the Supreme Court routinely sided with business.

It struck down hundreds of laws, including minimum wage laws, overtime laws and laws prohibiting child labor. It prohibited strikes, including in the railroad and mining industries. It allowed labor leaders to be jailed.

These rulings helped corporations grow wealthier and more powerful.

Only after mass uprisings by over 1 million workers, economic distress wrought by the Great Depression and overwhelming popular support for the New Deal did the Supreme Court finally change course, recognizing that it had made a mistake.

During the New Deal, the justices ruled that Congress has the power under the Constitution to pass minimum labor standards and to create agencies, such as the National Labor Relations Board, to protect workers and consumers.

Letting agencies make decisions

Now, nearly 100 years later, the NLRB’s foes contend that the labor board violates the separation of powers – the constitutional principle that the judicial, legislative and executive branches of government have distinct powers – because it mixes executive and judicial functions.

They also argue that the board is unconstitutional because presidents cannot fire the NLRB’s members or administrative law judges whenever they want.

And opponents of the NLRB claim that the use of administrative law judges – jurists who preside over and adjudicate cases regarding alleged violations of the law – violates the constitutional right to a jury trial.

But the Supreme Court has long permitted all of these features, not only for the NLRB but for other government agencies as well.

And for good reason.

No provision of the Constitution prohibits Congress from designing government agencies in this way. And Congress believed that these design choices would help the agency function well.

For example, by prohibiting presidents from replacing all of the NLRB’s administrative law judges for any reason or no reason at all, Congress sought to ensure independence of those judges.

Having each violation of law litigated before a federal jury, rather than administrative law judges deciding cases, could take a lot longer to resolve cases.

Assessing what’s at stake

If these corporations prevail with their constitutional challenges, the NLRB will no longer be able to function.

Currently, it can be very difficult for workers to organize unions, partly because of insufficient penalties and protections in labor law. But if the corporations win, there will no longer be an agency in place to safeguard workers’ rights to organize unions and to negotiate fair contracts with their employers.

Indeed, this threat goes beyond labor rights.

If the NLRB is found to violate the Constitution, other government agencies could be at risk as well, including the Securities and Exchange Commission, the Federal Election Commission and the Federal Trade Commission. In my view, that would endanger investors, voters and consumers – all Americans.

There is reason to believe the Supreme Court could side with big business if a lawsuit challenging the board’s constitutionality reaches it.

The Supreme Court in its current configuration is more pro-business than it has been in a century. The justices who make up its conservative majority have shown that they are willing to overrule long-standing labor precedents through decisions that have reduced union funding and restricted workers’ access to unions.

The conservative justices have also indicated that they may limit the powers of administrative agencies beyond the NLRB. Most notably, the conservative majority on the court recently crafted a rule known as the “major questions” doctrine, which says Congress must set particularly clear rules when it authorizes agencies to regulate on matters of political or economic significance.

Using this doctrine, the court has overturned a Biden administration regulation designed to protect the environment and has rejected its initial student loan forgiveness program.

The Supreme Court is hearing several other cases this year that threaten administrative agencies, including one that would allow courts to give less deference to reasonable agency rules and one that challenges the use of administrative law judges by the Securities and Exchange Commission.

Seeing room for optimism

There is no way to know for certain how the Supreme Court will rule on a case concerning the constitutionality of the NLRB or other federal agencies. There may not be enough votes to overturn years of well-established precedent, even among the conservative justices.

And on labor rights more generally, there is reason for optimism.

Workers are organizing in greater numbers than they have in decades. History teaches that when there is sufficient popular support for unions and workers’ rights, and sufficient mobilization among workers, the Supreme Court sometimes backs off and corporations give up their fight against workers’ rights.

Indeed, even Starbucks recently agreed to begin negotiating with its workers after years of illegally – according to the NLRB – refusing to bargain with them.

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Kate Andrias is the Patricia D. and R. Paul Yetter Professor of Law at Columbia Law School.

The Long (Successful) Battle to Count Arab Americans

Last month, the Office of Management and Budget (OMB) announced revisions to the Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity, known as Directive 15. The revisions, the first since 1997, include the historic addition of a new “Middle Eastern or North African” (MENA) minimum reporting category, the use of a combined question format to collect race and ethnicity data, and the requirement of more detailed data collection by federal agencies are welcomed steps toward the modernization of federal race and ethnicity data.

For Arab Americans, the MENA category represents the first time our community will have a full and accurate accounting on the U.S. census.

How Accurate Data Helps Arab Americans

The 1997 Standards, in place for the last 27 years, defined people from the MENA region as exclusively racially white, rendering Arab Americans invisible in the data and erasing the racial diversity of an ethnic community. In so doing, it has fueled a dramatic undercount of Arab Americans, limiting our access to much needed government services, and our ability to protect our rights. Better data on Arab Americans derived from a new MENA ethnic category is of paramount importance to community interest.

Since the 2020 census, we’ve seen direct examples of how harmful the invisibility of Arab Americans in data can be for our communities. In Michigan, new State House districts in the Dearborn, Dearborn Heights and Detroit areas split the Arab American community in 2021, diluting the community’s vote. The Detroit Metro area has the largest concentration of Arab Americans in the country, but the redistricting effort cut them out of the legislative process by splitting the community among three districts – ensuring no single district has an Arab American majority.

Because Arab Americans were classified exclusively as White when the redistricting committee considered race and ethnicity data from the census for Voting Rights Act purposes, the community was not accounted for. It also hindered efforts to present Arab Americans as a “community of interest,” a factor in redistricting considerations that helps keep shared economic or social interest, as well as ethnic populations, together. Without raw census data, community leaders had to rely on estimates when presenting the Arab Americans in the Dearborn area as a community of interest. Because of our invisibility in census data, our most concentrated community would not necessarily have full representation in their own state legislature.

The harm, of course, goes beyond redistricting. Census data affects the availability of educational rights, language access, health research, and community-centric grants at all levels of government. One of the most egregious examples of how our community’s invisibility in data collection has negatively impacted our community is the way information on hate crimes against Arab Americans has historically been disseminated. Each year, the FBI releases Hate Crime Statistics – a report of all bias-motivated crime each year. According to our research, in 1992, the FBI intended to publish anti-Arab hate crime data in the first edition of Hate crimes statistics, but before publication, Bias Motivation Code 31—the anti-Arab code—was removed. At the time, the FBI cited Directive 15 as the reason for removal. As a result, anti-Arab hate crime was excluded and recoded in federal statistics for decades under an aggregate category, even when many state law enforcement agencies continued to submit data on anti-Arab hate crimes during this period. It was not until 2015, when Code 31 was added back to Federal hate crime reporting, that data on hate crimes against Arab Americans became available.

Already, we’ve seen what visible inclusion in federal forms can do. Not only did the FBI Reporting Program start collecting data and publishing statistics on bias-motivated violence against Arab Americans, but the Bureau also developed training materials to ensure law enforcement personnel across the country are better equipped to report, investigate, and respond to anti-Arab hate crimes.

History of the Push for a MENA Category

The push for a MENA category has been a decades-long endeavor for our community. Accurate counting of the Arab American population has been a central part of the Arab American Institute’s mission, beginning in the late 1980s when AAI first worked with the U.S. Census Bureau to ensure all Arab Americans were counted in the 1990 census. To that end, in 1994, AAI helped launch the Ancestry Working Group to support the Census Bureau’s efforts to decrease systemic undercounting of Arab Americans.

Because of these community-led efforts to get better data on Arab Americans, when the federal government took efforts to study and improve the accuracy of demographic data in the late 1990s, the Arab American community was ready to respond. During the 1997 review of federal standards to measure race and ethnicity in the United States, for example, OMB opened a comment period on the standards for reporting race and ethnicity, resulting in multiple comments about the need for an “Arab or Middle Eastern” category, especially as a means of tracking discrimination. Upon review, OMB concluded that demographic accuracy required further research on such a category.

The 2000 decennial census supplied further evidence that Arab Americans didn’t fully see themselves on existing forms with an increase of Arab ancestry reporting in the “some other race” category. This evidence, along with the comments from the 1997 revision and continued community advocacy, pushed the Census Bureau to explore a new category on the 2010 Alternative Questionnaire Experiment (AQE). The 2010 AQE, which tested variations of race and ethnicity data collection, included focus groups on Middle Eastern and North African respondents. Findings from the test supported the need for a distinct MENA category.

In the 1980, 1990, and 2000 decennial censuses, the census long form included a question on ancestry and ethnic origin. The long form was only administered to a portion of the U.S. population leaving an accurate count of Arab American ancestry groups dependent on the sample methodology applied to a small, unevenly distributed population. Community leaders worked overtime to make sure Arab American communities knew where and how to find the question in an effort to collect usable data from an unknown sample population. After the elimination of the long form in 2010, AAI formed the MENA Advocacy Network to formally organize communities around securing a distinct MENA ethnic reporting category.

In 2014, the Network presented their research, showing the current (and historical) undercount of communities within the category to the Interagency Working Group on Race and Ethnicity. Later that year, when the Federal Register notice announced the testing of a MENA category, the Network mobilized our community resulting in more than 13,000 favorable public comments–a record number. Unfortunately, despite favorable testing results on the Census Bureaus’ 2015 National Content Test, and a recommendation from the Census Bureau to include the MENA category on the 2020 census, the category was not added, leaving the Arab American community, and others encompassed in the category without an accurate accounting of our populations.

Undaunted, stakeholder organizations continued to push for changes to federal data collection, including a MENA category. After OMB announced a formal review of the race and ethnicity standards in 2022, an Interagency Technical Working Group was formed to aid in the process. On January 27, 2023, OMB published a Federal Register Notice seeking the public’s comments on the Working Group’s initial proposal for updating the Standards. After a successful comment period that saw more than 20,000 comments, the OMB announced the new revisions to Directive 15, which included the historic addition of a MENA minimum reporting category.

Where We Go From Here

The inclusion of a MENA category in federal data collection will not magically fix the harms of decades of undercounting. Nor will the category’s implementation happen overnight. Indeed, we will continue to advocate for our recommendations for the category to get to an accurate count that fully reflects the full racial and geographic diversity of the MENA category. Yet, the new Standards marked a historical moment for data equity, even if some tweaks are still needed.

With the new Standards, we can go into the 2030 get-out-the-count efforts with the expectation of data which, for the first time ever, can help make the case for improved protections against discrimination, tailored research for our health concerns, support for our children in schools, and the empowerment of our political voice, among the many other benefits of accurate data collection. It is a win for our community—and our democracy.

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Maya Berry is Executive Director of the Arab American Institute (AAI), a non-profit, nonpartisan, national civil rights advocacy organization founded to nurture and encourage direct participation in political and civic life to mobilize a strong, educated, and empowered Arab American community. She was previously the Legislative Director for House Minority Whip David Bonior, and currently serves as the Co-Chair of the Hate Crime Task Force at the Leadership Conference for Civil and Human Rights and on the board of Public Citizen.

Inferable Discrimination: A Landmark Decision Addresses Selective Law Enforcement

“Black drivers have a problem in Richmond, Virginia.” ⁱ

In February, a federal district judge in Richmond, Virginia, concluded that Mr. Keith Moore presented sufficient evidence to prove selective enforcement of the law by the Richmond Police Department (RPD) against Black drivers. United States District Judge John A. Gibney Jr. granted Mr. Moore’s motion to dismiss the government’s indictment for illegally possessing a firearm after finding that Moore had established the discriminatory effect and purpose elements necessary to prove his claim of systemic bias. This decision illustrates an avenue for courts to overcome doctrinal barriers when specific statistical evidence of racial disparity combined with historical context permit the inference of bias.

The constitutional promise of Equal Protection prohibits racial discrimination in policing,ⁱⁱbut the doctrine has been wholly ineffective at halting the racialized selection process funneling our criminal legal system. Despite the accumulation of evidence of racialized policing, it is exceptionally difficult for a criminal defendant to prove that their police encounter was motivated by race.ⁱⁱⁱ Meanwhile, rather than constraining racially disproportionate policing, the Fourth Amendment has been interpreted in a manner that facilitates implicit racial bias.^iv Most notoriously, in Whren v. United States, the Supreme Court rendered consideration of an officer’s subjective motivations constitutionally irrelevant, condoning pretextual traffic stops.^v Although the Court stated that racially discriminatory policing could implicate the Equal Protection Clause^,vi Whren’s practical effect is that police can stop people for traffic infractions to investigate other crimes.^vii Compounding this doctrinal quagmire is the reality that our current Supreme Court rejects race-conscious efforts to address systemic or implicit racial bias.”^viii

The Court has reiterated that an ordinary Equal Protection claim requires proof of discriminatory effect—that similarly situated individuals of a different race were treated differently —motivated by discriminatory purpose.^ix Pursuant to this oft criticized “Armstrong standard,” a criminal defendant bears an initial burden of presenting evidence that raises a reasonable inference of impermissible discrimination based on race. This could be evidence that a larger class of persons than those selected and investigated by police have violated the law—which is virtually impossible to obtain in the context of traffic violations.^x A defendant must also show that failure to enforce the law upon others was deliberate, and that the decision to enforce against them was based on their membership in a that racial group.^xi

Statistical evidence can prove discriminatory effect.^xii And as Judge Gibney concluded, the statistics provided in this case made abundantly clear the disparate impact of traffic stops on Black drivers in Richmond.^xiii Recent demographics show that Richmond is 46% white and 45% Black. Mr. Moore presented evidence that the RPD stops Black drivers at more than five times the rate they stop white drivers. Between July 2020 and December 5, 2020, when Mr. Moore was stopped and arrested for illegal gun possession, 77% of drivers stopped by Richmond police were Black and 15% were white. Mr. Moore presented evidence that RPD officers were “far more likely” to search Black drivers and their cars than white drivers, and Black drivers were 12.67% more likely to be arrested because of the traffic stop. Notably, Mr. Moore’s evidence was collected as required by the Virginia’s Community Policing Act, legislation passed in 2020 specifically aimed at reducing racial disparities in traffic stops and racial profiling.^xiv

But even strong proof of discriminatory effect is insufficient to establish selective enforcement based on race. The second requirement, discriminatory purpose, has proven particularly challenging for criminal defendants. As the court here acknowledged, (and as almost always the case), Mr. Moore presented no evidence of bad faith on the part of the four police officers who stopped him.^xv In a highly unusual New Jersey case last year, a 911 dispatcher erroneously inserted race into a suspect description, and therefore discriminatory intent was uniquely proven.^xvi But for a claim of selective enforcement based on race, a showing of intent—that a police officer’s decision to surveil, stop or search someone was made with a discriminatory purpose or pursuant to a discriminatory policy—presupposes an ability to discover that officer’s racial bias. This increasingly unrealistic discovery of a “smoking gun” is considered a primary reason these claims fail in the policing context.^xvii Michelle Alexander explained that officials are increasingly unlikely to state discriminatory beliefs, even when such racist beliefs consciously motivate their enforcement choices.^xviii And as some states have recognized, implicit bias, which is often inaccessible to the officers themselves, “is no less real and no less problematic than intentional bias.”^xix

Here, confronted with the challenge of proving discriminatory intent, Judge Gibney relied upon precedents where inferences were drawn from statistical evidence of disparate impact to help show discriminatory purpose. He concluded that the Fourth Circuit’s “passing reference” to Armstrong did not foreclose the possibility of using statistical evidence to satisfy Mr. Moore’s burden on a selective enforcement claim.^xx He credited Mr. Moore’s two experts, who presented evidence of a consistent pattern of actions by RPD that disparately impact Black drivers in Richmond and a history of discrimination by RPD in Richmond.^xxi

In addition to data illustrating RPD’s current problem with disproportionately stopping Black drivers, the court credited Richmond’s “racially segregated and discriminatory history.”^xxii Indeed, Mr. Moore’s experts discussed the Confederate foundations of the RPD, and the city’s painful history of racialized residential zoning and placement of police precincts in predominately Black neighborhoods. To be sure, Virginia’s enactment of the Community Policing Act four years ago showed its concern regarding historic and ongoing racial profiling. Taking this historical context into account, Judge Gibney identified the absence of certain evidence. In particular, the government presented evidence that more crime occurred in Richmond’s majority Black neighborhoods, but failed to present any explanation as to why or how stopping predominately Black motorists would serve to reduce serious crimes. And “most significantly, no one explained why Black motorists are disproportionately stopped in white areas of Richmond, where the crime is lower.”^xxiii

The centrality of traffic enforcement data, collected in Moore because of Virginia’s new law, must be emphasized. Indeed, prevailing on a selective enforcement claim creates a cyclical burden lamented as a “Catch-22.”^xxiv Because a defendant must make “a credible showing of different treatment of similarly situated persons” to be granted discovery for relevant documents,^xxv individuals seeking discovery in a selective enforcement claim must present the court with the evidence that they seek. Even where statistical evidence of disparate policing that can occasionally, as in Moore, suffice to prove discriminatory purpose, such evidence is typically difficult to access. By requiring police officers to collect and report data on the race and ethnicity of the drivers they stop, Virginia’s new law helps to overcome this hurdle.

Recognizing the doctrinal and evidentiary challenges to showing racialized policing, a few states have interpreted their constitutions as providing more protection than the federal Constitution by revising the requirements for proving discriminatory intent. California concluded that “more and more judges in California and across the country are recognizing that current law, as interpreted by the high courts, is insufficient to address discrimination in our justice system.”^xxvi In the Criminal Justice Reform Act (CJRA), the state legislature determined that specific evidence of racially disparate treatment in charging or sentencing, combined with historical evidence of racism, was enough to show a case may have been impacted by racial bias.^xxvii Similarly, Massachusetts’ highest court (SJC) acknowledged that “the right of drivers to be free from racial profiling will remain illusory unless and until it is supported by a workable remedy,” and reduced the evidentiary burden for proving a traffic stop was racially motivated.^xxviii Defendants can use descriptive statistical evidence of racial disparities toraise a reasonable inference that their own stop was racially motivated.^xxix New Jersey recognizes the impossibility for a criminal defendant to prove that similarly situated suspects of other races were not followed, stopped, or searched for selective enforcement claims.^xxx

But in this case, substantial empirical data showing that RPD officers stop Black drivers at a rate that far exceeds the rate at which they stop white drivers, coupled with Richmond’s history of racial segregation and discrimination, sufficed to support Mr. Moore’s argument that was stopped because of his race.^xxxi. Courts, like the district court in United States v. Moore, should adopt an outcome focused approach, where discretionary policing decisions that result in consistently racialized results are scrutinized without requiring traditional proof of discriminatory intent.

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Aliza Hochman Bloom is an Assistant Professor at Northeastern University School of Law.

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The American Constitution Society is a 501(c)(3) non-profit, non-partisan legal organization. The views expressed on the Expert Forum are those of the authors and do not represent the American Constitution Society or its chapters.

i United States v. Moore, 2024 WL 552794, *13 Case 3:21-cr-00042 (E.D. Va. Feb. 12, 2024).

ii U.S. Const. Am. XIV § 1; id. amend. V.

ⁱⁱⁱ See Guy Rubinstein, Selective Prosecution, Selective Enforcement, and Remedial Vagueness, Wisconsin Law Review (2022).

^iv Whren v. United States., 517 U.S. 806 (1996); see Devon Carbado, (E)racing the Fourth Amendment, 100 Michigan Law Review 946, 958 (2012); Aliza Hochman Bloom, Whack-a-Mole Reasonable Suspicion, 113 California law Review (forthcoming 2024).

v. 517 U.S. 806, 813 (1996).

vi. Id. at 813.

vii See Commonwealth v. Sweeting-Bailey, 488 Mass. 741, 743 (2021).

^viii Students for Fair Admissions, Inc. v. Harvard, 143 S.Ct. 2141 (2023).

ix Wayte v. United States, 470 U.S. 598 (1985); United States v. Armstrong, 517 U.S. 456, 465 (1996).

^x Washington, 869 F.3d at 214.

^xi Armstrong, 517 U.S. at 463-65; see Tracey Maclin, Race and the Fourth Amendment, 51 Vand. L. Rev. 333, 337 n.22 (1998).

xii Yick Wo v. Hopkins, 118 U.S. 356, 374 (1886).

xiii Moore, 2024 WL 552794, *11.

xiv https://lis.virginia.gov/cgi-bin/legp604.exe?201+ful+CHAP1165

xv Moore, 2024 WL 552794, *11.

xvi State v. Scott, 288 A. 3d 842, 849 (N.J. Ct. App. 2023). See Aliza Hochman Bloom, Policing Bias Without Intent, University of Illinois Law Review (forthcoming 2025).

^xvii See, e.g., Pamela S. Karlan, Race, Rights, and Remedies in Criminal Adjudication, 96 Michigan Law Review 2001, 2025–27 (1998).

^xviii The New Jim Crow: Mass Incarceration in the Age of Colorblindness, 103 (rev. ed. 2012).

^xix State v. Andujar, 247 N.J. 275, 303 (2021).

xx Moore, at *18.

xxi Cent Radio Co. v. City of Norfolk, 811 F.3d 625, 634-35 (4th Cir. 2016).

xxii Moore, 2024 WL 552794, *12.

xxiii Moore, 2024 WL 552794, *13.

^xxiv See Rubinstein, Selective Prosecution, Selective Enforcement, and Remedial Vagueness, Wisconsin Law Review 800 (2022); Richard H. McAdams, Race and Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chicago Kent Law Rev. 605, 616 (1998); Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts, 129 Harv. Law Rev. 2049, 2097–98 (2016).

^xxv Armstrong, 517 U.S. at 470.

^xxvi Assem. Bill No. 2542, §2(C).

^xxvii AB 2542, § 2(j); Penas Code, § 745, subd. (c)(1).

^xxviii Commonwealth v. Long, 485 Mass. 711, 712, 719 (2020).

^xxix Long, 485 Mass. at 719.

^xxxState v. Nyema, 249 N.J. 509, 530 (2021).

xxxi United States v. Moore, 2024 WL 552794.

Progress and Impediments on Path to Abolition in U.S.

This piece was previously published in the World Coalition Against the Death Penalty Newsletter.

When President Biden won the 2020 election, he became the first successful U.S. presidential candidate to publicly oppose the death penalty. As part of his promise to work toward abolition, the Biden campaign noted that “Over 160 individuals who’ve been sentenced to death in this country since 1973 have later been exonerated.” In 2021, the U.S. Department of Justice (DOJ) announced a moratorium on federal executions, recognizing, among other things that “[s]erious concerns have been raised about the continued use of the death penalty across the country.” The President, his campaign, and the DOJ are right to express concern about a punishment that, even setting aside the immorality of state-sanctioned killing, has never been applied fairly, justly, or equally.

That made it especially disheartening when, earlier this year, the DOJ, led by an attorney general appointed by President Biden, announced that it would pursue the death penalty against Payton Gendron. In 2022, Gendron had killed ten Black people in a racially motivated shooting in a Buffalo, New York, grocery store. Before the DOJ announced the capital charges, Gendron had already pled guilty to the murders in New York state court and was serving a life sentence with no possibility of release. Justice, to the extent that it can ever be achieved in such a heinous situation, had already been done.

The American Constitution Society spoke out against the decision, with one of the authors, ACS President Russ Feingold, observing that “By pursuing the death penalty in a single case, regardless of the facts of that case, the federal government validates state-sanctioned killings as a policy and a practice.” The fact is the death penalty in the U.S. is plagued with dysfunction. Any honest assessment of the criminal legal systems used to investigate, capitally charge, try, and ultimately execute people in the U.S. reveals a cruel, random, and ultimately tortuous practice.

Lack of adequate defense resources means that questions around innocence and culpability abound in death penalty cases. The most recent execution in the U.S., that of Ivan Cantu by Texas in February, happened under a cloud of doubt about witness credibility, including one witness who recanted his testimony. A court never considered these claims. To date, at least 195 people sentenced to death in the U.S. have been subsequently exonerated. The true number of people wrongly convicted or sentenced to death is difficult to know, but undoubtedly much higher.

The death penalty also magnifies racial disparities already present in the U.S. criminal legal system. Cases involving white victims are far more likely to result in prosecutors seeking the death penalty, and people of color, particularly Black people, make up a disproportionate share of those people ultimately executed. The mentally ill and intellectual disabled are also disproportionately reflected in the nation’s death row population. Combined with the fact that the death penalty is only actively used in a handful of counties in a handful states, the likelihood of facing execution is more a reflection of demographics and location than a reflection of the heinousness of any given crime.

Even the mechanics of executions are beset with problems. Idaho’s failed attempt to execute 73-year-old Thomas Creech in February (on the same day Texas killed Cantu) is only the most recent example. According to researchers, more than a third of executions attempted in 2022 were botched. States, too often operating in secret, tinker with untested drug protocols, experiment with nitrogen hypoxia, and consider returning to firing squads and the electric chair all in a futile attempt to find a “better” way to kill people. These are macabre experiments that deny the fact that killing is an inherently brutal and inhumane practice.

It is reasonable to see this litany of dysfunction and conclude that the death penalty in the U.S. is broken. In fact, for the first time since pollsters began asking the question, more Americans believe that the death penalty is applied unfairly than fairly. Unsurprisingly, public opposition to the death penalty is also at near all-time high.

But to say the death penalty is broken is to imply that it can be fixed or reformed to operate more justly. It cannot be. ACS understands this and focuses our work on highlighting the legal and moral failings that are inexorably bound up in the death penalty.

The U.S. Constitution’s Eighth Amendment prohibits “cruel and unusual punishments.” Unfortunately, the current U.S. Supreme Court, controlled as it is by a conservative supermajority, has shown a near-total disregard for the cruelty of the death penalty. But the waning of the death penalty in the United States is becoming too hard to ignore. The fact that executions and death sentences are “unusual” has become undeniable.

Executions and death sentences have been trending down since their historic highs in the late 1990s. In the past two decades, eleven states have abolished the death penalty, bring the total of non-death penalty states to 23 out of 50. In addition, six states are currently under governor-imposed moratoria on executions. Even in most states that still have the death penalty, it is rarely used. In 2023, only five states were responsible for the 24 executions nationwide, and only seven states accounted for the 21 new death sentences. Even in these few states, only a handful of counties were responsible for the majority of death sentences and executions.

The rarity of death sentences and execution makes the death penalty all that more arbitrary and cements its unconstitutionality. Those facing death sentences are not the worst of the worst, but simply the random defendants caught up in the political, racial, and regional dynamics of a hopelessly dysfunctional death penalty system. In fact, the Death Penalty Information Center asserts that most of the 24 people executed in 2023 would not even be sentenced to death today, because of “[c]hanges in the law, such as the alternative sentence of life without parole, the elimination of non-unanimous death sentences in most states, the exclusion of people with intellectual disability from death penalty eligibility, and changes in the common and scientific understanding of mental illness and trauma and their lasting effects . . . .”

The death penalty in the U.S. is on its way out. It is losing at the ballot box and in the jury box. Soon the judiciary will have to acknowledge that it is an act, not of justice, but of arbitrary and unconstitutional vengeance. The question is how much more suffering and debasement we are willing to tolerate as the end of the death penalty in the U.S. draws nearer.

Law and the Movement for Reparations

This article first appeared in print in Reparations Daily(ish) Volume 102

When you think about slavery, Jim Crow, and other forms of anti-Black oppression, a few familiar villains probably come to mind—you might think of brutal overseers whipping Black people on plantations, cruel auctioneers ripping families apart, or sadistic police setting dogs on Black protesters. You probably don’t immediately think about the thousands of lawyers who worked behind the scenes to normalize these atrocities, including lawmakers, judges, prosecutors, and private attorneys.

Yet, from the Constitution, which initially counted enslaved people as three-fifths of a person, to the Supreme Court’s doctrine of “separate but equal,” to contracts legitimizing the sale of human beings, the law and lawyers have played a central role in the dehumanization of Black people. Because of this history, lawyers and the law have a unique role to play in the struggle for racial justice and repair.

In New York, the movement to address anti-Black oppression led to the abolition of slavery in 1827 in the state, but that laudable effort did not disentangle New York from the exploitation of Black bodies. Until the Civil War, New York-based banks like JP Morgan accepted enslaved people as collateral for loans, and insurance firms like New York Life offered policies insuring enslavers for loss of enslaved “property.” Locally, Black communities were devastated by anti-Black race riots in 1863, 1900, and 1919—mass atrocities that went largely unprosecuted. And practices like redlining continued to diminish the value of Black property and Black life well into the 20^th century.

Today, as a result of these and similar accumulated injustices, the median white New York household has nearly 15 times as much wealth as the median Black household, a wealth gap 50% greater than the national average. And Black New Yorkers continue to face worse life outcomes in almost every category, from education, to health, to the criminal legal system.

To address the magnitude of this harm, the movement for reparations draws upon familiar legal principles. Just as plaintiffs who have suffered harms like battery, assault, false imprisonment, conversion, and unjust enrichment can bring civil claims to have their harms acknowledged and be made whole, reparations processes offer an opportunity to assess and respond to collective harms and injustices. And while a verdict or money judgment, or reparations process can never fully compensate for past harm, it is a meaningful step toward justice.

As the reparations process begins in New York, the first step will be establishing a comprehensive and accurate record of what occurred. Through historical documents, statistical evidence, and witness testimony, reparations commissions can reconstruct a comprehensive understanding of the past—and how it is connected to the present. One promising recent example of this work is the mammoth report of the California Reparations Task Force, which details the history of anti-Black oppression in that state and its ongoing ramifications for housing, education, political representation, the environment and other fields.

The second, and often more contentious work of reparations is to design remedies, but here as well, reference to “traditional” legal principles is informative. Civil law operates on the principle of placing plaintiffs in the position they would have been in if the harm had not occurred. While we know that this is functionally impossible or very difficult, it is a useful north star. Reparations activists suggest that we should look to see what it would take to achieve realized equality in our society by leveling the racial wealth gap and eliminating racial inequities in health, housing, education and other life outcomes.

History offers several models for direct payments to the victims of past harms and their descendants, including German payments to survivors of the Holocaust, payments authorized by Congress for victims of the interment of Japanese Americans during World War II, scholarships designated for survivors of the Rosewood massacre in Florida, and housing assistance to survivors of housing discrimination in Evanston, Illinois. While it is likely that only the federal government is sufficiently resourced to meet the total cost of reparations for slavery, state and local efforts play a critical role in building momentum and creating the factual record necessary for a national undertaking.

As in the past, lawyers may present some of the biggest obstacles to justice. Conservative legal operatives like Edward Blum, a key figure in the push to dismantle affirmative action, DEI, and voting rights, has signaled his opposition to reparations efforts and sent threatening letters to the Evanston commission in an attempt to derail that effort.

Thankfully, so far, federal courts have refused to strike down reparations efforts, describing the government’s interest in remedying past discrimination by state actors as “unquestionably” compelling, particularly when those acts are well documented and the proposed remedies for those acts are narrowly tailored to address the harm committed. Now, as in the past, it is crucial to develop the robust factual record that will be necessary to support bold action to eliminate racial disparities.

Despite opposition from the likes of Blum, the reparations movement continues to grow. In New York, lawyers in particular, have an opportunity to weigh in on the right side of history, reckon with the past's harms, and help chart a brighter future.

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Taonga Leslie is the Director of Policy and Program for Racial Justice at ACS.