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.

Grace Ketron

COVID-19 has created a new world filled with cloth masks and hand sanitizer. In March, conversations began revolving around the availability of hospital beds, respirators, and toilet paper. As researchers persistently combated this new strain of coronavirus, the world held its breath, waiting on the edge of its seat for the release of an accessible and affordable COVID-19 vaccine. Now, the moment the world has waited for is here: potential vaccines are ready for FDA approval, with a vaccine created by Pfizer leading the charge.

Typically, American vaccines take years or even decades to effectively develop. With COVID-19 cases still rising, the FDA has recognized the importance of developing a vaccine as quickly and safely as possible. The FDA Commissioner and the Director of the Center for Biologics Evaluation and Research explained, “We are committed to expediting the development of COVID-19 vaccines, but not at the expense of sound science and decision making. We will not jeopardize the public’s trust in our science-based, independent review of these or any vaccines. There’s too much at stake.”[1] To that end, federal agencies, like the CDC and HHS, created Operation Warp Speed“to produce and deliver 300 million doses of safe and effective” COVID-19 vaccines to Americans by January 2021.[2] In order for Pfizer’s vaccine to become widely accessible, three thingsmust happen in the next few weeks: (1) the FDA must grant an Emergency Use Authorization; (2) state governments must determine who will receive the vaccine first; and (3) the federal government must determine whether the public will pay for the vaccines.

First, the FDA must grant Emergency Use Authorization for Pfizer’s vaccine. The federal government began regulating American drugs in 1902 with the Biologics Control Act.[3] By establishing what later became the National Institutes of Health, the federal government gave itself the power to control how vaccines were created. In 1972, the FDA assumed responsibility for controlling vaccine testing in the United States. Today, Section 564 of the Federal Food, Drug, and Cosmetic Act (FD&C Act) grants the FDA Commissioner the authority to enact Emergency Use Authorizations that “allow unapproved medical products or unapproved uses of approved medical products” during national health emergencies.[4] In October, the FDA Commissioner determined that Emergency Use Authorizations should apply during the COVID-19 pandemic. Now, if and when the FDA Commissioner initiates an Emergency Use Authorization in the next few weeks, Pfizer can begin sending a small number of doses to hospitals and pharmacies around the country. The FDA plans to release its decision about Pfizer’s vaccine on December 10.[5]

Second, although approving vaccines during emergency health crises is an issue for federal agencies, state governments decide which Americans will receive these vaccinations first.[6] Pfizer estimated that it would make 50 million doses of its vaccine during 2020, but Pfizer has locations in both Michigan and Belgium.[7] Because Pfizer plans to split vaccines between countries, Americans likely have access to 25 million vaccine doses. While this initially sounds like quite an impressive number, one full vaccination requires two doses per person, so that leaves 12.5 million vaccines available for Americans during the remainder of 2020. To help states decide who to vaccinate first, the National Academies of Science, Engineering, and Medicine guides the Advisory Committee on Immunization Practices.[8]  In turn, the Advisory Committee speaks with the CDC, who then discusses options with state officials. Hospital workers and immunocompromised individuals will likely be the first to receive the COVID-19 vaccine.[9]

Third, the federal government must determine whether the public will pay to be vaccinated. While Americans are often required to pay for vaccines not covered by insurance, such as flu shots, the current national pandemic has altered cost analyses for COVID-19 vaccines. According to the CDC’s website, COVID-19 vaccines will be free for all Americans, although vaccine providers retain the ability to charge administration fees.[10] Essentially, the vaccines themselves are free to the public, but individual vaccine providers may charge additional fees that will be paid by insurance companies or the Health Resources and Services Administration’s Provider Relief Fund. By predominantly using taxes to fund vaccine dispersal, the federal government can ensure that everyone has access to the vaccine over the next few years. Otherwise, many Americans affected by COVID-19 would be unable to pay for an expensive vaccine.

In sum, federal agencies like the CDC and HHS are facing unprecedented challenges. They constantly engage in precarious balancing acts that simultaneously aim to save lives, reduce healthcare costs, and develop effective vaccines as quickly as possible. As specific COVID-19 vaccines receive Emergency Use Authorization from the FDA, federal agencies must offer widespread vaccinations without compromising drug testing mechanisms in place since 1902. New testing challenges will arise as federal agencies work with other countries that have developed vaccines. As we continue fighting COVID-19, federal agencies must determine whether foreign companies will be held to the same testing standards as American companies. Although Pfizer’s request for Emergency Use Authorization is a step in the right direction, stringent vaccine protocols will ultimately help Americans combat COVID-19.

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[1] COVID-19 Vaccines, FDA (last updated Nov. 20, 2020), https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/covid-19-vaccines.

[2] Fact Sheet: Explaining Operation Warp Speed, HHS (last updated Nov. 20, 2020),  https://www.hhs.gov/coronavirus/explaining-operation-warp-speed/index.html#:~:text=Operation%20Warp%20Speed’s%20goal%20is,and%20diagnostics%20(collectively%20known%20as.

[3] Linda Bren, The Road to the Biotech Revolution: Highlights of 100 Years of Biologics Regulation, FDA Consumer Magazine, Centennial Edition (Jan.-Feb. 2006), https://www.fda.gov/files/about%20fda/published/The-Road-to-the-Biotech-Revolution–Highlights-of-100-Years-of-Biologics-Regulation.pdf.

[4] Emergency Use Authorization, FDA (last updated Nov. 23, 2020), https://www.fda.gov/emergency-preparedness-and-response/mcm-legal-regulatory-and-policy-framework/emergency-use-authorization.

[5] Coronavirus (COVID-19) Update: FDA Announces Advisory Committee Meeting to Discuss COVID-19 Vaccine Candidate, FDA (last updated Nov. 20, 2020), https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-update-fda-announces-advisory-committee-meeting-discuss-covid-19-vaccine.

[6] Rebecca Robbins and David Gelles, How Pfizer Plans to Distribute Its Vaccine (It’s Complicated), New York Times (last updated Nov. 20, 2020), https://www.nytimes.com/2020/11/12/business/pfizer-covid-vaccine-coronavirus.html.

[7] Id.

[8] 8 Things to Know about Vaccine Planning, CDC (last updated Nov. 20, 2020), https://www.cdc.gov/coronavirus/2019-ncov/vaccines/8-things.html.

[9] Robbins & Gelles, supra note 6.  

[10] 8 Things to Know about Vaccine Planning, supra note 8.