Bryce R. Nolan

The only people who have the necessary level of social responsibility to vote intelligently are those who have demonstrated a willingness to place themselves in the line of fire to protect their society. At least, that is the central philosophy of Robert A. Heinlein’s classic, controversial novel, Starship Troopers.[1] The right to vote—the “sovereign franchise”—is exclusive to military veterans of the “Federal Service.” The book’s society—the “Terran Federation”—claims to have strong justifications for restricting the vote in this way. These justifications reveal how a society thinks about to whom it should extend the right to vote.

The Federation’s philosophy places the human survival instinct as the ultimate source of moral behavior.[2] Thus, to the Federation, the scaling-up of that model of morality to the national level provides, at least to them, the only effective way to create serious, rational voters. The Federation’s citizens scoff at the folly of so-called ‘unlimited democracies.’ Specifically, they question the wisdom of a universal franchise absent a method of ensuring that the franchise is exercised responsibly while still acknowledging the historical restrictions that human societies have placed on the right to vote.[3] In this way, the Federation claims to be not too dissimilar to those previous human societies but instead is merely applying the same principle in a better way. The restrictions listed in the book as examples should be familiar to students of history.

Even the most egalitarian reader cannot help but feel compelled by the assuredness of the convictions of the book’s society and the obvious premium that it places on the dual values of democracy and civic engagement. While the book’s politics can, and probably should, give us pause, it serves as a sobering reminder of the decisions a democracy must make in determining the franchise’s furthest limits and in contemplating the obstacles that exist in the way of voting.

The United States has a long and contentious history with the right to vote. For example, the motivating incident of the Twenty-Sixth Amendment to the Constitution, which extended the right to vote to eighteen-year-olds, was the Vietnam War and the military draft employed to prosecute it. The common logical justification for the Amendment was one of fairness: if a person was old enough to be forced to fight for their country, then they ought to be old enough to vote for its leaders.[4] But even this position was criticized by those who doubted that eighteen-year-olds had the requisite maturity, knowledge, and responsibility to vote.[5] That said, compelling arguments exist to lower the federal voting age even further.[6] These arguments point out that, in terms of the cognition necessary to make rational decisions about how to vote, there is no significant difference between someone who is sixteen and someone who is forty.[7] These discussions relate to one of the key concerns of Heinlein’s writing in Starship Troopers: the catastrophic effects of undisciplined voting.

Heinlein, however, approaches this problem from an oblique angle. His book is solely concerned with the quality of voters and does not consider the possibility that access to the vote itself may engender its considered use. The key criterion for voting intelligently is the ability to rationally comprehend one’s place in the community and to recognize the importance of voting in advancing democracy. This is a low threshold, and that’s the point.

One of the most controversial areas of voting rights is felon disenfranchisement. The current landscape of this issue varies wildly from state to state.[8] The National Conference of State Legislatures noted that despite the historical precedent of excepting felons from the election process, the general trend has been towards reinstatement. The justifications for the practice of felon disenfranchisement have their origins in Jim Crow era attempts to thwart the Fifteenth Amendment. Alabama’s 1901 Constitutional Convention, for example, explicitly sought to do so by enshrining the disenfranchisement of those who commit crimes of “moral turpitude.”[9] The success of efforts to re-enfranchise felons, or anyone in some stage of the prison system, may be judged by their participation in elections. In Cook County, Illinois, for example, prisoners in the county jail voted in a recent primary at a higher rate than Chicago itself.[10] If nothing else, this controversy demonstrates that, regardless of justification, efforts to restrict voting based on supposed moral character are far too easily abused to be beneficial.

Just as every right implies a responsibility, every vote obligates the voter to consider his or her decision in the polling booth carefully. It is that capacity which distinguishes a good voter. Heinlein’s concerns may have been eloquent and his ideas provocative, but a rather unflattering opinion of democracy is necessary to sustain a belief in rigid restrictions on voting. If a person can think about what they want and what may be best for the community, then that is where the discussion about whether they are qualified to vote should end.

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[1] Robert A. Heinlein, Starship Troopers 192 (1959).

[2] Id. at 195.

[3] Id. at 191.

[4] Joshua A. Douglas, In Defense of Lowering the Voting Age, 165 U. Pa. L. Rev. Online 63, 65 (2017).

[5] E.g., William G, Carleton, Teen Voting Would Accelerate Undesirable Changes in the Democratic Process in Amendment XXVI: Lowering the Voting Age 49-55 (Sylvia Engdahl ed., 2010).

[6] Douglas, supra note 4 at 66, 67, 68.

[7] Id. at 64.

[8] For example, Vermont and Maine have no restrictions on voting related to criminal status. In Virginia, a 2020 Executive Order gave the right to vote back to ex-prisoners upon the completion of their sentence. This Order was reversed in 2023 by Governor Glenn Youngkin. In Wyoming, first-time non-violent felons may apply to have voting rights restored upon the completion of their sentence, plus probation or parole, but for all other felons the only way to vote again is to be pardoned.

[9] Id.

[10] Id.

Bruce J. Robinson

Creating life has been the boogieman of science fiction for over two centuries.[1] Since Mary Shelly first introduced the mad Victor Frankenstein’s desire to create life from lifelessness, we’ve wondered if one day humans could create artificial life or exact replicas of themselves; what horrific Ship of Theseus would such a creation cause?[2] Fearmongering about moral concerns is only a subset of the issues surrounding human cloning. Many legal scholars have also raised the possible constitutional issues arising in relation to human cloning.[3] But, this scholarship is now stale. Science does not stand still, in fact South Korea is well on the way to making human cloning a viable reality, as such legal scholarship must be prepared for the inevitability of human cloning.

Constitutional arguments surrounding reproductive cloning stem from the United States’ tenuous right to privacy.[4] The Due Process and Equal Protection Clauses of the U.S. Constitution provide the backdrop for this right of privacy in its current form.[5] The right of privacy has been used in the past to derive and protect the fundamental right to procreate—among related reproductive and relationship rights.[6] In 2008, Professor Radhika Rao sought to answer the question “what happens to those who lose the ability to reproduce the old-fashioned way?” or “what if they never had that ability to reproduce to begin with?” Do these people lose that fundamental right along with their ability to bear children of their own?[7] Although the Supreme Court has never formally recognized reproductive cloning as a fundamental right, Professor Rao sees the potential for such litigation related to human cloning on the horizon. He surmises reproductive cloning is an extension of the fundamental right to bear children.[8] Thus, under Skinner v. Oklahoma, the Court analyze reproductive cloning laws under the Court’s strict scrutiny framework.[9]

Although Professor Rao did not address the results of such a strict scrutiny analysis, other scholars have. In a 2002 article, Professor Cass Sunstein addressed several arguments against reproductive cloning.[10] Sunstein considers the strongest arguments against human cloning are: (1) protecting the cloned individual from suffering and death; (2) psychological harm to the cloned individual; and (3) exploitation of human clones.[11] Sunstein opined on the possible success of these arguments and concluded that only the first would likely survive a strict scrutiny analysis, concluding unequivocally that clones would live short painful lives—a fact sufficient to kill reproductive cloning under strict scrutiny.

At the time of Sunstein’s writing in 2002, he was probably right because Dolly the Sheep was the only example of a cloned organism that had been closely studied. Dolly lived a short life full of suffering and died at the age of six—only half the life expectancy of the average sheep in captivity.[12] Dolly’s suffering gives credence to Sunstein’s argument that children born from reproductive cloning would suffer a similar fate. This claim would likely be a death knell for any law permitting human reproductive cloning.

The advancement of science in the intervening twenty years, however, demonstrates that Dolly’s suffering was an isolated incident. Following Doll’s premature death, she was cloned again producing a batch of healthy offspring. Whereas Dolly died at six, Dolly’s children were alive and healthy at the age of nine, well into old age by sheep standards.[13]

Dolly’s children are not the only examples of the increased viability of modern cloning. Since Dolly and her progeny, research and testing of reproductive cloning in other livestock species has proven that modern clones are more and more viable. While these modern clones have been found to need increased care in their first week of life, much like a premature baby, after the first week they live completely normal lives, even compared to their non-cloned counterparts.[14]

Science continues its march into the future. Science will inevitability make reproductive cloning as safe and viable as traditional reproduction. When that day comes, constitutional arguments against reproductive cloning will one day be as outdated as the science used to clone Dolly in the first place.

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[1] Mary Shelley, Frankenstein 69–77 (Puffin Books 1994) (1818).

[2] The “Ship of Theseus” is a philosophical thought experiment in which over the course of time Theseus slowly replaces every piece of his vessel. The experiment poses the question is this the same ship, or did the replacement of all the component parts make it an entirely new vessel? Perter Worley, The Ship of Theseus, The Phil. Found., https://www.philosophy-foundation.org/enquiries/view/the-ship-of-theseus (last visited March 21, 2022).

[3] See Generally Elizabeth Price Foley, The Constitutional Implications of Human Cloning, 42 Ariz. L. Rev. 647 (2000).

[4] Griswold v. Conn., 381 U.S. 479, 484–85 (1965); see also Mapp v. Ohio, 367 U.S. 643, 656 (1961).

[5] Cass R. Sunstein, Is there a Constitutional Right to Clone?, 53 Hastings L.J. 987, 989–90 (2002).

[6] Skinner v. Okla., 316 U.S. 535, 541 (1942) (procreation); Loving v. Virginia, 388 U.S. 1, 12 (1967) (interracial marriage); Obergefell v. Hodges, 576 U.S. 644, 664 (2015) (gay marriage).

[7] Radhika Rao, Equal Liberty: Assisted Reproductive Technology and Reproductive Equality, 76 Geo. Wash. L. Rev. 1457, 1478 (2008).

[8] Id.

[9] Skinner, 316 U.S. at 541

[10] Cass R. Sunstein, Is there a Constitutional Right to Clone?, 53 Hastings L.J. 987, 995–97 (2002).

[11] Id. at 995–1001.

[12] Rachel Felman, Dolly the Sheep Died Young – But Her Clones Seem Perfectly Healthy as they Turn 9, Wash. Post (July 26, 2016) https://www.washingtonpost.com/news/speaking-of-science/wp/2016/07/26/dolly-the-sheep-died-young-but-her-clones-seem-perfectly-healthy-as-they-turn-9/.

[13] Id.

[14] Cesare Galli & Giovanna Lazzari, Current Application of SCNT in Advanced Breeding and Genome Editing in Livestock, 162 Sco’y of Reprod. And Fertility F23, F26 (2001).

Spencer Osborne

Alex Berenson is an author and journalist. As its title suggests, criticism abounds for his newest book, Pandemia: How Coronavirus Hysteria Took Over Our Government, Rights, and Lives.^[1] To others, Berenson is a hero—a “free speech” martyr in the putative war against “big tech.”

On Twitter, Berenson questioned the ability of mRNA vaccines to stop the virus’ transmission or infection, promulgated the Wuhan “lab leak” theory, and communicated his distrust of mortality data. Some of those views might be considered more defensible now than they once were. Nevertheless, his widely shared tweets came at a time when the federal government and social media platforms were hypervigilant in their attempts to quell “misinformation.”^[2]

In March 2021, Twitter announced its five-strike “COVID-19 misleading information policy.” Shortly thereafter, Twitter’s VP of Global Communications gave Berenson assurances that the company: (1) had no plans to restrict his account; and (2) would notify him if that were to change. On August 28, 2021, however, Twitter permanently suspended Berenson’s account without notice. Now, Berenson is back on the platform as perhaps the first person to ever return from one of Twitter’s famously “permanent” bans.^[3]

Berenson sued Twitter in federal court.^[4] His claims included violation of the First Amendment, breach of contract, and promissory estoppel.^[5] The litigation ultimately settled.^[6] Some conservative news outlets view this result, and Berenson’s digital resurrection, as a rebuke of tech censorship.^[7]Berenson appeared on a popular podcast to tout his alleged victory^[8], and wrote a piece for The Wall Street Journal claiming his case “could become a watershed in holding social-media companies accountable for censorship.” But a review of the court’s order suggests that Berenson’s celebration is misguided.^[9]

While his complaint was not dismissed outright, two legal barriers defeated Berenson’s censorship and speech-related claims.^[10] First, Section 230 of the Communications Decency Act of 1996 enables online providers to moderate objectionable user content “in good faith,” without fear of civil liability, even if that content is constitutionally protected. ^[11] Accordingly, “[w]ith the exception of the claims for breach of contract and promissory estoppel, all claims in [the] action [were] barred by 47 U.S.C. Section 230(c)(2)(A).”^[12] Berenson argued that the Twitter executive’s assurances established that Twitter failed to moderate in good faith, but the court did not find “sufficient factual underpinning” for that conclusion.^[13]

Second, the “state action” doctrine provides that—by and large—only government actors are capable of violating one’s constitutional rights. Thus, Berenson “fail[ed] to even state a First Amendment claim” even if Section 230 were not applicable.^[14] That is, “the shift in Twitter’s enforcement position” combined with “general cajoling from various federal officials” was insufficient to plausibly allege that the private company was a “willful participant in government action.”^[15]  

An earlier Ninth Circuit case, however, held that some claims could survive a 12(b)(6) motion despite Section 230 barring others.^[16] Because Berenson was seeking to hold Twitter liable not as a “publisher or speaker of third-party content, but rather as the counter-party to a contract,” Section 230 would not bar his claims sounding in contract.^[17] Twitter’s Terms of Service allow it to terminate user accounts “at any time for any or no reason.”^[18] However, “the course of performance may supplement or qualify the terms of such an express contract.^[19] Berenson’s theory was that the March 2021 policy, taken with Twitter’s assurances, represented Twitter’s modification and breach of its Terms of Service. Thus, the court allowed his contract and promissory estoppel claims to proceed. 

Although Berenson is back on Twitter, the proposition that Berenson beat Twitter on speech grounds is a dubious one. 

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^[1] Substack page, Alex Berenson, https://substack.com/profile/12729762-alex-berenson (last visited Sep. 3, 2022). 

^[2] See, e.g., Press Briefing by Press Secretary Jen Psaki, The White House (Jul. 16, 2021) https://www.whitehouse.gov/briefing-room/press-briefings/2021/07/16/press-briefing-by-press-secretary-jen-psaki-july-16-2021 (stating that the Biden Administration was “in regular touch with social media platforms” regarding “the number of people who are dying around the country because they’re getting misinformation”). 

^[3] See Alina Selyukh, What Does It Take To Get Permanently Banned From Twitter?, NPR (Jul. 20, 2016) https://www.npr.org/sections/alltechconsidered/2016/07/20/486738705/what-does-it-take-to-get-permanently-banned-from-twitter (discussing the permanent nature of these bans and identifying other public figures who have been subject to them). 

^[4] Complaint for Damages and Injunctive Relief at *1, Alex BERENSON, Plaintiff, v. TWITTER, INC., Defendant., 2021 WL 6058255 (N.D. Cal. Dec. 20, 2021).

^[5] Id.

^[6] Susannah Luthi, Twitter loses bid to toss Alex Berenson lawsuit, Politico (Apr. 30, 2022) https://www.politico.com/news/2022/04/30/twitter-loses-bid-to-toss-alex-berenson-lawsuit-00029131; see also Berenson v. Twitter, Inc., 3:21CV09818 (filed 7/11/2022) (NOTICE of Voluntary Dismissal (Joint) With Prejudice by Alex Berenson). 

^[7] See, e.g., Tom Fitton (@TomFitton), Twitter (Jul. 7, 2022, 11:16 AM), https://twitter.com/TomFitton (Tweeting that “[t]he restoration of @AlexBerenson ‘s account by @Twitter is a significant development in the fight to protect free speech online”). 

^[8] The Joe Rogan Experience, #1864 – Alex Berenson, Spotify, at 00:25 (Aug. 26, 2022) https://open.spotify.com/episode/5xCeuH6zui8r27ImExB6K6. 

^[9] Berenson v. Twitter, Inc., No. C 21-09818 WHA, 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022). 

^[10] Id. at *2-3. 

^[11] 47 U.S.C. § 230(c)(2)(A). For more on Section 230, see generally Jeff Kosseff, The Twenty-Six Words That Created the Internet (Cornell University Press, 2019).

^[12] Berenson, 2022 WL 1289049 at *2. 

^[13] Id.

^[14] Id. at *3.

^[15] Id.

^[16] See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009).

^[17] Berenson, 2022 WL 1289049 at *2 (quoting Barnes, 570 F.3d at 1107).

^[18] Twitter Terms of Service, https://twitter.com/en/tos (updated June 10, 2022).

^[19] Berenson, 2022 WL 1289049 at *2  (internal citation omitted).

Amanda Thompson

In the United States legal system, animals have traditionally been viewed as property, lacking legal rights and the ability to redress injustices in court. As evidenced through philosophy, religion, and history, humans have viewed animals as objects that exist solely for their use and benefit. Yet, animals, like humans, are intelligent, sentient creatures with the capacity to feel emotions like pain and suffering. The United States should adapt with a progressing world and recognize animals as legal persons, rather than property. 

Personhood is a “legal designation indicating that an entity has the capacity for rights or responsibilities.”^[1]Legal personhood has been granted beyond humans to other entities such as corporations, ships, and government entities where lawyers are able to argue on their behalf.^[2] As society progressed, groups such as children, enslaved individuals, and women were reclassified from legal “property” to legal “persons.”^[3] Globally, entities such as national parks, rivers, plants, and trees are considered legal persons. ^[4] Environmental advocates argue that natural objects should have legal rights that are independent of the rights of humans.^[5] Elevating elements of nature to legal persons gives advocates the ability to protect ecological wellbeing and biodiversity from exploitation. If natural entities such as trees and rivers are named as legal persons, then animals should be afforded the same—or even greater—legal protection. 

A recent federal district court case involving descendants of hippos once owned by Pablo Escobar is a significant victory for the legal personhood of animals. After Escobar’s death, the Colombian government left his four hippos on his property because it was unable to transport them to a suitable environment.^[6] The hippos subsequently escaped, relocated to the Magdalena River, and reproduced at a rate so rapid that some ecologists consider it to be unsustainable.^[7] The Colombian government planned to slaughter 100 of these hippos due to damage to the local ecosystem and hippo attacks on local fisherman.^[8] The Animal Legal Defense Fund (“ALDF”) sued the Colombian government on behalf of the community of hippos living in Magdalena River in an effort to save the hippos from execution.^[9] ALDF sought an order to provide a contraceptive called porcine zona pellucida (“PZP”) to the hippos as a non-lethal method of preventing them from overpopulating.^[10]

In Colombia, animals have standing to bring lawsuits to protect their interests.^[11] ALDF wanted to depose two wildlife experts with knowledge in nonsurgical sterilization who reside in Ohio, so they filed an application pursuant to 28 U.S.C. § 1782.^[12] The statute allows anyone who is an “interested person” in a foreign litigation to request permission from a federal court to take depositions in the United States in support of their foreign case.^[13] The U.S. Supreme Court has recognized that someone who is a party to a foreign case “no doubt” qualifies as an “interested person” under this statute.^[14] As a result, the U.S. District Court for the Southern District of Ohio held that the hippos were “interested persons” in this case, recognizing animals as legal persons for the first time in a federal court ^[15] and signaling a potential pathway for animals to get their paws through a courtroom door. 

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^[1] Rachel Fobar, A Person or a Thing? Inside the Fight for Animal Personhood, Nat’l Geographic (Aug. 4, 2021), https://www.nationalgeographic.com/animals/article/inside-the-ongoing-fight-for-happys-freedom.

^[2] Stephen I. Burr, Toward Legal Rights for Animals, 4 Envtl. Affairs 205, 228 (1975).

^[3] Tess Vickery, A Taxonomy of Class Actions for Animals in the United States, 26 Animal L. 41, 44 (2020).

^[4] Gwendolyn J. Gordon, Environmental Personhood, 43 Columbia Journal of Envtl. Law 49, 50–52 (2018) (emphasizing the advancements made in the environmental personhood in locations as varied as Bolivia, Ecuador, India, and New Zealand).

^[5] Christopher D. Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects (1972); see also Sierra Club v. Morton, 405 U.S. 727, 742 (1972) (Douglas, J., dissenting) (“The river as plaintiff speaks for the ecological unit of life that is part of it. Those people who have a meaningful relation to that body of water – whether it be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the values which the river represents and which are threatened with destruction.”).

^[6] Animals Recognized as Legal Persons for the First Time in U.S. Court, Animal Legal Def. Fund (Oct. 20, 2021), https://aldf.org/article/animals-recognized-as-legal-persons-for-the-first-time-in-u-s-court/.

^[7] Id.

^[8] Id.

^[9] Community of Hippopotamuses Living in the Magdalena River v. Ministerio De Ambiente y Desarrollo Sostenible et al., No. 1:21mc23 (S.D. Ohio, Oct. 15, 2021).

^[10] Ex Parte Application of Community of Hippopotamuses Living in the Magdalena River for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, 1, No. 1:21mc23 (S.D. Ohio, Oct. 15, 2021).

^[11] Animals Recognized as Legal Persons for the First Time in U.S. Court, supra note 6.

^[12] See generally Ex Parte Application of Community of Hippopotamuses Living in the Magdalena River for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings No. 1:21mc23 (S.D. Ohio, Oct. 15, 2021).

^[13] Animals Recognized as Legal Persons for the First Time in U.S. Court, supra note 6.

^[14] Id.

^[15] Order Granting Ex Parte Application of Community of Hippopotamuses Living in the Magdalena River for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings, No. 1:21mc23 (S.D. Ohio, Oct. 15, 2021).

Aidan C. Williams

The lives of Virginia’s last two death-row inmates were recently saved by the legal system—but not quite in the typical way for Southern states. With the stroke of a pen, Governor Ralph Northam signed Senate Bill 1165 at Greensville Correctional Center,[1] ending capital punishment altogether in the state that has executed the most prisoners since America’s colonial days.[2] The new law also commuted the sentences of the two aforementioned inmates, Anthony Juniper and Thomas Porter.[3]

As opponents of the death penalty note, capital punishment is faulty for a number of reasons. The penalty is not widely effective at deterring violent crime and remains financially costly.[4]  Yet, worst of all, capital punishment has been unfairly applied across racial lines, which hopefully explains its decreasing support in public opinion.[5]

Recognizing these historic errors, the Virginia General Assembly passed Senate Bill 1165, abolishing the state’s death penalty. Many in the national news media point to the new Democratic majorities in the state legislature as the reason for the Bill’s passage,[6] which is, of course, the reason the Bill ultimately arrived at the Governor’s desk. Interestingly, however, Senate Bill 1165 was first introduced by a Democrat and Republican duo, Virginia state Senators Scott Surovell and Bill Stanley.[7] Eventually though, the legislation was backed by almost no Republicans—including an abstention from its original G.O.P. co-patron, Senator Stanley, himself.[8]

The media has also rightfully pointed out that Virginia is the first Southern state to abolish the death penalty, but will the legislative strategy that worked in the Commonwealth carry the day in other Southern states?

When Senate Bill 1165 was introduced, Senator Stanley’s decision to join the effort to end capital punishment in Virginia was encouraging. After all, having a conservative Republican on board would not only help the legislation advance in the Commonwealth, but would also serve as a model for other Southern states that do not have Democratic majorities in their legislatures. However, Senator Stanley’s ultimate abstention came as a result of Democrats’ inability to accept a proposal that would prohibit parole eligibility following commutation for those convicted of murder.[9] This failure to compromise ultimately led to Senate Bill 1165 being an almost exclusively Democratic legislative achievement—but at what regional cost?

Modern use of the death penalty is still most pervasive in the South,[10] but it is only likely to be abolished there with bipartisan legislative support. Since 1976, the South has executed 1250 people, compared to 191 in the Midwest, 87 in the West, 4 in the Northeast, and 570 in Texas.[11] Yet, apart from Virginia, state legislatures in the South are all controlled by Republicans.[12] Thus, if capital punishment opponents want to secure more legislative victories, they are going to have to either flip legislative bodies altogether (a daunting task), or work with Republicans like Senator Stanley to get it done. As Virginia’s recent story demonstrates, abolishing the death penalty with G.O.P. support might mean compromise, but at the same time, it could coalesce a broader, bipartisan coalition against the faulty practice. After all, not every Southern state has seen the type of partisan shifting that Virginia has in recent years.

Republican Senator Stanley, a defense lawyer, stated his opposition to capital punishment is rooted in his pro-life stance and his qualms with the “irrefutable proof that our criminal justice system has sentenced innocent people to die.”[13] He certainly cannot be the only G.O.P. legislator in the South who feels this way.

Death penalty opponents have every reason to celebrate Virginia’s recent abolition of capital punishment—apart from Texas, the Commonwealth has executed more inmates than any other state in modern United States history.[14] However, if that success is to extend more broadly across the South, perhaps future legislative vehicles to abolish the death penalty should start—and end—with wider bipartisan support.

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[1] Denise Lavoie, Virginia with 2nd-Most Executions, Outlaws Death Penalty, Associated Press (Mar. 24, 2021), https://apnews.com/article/virginia-to-end-death-penalty-ralph-northam-0a5b51f2e4458a0600bce6b75e6389bd.

[2] Peter Dujardin, Since 1608, Virginia has Executed More People Than Any Other State. It May Now Abolish the Death Penalty, The Virginian-Pilot (Jan. 31, 2021), https://www.pilotonline.com/news/crime/dp-nw-virginia-death-penalty-20210131-gs3b423zcjchddnfzpmfgxuoea-story.html.

[3] Lavoie, supra note 1.

[4] Id.

[5] Facts About the Death Penalty, Death Penalty Info. Ctr., https://cdn2.assets-servd.host/alike-kingfisher/production/documents/pdf/FactSheet.pdf (last updated Mar. 24, 2021).

[6] See, e.g., Lavoie, supra note 1.

[7] S.B. 1165, 2021 Sess. (Va. 2021).

[8] SB 1165 Death Penalty; Abolition of Current Penalty, Va.’s Legis. Info. Sys., https://lis.virginia.gov/cgi-bin/legp604.exe?212+sum+SB1165 (last visited Mar. 30, 2021).

[9] Whittney Evans & David Streever, Lawmakers in Virginia Vote to Abolish the Death Penalty, NPR (Feb. 5, 2021, 3:33 PM), https://www.npr.org/2021/02/05/964514242/lawmakers-in-virginia-vote-to-abolish-the-death-penalty.

[10] See Facts About the Death Penalty, supra note 5.

[11] Id.

[12] State Partisan Composition, Nat’l Conference of State Legislatures, https://www.ncsl.org/research/about-state-legislatures/partisan-composition.aspx (last updated Mar. 16, 2021).

[13] Bill Stanley, Stanley: A Conservative Viewpoint on Ending the Death Penalty, The Roanoke Times (Jan. 31, 2021), https://roanoke.com/opinion/columnists/stanley-a-conservative-viewpoint-on-ending-the-death-penalty/article_4265ef26-60bd-11eb-9160-ff8b81dce4c8.html.

[14] See Lavoie, supra note 1.

Lauren Green

A mid-February 2021 winter storm left dozens of Texans dead, millions without power, and nearly 15 million with water issues. The hazardous weather also disrupted medical care and caused widespread property damage.[1] As a result, Texas lawmakers have lobbed criticism at the Public Utility Commission of Texas (“PUC”), the Electric Reliability Council of Texas (“ERCOT”), and the agencies’ board members.[2] On March 3, 2021, ERCOT’s board of directors announced it will terminate its president and CEO.[3] As of this post, seven ERCOT board members have resigned and the sole remaining commissioner of the PUC resigned on March 17, 2021.[4]

Despite Texas lawmakers pointing fingers, ERCOT is ultimately subject to oversight by the PUC and the Texas Legislature.[5] Additionally, Governor Greg Abbott appointed the commissioners of the PUC.[6] The winter storm “exposed problems lawmakers failed to address in previous legislative sessions and showed the vulnerabilities of the state’s natural gas system.”[7] As such, ERCOT is facing a mountain of litigation filed on behalf of Texans.[8] This post discusses those lawsuits and the hurdles plaintiffs may face.

The main hurdle these plaintiffs face is sovereign immunity. In Texas, sovereign immunity deprives a court of subject matter jurisdiction unless the state consents to suit by statute or by legislative resolution.[9] Legislative consent for suit or any other sovereign immunity waiver must be “by clear and unambiguous language.”[10] Because the PUC is a state administrative agency,[11] the agency and its board are likely entitled to sovereign and qualified immunity, and thus shielded from liability in most, if not all, cases related to the winter storm. Since ERCOT is a private corporation, it generally would not be entitled to sovereign immunity.  

However, in September 2020, the Supreme Court of Texas heard oral arguments to determine whether ERCOT can claim governmental immunity despite being organized as a private corporation.[12] While that lawsuit pertains to fraud and breach of fiduciary duty,[13] the Texas Supreme Court’s decision on the immunity issue determines Texans’ ability to bring lawsuits against the energy provider. The Supreme Court is facing pressure to render a decision in light of the lawsuits from the aftermath of the winter storm—a potentially positive development for plaintiffs. Further, there is no guarantee the Texas Supreme Court will affirm the appellate court.

The Texas Court of Appeals for the Fifth District upheld ERCOT’s claim to sovereign immunity.[14] ERCOT’s argument for immunity is that despite the fact that it is not an official government agency, it is a critical part of the electric industry. Further, the Texas Legislature has  “decreed that the PUC, not the courts, decides when and how much money ERCOT spends, how it operates, and whether it has underperformed or abused its power.”[15] ERCOT argued that if the corporation has to divert funds to pay judgments, the Texas Legislature’s mission to protect the electric market and its consumers would be thwarted, leaving Texas and its power grid without central management.[16]

If the Texas Supreme Court decides to uphold ERCOT’s sovereign immunity, the plaintiff’s claims are not doomed. Statutes and regulations may restrict that immunity, allowing the lawsuits to go forward.[17]  However, if that immunity is not restricted, plaintiffs may still bring lawsuits against other parties like utility companies, power plants, and windmill manufacturers.[18] Torts attorneys expect lawsuits against ERCOT in the thousands and there is potential for class actions.[19] Lawyers also expect to see a wide array of claims including wrongful death, severe personal injury, property damage such as busted water pipes, and business interruption cases.[20] While the Supreme Court affirming ERCOT’s immunity is not ideal for plaintiffs, the ruling would not put an end to litigation related to the storm. These lawsuits will continue to develop in the coming months, and Texas attorneys and litigants should pay close attention to the state’s high court.

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[1] Mitchell Ferman, Winter storm could cost Texas more money than any disaster in state history, Texas Tribune (Feb. 25, 2021, 4:00 AM), https://www.texastribune.org/2021/02/25/texas-winter-storm-cost-budget; Clark Mindock, ERCOT Hit With $100M Suit Over Outage Related Death, Law360 (Mar. 1, 2021, 9:49 AM), https://www.law360.com/articles/1357330/ercot-hit-with-100m-suit-over-outage-related-death.

[2] Mitchell Ferman, Another ERCOT board member resigns as lawmakers criticize power grid operator for massive electricity outages, Texas Tribune (Feb. 26, 2021, 1:00 PM), https://www.texastribune.org/2021/02/26/ercot-resignation-power-outages.

[3] ERCOT Chief Canned In Wake Of Texas Winter Storm Outages, Law360 (Mar. 3, 2021, 11:50 PM), https://www.law360.com/texas/articles/1361248/ercot-chief-canned-in-wake-of-texas-winter-storm-outages?nl_pk=d4d1b6d1-e90e-457b-b8c8-3714b4237afa&utm_source=newsletter&utm_medium=email&utm_campaign=texas.

[4] Erin Douglas and Patrick Svitek, Public Utility Commission chair resigns after Texas officials criticize management of power outages, Texas Tribune (Mar. 1, 2021, 5:34 AM), https://www.texastribune.org/2021/03/01/texas-power-outages-public-utility-commission-resigns/; Katie Buehler, Remaining Texas Utility Commissioner Resigns Amid Criticism, Law360 (Mar. 17, 2021, 9:16 PM), https://www.law360.com/texas/articles/1365977/remaining-texas-utility-commissioner-resigns-amid-criticism?nl_pk=d4d1b6d1-e90e-457b-b8c8-3714b4237afa&utm_source=newsletter&utm_medium=email&utm_campaign=texas..

[5] News Release, ERCOT Board of Directors elects new Chair and Vice-Chair (Feb. 9, 2021), http://www.ercot.com/news/releases/show/224860.

[6] Douglas and Svitek, supra note 4.

[7] Ferman, supra note 1.

[8] Mindock, supra note 1.

[9] Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 223 (Tex. 2004); Missouri Pac. R. Co. v. Brownsville Nav. Dist., 453 S.W.2d 812, 814 (Tex. 1970).

[10] Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 177 (Tex. 1994); Duhart v. State, 610 S.W.2d 740, 742 (Tex. 1980).

[11]  See Tex. Admin. Code, Title 16, Part. II. This is also why plaintiffs’ lawsuits against individual lawmakers would typically fail; lawmakers are entitled to official/qualified immunity when acting within the scope of their lawmaking capacities. See Joshua A. Skinner et al., Governmental Immunity, Individual Rights & Responsibilities Program 6 (June 10, 2010).

[12] Katie Buehler, Texas Justices Question Grid Operator’s Immunity Status, Law360 (Sept. 15, 2020, 7:58 PM), https://www.law360.com/articles/1309857/texas-justices-question-grid-operator-s-immunity-status.

[13] Paul Takahashi, Texas Supreme Court to decide if ERCOT is immune from storm lawsuits, Houston Chronicle (Feb. 22, 2021, 11:05 AM), https://www.houstonchronicle.com/business/energy/article/Texas-Supreme-Court-to-decide-whether-ERCOT-is-15968323.php.

[14] Elec. Reliability Council of Tex., Inc. v. Panda Power Generation Infrastructure Fund, LLC, 552 S.W.3d 297, 319 (Tex.App.—Dallas 2018).

[15] Id. at 314.

[16] Id.

[17] Y. Peter Kang, ERCOT Ruling Won’t Stop Suits Over Texas Power Outages, Law360 (Feb. 26, 2021, 5:20 PM), https://www.law360.com/texas/articles/1359223/ercot-ruling-won-t-stop-suits-over-texas-power-outages.

[18] Id.

[19] Kang, supra note 17.

[20] Id.