The Conservative Case for the Judiciary Accountability Act

*Aliza Shatzman

I. INTRODUCTION

The judiciary is an unaccountable workplace where some judges abuse their positions of power, mistreat their employees with impunity, and act as if they are answerable to no one. More judges engage in misconduct, including gender discrimination, harassment, and retaliation, than the legal community cares to admit. Fueling this injustice, the Third Branch is exempt from Title VII of the Civil Rights Act of 1964, the landmark antidiscrimination law that protects employees from gender discrimination, harassment, and retaliation in the workplace.1 42 U.S.C. §§ 2000e–2000e–17. This exemption distinguishes the judiciary from Congress,2 See generally Congressional Accountability Act, Pub. L. 104-1, 109 Stat. 3 (1995). the Executive Branch,3 See generally Presidential and Executive Office Accountability Act, Pub. L. 104-331 (1995).  and most private businesses, whose employees are all protected by antidiscrimination laws.4 See generally, Small Business Requirements, U.S. EQUAL EMP. OPPORTUNITY COMM’N, https://www.eeoc.gov/employers/small-business/small-business-requirements [https://perma.cc/3A3D-K44M]. Title VII applies to employers with at least 15 employees. 42 U.S.C. § 2000e(b).

This year, the House and Senate Judiciary Committees are considering a bill, the Judiciary Accountability Act (JAA) (H.R. 4827/S. 2553), that would finally extend Title VII protections to the judiciary.5 See Press Release, Chairman Jerrold Nadler, House Comm. on the Judiciary, Nadler & Johnson Introduce Bipartisan, Bicameral Legislation to Hold Judiciary Accountable to Workers (July 29, 2021), https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=4685 [https://perma.cc/735K-C5D2]; Press Release, Congresswoman Jackie Speier, U.S. House of Representatives, Rep Speier Joins Rep Johnson in Introduction of Bipartisan, Bicameral Legislation to Hold Judiciary Accountable to Workers (July 29, 2021),  https://speier.house.gov/press-releases?id=40231C86-7099-4FE4-8F1D-2946AA8F8335 [https://perma.cc/FEW9-YAQG]. Judicial accountability is, or should be, a bipartisan issue. Both Democratic6 See Catie Edmondson, Former Clerk Alleges Sexual Harassment by Appellate Judge, N.Y. TIMES (Feb. 13, 2020), https://www.nytimes.com/2020/02/13/us/politics/judge-reinhardt-sexual-harassment.html [https://perma.cc/YL72-FPB2]. and Republican7 See Matt Zapotosky, Prominent Appeals Court Judge Alex Kozinski Accused of Sexual Misconduct, Wash. Post (Dec. 8, 2017), https://www.washingtonpost.com/world/national-security/prominent-appeals-court-judge-alex-kozinski-accused-of-sexual-misconduct/2017/12/08/1763e2b8-d913-11e7-a841-2066faf731ef_story.html [https://perma.cc/4ZB9-KRUH]. judicial appointees mistreat their law clerks. Furthermore, both liberal and conservative clerks experience harassment and retaliation from the most powerful members of the legal profession—judges—with limited recourse available.8 See Brief for Named and Unnamed Current and Former Employees of the Federal Judiciary Who Were Subjected to or Witnessed Misconduct as Amici Curiae in Support of Appellant Jane Roe, at 35–39, Strickland v. United States, 32 F.4th 311 (4th Cir. 2022) (No. 21-1346) [hereinafter Jane Roe Amicus Brief], https://www.keker.com/Templates/media/files/2021_8_26%20Jane%20Roe%20Stories%20Brief%20(filed).pdf [https://perma.cc/2T9Z-7ZX4] (explaining that Employee Dispute Resolution, or EDR, is the sole option for mistreated federal law clerks, and that remedies under EDR are inadequate). Troublingly, as of August 2022, the JAA currently has only one Republican co-sponsor in the House9 See Congress.gov, H.R. 4827 – Judiciary Accountability Act of 2021, Cosponsors, https://www.congress.gov/bill/117th-congress/house-bill/4827. and no Republican co-sponsors in the Senate.10 See Congress.gov, S. 2553 – Judiciary Accountability Act of 2021, Cosponsors, https://www.congress.gov/bill/117th-congress/senate-bill/2553/cosponsors. [https://perma.cc/5TTE-ABEP].

This article argues that Republican lawmakers should support the JAA because it promotes the conservative principles of curbing government abuses of power and enforcing the rule of law.11 Some conservative organizations, including the Institute for Justice, argue that giving judges immunity from suit prevents victims of harassment from holding their abusers accountable.  See Project on Immunity and Accountability, INST. FOR JUST. https://ij.org/issues/project-on-immunity-and-accountability/ [https://perma.cc/RE98-TCHD]; see also Short Circuit Podcast, Clerks and Harassment, Inst. For just, (June 10, 2022), https://ij.org/podcasts/short-circuit/short-circuit-223-clerks-and-harassment/ [https://perma.cc/RE98-TCHD] (arguing that judges should not be immune from suit). The JAA would rein in unaccountable judges who abuse their positions of power and act as if they are above the law. Additionally, the JAA would end the judiciary’s Title VII immunity, checking judicial behavior and holding judges to the same standards as members of the other two branches of government—including congressmen and chief executives—as well as employers in private businesses. Furthermore, the JAA would ensure that the next generation of attorneys—from the most conservative to the most liberal—are not driven out of the profession due to harassment and retaliation.12 See, e.g., Part IV, detailing the author’s personal experience with gender discrimination, harassment, and retaliation during and after her clerkship, which ultimately drove her from the legal profession. The author’s experience is not rare. Documentation on file with the author.

In this article, I first discuss the scope of judicial misconduct, outline the Judiciary Accountability Act, and use my personal experience with harassment and retaliation by a former DC Superior Court judge to underscore why this legislation is so urgently necessary. Then, I explain why conservatives should support the JAA, explore conservative arguments against the JAA, and engage with some alternatives to the JAA, concluding that the JAA is the best path forward.

II. SCOPE OF THE PROBLEM: JUDICIAL MISCONDUCT IS PERVASIVE

Misconduct is pervasive and unaddressed in the federal courts.13 his article focuses on federal courts, because those would be affected by the JAA. However, state courts— where thousands of judiciary employees—including law clerks—go to work every day— are also in need of heightened protections. Even in state courts, where law clerks can sue their harassers, they rarely feel empowered to do so. Author conversations with law clerks, subject to agreement that the interviewees’ statements were not for attribution. Several of the citations in this article are to conversations between the author and judges, law clerks, and congressional staffers who were granted anonymity to allow them to speak freely without threat of reprisal. Date ranges for these conversations have been provided where possible without identifying the interviewees. Documentation for these conversations is on file with the author. This is not an argument against the JAA, rather, this indicates that larger cultural change in the legal community is also necessary to go from a culture of deifying judges and disbelieving law clerks, to one in which more law clerks in both state and federal courts feel empowered to take legal action against their harassers. For two rare examples of state court clerks who did pursue legal action against the judges who harassed them, see Marquez v. Hoffman, No. 18-CV-7315(ALC), 2021 WL 1226981 (S.D.N.Y. Mar. 31, 2021) (dismissing some but not all of the law clerk’s claims under § 1983, New York State Human Rights Law, and New York City Human Rights Law) and Spence v. New Jersey, No. 119CV21490NLHKMW, 2021 WL 1345872 (D.N.J. Apr. 12, 2021) (dismissing some but not all of the law clerk’s claims under Title VII and the New Jersey Law Against Discrimination). Troublingly, judiciary leadership, including the Judicial Conference of the United States and the Administrative Office of the U.S. Courts, have, until recently, repeatedly refused to conduct a widescale workplace culture assessment, making it difficult to measure the scope of the problem.14 See Ann E. Marimow, Judges accused of sex discrimination, bullying, internal survey shows, WASH. POST. (May 20, 2022, 12:23 PM), https://www.washingtonpost.com/politics/2022/05/16/judges-accused-discrimination-bullying/ [https://perma.cc/73VZ-DPUL]. Troublingly, the D.C. Circuit seems more concerned about identifying the source of the “leak,” than about what the leaked survey data show—that harassment and retaliation are pervasive and unaddressed in the D.C. Circuit.  See also Ann E. Marimow, Court to investigate leaked survey alleging misconduct among judges, WASH. POST (May 20, 2022, 5:00 AM), https://www.washingtonpost.com/politics/2022/05/20/dc-court-survey-leak-investigation/ [https://perma.cc/SDD8-REA2]; Ann E. Marimow, Federal courts drop survey question about workplace misconduct, but not before judges’ staffers said they’d witnessed such problems, WASH. POST (Jan. 14, 2022, 12:02 PM), https://www.washingtonpost.com/politics/courts_law/federal-court-workplace-misconduct/2022/01/13/1c4a0b6e-7481-11ec-bc13-18891499c514_story.html [https://perma.cc/T5E4-HJ43] (indicating that thirty-four out of forty respondents surveyed, reported observing inappropriate behavior). After several years of calls for reform, the federal judiciary announced in September 2022 that they would conduct workplace assessments; however, they have not committed to report the results publicly, rendering this move insufficient at best, and toothless at worst.  See Nate Raymond, Federal judiciary to survey employees nationally on harassment, misconduct, REUTERS (Sept. 20, 2022, 5:22 PM), https://www.reuters.com/legal/government/federal-judiciary-survey-employees-nationally-harassment-misconduct-2022-09-20/. Judiciary leadership insists that harassment and retaliation are not pervasive problems within the federal courts.15 See Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change: Hearing Before the Subcomm. on Cts., Intell. Prop., and the Internet of the H. Comm. on the Judiciary, 117th Cong. (March 17, 2022) (Combined Written Statement of the Honorable M. Margaret McKeown, United States Circuit Judge for the Ninth Circuit, and the Honorable Julie A. Robinson, United States District Judge for the District of Kansas), https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-Wstate-RobinsonJ-20220317.pdf [https://perma.cc/G72M-DZJA]; see also CHIEF JUSTICE JOHN G. ROBERTS, JR., U.S. SUP. CT., 2021 YEAR-END REPORT ON THE FEDERAL JUDICIARY 4–5 (2021), https://www.supremecourt.gov/publicinfo/year-end/2021year-endreport.pdf [https://perma.cc/Y6AB-EM2D]. However, judiciary employees who have experienced or witnessed mistreatment know differently.16 See infra Part IV, detailing the author’s personal experience with gender discrimination, harassment, and retaliation during and after her clerkship.

In 2018, U.S. Courts Administrative Officer James Duff proudly proclaimed that, in some years, including 2016, there were “zero” complaints filed by law clerks against judges.17 See Confronting Sexual Harassment and Other Workplace Misconduct in the Federal Judiciary: Hearing Before the S. Comm. on the Judiciary, 115th Cong. (June 13, 2018) [hereinafter Confronting Sexual Harassment Hearing Video], https://www.judiciary.senate.gov/meetings/confronting-sexual-harassment-and-other-workplace-misconduct-in-the-federal-judiciary [https://perma.cc/6W5C-ALU2].  However, the judiciary only created a separate “judicial employees” category for its judicial complaint data in 2019, so it would have been nearly impossible to assess the number of complaints filed by law clerks.18 See U.S. Cts., Table S-22: Report of Complaints Commenced and Action Taken Under Authority of 28 U.S.C. 351-364 During the Period from 10/1/2019 to 9/30/2020 (2021), https://www.uscourts.gov/sites/default/files/jb_s22_0930.2020.pdf [https://perma.cc/X2X5-QB3J].  Furthermore, the dearth of complaints by law clerks against judges is likely due in part to the lack of channels for reporting misconduct.19 See Letter from Olivia Warren to the House Judiciary Committee (Mar. 17, 2022), available at https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-20220317-SD002.pdf [https://perma.cc/Y89F-79UV] (underscoring that the judiciary’s internal process offers an inadequate avenue for law clerks to report mistreatment).

Between October 1, 2020 and September 30, 2021, there were only 11 formal complaints filed by judicial employees against judges under the Judicial Conduct and Disability Act,20 See supra, note 18. https://www.uscourts.gov/sites/default/files/jb_s22_0930.2020.pdf [https://perma.cc/X2X5-QB3J]. which is the formal complaint process for the federal judiciary.21 See Judicial Conduct & Disability, U.S. CTS., https://www.uscourts.gov/judges-judgeships/judicial-conduct-disability [https://perma.cc/BJ6J-PSF5]. However, according to a 2021 internal D.C. Circuit survey that was leaked to The Washington Post, fifty-seven judicial employees in that circuit experienced “problematic behavior” like gender discrimination, harassment, retaliation, and bullying, and an additional 134 either witnessed or heard about such misconduct.22 See Ann E. Marimow, Judges accused of sex discrimination, bullying, internal survey shows, WASH. POST. https://www.washingtonpost.com/politics/2022/05/16/judges-accused-discrimination-bullying/ (May 20, 2022, 12:23 PM), [https://perma.cc/RY6F-W3RS]. Troublingly, the D.C. Circuit seems more concerned about identifying the source of the “leak,” than what the leaked survey data show—that harassment and retaliation are pervasive and unaddressed in the D.C. Circuit. See Ann E. Marimow, Court to investigate leaked survey alleging misconduct among judges, WASH. POST (May 20, 2022, 5:00 AM), https://www.washingtonpost.com/politics/2022/05/20/dc-court-survey-leak-investigation/ [https://perma.cc/SM9M-ZSSJ]. This mismatch with Duff’s assertion suggests both that the judiciary’s records do not capture the full scope of misconduct in the Third Branch and that the judiciary cannot be expected to adequately self-police on these issues.

Law clerks rarely file formal complaints against judges23 See Caseload Statistics Data Tables, U.S. Cts., https://www.uscourts.gov/statistics-reports/caseload-statistics-data-tables?tn&pn=All&t=687&m%5Bvalue%5D%5Bmonth%5D=&y%5Bvalue%5D%5Byear%5D= [https://perma.cc/S6FQ-ZG8R]. because they fear retaliation by the judge or reputational harm in the legal community.24 Author conversations with law clerks, subject to agreement that the interviewees’ statements were not for attribution (July 2021–present). While anecdotal data indicate that harassment and retaliation are persistent problems,25 Id. Since the author began speaking publicly about her experience, current and former clerks have reached out to her nearly every day to share their experiences of workplace mistreatment in federal and state courts. judges are rarely disciplined, further disincentivizing filing complaints.26 See Joan Biskupic & Aaron Kessler, CNN Investigation: Sexual misconduct by judges kept under wraps, CNN (last updated Jan. 26, 2018, 12:35 PM), https://www.cnn.com/2018/01/25/politics/courts-judges-sexual-harassment/index.html [https://perma.cc/R87U-SAK2] (thoroughly analyzing data on judicial orders related to misconduct complaints between 2006 and 2017). The CNN analysis revealed that “very few judges are disciplined”; none of the complaints are made public; and “[j]udicial orders are dumped onto circuit court websites as a series of numbered files,” rendering the data confusing and unsearchable. Id. The most serious discipline judges receive are rare public reprimands.27 See Judicial Conduct and Disability Orders, U.S. CTS., https://www.uscourts.gov/rules-policies/judiciary-policies/ethics-policies/code-conduct-judicial-employees/judicial-conduct-disability-opinions [https://perma.cc/P2V4-HXRA] (listing by case number rather than by judge Committee on Judicial Conduct and Disability orders that typically redact and conceal judges’ names, making them useless as disciplinary mechanisms). Reprimands have no tangible consequences to judges’ lives—in contrast to the enormous life- and career-altering consequences the victims of their mistreatment face.28 For a discussion of the career- and life-altering consequences that the author faced after harassment and retaliation, see infra Part IV. The threat of removal has also proven inconsequential in deterring problematic behavior by life-tenured judges, since removal requires congressional impeachment, which rarely happens.29 The Constitution provides that “[t]he Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” U.S. CONST. art. III, § 1. However, some scholars have suggested that this should not necessarily be equated with “absolute life-tenure.” See Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 Yale L.J. 72, 88 (2006); see also Judges and Judicial Administration – Journalist’s Guide, U.S. CTS., https://www.uscourts.gov/statistics-reports/judges-and-judicial-administration-journalists-guide [https://perma.cc/4LXC-BRTK] (explaining that Congress rarely uses its impeachment power to remove misbehaving federal judges from office). Ideally, Congress should expand its use of the impeachment power.

Several aspects of a judicial chambers make it a uniquely dangerous workplace that is particularly conducive to harassment. First, there is an enormous power disparity between law clerks and judges. Law clerks are typically fresh-out-of-law-school lawyers who opt for a pay cut in order to spend one or two years learning from a judge.30 Author conversations with law school administrators, subject to agreement that the interviewees’ statements were not for attribution (April 2022–present). Increasingly, some judges look for clerks with a few years of work experience. However, in general, law clerks are at or near the start of their careers. Their powerful superiors either enjoy life tenure (for most federal judges) or ten- or fifteen-year terms (for Article I judges and most state court judges).31 See About Federal Judges, U.S. CTS., https://www.uscourts.gov/judges-judgeships/about-federal-judges [https://perma.cc/EW5K-34D5]; Article I Tribunal, BALLOTPEDIA, https://ballotpedia.org/Article_I_tribunal#:~:text=An%20Article%20I%20tribunal%20is,the%20executive%20and%20legislative%20branches [https://perma.cc/PE4A-CE42]. Conversations between the author and state court judges revealed that these judges perceive themselves to have de facto life tenure, since they are reappointed or reelected as merely a formality. Conversations were subject to agreement that the interviewees’ statements were not for personal attribution. Clerks, as a result, often depend on judges for references to secure their next jobs.32 See Leah M. Litman & Deeva Shah, Essay, On Sexual Harassment in the Judiciary, 115 Nw. U.L. Rev. 599, 616–17 (2020) (explaining the importance of a judge’s reference throughout the law clerk’s career). In the best of circumstances, judges will be lifelong mentors, supporting the law clerks throughout their careers. But in the worst of circumstances, a negative clerkship experience can devolve into a long-term, far-reaching, retaliatory, and sour relationship between judge and clerk. Even a lukewarm reference can destroy a law clerk’s career.33 For a discussion about how a negative reference from a judge destroyed the author’s legal career, see infra Part IV.

Judges face no oversight in their day-to-day dealings with clerks.34 See Litman & Shah, supra note 32, at 619. In the typical judicial chambers, two law clerks, a judge, and perhaps a judicial assistant work behind closed doors for long hours under stressful circumstances. Furthermore, the internal courthouse workplace dispute resolution plan, known as Employee Dispute Resolution (EDR),35 See UNITED STATES COURTS, MODEL EMPLOYMENT DISPUTE RESOLUTION PLAN 1–3 (2019), https://www.uscourts.gov/sites/default/files/guide-vol12-ch02-appx2a_oji-2019-09-17-post-model-edr-plan.pdf [https://perma.cc/2WW8-8EPS] (last revised Mar. 8, 2022) (last “substantive” revision Sept. 17, 2019). The terms “employment” and “employee” are used interchangeably when referring to EDR plans. EDR is the internal courthouse dispute resolution plan, overseen by judges in the courthouse where the complainant law clerk and respondent judge work. See id at 7–8. The process can take several months between the investigation, hearing, and appeal process, overshadowing much of a law clerk’s one-year clerkship. See id. at 8–10. is notoriously flawed, lacking both confidentiality and impartiality.36 See Cara Bayles, Can US Courts Police Themselves On Workplace Misconduct?, LAW360 (Sept. 22, 2021, 12:02 PM), https://www.law360.com/articles/1423474 [https://perma.cc/82TN-USKD] (criticizing EDR plans for their lack of guaranteed confidentiality and lack of standardization among circuits); see also Brief for Named and Unnamed Current and Former Employees of the Federal Judiciary Who Were Subjected to Or Witnessed Misconduct as Amici Curiae in Support of Appellant Jane Roe at 17–34, Strickland v, United States, 32 F.4th 311 (4th Cir. 2022) (No. 21-1346), https://www.keker.com/Templates/media/files/2021_8_26%20Jane%20Roe%20Stories%20Brief%20(filed).pdf [https://perma.cc/J798-E2CW] (highlighting EDR’s flaws, including lack of confidentiality and impartiality, lack of standardization among circuits and courthouses, and insufficient remedies for law clerks). These troubling features of judicial chambers are compounded by the fact that law clerks have fewer workplace protections than employees in other industries.37 See supra text accompanying note 1.

III. THE JUDICIARY ACCOUNTABILITY ACT

The Judiciary Accountability Act (JAA)38 Judiciary Accountability Act of 2021, H.R. 4827, S. 2553, 117th Cong. (2021). The JAA would amend Chapter 57 of Title 28 of the United States Code (“Judiciary and Judicial Procedure”). Id. § 2(a). offers a solution to this outrageous lack of accountability in the federal judiciary. It would extend workplace protections to judiciary employees, and it would hold judges accountable for their poor behavior.

The JAA would finally extend Title VII protections to judiciary employees—including law clerks and federal public defenders39 See id. § 10(2); see generally Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change: Hearing Before the Subcomm. on Cts., Intell. Prop., and the Internet of the H. Comm. on the Judiciary, 117th Cong. (March 17, 2022) (testimony of Caryn Devins Strickland), https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-Wstate-StricklandC-20220317.pdf [https://perma.cc/5GXS-XCEP]. —enabling them to sue their harassers and seek damages40 See H.R. 4827 § 2(a)-964(b). for harm done to their careers, reputations, and future earning potential.41 See ARIANE HEGEWISCH, JESSICA RODEN & EVE MEFFERD, PAYING TODAY AND TOMORROW (2021).

Additionally, the JAA would increase judicial accountability by revising the definition of “judicial misconduct” in Title 28 of the U.S. Code to include discrimination and retaliation.42 The bill establishes discrimination and retaliation as judicial misconduct by amending 28 U.S.C. § 358 (“Judiciary and Judicial Procedure”). Specifically, Section 8 of the JAA states that the following shall be added:

IN GENERAL.—Each judicial council and the Judicial Conference shall prescribe rules for the conduct of proceedings under this chapter, including the processing of petitions for review that—(1) ensure the independence, integrity, impartiality, and competence of proceedings under this chapter; (2) ensure the greatest possible public confidence in proceedings under this chapter and maintain public confidence in the Federal judiciary; (3) reflect that the judicial office is a position of public trust; and (4) effectuate sections 453 and the provisions of the Judiciary Accountability Act of 2021.

See H.R. 4827 §§ 8(a)(1)–(4). Furthermore, the JAA also adds the following language to the Judiciary and Judicial Procedure part of the U.S. Code: “workplace misconduct (as defined in the Judiciary Accountability Act of 2021) constitutes a violation of this chapter, including conduct prohibited under sections 964 and 965 of this title.” Id. § 8(a)(4).
It would also clarify that misconduct investigations can continue even if the judge who faces misconduct allegations retires, resigns, or dies.43 Id. § 8(d)–(e) (amending 28 U.S.C. § 352). Judges exploit the current regime by retiring to avoid misconduct investigations. See Stephen B. Burbank, S. Jay Plager & Gregory Ablavsky, Leaving the Bench, 1970–2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences, 161 U. PA. L. REV. 1, 4–5 (2012); see also Retiring to Avoid Consequences: Judges Exploit a Loophole to Maintain Pensions in Spite of Misconduct, FIX THE COURT (Oct. 1, 2021), https://fixthecourt.com/2021/10/retiring-to-avoid-consequences-judges-exploit-a-loophole-to-maintain-pensions-in-spite-of-misconduct [https://perma.cc/6EC4-NUMY]. Additionally, the JAA would create a Commission on Judicial Integrity,44 Membership on the sixteen-member Commission on Judicial Integrity shall include two recent clerks, who clerked within four years of their selection, as well as expert and judges.  H.R. 4827 § 4(b). which would oversee several important initiatives, including standardizing Employee Dispute Resolution Plans,45 Id. § 4(d)(1)(D). creating a confidential reporting system,46 Id. §§ 4(d)(1)(A)–(B). crafting a workplace misconduct prevention policy,47 Id. §§ 4(f)(1)–(11). and administering workplace culture assessments.48 Id. §§ 6(f)–(g).

The JAA would finally require the judiciary to collect and report data on workplace culture,49 Id. the outcomes of judicial complaints,50 See id. § 8(c)(2)(A). and diversity in hiring.51 Id. §§ 4(d)(1)(F)–(G).  Furthermore, the JAA would create an Office of Employee Advocacy to provide legal advice and assistance to judiciary employees seeking judicial accountability.  See id. § 7.  Specifically, “the relationship between the OEA and an employee to whom the OEA provides legal assistance, consultation, and representation under this section shall be the relationship between an attorney and client.” Id. § (c)(3). These are notoriously under-scrutinized areas, and the lack of data in these areas has enabled some judges to get away with misconduct for far too long.52 Conversations with current and former state and federal judges, subject to agreement that the interviewees’ statements were not for personal attribution.

IV. CASE STUDY: MY EXPERIENCE WITH HARASSMENT AND RETALIATION

Early in law school, I decided to become a homicide prosecutor—and during law school, I interned with four different U.S. Department of Justice offices, all during the Trump administration, which further solidified my opinions on crime.

I decided to clerk in the Superior Court of the District of Columbia (“D.C. Superior Court”) for a judge more progressive than myself. My law school had instructed me to “apply broadly”—meaning across the geographical and political spectra—and to accept the first clerkship I was offered.53 In the author’s conversations with law school administrators about the advice to apply broadly—across the political spectrum, and to geographically diverse areas—some have conceded that this is not feasible for all students. One administrator offered the example that there are some geographic locations where it is not safe to be openly LGBTQ. Author’s notes from conversations with law school administrators during the clerkship application process. Another administrator conceded that some students do not have the financial means to “hop on a plane in twenty-four hours” for an in-person clerkship interview. Author conversations with law school administrators, subject to agreement that the interviewees’ statements were not for attribution (April 2022–present). The judge presided over felony cases, meaning that I would get a crash course in criminal prosecution right out of law school.

Unfortunately, my clerkship destroyed my career aspirations and set me on a different path.54 See Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. (March 17, 2022) (statement for the record of Aliza Shatzman), https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-20220317-SD005.pdf [https://perma.cc/WCW7-A9V2]; see generally Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. (March 17, 2022), https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=4883 [https://perma.cc/32VK-AQ75]. Beginning just weeks into my clerkship, the judge began to harass me and discriminate against me because of my gender.55 Author’s notes. He would kick me out of court, telling me that I “made him uncomfortable” and he “just felt more comfortable with” my male co-clerk. He told me I was “aggressive” and “nasty” and that I had “personality issues.” The day I found out that I passed the Bar Exam—an enormous day in any young attorney’s life—he called me into his chambers and told me, “You’re bossy! And I know bossy because my wife is bossy!”

I was devastated. I cried in the courthouse bathroom at work and cried myself to sleep at night. I wished I could be reassigned to a different judge. However, my workplace did not have an Employee Dispute Resolution Plan in place that might have enabled me to be reassigned—it was implemented one year after my clerkship ended.56 See District of Columbia Courts Announce New Employment Dispute Resolution Plan, D.C. CTS. (May 20, 2021), https://newsroom.dccourts.gov/press-releases/district-of-columbia-courts-announce-new-employment-dispute-resolution-plan [https://perma.cc/Q32K-V4GW]; see also Employment Dispute Resolution Plan, D.C. CTS., https://www.dccourts.gov/about/learn-more/employee-dispute-resolution-plan [https://perma.cc/QY3F-6ZKP].

Eventually, the judge ended my clerkship early, telling me that I “made him uncomfortable” and “lacked respect for” him. I contacted D.C. Courts Human Resources (“HR”), but they told me there was nothing they could do because “HR doesn’t regulate judges” and “judges and law clerks have a unique relationship.” Then they asked me whether I knew that I was an “at-will employee.”

One year later, I was finally back on my feet. I secured my dream job as a prosecutor in the D.C. U.S. Attorney’s Office (“USAO”). I was two weeks into training when I received devastating news that altered the course of my life. The USAO told me the judge had made negative statements about me during my background investigation, that I “would not be able to obtain a security clearance,” and that, therefore, my job offer was being revoked.57 Author’s notes. A few days later, an interview offer for a different position with the same office was also revoked, based on the judge’s same negative reference. I was only two years out of law school, and the judge seemed to have limitless power to ruin my reputation and destroy my career.

I was eventually able to read the outrageous and misleading reference. By then, it was too late. The damage had been done. I was blackballed from what I thought was my dream job. I will likely never work as a federal prosecutor.

No one—not even a Senate-confirmed judge—should be able to mistreat their employees with impunity. However, the judiciary is a uniquely unaccountable workplace, where those tasked with interpreting the law are not subject to the rule of law—at least not where workplace harassment is concerned. As if mistreating one’s law clerks during their clerkships was not terrible enough, some judges are emboldened to exert far-reaching authority over their former clerks’ careers. There are no guardrails to prevent the type of mistreatment I experienced during my clerkship and in the years following it. Law clerks have neither legal protections nor recourse when the most powerful members of the profession abuse their positions of power.

I became aware of the proposed JAA while I was engaged in the formal judicial complaint process in the summer and fall of 2021. Since then, I have spoken with many House and Senate offices, both Democratic and Republican, including those involved with drafting the JAA, to urge their bosses to support this critical legislation. I highlighted my personal story to personalize abstract issues. My experience with harassment and retaliation by a former D.C. Superior Court judge underscores why the JAA is so urgently needed. I wish the JAA had protected me when I was a law clerk.

V. CONSERVATIVES SHOULD SUPPORT THE JUDICIARY ACCOUNTABILITY ACT

The JAA should receive bipartisan support. Both Democratic and Republican appointees harass their clerks,58 See Edmondson, supra note 6 (reporting on substantiated allegations against the late Ninth Circuit Judge Stephen Reinhardt); see Zapotosky, supra note 7 (reporting on substantiated allegations against former Ninth Circuit Judge Alex Kozinski). and both liberal and conservative clerks experience mistreatment.59 See Protecting Federal Judiciary Employees from Sexual Harassment, Discrimination, and Other Workplace Misconduct: Hearing Before the Subcomm. on Cts., Intell. Prop., and the Internet of the H. Comm. on the Judiciary, 116th Cong. 11 (Feb. 13, 2020) (testimony of Olivia Warren) [hereinafter Olivia Warren House Judiciary Testimony], https://www.congress.gov/116/meeting/house/110505/witnesses/HHRG-116-JU03-Wstate-WarrenO-20200213-U2.pdf [https://perma/cc/DVB5-JZM5]; see also Letter from Heidi S. Bond, Former Law Clerk, U.S. Ct. App. for the 9th Cir., to the Senate Comm. on the Judiciary (June 11, 2018) [hereinafter Letter from Heidi S. Bond], available at http://www.courtneymilan.com/metoo/workinggroupletter.pdf [https://perma.cc/VSX4-ES42]. Anecdotally, the author receives messages from law clerks every day, ranging across the ideological spectrum. Author conversations with law clerks, subject to agreement that the interviewees’ statements were not for attribution (March 2022–present). House and Senate Republicans should support the JAA, considering how much it aligns with conservative principles like enforcing the rule of law and curbing government abuses of power.

The JAA would finally extend Title VII protections to more than 31,000 federal judiciary employees.60 See Ally Coll & Dylan Hosmer-Quint, The Federal Judiciary Has a Harassment Problem—But There’s a Fix, BLOOMBERG L., (Nov. 19, 2021, 1:00 AM), https://news.bloomberglaw.com/us-law-week/the-federal-judiciary-has-a-harassment-problem-but-theres-a-fix [https://perma.cc/UTH6-7CHH]. It is baffling that an entire branch of the federal government is so lawless. The judiciary is distinct from Congress and the Executive Branch, where staffers are protected by, and lawmakers are subject to, Title VII.61 See generally Congressional Accountability Act, Pub. L. 104-1, 109 Stat. 3 (1995); Presidential and Executive Office Accountability Act, Pub. L. 104-331 (1995). In fact, Congress extended additional workplace protections to more employees, including interns, in 2018.62 See Congressional Accountability Act of 1995 Reform Act, 2 U.S.C. §§ 1311–1438; see also Press Release, U.S. Senator Amy Klobuchar, Klobuchar, Blunt Bipartisan Sexual Harassment Reform Measure Takes Effect with New Cong. (Jan. 7, 2019), https://www.klobuchar.senate.gov/public/index.cfm/2019/1/klobuchar-blunt-bipartisan-sexual-harassment-reform-measure-takes-effect-with-new-congress [https://perma.cc/DMZ6-C6VX]. Unpaid congressional interns are protected by Title VII, yet young attorneys working for life-tenured federal judges are not. Conservatives should demand that the judiciary be subject to the same standards as other government branches and most private businesses, where employees are protected by various antidiscrimination laws.63 See U.S. EQUAL EMP. OPPORTUNITY COMM’N, supra note 4. Continuing to exempt the judiciary from Title VII sends a powerful message to misbehaving judges that they are above the laws they interpret. Subjecting judges who harass their clerks to Title VII litigation would curb government abuses of power by judges who mistreat their clerks with impunity.

If a law school graduate decides to work at a law firm, on the Hill, or at the White House, they are protected under civil rights laws. If they are mistreated by their employers, they can seek legal redress. However, if they decide that, for their first job, they want to spend a year or two learning from a judge, these young lawyers may experience harassment and retaliation with no legal recourse. Judiciary employees are not asking for special protections.64 See supra notes 62-63. Title VII, which applies to their counterparts in similar industries, should apply to them as well.

Arguably, the judiciary needs Title VII even more than the other two branches of government, because these powerful employers—judges—enjoy life tenure.65 See supra note 29. Compared to a congressional office—with about half a dozen staffers in a House office and about a dozen staffers in a Senate office—a judicial chambers has a fraction of the staff and an employer with more unchecked power. A judicial chambers is more geographically isolated and more physically imposing than a congressional office. There is nowhere for a mistreated clerk to go to escape their harasser—no alternative supervisor to work for or to contact for assistance. Furthermore, members of Congress are accountable to the public—the voters—through elections every two or six years. Most federal judges have life tenure, making them effectively accountable to no one.66 See Judicial Conduct & Disability, U.S. CTS., https://www.uscourts.gov/judges-judgeships/judicial-conduct-disability [https://perma.cc/BJ6J-PSF5]; see also Caseload Statistics Data Tables, U.S. Cts., https://www.uscourts.gov/statistics-reports/caseload-statistics-data-tables?tn&pn=All&t=687&m%5Bvalue%5D%5Bmonth%5D=&y%5Bvalue%5D%5Byear%5D= [https://perma.cc/S6FQ-ZG8R].

Judges who mistreat their clerks are committing egregious abuses of power. Judges are empowered with the authority to make decisions every day that affect fundamental aspects of litigants’ lives—including decisions about their liberty. And yet, those to whom we entrust the most power are immune from suit. Misbehaving judges evade scrutiny over their mistreatment of clerks; they also avoid accountability for committing misconduct.67 The author often asks judges where they would recommend a law clerk go to report mistreatment by their judge. Many judges recommend reporting to the Chief Judge of the courthouse. However, judges also concede that the Chief Judge has “no oversight” over judges’ day-to-day dealings with their clerks. Conversations with current and former state and federal judges, subject to agreement that the interviewees’ statements were not for personal attribution. The author would recommend empowering Chief Judges with oversight responsibilities.

VI. CONSERVATIVE OPPOSITION TO THE JAA

Some conservative organizations, members of Congress, and judges68 The author has spoken with both progressive and conservative judges who support the JAA. Id. Judicial opposition to the JAA also spans the political spectrum. See Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change: Hearing Before the Subcomm. on Cts., Intell. Prop., and the Internet of the H. Comm. on the Judiciary, 117th Cong. (2022) (combined written statement of the Honorable M. Margaret McKeown, United States Circuit Judge for the Ninth Circuit, and the Honorable Julie A. Robinson, United States District Judge for the District of Kansas), https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-Wstate-RobinsonJ-20220317.pdf [https://perma.cc/J8B7-2UHF] [hereinafter Testimony of Judge McKeown and Judge Robinson]. have voiced opposition to the JAA.69 See Workplace Protections for Federal Judiciary Employees: Flaws in the Current System and the Need for Statutory Change: Hearing Before the Subcomm. On Cts., Intell. Prop., and the Internet of the H. Comm. On the Judiciary, 117th Cong. (2022) (testimony of Sarah Parshall Perry, Legal Fellow, The Heritage Foundation), https://docs.house.gov/meetings/JU/JU03/20220317/114503/HHRG-117-JU03-Wstate-PerryS-20220317.pdf [https://perma.cc/H6CH-33UG] [hereinafter testimony of Sarah Parshall Perry]. They argue that the JAA introduces intrusive regulation, particularly by imposing a centralized Commission on Judicial Integrity;70 See id. at 3. that the judiciary is a unique branch of government that can and should self-police;71 See id. at 4–5. and that the JAA threatens “judicial independence.”72 See id. at 2. Some Republican congressional offices have also questioned whether the JAA would chill hiring and whether it would be effectively utilized.73 The author has spoken privately with GOP congressional offices about the JAA. Conversations with Congressional staffers, subject to agreement that the interviewees’ statements were not for personal attribution (July 2021–present). She appreciates their willingness to engage with her on this issue. The author addresses these arguments in a separate section. See infra Section VI.2. .

A. It Is Time to Centralize and Standardize the Judiciary’s Approach To Workplace Misconduct.

Some have criticized the breadth of the Commission on Judicial Integrity’s oversight mandate, arguing instead for decentralized governance within the judiciary and claiming that each courthouse has unique needs.74 See testimony of Sarah Parshall Perry, supra note 66. However, this Commission would neither regulate judges’ day-to-day dealings with their clerks nor their rulings. Its purpose is to oversee and administer the JAA’s programs—including the workplace misconduct prevention policy, the standardized EDR Plan, the confidential reporting system, the data collection initiatives, and the workplace culture assessments.75 See H.R. 4827, 117th Cong. § 4(f) (2021).

It is time to centralize and standardize judiciary workplace policies so that every law clerk, no matter what state and courthouse they work in, knows there are safe places for them to go to report misconduct and seek assistance. Current judiciary policies are either nonexistent or ineffective. Judges investigate their colleagues, both internally through EDR and through formal complaints under the Judicial Conduct and Disability Act.76 See Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 352-355, 357. These policies create both the appearance of and an actual conflict of interest. As a result, judges rarely face discipline.

While some continue to quibble about specific provisions of the JAA, as it stands, law clerks lack basic workplace protections. Nothing about the judiciary suggests that it should be uniquely exempt from civil rights laws. Judges who enforce antidiscrimination laws should themselves be subject to them. Judiciary employees who go to work in courthouses across the country deserve the same access to the justice system as the litigants who appear before them.

The judiciary is a sprawling workplace that spans hundreds of courthouses across all fifty states.77 See Court Role and Structure, U.S. CTS., https://www.uscourts.gov/about-federal-courts/court-role-and-structure [https://perma.cc/MVF9-U8XD]. Perhaps this could cut in favor of internal self-policing at individual courthouses, especially if judges could point to unique characteristics of their courthouses requiring special policies. However, judges in courthouses across the country have proven themselves unable and unwilling to self-police misconduct in their ranks.78 See supra Part II (discussing the pervasiveness of judicial misconduct and the inadequacy of the judiciary’s data collection practices to quantify it). As misconduct allegations and investigations into other insular organizations like police unions79 See Nicole Dungca & Jenn Abelson, When Communities Try to Hold Police Accountable, Law Enforcement Fights Back, WASH. POST (Apr. 27, 2021), https://www.washingtonpost.com/investigations/interactive/2021/civilian-oversight-police-accountability/ [https://perma.cc/Z9K7-KWST]. and the military80 See Bill Chappell, Military Panel Urges Taking Sexual Assault Cases Out of Commanders’ Control, NPR (Apr. 23, 2021, 11:16 AM), https://www.npr.org/2021/04/23/990174459/military-panel-urges-taking-sexual-assault-cases-out-of-commanders-control [https://perma.cc/RC72-85TM].  have shown, attempts to self-regulate often fail.

Some judges have privately voiced concerns about whether judicial complaints and investigations under the JAA could be politically weaponized by an overbearing, highly partisan Congress.81 Conversations with current federal judges, subject to agreement that the interviewees’ statements were not for personal attribution. For example, a Democratic-majority Congress could threaten to investigate conservative or Republican-appointed judges for misconduct if they do not rule a certain way. However, under the Judicial Conduct and Disability Act, individual members of Congress already can theoretically pressure chief judges to initiate investigations into judges, even absent a complaint by a law clerk.82 See Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351(b). Congress has not politicized this process in the more than four decades since the policy has been in place.83 The author found no evidence to suggest that Congress has weaponized Judicial Conduct and Disability Act complaints against judges from the opposite political party. Under the Judicial Conduct and Disability Act, a Chief Judge is empowered to initiate an investigation into a judge if he or she has reasonable grounds to believe that the judge has committed misconduct, absent a formal complaint by a judiciary employee. See Judicial Conduct and Disability Act of 1980, 28 U.S.C. §§ 351–364.

Opposition to the JAA under the guise of “judicial independence” is particularly disingenuous.84 See Testimony of Judge McKeown and Judge Robinson, supra note 66 (claiming that “[t]he Judiciary’s internal governance system is a necessary corollary to judicial independence”), at 15. Individual judges, both liberal and conservative, have also raised this argument privately. The JAA, which would finally implement basic workplace policies and create some judicial accountability, has nothing to do with ensuring that judicial rulings are free from outside political influence.85 The judiciary already faces some political oversight as part of the system of checks and balances (i.e., Senate advice and consent for judicial appointments, see U.S. Const. art. II §2, and congressional funding for the judiciary, see Judiciary Budget Request, FY 2023, Congressional Research Service (Apr. 25, 2022), https://crsreports.congress.gov/product/pdf/IF/IF11842).  What most threatens judicial independence is when notorious harassers, including misogynistic judges, are never disciplined. What are female litigants to think when they appear before these notoriously misbehaving judges—particularly if the judges are presiding over Title VII cases? Judicial independence in decision-making is distinct from workplace conduct.

B. There Are No Downstream Political Implications For Extending Title VII To the Judiciary.

Conservative congressional offices are willing to engage on the subjects of judicial accountability and increased workplace protections for judiciary employees.86 Conversations with congressional staffers between July 2021 and October 2022, subject to agreement that the interviewees’ statements were not for personal attribution. However, some offices have privately raised concerns about specific aspects of the bill.87 Id.  In this section, I engage with two points of concern: first, that the JAA will either chill hiring by judges seeking to avoid lawsuits or complaints down the road; and second, that mistreated law clerks will not actually sue judges under Title VII.

The JAA will not chill hiring.88 At a 2018 Senate hearing, then-Senator Kamala Harris raised this issue with U.S. Courts Administrative Office Director James Duff, alerting him that misogynistic judges were threatening to stop hiring female clerks in order to avoid sexual harassment complaints. Confronting Sexual Harassment Hearing Video, supra note 17. Mr. Duff evaded the question. Id. In 1995, Congress extended Title VII to both itself and the Executive Branch.89 See supra notes 2­–3. At the time, the Judicial Conference vociferously opposed extending Title VII protections to judiciary employees, in part because “[t]he judiciary currently provides its employees with protections similar to those enumerated in” the statutes.90 JUD. CONF. OF THE U.S., STUDY OF JUDICIAL BRANCH COVERAGE PURSUANT TO THE CONGRESSIONAL ACCOUNTABILITY ACT OF 1995, 2–3 (1996) (invoking “judicial independence”).  Since 1995, there has been no evidence to suggest that either branch of government’s hiring patterns were affected by extending Title VII protections to their employees.

I have spoken with many federal and state court judges from a variety of jurisdictions about the JAA.91 Conversations with current and former state and federal judges, subject to agreement that the interviewees’ statements were not for personal attribution. The author is grateful to the many judges who either reached out to her following her written testimony and early public statements or who responded to her email inquiries and agreed to speak about judicial accountability and the JAA. These conversations informed both this piece and the author’s broader advocacy work on this subject. Anecdotally, many federal judges support the JAA or some other increased workplace protections for employees and accountability for their colleagues.92 See id. Furthermore, state court judges are already subject to Title VII or similar state antidiscrimination laws, such as 42 U.S.C. § 1983; these judges still handle their judicial tasks effectively, hire law clerks without issue, and conduct business efficiently.93 Id. At least half a dozen federal judges who previously served on their state benches have stated that they do not believe that they should suddenly become exempt from antidiscrimination laws because of a change in jurisdiction; nor do they believe that something about themselves as employers suddenly changed when they received life tenure.94 Id. Furthermore, multiple federal judges told the author that they did not realize they were exempt from Title VII prior to speaking with the author. Id.

Congressional offices have also asked whether judiciary employees, including law clerks and federal public defenders, will actually sue their powerful superiors under the JAA. State court employees can sue judges under Title VII and state antidiscrimination laws; yet, they rarely feel empowered to do so.95 See supra note 13; see also Forrester v. White, 484 U.S. 219, 228–30 (1988) (holding state judges are amenable to suit for gender discrimination, that a judge is not absolutely immune from suit in her or his capacity as an employer, and that the judge may be liable for unconstitutional conduct regarding the discharge, demotion, and treatment of employees). Multiple congressional staffers even argued that suing a judge would make the judiciary employee unemployable in the legal community.96 Conversations with Congressional staffers, subject to agreement that the interviewees’ statements were not for personal attribution (July 2021–present).

These concerns are unwarranted. Evidence suggests the JAA will be utilized and will have a material effect on judicial workplaces. In fact, some judiciary employees are trying to sue right now.97 See Nate Raymond, U.S. Judiciary Can Be Sued Over Handling of Sex Harassment Complaint, REUTERS (Apr. 27, 2022), https://www.reuters.com/legal/transactional/us-judiciary-can-be-sued-over-sex-harassment-complaints-handling-court-2022-04-26/ [https://perma.cc/WA6A-XEMJ]. Assistant Federal Public Defender Caryn Strickland testified before a House Judiciary Subcommittee in March 2022 about her experience with harassment and retaliation while working as a federal public defender. See supra note 39, testimony of Caryn Devins Strickland. Former North Carolina Assistant Federal Public Defender Caryn Strickland is currently engaged in litigation against judiciary officials in the Fourth Circuit for gender discrimination, harassment, and retaliation.98 See Strickland v. United States, 32 F.4th 311, 319–20 (4th Cir. 2022). Ms. Strickland can only rely on Fifth Amendment equal protection and due process claims because federal defenders’ offices are also currently exempt from Title VII.99 See id. at 349 n.9.

These same arguments could have been raised against extending Title VII to the Legislative and Executive Branches in 1995 but would have rung similarly hollow. Regardless of survivors’ appetite for litigation, they should not be denied the right to sue their harassers. Furthermore, potential liability for employers is a strong disincentive for harassment. Additionally, the argument about unemployability in the legal community cuts both ways. It will be more difficult for the former clerk to find a legal job after suing a judge, just as it will be more difficult for them to find a legal job after filing a complaint against a judge. However, judiciary employees who are driven from the profession and face financial hardship must be able to sue and seek damages.

Most importantly, the JAA does much more than just extend Title VII protections to judiciary employees—it establishes courthouse workplace protections and creates judicial accountability.100 See supra Part III (discussing the JAA). By requiring the judiciary to collect and publish data, including the results of a desperately needed workplace culture assessment, the JAA would finally quantify the scope of the problem.101 See H.R. 4827 §6(e). No matter how many judiciary employees take advantage of the Title VII protections, many more will utilize the workplace misconduct prevention policy, the confidential reporting system, and the standardized EDR Plan.102 See H.R. 4827 §§ 4(f)–(g). Many law clerks express privately to the author that, while they are not ready to file formal complaints, they are looking for somewhere to make confidential reports about the judges who harassed them. They also express skepticism that the current system of reporting to workplace circuit executives is actually confidential. Author conversations with current and former law clerks, subject to agreement that the interviewees’ statements were not for attribution (July 2021–present).  Every employee will benefit from a publicly reported climate survey of the judiciary as well as data on law clerk and public defender hiring and the outcomes of judicial complaints.

The JAA is not perfect. For example, it will not remove EDR and Judicial Conduct and Disability Act investigations from the judiciary’s chain of command. It should. Judges should not investigate their colleagues. Additionally, the JAA will not revise the provision in Title 28 of the U.S. Code that allows a judge to continue collecting his pension if he retires  rather than resigns amid a misconduct investigation—collecting taxpayer dollars after committing misconduct.103 See 28 U.S.C. §§ 371–77 (defining judicial retirement and resignation); see also Stephen B. Burbank, S. Jay Plager & Gregory Ablavsky, Leaving the Bench, 1970–2009: The Choices Federal Judges Make, What Influences Those Choices, and Their Consequences, 161 U. PA. L. REV. 1, 4–5 (2012); Retiring to Avoid Consequences: Judges Exploit a Loophole to Maintain Pensions in Spite of Misconduct, FIX THE COURT (Oct. 1, 2021), https://fixthecourt.com/2021/10/retiring-to-avoid-consequences-judges-exploit-a-loophole-to-maintain-pensions-in-spite-of-misconduct [https://perma.cc/GF2M-2M6B].  It should. However, judiciary employees cannot wait another year for urgently needed reforms.

VII. CONSERVATIVE ALTERNATIVES TO THE JAA

Some judges and conservative congressional offices have suggested alternatives to the JAA.104 Conversations with Congressional staffers and current federal judges, subject to agreement that the interviewees’ statements were not for personal attribution. The first is to utilize an internal U.S. Courts Administrative Office (“AO”) process, rather than Title VII, to adjudicate workplace disputes.105 See id. The second is to sever the JAA—passing the Title VII protections now, while addressing the judicial accountability, data collection, and judicial oversight provisions later, perhaps in a separate bill.106 See id.  While extending Title VII to the judiciary is better than doing nothing, both of these proposals are undesirable.

A. Current Internal Processes for Adjudicating Workplace Disputes in the Judiciary are Ineffective.

The judiciary has proven itself unable or unwilling to self-police.107 See supra Part II (discussing the judiciary’s inability or unwillingness to self-police, and particularly former AO James Duff’s tone deaf response to Senate Judiciary Committee questions about judicial misconduct). Congress should not give the federal judiciary any more opportunities to offer toothless “reforms.” Following public misconduct allegations against former Ninth Circuit Judge Alex Kozinski in 2017,108 See Matt Zapotosky, Federal Appeals Judge Announces Immediate Retirement Amid Probe of Sexual Misconduct Allegations, WASH. POST (Dec. 18, 2017), https://www.washingtonpost.com/world/national-security/federal-appeals-judge-announces-immediate-retirement-amid-investigation-prompted-by-accusations-of-sexual-misconduct/2017/12/18/6e38ada4-e3fd-11e7-a65d-1ac0fd7f097e_story.html?utm_term=.28aa64b012fb&itid=lk_inline_manual_11 [https://perma.cc/S7WR-WWVU]. the following year, the Judicial Conference of the United States, which is the national policymaking body for the federal courts, created a Workplace Conduct Working Group to make internal policy recommendations.109 U.S. CTS., FED. JUDICIARY WORKPLACE CONDUCT WORKING GRP., REPORT OF THE FEDERAL JUDICIARY WORKPLACE CONDUCT WORKING GROUP TO THE JUDICIAL CONFERENCE OF THE UNITED STATES 1 (2018), https://www.uscourts.gov/sites/default/files/workplace_conduct_working_group_final_report_0.pdf [https://perma.cc/B7AB-QRFL]. The Working Group released an interim report in 2019, offering a few hollow proposals and continuing to insist that harassment and misconduct are not pervasive within the federal courts.110 See U.S. CTS, STATUS REPORT FROM THE FEDERAL JUDICIARY WORKPLACE CONDUCT WORKING GROUP TO THE JUDICIAL CONFERENCE OF THE UNITED STATES (2019), https://www.uscourts.gov/sites/default/files/working_group_status_report_to_jcus_september_2019.pdf [https://perma.cc/Q76M-T39T]. Judiciary leadership continues to tout its EDR Plan,111 See U.S. CTS, REPORT OFTHE FEDERAL JUDICIARY WORKPLACE CONDUCT WORKING GROUP TO THE JUDICIAL CONFERENCE OF THE UNITED STATES  (Mar. 16, 2022), https://www.uscourts.gov/sites/default/files/report_of_the_workplace_conduct_working_group_-_march_2022_0.pdf. claiming that Title VII protections are unnecessary and duplicative.112 Inexplicably, in Judge McKeown’s and Judge Robinson’s March 2022 House Judiciary Subcommittee testimony, they appeared to claim that judiciary employees are protected under Title VII. See Testimony of Judge McKeown and Judge Robinson, supra note 66, at 3. However, EDR Plans among the federal courts are notoriously ineffective.113 See Brief for Named and Unnamed Current and Former Employees of the Federal Judiciary Who Were Subjected to or Witnessed Misconduct as Amici Curiae in Support of Appellant Jane Roe at 35–39, Jane Roe v. United States, No. 21-1346, 2022 WL 1217455, (4th Cir. 2021) [hereinafter Jane Roe Amicus Brief], https://www.keker.com/Templates/media/files/2021_8_26%20Jane%20Roe%20Stories%20Brief%20(filed).pdf [https://perma.cc/2T9Z-7ZX4] (discussing the effects of harassment on former clerks’ and public defenders’ lives). They are not standardized among all federal courthouses; the proceedings are not confidential; and the judges overseeing EDR complaints are not impartial arbiters.114 See generally Id. One sitting judge told the author that they had been on the bench for a decade and had never attended EDR training. Conversation with current judge, subject to agreement that the interviewees’ statements were not for personal attribution. Furthermore, in many cases, judiciary employees attempting to utilize the EDR Plan lack basic due process rights.115 See Jane Roe Amicus Brief, supra note 107, at 20. For example, EDR complainants are not always permitted to conduct discovery or read the investigatory reports. See generally Dungca & Abelson, supra note 76, Strickland v. United States, 32 F.4th 311, at 26-37 (4th Cir. 2022).

On March 16, 2022, just hours before the House Judiciary Subcommittee hearing to discuss the JAA,116 See Testimony of Judge McKeown and Judge Robinson, supra note 66, at 1. and after more than four years of work, the Working Group released another Report.117 REPORT OF THE FEDERAL JUDICIARY WORKPLACE CONDUCT WORKING GROUP TO THE JUDICIAL CONFERENCE OF THE UNITED STATES (2022), https://www.uscourts.gov/sites/default/files/report_of_the_workplace_conduct_working_group_-_march_2022_0.pdf [https://perma.cc/Z9TG-WPRJ]. The Report offered a few meaningless reforms to EDR and again claimed that the judiciary is an exemplary workplace that can self-police.118 See generally id. Two judiciary representatives from the Working Group testified at the hearing the next day, making the same hollow claims.119 See Testimony of Judge McKeown and Judge Robinson, supra note 66, at 21.

Arguments about judicial independence and judicial exceptionalism are troublesome, since judges have been notoriously unwilling to discipline their colleagues, even in the face of appalling misconduct.120 See supra Part II. The judiciary has also strenuously opposed oversight.

Under these circumstances, and based on the judiciary’s failures in the EDR context, the AO should not be permitted to craft its own internal policy to mirror Title VII. Title VII may not be perfect,121 Some scholars have commented that Title VII may not be the ideal vehicle to address modern day gender discrimination claims. Critics argue that Title VII is best equipped to tackle explicit, intentional discrimination, but that much twenty-first century gender (and race) discrimination can be categorized as either implicit or unintentional. See, e.g., Chad Derum & Karen Engle, The Rise of the Personal Animosity Presumption in Title VII and the Return to “No Cause” Employment, 81 TEX. L. REV. 1177, 1188 (2003); Stephen M. Rich, One Law of Race?, 100 IOWA L. REV. 201, 231 (2014); Samuel R. Bagenstos, The Structural Turn and Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1, 3 (2006). but it is better than anything the judiciary has come up with to self-regulate. The judiciary has been trying to self-regulate for 250 years and has been unable to prevent and discipline misconduct in its ranks.122 See Judiciary Act of 1789, 1 Stat. 73. The U.S. court system was established in 1789, affording the judiciary more than two centuries to prove itself capable of internal self-regulation. It has failed to do so. Progress should not be held hostage any longer by obstinate judiciary leadership.

B. Every Component of the JAA Is Crucial.

Partisanship in recent years has rendered Congress unable to pass much legislation,123 See Drew DeSilver, Congress Is Off To A Slow Start In 2021, Much As It Has Been In Previous Years, PEW RESEARCH CENTER (Aug. 13, 2021), https://www.pewresearch.org/fact-tank/2021/08/13/congress-is-off-to-a-slow-start-in-2021-much-as-it-has-been-in-previous-years/ [https://perma.cc/KN64-9P52]. making it imprudent to rely on future congressional action. With the JAA finally gaining momentum across the political spectrum, now is not the time for half measures. Therefore, Congress should not sever the JAA to focus on the Title VII protections now, with the intent of passing a second bill later. Lawmakers should act swiftly and decisively to protect judiciary employees.

Critically, the JAA as written does much more than simply extend Title VII protections. In fact, the other parts of the bill—the workplace misconduct prevention policy, confidential reporting system, standardized EDR Plans, workplace culture assessment, and data collection and dissemination programs—will assist the entire judiciary workforce and promote the judiciary’s mission. Similar legislation extending workplace protections to Congress and the Executive Branches, such as the Congressional Accountability Act (“CAA”) and the Executive and Presidential Office Accountability Act (“EPOAA”), did much more than just extend Title VII protections to those branches.124 See Presidential and Executive Office Accountability Act, Pub. L. 104-331 (1995); Congressional Accountability Act, Pub. L. 104-1, 109 Stat. 3 (1995). The CAA and the EPOAA, which have transformed federal workplaces in their respective branches, achieved their success by taking a holistic approach to workplace protections, rather than just extending Title VII to their employees.

C. Change Is Headed to the Judiciary

While these two alternatives to the JAA would not make the meaningful reforms for which I am advocating, my conversations with conservative congressional offices and judges make me hopeful that the JAA can receive bipartisan support. A wide swath of Congress, as well as a wide swath of the judiciary’s rank and file, support increased workplace protections for judiciary employees and increased accountability for judicial misconduct.125 That is not to say that the author has not occasionally faced resistance from individual judges, who warn that the judiciary is insular; that judges protect their colleagues and their own reputations at all cost; and that these features of the judiciary will not change anytime soon. Conversations with current and former state and federal judges, subject to agreement that the interviewees’ statements were not for personal attribution. It is primarily the judiciary’s leadership—a powerful lobby—that aggressively opposes congressional oversight.126 Cf. Testimony of Judge McKeown and Judge Robinson, supra note 66.  However, congressional Republicans should listen to their constituents, who are affiliated with courthouses across the country and who would benefit immensely and immediately from the JAA.

VIII. CONCLUSION

Many members of the House and Senate Judiciary Committees were law clerks themselves. Some of their staffers are former clerks. What would these members of Congress and staffers have done if they were harassed at work? Would they have been driven from the profession? That would have been an enormous waste of their training and talents.

There are federal courthouses in all fifty states, meaning the JAA touches every state.127 See U.S. CTS., COURT ROLE AND STRUCTURE, https://www.uscourts.gov/about-federal-courts/court-role-and-structure [https://perma.cc/9GL2-CFVB]. Every Senator and nearly every House member represents constituents whose workplaces would be made safer by the JAA.128 See id. While politicians of all parties regularly defend and support judges for partisan reasons, they neglect law clerks—the next generation of progressive and conservative thinkers and decision-makers—who are tossed aside and driven from the profession by misbehaving judges bent on destroying their careers out of malice or vindictiveness.129 Several individuals told the author privately that, while they supported her, it was “too bad” that the DC judiciary was losing a “progressive sentencer” and that the judge for whom the author clerked “got it” on progressive issues. Author’s notes from these conversations. Statements like this are not helpful to law clerks facing harassment. Chief executives can always appoint more judges who align with the political majority. Aligning political affiliations is not a good enough reason to protect a misbehaving judge.

The judicial workplace should set the standard for workplace civility, safety, and accountability. Judiciary employees—from the most left-leaning progressive to the most right-leaning conservative—cannot wait another year for the JAA’s urgently needed reforms. Conservatives should support the JAA because it would align the judiciary with the other branches of government and with most private employers. Every conservative should be outraged by the lawlessness and unaccountability of our judiciary.


* Aliza Shatzman is an attorney and advocate in Washington, DC who writes and speaks about judicial accountability. Ms. Shatzman is the President and Co-Founder of The Legal Accountability Project, a nonprofit aimed at ensuring that law clerks have positive clerkship experiences, while extending support and resources to those who do not. Ms. Shatzman’s writing on this subject has previously appeared in the UCLA Journal of Gender & Law, NYU Journal of Legislation & Public Policy, Yale Law & Policy Review, Above the Law, Law360, Ms. Magazine, Slate, and Balls & Strikes. Ms. Shatzman earned her BA from Williams College in Williamstown, Massachusetts, and her JD from Washington University School of Law in St. Louis, Missouri, where she was an Associate Editor of the Journal of Law & Policy.

The Standard Business Deduction

The Standard Business Deduction

Kathleen DeLaney Thomas*

In 2017, Congress passed the most sweeping tax reform bill[1]the country has seen in over 30 years.[2]The new legislation responded to many long-held concerns about the U.S. tax system, particularly that taxes were too high and that the corporate and international tax regimes were not competitive.[3]In response to those concerns, Congress lowered individual income tax rates, drastically reduced the corporate tax rate from 35% to 21%, and shifted away from a worldwide system of international taxation.[4]The bill also lowered taxes for pass-through businesses, such as partnerships, S-corporations, and sole proprietorships, by offering a new deduction for up to 20% of the business’s net earnings.[5]

In the months leading up to the tax reform bill, members of Congress also promised much needed simplification of the U.S. tax system, even going so far as to suggest that future tax returns would fit on a postcard.[6]In one respect, Congress delivered on this promise to simplify the tax system. The new legislation doubled the standard deduction, from roughly $6,000 to $12,000 for a single individual.[7]This means that individuals will now claim itemized deductions (e.g., charitable contributions or mortgage interest) only if, in the aggregate, those deductions exceed $12,000 ($24,000 for a married couple filing jointly). The higher standard deduction essentially means that fewer taxpayers will itemize their deductions, which saves time and simplifies tax return preparation.[8]

However, while the 2017 Tax Reform Bill simplifies personal deductions, the legislation does virtually nothing to simplify the tax rules for businesses. Small business owners will not see any reduction in complexity for reporting income, tracking expenses, or preparing tax returns. Instead, the new pass-through deduction only adds further complexity by inserting more steps into the process of calculating a business’s net income.

In short, Congress failed to deliver on its promise to provide simplification when it comes to small business owners. Congress could do more to reduce the complexity faced by these taxpayers, who must pay estimated taxes, track business expenses, and file complicated tax returns. To that end, this essay proposes a “standard business deduction.”[9]

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What is “Disabled?”: Ménière’s Disease and the Americans with Disabilities Act (ADA)

What is “Disabled?”: Ménière’s Disease & the Americans with Disabilities Act (ADA)

By Thomas Tobin, JD ’16, Harvard Kennedy School MPP ’16[*]

The Americans with Disabilities Act (ADA) prohibits American employers from discriminating against individuals due to disability.[1] As a threshold matter, individuals bringing suit under the ADA’s anti-discrimination provisions must demonstrate that they are “disabled.” While individuals with Ménière’s Disease often suffer impairments to their personal and professional lives, are they “disabled” for purposes of the ADA?[2] Legal precedent provides prescient lessons for individuals with Ménière’s Disease as they seek relief for alleged discrimination or unfair termination at work.

Ménière’s Disease often manifests itself in unpredictable, episodic attacks of nausea and vertigo. While Ménière’s Disease is a progressive, long-term condition, many individuals may experience remission for several months and even years between attacks.[3] Unfortunately, the episodic nature of Ménière’s Disease created a challenge for many individuals in proving their “disabled” status under the ADA.

The ADA does not provide protection for “every individual with an impairment who suffers an adverse employment action.”[4] Individuals bringing suit must prove by a preponderance of evidence that they have a disability.[5] “Disabled” status is defined by statute and occurs when an individual suffers from “a physical or mental impairment that substantively limits one or more of the major life activities.”[6] Hearing, walking, and working are among the statutorily-defined major life activities that may be potentially affected by Ménière’s Disease.[7]

In order to prove a “substantial impairment,” an individual must demonstrate that the impact of the “disability” is permanent or long-term.[8] American courts often follow a long-standing rule that intermittent manifestations of disease processes are insufficient to establish a substantial limitation on a major life activity.[9]

Simply being diagnosed with Ménière’s Disease is not sufficient to warrant “disabled” status under the ADA.[10] In Perkins v. St. Louis County Water Company,[11] a construction worker suffering from Ménière’s Disease was repeatedly absent from work and claimed that several of his absences were due to the disease. The worker’s condition caused permanent hearing loss and occasional episodes of vertigo and vomiting. Even though Ménière’s-related episodes caused the worker to miss over two-and-one-half weeks of work, the court ruled that it was insufficient to render him unable to do his job or limit his major life activities.[12] While Perkins could conceivably be read to foreclose the ability of Ménière’s Disease patients from attaining “disabled” status, one judge in the three-judge panel went so far as to specifically note that Ménière’s Disease is not “outside the bounds of disability per se.”[13]

Plaintiffs with Ménière’s Disease have, at times, struggled to marshal adequate evidence to prove their “disabled” status. In one case, a public school teacher sought accommodation for Ménière’s Disease so that she could avoid excessive walking and ascending stairs. [14] Treatment notes found that her problems with Ménière’s Disease were exacerbated by stair-climbing and rocking. Still, her supervisors “openly questioned the nature and existence of her ailments.”[15] Ultimately, her case was dismissed for insufficient evidence that the teacher suffered from a disability that substantially limited a major life activity.[16]

In McGuire v. Miami-Dade County, a computer technician with Ménière’s disease alleged that her condition caused seizures and problems with her mobility and balance.[17] She described her limitations thusly,

I lose balance. I have to lay down. I am dizzy. I vomit a lot. Those are the attacks, but in general when I handle this condition, most of the time I’m dizzy and, at some point, noises start to bother me.[18]

The federal court was unconvinced that the limitations of the employee’s Ménière’s disease were more than temporary.[19] The court called the worker’s allegations “vague” as they did not explain with adequate specificity exactly how her condition affected her or she was affected in comparison to that of the average person in the general population.[20]

Whether an individual is “disabled” is a fact-specific inquiry, often necessitating case-by-case judgment by the courts.[21] Even if a court accepts that Ménière’s Disease is a disabling condition, it must further find that the impairment substantially limits an individual’s major life activity, such as hearing or walking.[22] Ultimately, the court must be convinced that it is a disabling condition rather than an individual’s conduct that resulted in the discriminatory action.[23] The story of Patricia Brennan provides insight on what plaintiffs should guard against when approaching the courts regarding Ménière’s Disease claims.

Illinois social worker Patricia Brennan suffered from Ménière’s Disease, complaining of dizziness, decreased hearing in one ear, vertigo, and loss of balance.[24] She was subsequently terminated, and she brought suit against her former employer claiming it had failed to accommodate her disability. The Brennan court and the parties did not dispute that Ménière’s Disease was an impairment, but they contested whether Brennan was “disabled” as a result of the condition. Even as her doctor had characterized her hearing loss in her left ear as “severe,” the court claimed that she had:

offered no evidence to show how that loss affected her overall ability to hear in comparison to that of an average person in the population, whether the loss was mitigated by the use of a hearing aid and whether, when the loss occurred, it was expected to be temporary or permanent.[25]

The court went on to note that she had an operation restoring her hearing after she was dismissed from her job. Moreover, the court declared that the social worker’s ability to walk was impaired during episodes of vertigo, but the record showed that her walking was not impaired when she did not have vertigo.[26] The court dismissed her claim for insufficient evidence.

It is an unfortunate reality that individuals may suffer from employment discrimination due to their Ménière’s Disease. In order to prevail in court and prove their claim, they must demonstrate evidence of how they are affected by the condition. It is often necessary to provide sufficient evidence to (a) establish that one has Ménière’s Disease and (b) demonstrate how it is disabling in order to prove “disabled” status.

For example, a utility worker at a tire plant was found to suffer from hearing loss and tinnitus after multiple tests. [27] His employer was required to conduct annual hearing tests, the standard threshold shift test, to determine whether the plant caused its workers permanent hearing loss.[28] This worker was dismissed from his job after his employer claimed that he falsified the hearing tests. The court found there was sufficient evidence that he did not adulterate his test results. Instead, he suffered from Ménière’s Disease which would explain his abnormal test results.

In another case, a bank teller in Ohio suffering from Ménière’s Disease was subjected to teasing at work for her vertigo and hearing loss.[29] Even while her hearing loss was self-described as “profound,” the teller’s colleagues and supervisors were “snickering and laughing.” From the available evidence, the court concluded that the teller’s hearing loss was permanent, not temporary.[30] Her former employer claimed that the teller’s non-use of a hearing aid was proof that her hearing could have otherwise been controlled and was not disabling. In this case, the teller testified with specificity and had corroborating doctors’ notes that showed that her Ménière’s Disease had caused total hearing loss in her left ear, a reduction of her hearing in her right ear, and vertigo and constant tinnitus.[31] According to the teller, a hearing aid would be “of no value.”

Ultimately, whether an individual is “disabled” is a fact-intensive inquiry for the courts. To prove that one is “disabled” due to Ménière’s Disease under the ADA means to prove by a preponderance of the evidence that it affects one or more of an individual’s major life activities. Future claimants can learn from past precedent, which all too often has found insufficient evidence to prove “disabled” status. To increase the odds of prevailing, future claimants should assemble available medical evidence to substantiate and corroborate their listing of symptoms, document the extent of their limitations to fundamental life activities due to Ménière’s Disease, and communicate clearly the extent of these limitations to court officials, especially in a deposition. Further, a best practice would have an expert, such as a physician or audiologist, detail specificity exactly how Ménière’s Disease has affected the individual in comparison to that of the average person in the general population.

Obtaining “disabled” status under the ADA is a threshold issue to achieving its statutory protections. The episodic nature of Ménière’s Disease can create a significant barrier for individuals to avail themselves of the ADA’s relief. Such barriers may be especially high if defendants attempt to confine Ménière’s-related impairments to an intermittent manifestation of a disease process not worthy of “disabled” status.[32] By detailing the extent of these impairments, future plaintiffs can express their arguments in terms of major life activities and better present evidence before the court to surpass this critical threshold. In doing so, claimants can further educate courts about the disabling nature of Ménière’s Disease for many individuals and specifically how it has affected them. Documenting the disabling nature of their condition can assist individuals with Ménière’s Disease in obtaining “disabled” status.

[*] Tommy Tobin recently served as Instructor of Law at UC Berkeley’s Goldman School of Public Policy, where he taught a module on food law and policy.

Continue reading “What is “Disabled?”: Ménière’s Disease and the Americans with Disabilities Act (ADA)”

Making Cities Work

Making Cities Work

By Nino Monea JD ‘17

National elections dominate the news. But precious little policy is actually coming out of Washington these days. And officials there are often disconnected from our daily lives. At the local level, the challenges of how to run an effective city may appear more mundane on the surface, but that does not mean they are less important, or less complex.

Among the most persistently vexing questions that local leaders face is how to attract families and businesses. In January, professors from Wayne State University and Michigan State University published a working paper that found that virtually all trendy economic development strategies employed by cities over the past several years, such as building casinos, are not the driving force behind growth.[1]

Many cities attempt to spur economic growth using unproven techniques. Casinos are a perfect example of economic snake oil. In Atlantic City, lawmakers successfully pushed casinos on a skeptical population with the promise that the casinos would dedicate 2% of their annual revenue to the “health and well-being” of the city.[2] After being built, the casinos were able to subvert the “health and well-being” part of the deal through a legal loophole.[3] Much like the slot machines that they peddle, casinos usually have long odds for the city.

Rather than creating long-term growth, these sorts of projects often amount to little more than spitting matches between states. In 2013, then-Texas Governor Rick Perry made headlines for buying television ads in California encouraging businesses in the Golden State to relocate to Texas.[4] The end result is not that new jobs are created; they are simply relocated.[5]

Last year, Boston fervently attempted to win its bid to host the 2024 Olympic Games. The bid was vigorously opposed by the community group No Boston Olympics, which pointed out that the average price tag to an Olympic host city is $15 billion.[6] The group also cited research that shows Olympic Games are bad investments. In fact, there has never been a profitable one, unless accounting tricks are used to gin up the numbers, such as counting subsidies from the government as revenue.[7]

At least Boston had a relatively happy ending, as the community activists ultimately won and forced the city to drop its bid,[8] and so the city did not end up losing any money. The same cannot be said for Brazil, which hosted the 2014 World Cup. The country spent $600 million to build a massive stadium in the rainforest city of Manaus that was used for all of four games.[9] Another World Cup stadium cost Brazil $550 million and is now being used as a parking lot.[10] This is a tremendous waste, given that, in Rio de Janeiro alone, over 200,000 people lack adequate housing.[11]

Of course, not everything in life can be measured in dollars and cents. There can be perfectly legitimate reasons to invest in public projects that do not return a profit. The Hubble Space Telescope has not earned a dime, but that doesn’t make its photos any less stunning, or the knowledge about the universe that we have gained from it any less profound. But at the same time, if the goal of a project is explicitly to bolster economic growth, municipal leaders need to be upfront about what works and what does not.

In addition to being honest about which projects work, we also need to ask whom the projects are working for. In Detroit, casinos did honor their agreement to hire at least 51% Detroit residents, but several years after their development, there was no black representation in the casinos’ ownership, and the entry-level workers saw lower-than-expected wages.[12] Moreover, the promise that the casinos would deliver $73 million for minority- and women-owned businesses never came to be.[13]

In Boston, wealthy developer John Fish appeared to be the principal beneficiary from hosting the Olympics. Although he pledged to not bid on any projects, he said he would pursue contracts with transportation and college building agencies that would likely see upgrades in preparation for the games.[14] Conversely, many areas around the state would not have seen any investments from the Olympics.[15] Even worse, in Brazil, hundreds of thousands were displaced when their communities were bulldozed to make way for the gleaming new stadiums.[16]

So is there anything that cities can do? According to Professor Laura Reese, a co-author of the economic development report from January, the solution is straightforward: “[j]ust run a good basic city.”[17] To do this, city leaders should invest in things such as education, which is more strongly connected to economic growth.[18]

While investing in public schools and basic municipal services probably is not as glamorous as a shiny new development project, it is a sounder strategy. It is no secret that there are tremendous benefits of early childhood intervention programs —particularly in low-income communities. A Rand Corporation survey of well-designed early childhood intervention programs found a litany of benefits ranging from higher academic achievement to lower delinquency and crime rates, and even greater success in the labor market down the road.[19] The return on every dollar invested ranged from $1.80 to a whopping $17.07.[20] The studies tended to the largest returns when long term benefits, such as careers and reductions in crime.

The benefits of a strong education system can also have benefits for people other than the individual students. For all of the efforts municipal leaders take to woo businesses with one-time investments or tax breaks, companies often want a trained workforce – something education is crucial to accomplish. That explains why local auto dealers have donated equipment to help with vocational training programs at Arizona high schools.[21] They see it as a way to help increase the number of skilled technicians in the area that they hope to later hire.[22]

More broadly, a report from researchers at Napier University in Edinburgh examined what factors businesses consider when deciding to locate or relocate. They found that some of the most important factors were a well‑educated workforce and low crime rates.[23] On a similar note, the U.S. State Department has put together a list to help its employees decide where to live when they are deployed on tours to new locations. It urges families to consider social networks, career opportunities, and educational opportunities.[24]

This should not come as a surprise. When families and businesses have to make long-term decisions, they look at the fundamentals, not frivolities.

Rather than putting all of a city’s eggs in one basket, the better course is to focus on core issues that have widespread appeal. Nearly everyone wants good schools, safe communities, and robust municipal services. If a city gets these things right, people and businesses will come, and entertainment venues that the community wants will naturally flow from that.

All this goes to prove the wisdom of Lee Brice’s advice on the secret to success: “Don’t outsmart your common sense.”[25]

Continue reading “Making Cities Work”

A Beginner’s Guide to Legislative Drafting

A Beginner’s Guide to Legislative Drafting
By Deborah Beth Medows, Senior Attorney, Division of Legal Affairs, New York State Department of Health[*]

The ability to impact society through well-written legislation is unparalleled. As President Barack Obama stated, “A good compromise, a good piece of legislation, is like a good sentence. Or a good piece of music. Everybody can recognize it. They say, ‘Huh. It works. It makes sense.’”[1]

As a newly admitted attorney, you will need to know how to draft legislation if you choose to work as a legislative attorney. One of my earliest legal experiences occurred after I was appointed as Assistant Counsel to the New York State Legislative Bill Drafting Commission. I found myself drafting for the New York State Assembly and the New York State Senate, and advising on the constitutionality of the proposed legislation. Legislative attorneys may have different roles and state requirements can differ, so you will need to draft within the scope of your role and jurisdictional requirements. However, these are the general lessons that I gleaned from my own experiences.

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Social Insecurity: The Case for Totalization With India

Social Insecurity: The Case for Totalization With India

By Josh Craddock, JD ‘18

Death and taxes are inevitable, but at least death does not repeat itself. This maxim bites especially hard under current U.S.-India policy: expat workers pay into both countries’ Social Security systems, but are ineligible for benefits from their nation of employment. As India becomes a prominent player in the global market, international business between the United States and India has been setting new records each year. Last year, U.S.-India trade reached $107 billion, up from $60 billion in 2009.[2] Profitable business between these two countries has never been more promising. But without a change in policy, neither country can realize the full benefits of economic partnership.

In 2015, more than 275,000 Indian nationals were admitted to the United States on temporary worker visas.[3] Indians using H-1B and L-1 visas annually contribute approximately $3 billion to the American Social Security system—contributions from which they cannot receive retirement or disability benefits, and which they cannot repatriate to their home country—in addition to their payments into India’s Social Security system.[4] And this estimate does not include additional contributions made by these workers’ spouses who may be employed, such as those using L-2 visas. Over the past decade, Indian nationals working in the United States have contributed over $27.6 billion to the U.S. Social Security system.[5]

The current dual-taxation system also imposes substantial hardships on Americans working in India. Although no reliable statistics exist on how many Americans are employed in India, the Indian government estimates their contributions to India’s Employees’ Provident Fund Organization (EPFO) was $150 million in 2011.[6] These American expats are likewise unable to repatriate or benefit from their contributions to the Indian system, which amount to 12% of their total annual salary.[7] These contributions must be matched by an equal amount from the American citizen’s employer. Furthermore, when these Americans and their families return home, they may not qualify for retirement, disability, survivorship, or dependency benefits in the United States due to residence requirements for eligibility.[8]

This problem of taxation without benefit eligibility is compounded when one considers that employers are required to match their employees’ Social Security contributions in both countries—a total tax rate of 19.65% of an employee’s salary.[9] Employers that guarantee that an overseas assignment will not decrease their employee’s after-tax income are particularly affected. These employers pay both the employer and the employee Social Security contributions, but this payment is treated as “taxable compensation to the employee, thus increasing the employee’s income tax liability.”[10] The employer will often pay the additional income tax, which creates what the Social Security Administration calls a “pyramid effect” that, depending on the tax rate, can increase the employer’s foreign social security costs to as much as 65-70% of an employee’s salary.[11]

With such high tax rates, even corporations that do not pay the employee contribution may find beginning and maintaining overseas operations prohibitively expensive. Indian corporations may similarly be unable to pay American workers to work in India.

Because of these costs, the existence of a totalization agreement between the United States and another country is a significant factor American companies consider when choosing where to locate a foreign branch.[12] This sort of dual taxation hurts economic growth and may actually reduce tax revenue.[13] In the short term, both countries obtain Social Security revenue from expats who cannot collect on their contributions. But this practice usually deters investment and impedes labor mobility, leading to lower economic activity and tax revenues in the long run.[14]

Developed countries like the United States typically benefit more from totalization agreements than developing countries,[15] but Indian officials believe the agreement would help their nation, as well. They report that the lack of a totalization agreement “increases the cost of hiring Indian nationals,” discourages Indian workers from seeking employment in the United States, and “operates as a market barrier for Indian companies considering entry into the U.S. market.”[16] How many American businesses and entrepreneurs have been discouraged from investing in India, or vice-versa, because of the lack of an agreement to coordinate or “totalize” the two systems?

Currently, the United States has totalization agreements with twenty-five countries, including South Korea, Belgium, Czech Republic, and Japan.[17] India has totalization agreements with nineteen, all but one of which overlap with those with which the United States has signed agreements.[18] The Indian government is keen on signing such an agreement with the United States, yet negotiators have been stuck in a bureaucratic quagmire that has lasted for more than a decade.[19]

The current barrier to enacting such an agreement is the American objection that the two nations’ Social Security systems are incompatible because India’s EPFO does not cover 50% of the nation’s working population—most of which is employed informally.[20] But the United States’ objection is dubious, because both countries have identified practical ways to resolve the differences between their systems. In 2008, a team from the U.S. government met with officials at India’s EPFO to draw parallels between the two systems and to ensure a smooth repatriation system.[21] The joint team’s ensuing report outlined a plan to integrate the two systems if a totalization agreement were eventually passed.[22] In this sense, whether the Indian Social Security system is mandatory for Indian citizens working in India is irrelevant in practice. The pertinent fact is that EPFO contributions are mandatory for American citizens working in India.[23]

In truth, the hold-up likely stems from the United States’ unwillingness to allow repatriation of benefits before workers establish ten years of legal permanent residency.[24] Such a policy excludes the vast majority of Indian workers in the United States who are authorized on visas lasting only five to seven years. The U.S. and Indian governments are not only doubly taxing overseas workers’ social security contributions; they are also taxing workers’ patience with endless negotiations.

American reticence to reduce the residency requirement may be partly due to worries about Social Security’s towering deficit of unfunded liabilities. That deficit—conservatively estimated at $23.1 trillion[26]—would exist with or without the comparatively paltry contributions from Indian workers.[27] Deeper problems with the Social Security deficit will not be solved by taxing Indian workers without providing them benefits or permitting repatriation. The system will not be pushed over the edge into collapse because of a totalization agreement.

Professor Mukul Asher, a public policy expert from the National University of Singapore, suggests a middle ground that would serve both parties.[28] He argues that a totalization agreement created along similar lines as India’s agreement with Belgium would be an effective model for the United States.[29] This type of system would exempt workers from contributing to the Social Security system in the country where they are employed for their first five years, and allow them to repatriate any benefits that accrue after that time. India has recently signed similar totalization agreements with Canada and Australia.[30]

Overcoming American hesitation about an Indian totalization agreement is a key step to creating economic growth. Congress should authorize a congressional-executive agreement to end the negotiation and immediately conclude a totalization agreement with India. Rep. Engel’s proposal for requiring the Secretary of State to provide Congress with updates on totalization negotiations is a good first step.[31] Encouraging American businesses to expand to India could bring profits back home, while encouraging Indian businesses to open branches in the United States could create jobs in America. By increasing the profitability and competitive position of companies that adapt to the globalizing workforce, we can cultivate the full potential of the U.S.-Indian business partnership.
Continue reading “Social Insecurity: The Case for Totalization With India”