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The principles of Federal Indian law developed to address the unique relationship and history between the United States federal government and the Native American people, nations, and tribes. In Penobscot Nation v. Mills,the First Circuit Court of Appeals examined the Maine Indian Claims Settlement Act (MICSA) and the Maine Implementing Act (MIA), together known as the “Settlement Acts,” to determine whether the Penobscot Nation’s reservation (Reservation) boundary included a sixty-mile stretch of the Penobscot River known as the “Main Stem.” After a thorough analysis, the First Circuit Court of Appeals held that the Reservation boundary was limited to certain islands in the Main Stem.
Prior to the first North American settlers, descendants of the federally recognized Penobscot Nation, a riverine people, occupied a large area of land in Maine, including the Main Stem section of the Penobscot River. Over time the Penobscot Nation engaged in land dealings, resulting in the confinement of the Reservation to the Main Stem section. Sparking the subject litigation, Maine’s Attorney General issued an opinion that Maine has “exclusive regulatory jurisdiction over activities taking place on the [Penobscot] River,” and that the Penobscot Nation may only regulate activities on the islands, not on the river itself. Just eight days after the issuance of the opinion, the Penobscot Nation filed suit in federal court against the State of Maine and various state officials, seeking a declaratory judgment clarifying the Reservation boundary.
The decisions of both the Maine District Court and the First Circuit Court of Appeals focused on the interpretation of the Settlement Acts. The District Court found the statutory language of the Settlement Acts unambiguous, and used traditional canons of statutory construction to hold that the Reservation included only the islands in the Main Stem section of the Penobscot River. Similarly, the First Circuit, affirming in part, held that the “plain text of the definition of ‘Penobscot Indian Reservation’” in the Settlement Acts did not include the waters of the Main Stem.
In 1790, Congress passed the Indian Nonintercourse Act (ITIA), which provided, in relevant part, that no land sales made by Native Americans, or any nation or tribes of Native Americans, would be valid unless approved by Congress in a public treaty. Congress, which has plenary power over Indian affairs, intended ITIA to protect against unequal bargaining power between the Native Americans and non-natives. After the ITIA’s passage, the Penobscot Nation entered into land treaties with Massachusetts in 1796 and 1818, and a land sale with Maine in 1833 (Penobscot Treaties), transferring some of the Penobscot Nation’s territory to the state. Given the ITIA’s prohibition against such treaties, during the 1970s, the Penobscot Nation, along with other Maine tribes, asserted title to lands that were subject to past treaties, claiming that Congress did not confirm the agreements as required by the ITIA.
In total, the Maine tribes asserted legal title to nearly two-thirds of Maine’s landmass and filed lawsuits in support of their claims. In response to the land claims, Congress and the Maine Legislature passed the Settlement Acts, which defined the Reservation’s boundary. The Penobscot Nation and the Maine Passamaquoddy Tribe participated in the Settlement Acts’ negotiation process via appointed representatives who formed a negotiation committee. The parties eventually agreed to the Settlement Acts that, in part, extinguished all land claims in exchange for an $81.5 million appropriation, defined reservation boundaries for the Maine tribes, and subjected Maine tribes to state laws. Although the Settlement Acts resolved multiple issues, certain issues remained, including whether Congress intended to abrogate the rights contained in the Penobscot Nation’s treaties.
In federal Indian law jurisprudence, courts use established principles to interpret provisions contained in treaties, statutes, and certain congressional actions. Because only Congress has the power to abrogate a treaty or a right or reservation boundary contained in a treaty, courts apply the Diontest to determine abrogation; the test consists of two inquiries: whether Congress had notice that the legislation affected treaty rights and whether the legislation indicated a clear and plain intent to abrogate those rights. To determine Congress’s intent, courts look to the statutory language, legislative history, and, where they exist, “express declaration[s]” of intent. Another tenet of federal Indian law is that courts apply the Indian canons of construction when interpreting treaties or ambiguous statutory language relating to Native American interests. These canons developed over time due to the trust relationship between the federal government and the Native American tribes, and the unequal bargaining power between those two parties. When applying the Indian canons of construction for statutory interpretation, courts interpret ambiguous language in favor of Native American interests.
In Penobscot Nation, the First Circuit Court of Appeals affirmatively answered whether the court should construe the Settlement Acts’ Reservation boundary section using only the plain language of the statutory text. After determining that the statutory language was unambiguous, the court concluded that traditional rules of statutory construction—and not the Indian canons of construction—apply to the Settlement Acts, an assertion the dissent vehemently opposed. The court also held that the Penobscot Treaties no longer retained any meaning independent of the Settlement Acts, and therefore, the state common law and the Penobscot Treaties could not inform the court’s interpretation of the Settlement Acts. Central to the First Circuit’s analysis was whetherAlaska Pacific Fisheries v. United States—in which the Supreme Court analyzed similar language and held in favor of the tribe—was determinative of the outcome. The majority differentiated Alaska Pacific Fisheriesfrom the case at hand, holding that the MIA’s usage of “solely” in the Reservation’s statutory definition limits the Reservation’s boundary to only those areas described in the plain language of the Settlement Acts. Ultimately, the court held that the Reservation included only the islands within the Main Stem because the “Settlement Acts mean what they plainly say.”
The First Circuit Court of Appeals incorrectly declined to apply the Indian canons of construction when interpreting the Reservation boundary as defined in the Settlement Acts. Given the Penobscot Nation’s historical use of the Penobscot River, coupled with the Penobscot Nation and United States’ assertions of ambiguity, the majority incorrectly concluded that the language of the Settlement Acts was unambiguous, a critique appropriately noted by the dissent. In fact, there are many factors contributing to the ambiguity of the Reservation definition, including: state common law definitions that differ from the court’s holding, the Penobscot Nation’s interpretation of the definition, the MIA provision that the Penobscot Nation can fish “within” its Reservation, and the extensive history of the Penobscot Nation’s use of the Penobscot River. If the court determined the language to be ambiguous and applied the Indian canons of construction, the court would have likely given weight to the Penobscot’s understanding of “islands”as including the surrounding waters. The Penobscots asserted that they had this view when negotiating the Settlement Acts, and they would not have consented if they knew these agreements would extinguish the tribe’s rights in the Penobscot River. Thus, the court should have established a baseline level of ambiguity so that it could carry out a more appropriateanalysis—like that performed by the dissent.
By denying the ambiguous nature of the statutory definition, thereby avoiding application of the Indian canons of construction, the court edged away from established Indian law principles. If the dissent’s interpretation of the statutory language as ambiguous prevailed, therefore compelling the court to apply the Indian canons of construction, the court would have likely read the statutory definition of the Reservation to include the waters of the Penobscot River. By construing the statutory language in favor of the Penobscot Nation, the court could have considered important additional factors, including the Penobscot Nation’s understanding of the Penobscot River and islands as one in the same. Analyzing the statutory language through the lens of the Indian canons of construction would also have permitted the court to apply state common law, under which riparian owners own to the middle thread of the river. If the court applied this body of law, it could reasonably have determined the submerged lands and Main Stem waters to be part of the Reservation.
Moreover, the court did not provide a thorough analysis of whythe Penobscot Treaties no longer retained any interpretative value. Responding “[a]gain, not so” to the Penobscot Nation’s and United States’ argument that the Penobscot Treaties inform the interpretation of the statutory language, the majority failed to account for the well-established rule that Congress must express a “clear and plain” intent to abrogate treaty provisions. Although the outcome may have remained the same, the court should have engaged in the two-step Dionanalysis of congressional intent to abrogate the treaty, rather than merely concluding that the “treaties were subsumed within the [Settlement] Acts.” Unlike in Dion, where the Supreme Court fully analyzed the statutes at issue, in Penobscot Nation,the court simply dismissed the Penobscot Nation’s argument that the MIA’s Reservation definition incorporates both state common law and the Penobscot Nation’s understanding of the treaties. Before asserting that the Penobscot Treaties were “subsumed” within the Settlement Acts, the court should have engaged in a Diontest to determine whether Congress had notice of the Settlement Acts’ impact on the Penobscot Treaties and whether Congress evinced a clear intent to abrogate the relevant provisions of the Penobscot Treaties. Had the majority not relied substantially upon plain meaning interpretation, the court may have discovered that Congress had not thoroughly discussed abrogation in the legislative history of the Settlement Acts, thereby failing to demonstrate a “clear and plain” intent to abrogate the Penobscot Treaties.
In Penobscot Nation, the First Circuit interpreted the Settlement Acts to determine the Penobscot Nation’s reservation boundary. Circumventing the application of the Indian canons by holding the statutory language unambiguous, the court was able to dismiss the Penobscot Nation’s deep-rooted history with the Penobscot River as immaterial. By failing to apply the Indian canons, the court set a precedent that favors state interests over Native American interests, in direct contrast to longstanding legal principles of Indian jurisprudence.
. See Matthew Fletcher, Federal Indian Law 21-22, 30, 43-44, 175 (1st ed. 2016) (discussing early development of Supreme Court jurisprudence, congressional plenary power, and federal trust responsibility); American Indian Law Deskbook: Conference of Western Attorneys Generalat 24-25 (Larry Long & Clay Smith eds. 2008) (explaining Indian canons of construction originated due to unequal bargaining power); see also infra notes 22-25 (discussing development of Indian canons of construction, trust relationship, and congressional treaty abrogation).
. See 861 F.3d at 327 (reviewing lower court’s holding and affirming in part); Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 186-87 (D. Me. 2015) (identifying Main Stem stretch of Penobscot River with around 146 islands, totaling about 5,000 acres), aff’d and vacated,861 F.3d 324 (1st Cir. 2017). The First Circuit also considered whether the Penobscot Nation had standing to assert their sustenance fishing right on the Penobscot River. See id. at 336 (holding sustenance fishing issue not ripe and Penobscot Nation lacked standing to assert issue); see also Paul J. Bisulca, Indian Sustenance Fishing Rights in the Penobscot River Must Continue, Bangor DailyNews (Sept. 23, 2012), http://bangordailynews.com/2012/09/23/opinion/contributors/indian-sustenance-fishing-rights-in-the-penobscot-river-must-continue/ [https://perma.cc/JUQ6-V8JJ] (describing Penobscot Nation sustenance fishing rights where tribal members take fish for sustenance within Reservation). The United States intervened on its own behalf and as a trustee for the Penobscot Nation, and multiple parties intervened in support of the state defendants. See 861 F.3d at 324 (naming parties).
. See 861 F.3d at 327 (holding waters of Main Stem not part of Reservation). By holding that the Reservation included only the islands and not the water of the Main Stem section of the Penobscot River, the court affirmed the district court’s holding. Id.
. See Indian Entities Recognized and Eligible To Receive Services From the United States Bureau of Indian Affairs, 82 Fed. Reg. 4915, 4917 (Jan. 17, 2017) (listing federal recognition of Penobscot Nation); Final Principal Brief for Penobscot Nation at 4-6, Penobscot Nation v. Mills, 861 F.3d 324 (1st Cir. 2017) (Nos. 16-1424, 16-1435, 16-1474, 16-1482) [hereinafter Penobscot Nation Brief] (explaining importance of Penobscot River to Penobscot Nation in past and present); William H. Rodgers, Jr., Treatment as Tribe, Treatment as State: The Penobscot Indians and the Clean Water Act, 55 Ala. L. Rev. 815, 826-29 (2004) (discussing history of Penobscot Nation). In the mid-eighteenth century, the Penobscot Nation controlled the entire Penobscot River watershed with their family hunting territories, which consisted of about 5,303,511 acres in total. See Rodgers, supra, at 827 (describing historical family hunting territory of Penobscot Nation). The Penobscot River is non-tidal, and under Maine and Massachusetts state common law, owners of land adjacent to rivers, known as riparian owners, own to the middle of rivers. See In re Opinions of the Justices, 106 A. 865, 880 (Me. 1919) (noting under state common law riparian owners of streams owned to “middle thread” of stream); Veazie v. Dwinel, 50 Me. 479, 479 (1862) (determining Penobscot River non-tidal); McFarlin v. Essex Co., 64 Mass. 304, 309-10 (1852) (describing ownership of submerged lands to “middle or thread” of river).
. See 861 F.3d at 328 (tracing initial stages of litigation); Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 186 (D. Me. 2015) (summarizing parties’ claims and stating state defendants asserted own declaratory judgment claim on same issues), aff’d and vacated,861 F.3d 324 (1st Cir. 2017).
. See 861 F.3d at 329 (interpreting Settlement Acts to determine Reservation boundary and applying traditional rules of statutory construction); Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 216-18 (D. Me. 2015) (analyzing language of Settlement Acts’ definition sections), aff’d and vacated, 861 F.3d 324 (1st Cir. 2017).
. See Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 216-18 (D. Me. 2015) (explaining unambiguous nature of Settlement Acts and asserting even if ambiguous, holding not changed), aff’d and vacated,861 F.3d 324 (1st Cir. 2017).
. See 861 F.3d at 327, 336 (announcing First Circuit holding); Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 183, 216-18, 222 (D. Me. 2015) (holding no ambiguity in language of Settlement Acts), aff’d and vacated, 861 F.3d 324 (1st Cir. 2017).
. 25 U.S.C. § 177 (2012). In relevant part, the ITIA provides: “No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution.” Id.
. See Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 119 (1960) (emphasizing purpose of ITIA to “prevent unfair, improvident or improper” land deals); Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903) (stressing congressional plenary power over Indian affairs); see also Susan C. Antos, Comment, Indian Land Claims Under the Nonintercourse Act, 44 Alb. L. Rev. 110, 111 (1979) (noting President George Washington’s desire for ITIA passage).
. See Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 187-89 (D. Me. 2015) (discussing history of Penobscot Treaties), aff’d and vacated,861 F.3d 324 (1st Cir. 2017); see also Maine v. Johnson, 498 F.3d 37, 47(1st Cir. 2007) (discussing waters retained by Penobscot Nation under Settlement Acts); Brief of State of Maine as Intervenor-Respondent, at 3 n.2, Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007) (stating Maine’s position of riparian rights). At the time the parties entered into the Penobscot Treaties, Massachusetts controlled the landmass that later became Maine. See 861 F.3d at 341 (Torruella, J. dissenting). Under the Treaty of 1796, the Penobscot Nation ceded a six mile wide strip of land on each side of the Penobscot River that stretched for thirty miles of the Main Stem. See Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 187 (D. Me. 2015), aff’d and vacated, 861 F.3d 324 (1st Cir. 2017). Then, under the Treaty of 1818, the Penobscot Nation ceded an additional portion of the lands on both sides of the Penobscot River, but reserved four townships and certain islands in the river. See id. at 188. Through a deed dated 1833, the Penobscot Nation sold four of the reserved townships from the 1818 treaty to Maine. See id. at 189.
. See Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 189 (D. Me. 2015) (outlining history of Penobscot Nation’s land claims litigation), aff’d and vacated, 861 F.3d 324 (1st Cir. 2017). Other Maine Native American tribes initiated analogous claims, and in all, they claimed ownership to almost two-thirds of Maine’s landmass. See Passamaquoddy Tribe v. Maine, 75 F.3d 784, 787 (1st Cir. 1996) (delineating history of Settlement Acts in regard to Passamaquoddy Tribe); Joseph O. Gribbin, The Glass Eeling: Maine’s Glass Eel and Elver Regulations and Their Effects on Maine’s Native American Tribes, 20 Ocean & Coastal L.J.83, 89-91 (2015) (reviewing historical development of land claims from initial discovery, to lawsuits, to settlement). A Department of Justice attorney described these land claims as having the potential to be“the most complex litigation ever brought in federal courts.” See Paul Brodeur, Restitution: The Land Claims of the Mashpee, Passamaquoddy, and Penobscot Indians of New England 98-99 (1985).
. See Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, 372 (1st Cir. 1975) (outlining Passamaquoddy Tribe’s claim, alleging, in part, divesture of aboriginal title); H.R. Rep. No.96-1353, at 14 (1980) (emphasizing barriers to litigation and need for passage of Settlement Acts); Brodeur, supra note 15, at 69-70, 98-99(discussing steps leading to Passamaquoddy discovery of land claim and pressure for settlement); Nicole Friederichs, et al., The Drafting and Enactment of the Maine Indian Claims Settlement Act7-8 (Feb. 2017), http://www.mitsc.org/documents/157_2017-2-22Suffolk.MICSAReport.Final.Feb2017.pdf [https://perma.cc/3LTJ-JESF] (presenting archival research on, and analysis of, drafting of MICSA); Different Versions/Bills of the Maine Indian Claims Settlement Act, The Drafting And Enactment Of The Maine Indian Claims Settlement Act: March, 1977 to July, 1980, http://www.mitsc.org/documents/158_2017-2-6MICSATimeline.pdf [https://perma.cc/7RR5-S7Q4] (showing graphic of development of MICSA).
. See 25 U.S.C. § 1722(i) (1980) (MICSA remains in force but was removed from the United States Code) (defining “Penobscot Indian Reservation” for purposes of MICSA); Me. Rev. Stat. Ann.tit. 30, § 6203(8) (2010) (defining “Penobscot Indian Reservation” for purposes of MIA); Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 189-95 (D. Me. 2015) (examining progression from land claims to settlement discussions and eventual passage of Settlement Acts), aff’d and vacated, 861 F.3d 324 (1st Cir. 2017).
. See Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 189-90 (D. Me. 2015) (outlining settlement discussion process with tribal representatives), aff’d and vacated, 861 F.3d 324 (1st Cir. 2017); Friederichs,supra note 16, at 7-8, 33-38 (summarizing negotiation process and listing participants in negotiating, drafting, and passing of MICSA).
. See 25 U.S.C. § 1724(a), (c) (1980) (creating Settlement Fund and Land Acquisition Fund); Me. Rev. Stat. Ann.tit. 30, § 6203 (2A)-(9) (2010) (defining Penobscot, Passamaquoddy, and Houlton Band of Maliseet Indians land); Me. Rev. Stat. Ann.tit. 30, § 6204 (1979) (providing state laws apply on Indian lands); see alsoWhitney Austin Walstad, Note, Maine v. Johnson: A Step in the Wrong Direction for the Tribal Sovereignty of the Passamaquoddy Tribe and the Penobscot Nation, 32 Am. Indian L. Rev. 487, 492-93 (2008) (discussing terms of Settlement Acts and how some terms favor Maine).
. See 25 U.S.C. § 1723(a)(1) (1980) (ratifying prior land transfers by or on behalf of Maine tribes including transfers by treaty); Friederichs, supra note 16, at 3 (noting limited archival documents related to reservation of treaty rights in drafting of § 1723).
. See United States v. Dion, 476 U.S. 734, 738-40 (1986) (detailing “clear and plain” intent standard for congressional treaty abrogation); Tracy A. Diekemper, Comment, Abrogating Treaty Rights Under the Dion Test: Upholding Traditional Notions That Indian Treaties Are the Supreme Law of the Land, 10 J. Envtl. L. & Litig. 473, 476-77, 486-87 (1995) (providing how courts determine congressional intent and describing Diontest); see also Fletcher, supra note 1, at 226-29 (summarizing clear statement rule).
. See South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 330 (1998) (applying Dion standard to determine congressional intent); United States v. Dion, 476 U.S. 734, 739-40 (1986) (describing factors Court looks to in determining congressional intent and indicating preference for “express declaration”).
. See Hynes v. Grimes Packing Co., 337 U.S. 86, 115-16 (1949) (warning against relying on dictionary meaning in Indian law context); Alaska Pacific Fisheries v. United States, 248 U.S. 78, 87(1918) (stressing need to take surrounding circumstances into account when determining congressional intent); contra Matal v. Tam, 137 S. Ct. 1744, 1756 (2017) (stating inquiry into statute’s meaning ceases when statutory language unambiguous); Carcieri v. Salazar, 555 U.S. 379, 387 (2009) (holding court must enforce plain meaning where language unambiguous). The four general canons of construction used to interpret Native American treaties and statutes are: a treaty must be interpreted in favor of the Native Americans or tribes who are party to the treaty, a treaty must be interpreted as the Native Americans understood it at the time it entered into force, doubtful or ambiguous treaty terms must be resolved in favor of the Native American tribe in question, and courts may look to surrounding circumstances and history in interpreting unclear treaty provisions. See Matthew Fletcher, Principles of Federal Indian Law 155-56 (1st ed. 2017). The Supreme Court has stated that “[t]he canon of construction applied over a century and a half by this Court is that the wording of treaties and statutes ratifying agreements with the Indians is not to be construed to their prejudice.” Antoine v. Washington, 420 U.S. 194, 199 (1975) (stating legal principles courts use to interpret statutory and treaty provisions); see also Choate v. Trapp, 224 U.S. 665, 675 (1912) (explaining construction liberal with doubtful expressions resolved in favor of native interests).
. See United States v. Winans, 198 U.S. 371, 380 (1905) (justifying interpretation of treaty terms in favor of Indians based on unequal bargaining power); United States v. Kagama, 118 U.S. 375, 383-84 (1886) (recognizing trust relationship between United States and Indians due to dependency of Indians); Fletcher, supra note 24, at 155, 158 (articulating history of Indian canons of construction regarding treaties and statutes); see also Scott C. Hall, The Indian Law Canons of Construction v. the Chevron Doctrine: Congressional Intent and the Unambiguous Answer to the Ambiguous Problem, 37 Conn. L. Rev. 495, 505 (2004) (discussing development of canons and noting first appearance in Supreme Court cases in 1832); Peter S. Heinecke, Comment, Chevron and the Canon Favoring Indians, 60 U. Chi. L. Rev. 1015, 1028 (1993) (noting first Supreme Court application of canons to statutory interpretation in 1912).
. See Cty. of Yakima v. Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251, 269 (1992) (providing principle of construing statutes in favor of Native Americans); Choctaw Nation v. Oklahoma, 397 U.S. 620, 631 (1970) (stating treaties interpreted according to Indian party’s understanding of them).
. See 861 F.3d at 329 (highlighting unambiguity of Settlement Acts’ language and how Indian canons of construction not applicable). The court first stated that MIA section 6203(8) sets out what “Penobscot Indian Reservation” “means” under MIA and that this meaning controls the definition of “Penobscot Indian Reservation” under MICSA section 1722(i). Id. at 329. The court then noted that “[a]s a rule, [a] definition which declares what a term ‘means’. . . excludes any meaning that is not stated.” Id. (quotingBurgess v. United States, 553 U.S. 124, 130 (2008)) (laying foundation for plain meaning interpretation). The court also analyzed the meaning of the term “island” as it is used in section 6203(8), reasoning that because it is not given a meaning in MIA, it should be interpreted according to its plain meaning, which does not encompass water or submerged lands. See 861 F.3d at 330-31 (looking to dictionary for “ordinary” meaning of “island”). On this point, the dissent argued the majority took the word “island” out of context and ignored Supreme Court precedent. See 861 F.3d at 347 (Torruella, J. dissenting) (noting two ways Supreme Court applied Alaska Pacific Fisheries); see also Choctaw Nation v. Oklahoma, 397 U.S. 620, 628, 635 (1970) (holding grant of “land” on both sides of Arkansas River included submerged lands of river); Hynes v. Grimes Packing Co., 337 U.S. 86, 110-11(1949) (applying Alaska Pacific Fisheriesto hold grant of “public lands” included “waters”). The dissent further argued that state common law should also apply to the interpretation of the word “island.” See 861 F.3d at 349 (Torruella, J. dissenting)(discussing misapplication by majority of state common law); see also Me. Rev. Stat. Ann.tit. 30 §§ 6202, 6204 (1979) (stating Maine common law applies to Penobscots); infra note 43(describing state common law).
. See 861 F.3d at 333 (asserting Penobscot Treaties became part of Settlement Acts and have no meaning on their own). The dissent disagreed, arguing that the majority renders superfluous the MIA language of lands “reserved to the Penobscot Nation by agreement with the States of Massachusetts and Maine.” See Me. Rev. Stat. Ann.tit. 30, § 6203(8) (2010) (defining Reservation); 861 F.3d at 348 (Torruella, J., dissenting) (noting Penobscot Treaties referred to in MIA definition of Reservation).
. See 861 F.3d at 333 (introducing Alaska Pacific Fisheries); see also Alaska Pacific Fisheries v. United States, 248 U.S. 78, 86-87, 89-90 (1918)(presenting statutory language and applying Indian canons).
. See 861 F.3d at 333-34 (discussing differences between Alaska Pacific Fisheriesand case at hand); see alsoHeinecke, supra note 25, at 1028-29 (summarizing Alaska Pacific Fisheries in relation to statutory interpretation). The dissent disagreed with the majority’s approach, explaining that Alaska Pacific Fisheries “mandates an approach to interpreting statutes” that “places the statute in its context, and looks to Congressional intent.” See 861 F.3d at 345 (Torruella, J., dissenting) (emphasis in original) (attacking majority’s application of Supreme Court precedent).
. See 861 F.3d at 334 (restating holding of First Circuit in Penobscot Nation). Justice Torruella began his dissent by pointing out that the majority ignores its own precedent; Justice Lynch previously wrote for the First Circuit that plain meaning interpretation has flexibility and can be informed by the context and purpose of the statute. See id. at 339 (Torruella, J., dissenting).
. See id. at 338-39 (highlighting Settlement Acts ambiguous because of Supreme Court precedent, treaty rights, and fishing rights); infra notes 36-39 and accompanying text (continuing ambiguity explanation).
. See Me. Rev. Stat. Ann.tit. 30, § 6207(4) (1997) (providing Penobscot Nation may take fish within boundaries of Reservation); 861 F.3d at 332, 344, 347-48, 351-52, (detailing reasons why language in Settlement Acts ambiguous and mentioning importance of sustenance fishing); Penobscot Nation Brief, supra note 5, at 4-6 (noting Penobscots do not distinguish between islands, waters, and beds of Penobscot River).
. See 861 F.3d at 340 (Torruella, J., dissenting) (determining Indian canon dictates treaty interpretation understood by Indians at time of signing); Penobscot Nation Brief, supra note 5, at 36 (emphasizing Penobscot Nation’s understanding of term “island”).
. See id. at 340, 352-53 (Torruella, J. dissenting) (describing Penobscot Nation’s understanding of statutory language and relevance of fishing rights provision); Penobscot Nation Brief, supra note 5, at 4-6 (portraying Penobscot people’s lack of distinction between river and land in past and present).
. See In re Opinions of the Justices, 106 A. 865, 880 (1919) (describing how riparian owners of rivers owned to “middle thread” under Maine common law); Veazie v. Dwinel, 50 Me. 479, 479 (1862) (stating Penobscot River non-tidal stream); McFarlin v. Essex Co., 64 Mass. 304, 309-10 (1852) (recognizing ownership of submerged lands to “middle or thread” of river).
. See United States v. Dion, 476 U.S. 734, 740-45 (1986) (examining statutory language, face of statute, and legislative history to determine congressional intent); 861 F.3d at 333 (dismissing Penobscot Nation’s and United States’ argument regarding incorporation of Penobscot Treaties into Settlement Acts); see also Diekemper, supra note 22, at478-80 (summarizing Dion Court’s analysis of congressional intent to abrogate treaty rights).
. See United States v. Dion, 476 U.S. 734, 738 (1986) (necessitating “clear and plain” intention to abrogate Indian treaty); Friederichs, et al., supra note 16, at 3 (summarizing relative lack of archival materials relating to congressional intent to abrogate treaty rights). The Senate Report on MICSA states that the settlement provides that “[t]he Penobscot Nation will retain as reservations those lands and natural resources which were reserved to them in their treaties with Massachusetts and not subsequently transferred by them.” Friederichs, et al., supra note 16, at 3. As the dissent noted, the Indian canons of construction mandate reading the MIA and MICSA language together in order to give full meaning to their construction, thereby leading to the conclusion that the Penobscot Treaties’ rights were retained in the Settlement Acts. See 861 F.3d at 348-49 (Torruella, J. dissenting).
James W. Tsaparlis*
In recent history, the National Football League (NFL) has had its fair share of spotlight-grabbing controversies; from Deflategate to domestic abuse to concussions—and everything in between. Perhaps the NFL’s darkest reality, the NFL’s medical care and prescribing practices have somehow eluded the spotlight. Nevertheless, former players recently exposed the grim and shadowy past of the NFL by alleging—in a class action—intentional misrepresentation and concealment in the context of NFL medical care. Though the court recently dismissed plaintiffs’ second amended complaint, the complaint in Evans v. Arizona Cardinals did highlight a pattern and practice of knowing departure from federal regulations, including the Controlled Substances Act and the Food, Drug, and Cosmetic Act. The Evans complaint reads like a story depicting the NFL’s instances of illicit medical care as part of an overarching, tacit policy of providing medical care to merely return players to the field, no matter what the long-term health implications for the players might be.
This Article will review the players’ actual healthcare setting with a focus on the role of team doctors and trainers, plus prescription drugs. Next, this Article will address the role of personal doctors, second opinion providers, and NFL coaches and ownership. After assessing the NFL players’ healthcare ecosystem, this Article will argue that NFL medical care has, as alleged in Evans, historically sacrificed players’ long-term health in favor of the short-term end of returning players to the field. In conclusion, this Article will briefly introduce possible remedies geared toward safeguarding the long-term health of NFL players.
I. The NFL Health Care Ecosystem
The universe of medical care provided to players includes several key figures, the most prominent of whom are team doctors and trainers, personal doctors, second opinion providers, and coaching staff. Understanding the role that each plays in providing medical care to players sets the stage for understanding how a culture of returning players to the field came to permeate and define NFL medical care altogether. Each of these key figures will be examined in turn before addressing NFL prescribing practices.
A. Team Doctors
Typically, an NFL club hires team doctors to administer care to team members. Thirty out of thirty-two NFL clubs employ doctors as independent contractors, the majority of whom report directly to the team’s general manager. In accord with the most recent collective bargaining agreement (CBA), the NFL Players Association (NFLPA) merely validates that the physicians selected by a club are board certified in the field of expertise which they provide. Most team physicians remain in private practice; often, a lucrative endeavor because they are able to associate their private practice with service to professional athletes. Prior to 2004, many doctors and hospitals paid for the privilege of sponsoring an NFL team to provide medical services, though the NFL eliminated this practice in 2004.
Team doctors typically visit with an NFL team on Mondays and Wednesdays to evaluate and follow up on injuries sustained from gameplay. On Fridays, physicians typically hold “office hours,” and on game days physicians make themselves available from two hours before game time through the game’s conclusion. On game days, the team doctor ultimately decides which players will be eligible to play notwithstanding injury, after evaluating their functioning during pre-game warm-ups. Given their otherwise limited team involvement, team doctors substantially depend on the trainers “to monitor and handle the player’s care during the week,” given that they are always with the team.
By default, team doctors are put in the awkward position of satisfying the business ends of those who pay them—team ownership—while trying, without compromise, to do what is in the best medical interest of patient-players. A 2016 Associated Press survey of 100 players revealed that 39% of players believed team doctors and coaches did not have the best interests of players in mind with respect to injuries and player health. Asking rhetorically, “Do the doctors put the clubs’ priorities, which is winning, above the players’ health and long-term well-being?” one critic says, “[t]he answer, from someone who played for over a decade in the NFL and who has had five surgeries related to NFL injuries, is that the team’s needs come first.” This former player is not alone in his thinking. Other current players have echoed these sentiments, noting “More than anything [team doctors] want a player on the field . . . I feel like the team doctor only has the best interest of the team in mind and not necessarily the player.” The problem perceived by players appears to be more the result of doctors’ dual obligations in this larger organizational structure, than a belief that the player’s receive poor or unethical medical care.
B. Athletic Trainers
Unlike team doctors who tend to be independent contractors, NFL clubs directly employ athletic trainers full-time employees. Typically, NFL trainers report to the team doctor and implement training and rehabilitation at the behest of the team doctor, who unlike the team trainer, tends to be absent from the team. In short, team trainers are always with the team and thus more actively manage day-to-day player care in accord with the direction provided by a team doctor. Trainers are “the first and most consistent source of medical care” for the players.
Under state law, athletic trainers are broadly responsible for preventing, recognizing, and remedying injuries sustained by players. More precisely, trainers can be expected to deal in protective equipment, conditioning, nutrition; and in conjunction with the team doctor, physical exams, injury response, follow-up care, and all other matters related to the player’s well-being. Under the Professional Football Athletic Trainers Society Code of Ethics, in addition to providing “the best possible health care for the players,” trainers act as liaison between the “player, physician, coaching staff, management, and media.” Naturally, the same structural conflicts inherent in the team doctor’s position apply with equal force to NFL trainers.
One former player under Super-Bowl-winning coach Tom Coughlin spoke out against the health care environment he witnessed firsthand under Coughlin, saying that the trainer “would never intervene on a player’s behalf. He was browbeaten. Coughlin controlled him. That’s who has no spine. He’s a puppet.” Similar sentiments are reiterated by current players elsewhere. For instance, one current player indicated that the first take of trainers is always “underrepresentation of the actual injury” in order to “downplay the situation to convince me you don’t need to take any time off whatsoever . . . take off as little time as possible and get back on the job immediately.” Most tellingly, and corroborative of the Evans allegations, one current player remarks: “The training staff is meant to rehabilitate you to play on Sunday. It is not meant to rehabilitate you for . . . every-day activities later in life. The thought of ‘[y]our playing could [cause] further damage isn’t the concern—it’s ‘[c]an you play?’” As Deubert, et al., point out, the competing duties and responsibilities of doctors and trainers under the current organizational structure of NFL teams adversely affect the care, or at a minimum the perception of care, provided to players.
C. Personal Doctors
Personal doctors play a woefully minimal role in counteracting the long-term health implications of team-sponsored medical care vis-à-vis team doctors and trainers. In the first place, some players who make it to the NFL make it already dependent on team-provided care, without having had a personal doctor of their own. Put simply, some players are strangers to traditional, personal health care and management. Most players surveyed in the Deubert paper reported an utter under-utilization of personal doctors, with some notable quotes from current players reading, “I only use doctors that are in the system,” “I wouldn’t think the majority of guys have a personal physician,” and “I had never gone to the doctor.” This lack of personal care from professionals who are charged with the sole duty and responsibility of caring for the whole patient-player leads some to advocate for a rule mandating that players obtain personal doctors.
D. Second Opinion Providers
Second opinion providers tend to be doctors either confirming or contrasting the medical opinion given by an NFL club doctor. The roles of second opinion providers are widely contested and appear to vary somewhat based on the specific NFL team. Some players report encouragement to seek out their CBA-guaranteed right to a second opinion, while other players report feeling discouraged. At one extreme, former Colts player Tyler Varga recounted being prescribed amantadine to treat a concussion from which he felt effects for four months. When Varga obtained a second opinion which cautioned against the drug’s use because of psychotic side effects and addictiveness, he notified the team doctor he would not take the drug. Within 45 minutes, the Colts placed Varga on injured reserve—”a punitive response because he got a second opinion and decided not to take the amantadine.” Nevertheless, it appears that a small portion of second-opinion seekers actually receive diverging instruction from the second opinion provider; somewhere between roughly 10% and 30% actually receive differing treatment instruction or injury diagnoses.
E. Coaching Staff & Ownership
NFL Coaches exercise a tremendous amount of authority and control over their players. As the arbitrator reviewing the New Orleans Saints’ so-called Bountygate scandal, former NFL Commissioner Paul Tagliabue elaborated:
In such circumstances, players may not have much choice but to ‘go along,’ to comply with coaching demands or directions that they may question or resent. They may know—or believe—that from the coaches’ perspective, ‘it’s my way or the highway.’ Coaching legends such as George Halas and Vince Lombardi are not glorified or remembered because they offered players ‘freedom of choice.’
Given the tremendous pressure to win, coaches are naturally inclined to make decisions geared toward their team’s immediate success—especially in a league increasingly apt to dismiss under-performing coaches. In this vein, players and their agents actively voice their view that coaches place strong implicit and explicit pressure on their player’s to get them on the field and performing. One current player accurately summarized the perspectives of the rest in saying, “I think that [player health] is much less of a priority to them than winning and/or producing the best players on the field and getting the best production out of them.” It is important to note that the coach may not just pressure the player, but also may influence the medical staff as they determine a player’s fitness to compete on any given Sunday.[44
F. The Role of Prescription Drugs
In a 2011 study on opioid prevalence among former NFL players, 52% of the 644 retired NFL players interviewed, reported using opioids during the course of their NFL careers, with 71% of that cohort reporting misuse (use not just as prescribed). Moreover, 15% of those who misused during their careers reported continued misuse afterward. In 2011, the prevalence of ongoing opioid use stood at a whopping 7%, which alone may not seem like much, but actually constituted over three times the rate of opioid use in the general population. Ninety-three percent of the players interviewed indicated persistent pain; with 81% considering their pain to be “moderate to severe.” This level of pain represented triple the amount experienced by the general population. Pain, and ergo drugs, play a major role in the NFL health care ecosystem, but the role of drugs persist long after NFL careers end. Just how has this prevalence of prescription drug use arisen and what role does it play in the NFL?
Cue the Evans complaint. A document obtained through discovery in the Evans litigation sheds insight into the NFL’s perspective on prescription drugs. Dr. Thomas McLellan, an associate of the NFL’s longtime medical advisor on prescription drugs, Dr. Lawrence Brown, prepared a document entitled, “The Role of League-Wide Incentives in Promoting the Opioid Abuse Problem: The Need for League-Wide Collaboration to Solve the Problem (the Document). The Document first addresses “Pain and the Ability to Play Competitive Football,” indicating (1) pain is ubiquitous and unavoidable for NFL players, (2) pain inhibits players from playing at their best, (3) a player’s failure to play at his best means “loss of status and income” for the player, and (4) NFL teams whose players do not play at their best face “loss of status and revenue.” Given the nature of NFL injuries and their downstream effects, more rest, expanded rosters, or shorter/fewer games may seem inevitable—but such responses would reduce NFL profit margins.
Thus the Document turns to “Pain relieving medications and Competitive Football.” The Document states that opioids and other pain medications are efficacious “in the short term” when it comes to the prototypical musculo-skeletal pain experience by most NFL players. Then, the document suggests that “[f]or these reasons,” use and misuse of pain medications are common. Tying together these points, McLellan concludes: “It is in the players’, the teams’, and the league’s reputational and financial interests to use [pain killers] for pain relief.”
The Document appears to summarize and convey the NFL’s understanding of prescription drug use from the top, but it does not draw into focus the player’s perspective. Hall-of-Famer Warren Sapp described a long line before game time to receive Toradol injections, saying “They’re like Tic Tacs. You walked in, you got it and you played the game.” Toradol is a powerful, non-addictive, non-steroidal anti-inflammatory drug (NSAID) presenting an increased risk of kidney failure and bleeding—especially in contact sports. The drug deadens sensation, mitigates pain perception, and thereby inhibits a player’s ability to sense injury. Nevertheless, another player, Fred Smoot suggested that, despite a fractured sternum (which forced him to sleep upright for four months because he could not lie down), he returned to the NFL for one last season, playing every game, “thanks to a syringe full of [a] drug called Toradol.”
So players use the drugs, and the drugs work to keep them on the field, but just how pervasive is prescription drug use? Internal NFL documents indicate that, for example, in the 2012 season the 32 NFL teams (with 53-man active rosters) on average dispensed 5,777 NSAIDs and 2,213 doses of controlled substances. Commenting on these figures, the director of the Division of Medical Ethics at New York University’s Medical Center remarked, “It makes you think, are the physicians looking out for the health of their players, or are they just trying to keep them on the field?”
The allegations in the Evans complaint, if they turn out to be true, seem to answer this question. Representative of the claims and factual assertions in the Evans complaint, the Buffalo Bills’ longtime trainer Bud Carpenter, testified to witnessing doctors administer prescription injections without disclosing their contents or side effects. Many players report receiving prescription drugs from trainers, without examination and disclosure, and in the absence of a licensed physician. Whatever the truth of these allegations, the incontrovertible evidence of prescription drug prevalence in the NFL and the way that drugs are used—to keep players on the field—present major long-term health risks for NFL players.
II. The Short-Term, Long-Term Tradeoffs & Implications
Whether by design or not, the NFL healthcare ecosystem functions first and foremost to return players to the field. As Deubert, et al., argue, the primary health care providers for players—team doctors and trainers—provide their services from positions marred by serious conflicts of interest. Notwithstanding these conflicts and players’ apparent understanding of their existence, players remain largely unable to counteract the detriment these conflicts present. First, for many players, team-provided medical care supplants independent, primary care from a young age. As a result, the health care that players do receive tends to be in the context of performing a team sport, and in turn, geared towards returning players to the sport. Likewise, second opinions in the NFL arise in the context of performance, and if one ponders the topic and when it appears in the news, it is often where a player has received bad news such as diagnosis of a season-ending injury and seeks a more team-favorable outcome. Players, too, then bear some blame—except that their own willingness to play hurt, in part, derives from a get-paid-as-you-play pay structure. The NFL health care ecosystem does little to shift the gameplay-centric focus toward player-oriented care.
Accordingly, the role of prescriptions drugs in this context is suspect. The data suggest that many injured players continue playing week to week only because of dispensed painkillers. These data are corroborated by players who attribute their past ability to play to repeated injections and “cocktails” of different drug therapies. The problem with prescription drugs in this context is that they treat symptoms rather than underlying causes. Where rest may be the most appropriate treatment, it tends to be the most elusive in light of all the factors discussed, but especially the player’s and team’s reputational and financial interests.
Problematically, though, the use of NSAIDs mask pain and can, thereby, exacerbate injury unwittingly for a player. For example, the off-label use of Toradol to treat players prophylactically pregame, paradoxically, allows a player to get on the field and play through pain while concomitantly increasing the likelihood that the player exacerbates his injury, since his natural pain sensors are dampened. This is a cyclical problem as pointed out by researcher Linda Cottler, who states: “A cycle of injury, pain, and re-injury could lead to subsequent pain pull use during the NFL which in turn could result in later life disability, continued pain and misuse of prescription pain pills.” The sheer volume of prescribing in the NFL warrants scrutiny; drugs should be dispensed for good, appropriate indications like pain relief—not for “more questionable indications,” like getting an athlete to play through pain. Otherwise, NFL players risk their future health for short-lived NFL glory.
As one study found, during the course of the season, over 65% of NFL players sustain an injury, which often “contribute[s] to a cycle of worsening injuries and long-term consequences.” The same study found a “high rate of impairment” in recently retired NFL players, with players “significantly worse off” compared to the general population when it came to performing ordinary activities of daily living. An astounding 93% of NFL retirees report pain lingering from NFL injuries, with 81% of the group categorizing the pain as “moderate to severe.” The prevalence and degree of pain persistent among retired NFL players evinces the shortcomings of medical care provided during the course of players’ NFL careers. Nevertheless, there are several ways to better safeguard long-term player health.
III. Possible Solutions
A. The Deubert Solution
Though the Deubert study deals less with the quality of care that players receive, and more with the structural conflicts of interest prevailing in NFL medical practice, the authors propose a remarkably satisfying solution. Deubert, et al., advocate for providing players with split medical staff; one medical team employed by and advancing the interests of the NFL club’s coaching and ownership, and the other medical team acting as doctors purely interested in the patient-player. While pragmatic, it remains to be seen whether such a setup will be introduced in the next CBA. This solution also introduces an added ethical concern for which Deubert and his colleagues do not account; namely, player health could be relegated to a bargaining chip in the give-and-take of CBA negotiations.
B. Promoting Primary Care
NFL players may additionally be able to circumvent the shortcomings of existing care and the inherently conflicted structure in which it is delivered by making personal, primary care physicians a priority. Unlike the Deubert suggestion, emphasizing personal doctors need not be a CBA bargaining chip. Instead, player agents, in cohort with the NFLPA, can facilitate player-doctor relationships as part of their services to players. In this way, should the existing NFL health care ecosystem remain in place, players would nonetheless have some sort of check on the care that they receive. At least this solution has the potential for players to receive information not affected by conflicts of interest, though the player has to be willing to value long-term functionality over short-term financial gain and on-the-field glory.
C. Providing Federal Oversight
An additional avenue for players to improve their long-term health outcomes lies in lobbying the federal government to pass legislation which would re-shape, or at the very least, scrutinize NFL provider care. The Drug Enforcement Agency has already wagged a finger at the NFL for endemic failure in complying with federal narcotics laws. The NFL clubs’ unauthorized dispensation of controlled substances, malfeasant prescription recordkeeping and storage, and travel with drugs across state lines bespeaks a cavalier attitude toward dispensing prescription drugs and truly protecting players. The DEA let NFL medical personnel off the hook once; now it is time that clubs and their medical personnel are held accountable to do what the profession of medicine requires: promote the health and well-being of patients. Additionally, federal action bypasses the ethical quandary of negotiating something as fundamental as player health. To conclude, NFL medical personnel should provide medical care “in a manner that is consistent with the standard of the medical community . . . not the NFL medical community.”
. See generally Plaintiff’s Second Amended Complaint, Evans v. Ariz. Cardinals Football Club, L.L.C., No. 3:16-cv-01030-WHA (alleging NFL fostered medical environment geared toward returning players to field rather than health).
. See id. at 42-50 (citing specific examples of unlawful NFL conduct and instances where unlawfulness became known). The Evans case is distinct from the array of predecessor suits brought against the NFL, in that the plaintiffs are suing all 32 NFL teams, rather than the league as a whole, and have been able to circumvent arbitrating their claims under the NFL-NFL Player’s Association Collective Bargaining Agreement. See Rick Maese, NFL Abuse of Painkillers and Other Drugs Described in Court Filings, Wash. Post (Mar. 9, 2017), https://www.washingtonpost.com/sports/redskins/nfl-abuse-of-painkillers-and-other-drugs-described-in-court-filings/2017/03/09/be1a71d8-035a-11e7-ad5b-d22680e18d10_story.html?utm_term=.5052e6b30b4d (suggesting most cases preempted by labor deal). Resultantly, U.S. District Judge William Aslup found the plaintiffs’ claims to constitute an exception to the collective bargaining agreement rule—specifically, the illegality exception—allowing the parties to proceed to discovery. Id.
. See Christopher R. Deubert et al., Protecting and Promoting the Health of NFL Players: Legal and Ethical Analysis and Recommendations, 7 Harv. J. Sports & Ent. L. 1, 13-15 (2016) (identifying all key stakeholders in NFL player health). A review of all key stakeholders would additionally include neutral doctors, the NFL and its clubs, the NFLPA, club employees, family members, and other player advisors (contract or financial).
. See Deubert, supra note 4, at 101 (suggesting team doctors remain primarily engaged in running private practices; see also Rick Maese, supra note 2 (noting lucrative nature of physicians’ association with NFL teams).
. See Washington, supra note 5, at 38 (implying doctors forced to do the impossible in serving two masters). Indeed, physicians have a duty to care for the patient; in the words of the American Medical Association Code of Medical Ethics: “The relationship between a patient and a physician is based on trust, which gives rise to physicians’ ethical responsibility to place patients’ welfare above the physician’s own self-interest or obligations to others, to use sound medical judgment on patients’ behalf, and to advocate for their patients’ welfare.” See American Medical Association Code of Medical Ethics, Am. Med. Ass’n 1.1.1 (2016), https://www.ama-assn.org/delivering-care/ama-code-medical-ethics.
. See id. (stating 47% believed the opposite to be true, while 14% withheld an answer or were unsure). When the field of those polled is narrowed to players with more than four years of NFL experience, however, a substantial 65% believed that team doctors and coaches did not have the best interests of the player in mind. Id.
. See Arthur L. Caplan et al., Players’ Doctors: The Roles Should Be Very Clear, 46 Hastings Center Report at 25 (2016) (arguing “how [doctors] are selected, evaluated, and terminated and to whom they report” fuels quandary); see also Deubert, supra note 4, at 11 (highlighting inherent conflict of interest for team doctors).
. See id. (noting some state laws enumerate, in broad terms, trainers’ duties); see also N.C. Gen. Stat. Ann. § 90-523 (indicating trainer “carries out the practice of care, prevention, and rehabilitation of injuries”); N.Y. Educ. Law § 8352 (McKinney) (defining practice of athletic training to include “managing athletic injuries”).
. Compare Washington, supra note 5, at 39 (showing Indianapolis Colts retaliated against player for seeking second opinion), with Laurent Duvernay-Tardif, Health Care for NFL Players: Upholding Physician Standards and Enhancing the Doctor-Patient Relationship, Hastings Center Report 46 (2016) (intimating Kansas City Chiefs’ medical team accepts and encourages second opinions).
. Linda B. Cottler et al., Injury, Pain, and Prescription Opioid Use Among Former National Football League (NFL) Players, 116 Drug and Alcohol Dependence 188-94, 188 (July 2011), http://ac.els-cdn.com/S0376871611000020/1-s2.0-S0376871611000020-main.pdf?_tid=59a8f16c-3b21-11e7-89d8-00000aa cb35e&acdnat=1495040188_074963158f0f573fb01d68ba9bbf4c2e. The opioid epidemic across the United States is well-documented as “one of the nation’s most significant public health problems because it can lead to physical and mental impairment and even death.” Id. at 189 (describing misuse as use of an opioid other than as prescribed). The NFL is far from immune to this public health crisis. See Eugene Monroe, Getting off the T Train, The Players’ Tribune (May 23, 2016), https://www.theplayerstribune.com/2016-5-23-eugene-monroe-ravens-marijuana-opioids-toradol-nfl/.
. Plaintiff’s Second Amended Complaint, Evans v. Ariz. Cardinals Football Club, L.L.C., No. 3:16-cv-01030-WHA at 1 (alleging conspiracy to conceal information required to be disclosed to players illustrated by Document).
. See Sally Jenkins & Rick Maese, Pain and Pain Management in NFL Spawn a Culture of Prescription Drug Use and Abuse, Wash. Post (Apr. 13, 2013), https://www.washingtonpost.com/sports /redskins/pain-and-pain-management-in-nfl-spawn-a-culture-of-prescription-drug-use-and-abuse/2013/04/13/3 b36f4de-a1e9-11e2-bd52-614156372695_story.html?utm_term=.ee2877c0d8ce.
. See J.M. Tokash et al., Ketorolac Use in the National Football League: Prevalence, Efficacy, and Adverse Effects, Phys. Sportsmed 30(9): 19-24 (2002). Toradol’s intended, FDA-approved use lies in treating pain and reducing imnflammation post-operatively; not in using the drug prophylactically. See Plaintiff’s Second Amended Complaint, Evans v. Ariz. Cardinals Football Club, L.L.C., No. 3:16-cv-01030-WHA at 57-60.
. See Plaintiff’s Second Amended Complaint, Evans v. Ariz. Cardinals Football Club, L.L.C., No. 3:16-cv-01030-WHA at 34-35 (presenting Minnesota Vikings team email suggesting underutilization of Toradol yields competitive advantage).
. See Plaintiff’s Second Amended Complaint, Evans v. Ariz. Cardinals Football Club, L.L.C., No. 3:16-cv-01030-WHA at 25 (alleging “Clubs have created a coercive economic environment in which all players have non-guaranteed contracts). Additionally, of course, players will often have a winning attitude and may want to return to gameplay even if hurt in order to bolster their team’s chances of success.
. See Cottler, supra note 45, at 193. “Cocktailing” is generally described as mixing and matching pain-relieving and inflammation-reducing treatments. See Plaintiff’s Second Amended Complaint, Evans v. Ariz. Cardinals Football Club, L.L.C., No. 3:16-cv-01030-WHA at 30. It is alleged that even when mixing medications, players historically received little to no disclosure of long-term effects—or even the substance of what players are expected to ingest. Id.
. See id. at 4 (citing NFL e-mails demonstrating awareness of long-term health pitfalls). In addition to noting that player use of opioids increases long-term risk for abuse and addiction, one league e-mail sent by Dr. McLellan acknowledges, “Players in pain who would otherwise not play or play at the same level of competitiveness may be induced by a pain medication and their personal financial/reputational incentives to ply under conditions that could exacerbate their injuries and hinder their recovery.” Id.
. See Jenkins, supra note 57 (including tales from former NFL players regarding prescription use and misuse). For instance, when one former player, Chester Pitts, struggled to even walk post-surgically repairing his knee, Pitts nevertheless played another season thanks to “a cocktail of Toradol injections on Sundays, with anti-inflammatories and narcotic painkillers the other days of the week.” See id. A 2000 survey of NFL teams revealed that 28 of 30 NFL teams utilized Toradol injections on gamedays while a subsequent 2002 study indicated that those teams averaged roughly 15 pregame injections. Id.
. Eric C. Strain, Drug Use and Sport—A Commentary on: Injury, Pain and Prescription Opioid Use Among Former National Football League Players by Cottler et al., 116 Drug and Alcohol Dependence 8-11, 9 (July 2011), http://ac.els-cdn.com/S0376871611000032/1-s2.0-S0376871611000032-main.pdf?_tid=ab81 f424-3b22-11e7-ab57-00000aab0f27&acdnat=1495040755_c148ec251b73cd0072a57828b9057e4c.
. See Benjamin G. Domb et al., Whole-Person Impairment in Younger Retired NFL Players: The Orthopaedic Toll of a Professional Football Career, Orthopaedic J. of Sports Med. 1 (2016) (noting absence of studies on orthopaedic toll of NFL injuries on retired players).
. See Rick Maese, The DEA Warned NFL Doctors About Drug Laws in 2011. It Didn’t Go Well., Wash. Post (Apr. 20, 2017), https://www.washingtonpost.com/sports/redskins/the-dea-warned-nfl-doctors-about-drug-laws-in-2011-it-didnt-go-well/2017/04/20/38d8a37a-1fc3-11e7-be2a-3a1fb24d4671story.html?utm _term=.2435f74f0222.
. See Plaintiff’s Second Amended Complaint, Evans v. Ariz. Cardinals Football Club, L.L.C., No. 3:16-cv-01030-WHA at 36 (quoting email from Steelers doctor to Steelers trainer and noting NFL prescribing practices departure from ordinary norms).
Daniel Rietiker (PhD)*
The adoption of the Treaty on the Prohibiting of Nuclear Weapons (TPNW) in New York, on July 7, 2017, shifted the paradigm in nuclear disarmament after more than twenty years of stagnation in the field. After biological and chemical weapons bans in 1972 and 1993, respectively, the remaining weapons of mass destruction will be banned once the TPNW enters into force. Even though there is considerable disagreement on the practical impact of a treaty for nuclear disarmament and international security, the award of the Nobel Peace Prize in 2017 to the International Campaign to Abolish Nuclear Weapons (ICAN), the coalition that was instrumental in the negotiations and adoption of the treaty, demonstrates the treaty’s significance and immediate impact.
Article One of the treaty imposes certain prohibitions with a view to reaching a world free of nuclear weapons, such as use, threat to use, development, testing, production, manufacturing or transfer of nuclear weapons. Moreover, states are also obliged to refrain from assisting, encouraging or inducing anyone to engage in any activity prohibited by the treaty, and to seek or receive assistance in such activity. Importantly, states also undertake not to allow any stationing, installation or deployment of any nuclear weapons in their territory or at any place under their jurisdiction or control. This latter duty is aimed at states not possessing their own nuclear weapons or hosting foreign ones, for instance NATO members or allies such as Germany, Italy, Belgium, and Turkey allowing United States nuclear weapons on their territories.
Article Four, entitled “Towards the Total Elimination of Nuclear Weapons” provides for a disarmament regime for states possessing, or having possessed, nuclear weapons. As such, it can be regarded as a measure implementing Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which imposes on all states the duty “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”
Unfortunately, states possessing nuclear weapons are not likely to join the treaty. Not only have they been absent from all negotiations that aimed at adopting the TPNW, but some of them–namely the United States, United Kingdom and France–even issued, only a few hours after the adoption of the treaty, a joint declaration in which they declared, inter alia, that they “do not intend to sign, ratify or ever become party to it.”  In light of this declaration, there is the danger that only states not possessing nuclear weapons will adhere to the TPNW, which would naturally limit the impact of the treaty regarding its nuclear disarmament aspect.
The author, an expert in international, human rights, and arms control law, recently published the book Humanization of Arms Control: Paving the Way for a World Free of Nuclear Weapons, in which he argues that, given the stalemate in nuclear disarmament, new ideas have to be put forward. As a result, he proposes an approach that focuses less on states’s security than on the interests of the human being and victims of nuclear weapons. Moreover, he concludes on the illegality of nuclear weapons under humanitarian and human rights law. The author has closely followed the negotiations with a view of adopting the TPNW and considers its conclusion a confirmation of his thesis.
II. Early Examples of Humanitarian, Victim-centered Approaches to Arms Control
The new, human-centered approach to arms control is not an isolated phenomenon in international law, but was preceded by similar trends in the field of security (“human security” that reinforces the concept of state’s security) or development (“human development” instead of development of States). Within the domain of arms control, the TPNW is not a completely new aspect either. In fact, the adoption of the 1996 Ottawa Convention on the Prohibition of Anti-personnel Mines and its sister treaty, the 2008 Oslo Convention on Cluster Munitions, has been driven by the conviction that those weapons are, from a humanitarian point of view, disproportionate given their modest military and strategic value. Also, the 2013 Arms Trade Treaty, which prohibits the delivery of certain conventional arms if there is a risk that those arms might be used to commit serious violations of human rights or humanitarian law, or to commit international crimes, aims to protect human beings. In brief, humanitarian ideals inspired each of the three most recent arms control treaties. This certain trend in the direction of a human-centered arms control is therefore undeniable.
III. The Penetration of the Humanitarian, Victim-centered Approach into the Nuclear Field
In light of this new trend in the non-nuclear field, human-centered ideals and goals should certainly permeate the domain of nuclear weapon arms control. Even though the NPT review cycles have recently considered certain humanitarian principles, the adoption of the TPNW in 2017, which was clearly driven by such considerations, solidified the value of humanitarian ideals in the conversation. The human-centered nature of the TPNW flows from, at least, four elements. First, it can be derived from its preparatory works. Several elements of ICAN’s campaign are recognizable, and had already been the ingredients of the successful processes that led, in record time, to the adoption of the human-centered Ottawa and Oslo Conventions–namely, humanitarian ideals as the driving force; advocating and campaigning efforts in favor of those humanitarian ideals by civil society, international organizations and academia; the essential role played by medical and other professional experts, among others from the International Committee of the Red Cross (ICRC); and the involvement of victims of the weapons in the process.
Second, like the Ottawa and Oslo Conventions, Article One of the new treaty imposes a set of prohibitions with a view to eliminating the relevant weapons. From a humanitarian point of view, the most important prohibition is the ban on use. Quite surprisingly, the use of nuclear weapons has not yet been explicitly prohibited. It is important to stress that if one day the prohibition of use will be endorsed by numerous states, the existence of a parallel customary rule that would also bind non-states parties might be suggested.
Third, the new treaty also clearly expresses its human-centered nature with human rights and humanitarian law language used in its preamble. In particular, the preamble articulates the principles of international humanitarian law–the rule of distinction between combatants and the civil population, the prohibition against indiscriminate attacks, the rules on proportionality and precautions in attack, the prohibition to use weapons of a nature to cause superfluous injury or unnecessary suffering, and the rules for the protection of the environment. The preamble states clearly that any use of nuclear weapons would be contrary to those principles.
Moreover, the preamble reiterates that the catastrophic consequences of nuclear weapons cannot be adequately addressed as they pose grave problems for the survival of mankind and the environment, socio-economic development, the global economy, food security and the health of current and future generations. Indeed, recent research indicates that the use of a nuclear weapon would affect the whole planet. For example, should India and Pakistan engage in nuclear weapon use, this usage would likely trigger subsequent retaliatory nuclear attacks. It is also suggested that use of nuclear weapons could cause that temperature to fall, globally, to below those of the Little Ice Age of the fourteenth to nineteenth centuries. The additional studies show nuclear arms usage would decrease agricultural production in parts of the United States and China by about 20% for four years after the explosion and by 10% for a decade. In his book, the author explains how and to what extent this would affect the enjoyment of the economic, social and cultural rights of all people worldwide.
Fourth, the TPNW surprisingly features a clause on victim assistance and environmental remediation, which the Oslo Convention inspired and which also constitutes another expression of its humanitarian end. It obliges states parties to provide adequate age-sensitive and gender-sensitive assistance to individuals under their jurisdiction who are affected by use or testing of nuclear weapons, including such past state activities. The TPNW also encourages parties to repair the environment where state nuclear action caused environmental harm. The provisions on international cooperation and assistance further aid parties with these remedial efforts.
IV. Focusing on Vulnerable Groups: The Example of Indigenous Peoples
Human rights law particularly recognizes the special vulnerability of certain groups that are in need higher protection, as evidenced by the special treaties in their favor. The TPNW reflects these protections. The preamble stresses the unspeakable human suffering of victims of the use of nuclear weapons in Hiroshima and Nagasaki in August 1945 (so-called “hibakusha”) and the testing of such weapons, thereby singling out the special vulnerability of female individuals of all ages and indigenous people. The internationally community further recognizes that armed conflict, in general, and the radiation from nuclear weapons, in particular, impact those groups disproportionally.
For indigenous people, the treaty mentions two aspects of nuclear weapon use on this group–namely their special relationship to their lands that is heavily affected by the use or testing of nuclear weapons and the impact of such testing on the physical and mental health of those people. Regarding the first aspect, the Inter-American Court of Human Rights stressed, on several occasions, the special relationship between indigenous peoples and their traditionally owned lands that goes much beyond both a modern and Western concept of possession, ownership, and production:
The culture of the members of the indigenous communities corresponds to a specific way of life, of being, seeing and acting in the world, constituted on the basis of their close relationship with their traditional lands and natural resources, not only because these are their main means of subsistence, but also because they are an integral element of their cosmology, their spirituality and, consequently, their cultural identity.
For instance, the United States carried out sixty-seven nuclear tests on the Marshall Islands between 1946 and 1958, most of them at the Bikini and Enewetak Atolls. The total explosive yield was approximatively 100 megatons, the equivalent to more than 7000 Hiroshima bombs. These tests displaced the indigenous people of the Marshall Islands, disconnecting them from their lands and their cultural and indigenous way of living. Laurence Carucci, a professor of anthropology, testifying before the Nuclear Claims Tribunal:
[The] Enewetak people were distraught, heartbroken, and in general state of mental and emotional trauma when they were forced to leave their homeland. Their very embeddedness in a place in the world, the very process through which the community had scratched their being into the physical contours of the earth, and the historied place that gave them a sense of meaningful connection with their communal past, were gone.
Regarding the impact of nuclear testing on the health of indigenous peoples, the tests caused hundreds of additional cancer cases in the Marshall Islands, and provoked psychological trauma in the local population when they witnessed the explosions and were forced to relocate for their physical protection. A UN report details this impact. Additionally, Calin Georgescu, who undertook a mission to the Marshall Islands to study and report on the lasting effect of the nuclear tests, stressed the compelling testimony of survivors of the tests about their psychological trauma from witnessing explosions; the local population’s increased stress and anxiety due to the nuclear tests are legitimate and serious health concerns. It is therefore only fair to mention the special vulnerability of indigenous peoples in the new treaty, which prohibits the use and testing of nuclear weapons and imposes the duty to assist victims of these activities.
The TPNW will create momentum for nuclear disarmament, increase the pressure on states possessing nuclear weapons, bring the debate positively at the forefront of international relations and constitute a new tool for civil society to push disarmament forward. The TPNW exemplifies the trend towards a humanitarian approach to arms control, catalyzed by the Ottawa and Oslo Conventions because the treaty provides the first example within the domain of nuclear weapons. This new treaty links arms control and human rights and, by placing the victims of use and testing of nuclear weapons at the center, illustrates that nuclear weapons inflict concrete suffering and harm. Maybe the new instrument will trigger debate and stimulate ideas on how to better address past injustice and discrimination caused to certain groups of people by the use and testing of nuclear weapons, in particular indigenous peoples. As usual in international relations, the treaty’s success and impact will depend on the good faith of states parties in the implementation of the TPNW, in particular regarding the clauses on victim assistance and environmental remediation. It is hoped that the states will honor their commitments and engage with the same enthusiasm and spirit of cooperation as shown during the preparatory phase.
* Member of the Adjunct Faculty of Suffolk University Law School, Boston MA and International Law Lecturer (University of Lausanne); Senior Lawyer at the European Court of Human Rights (ECtHR), Strasbourg. The present piece is a summary of a talk that the author gave at Suffolk University Law School in Boston, MA on Monday, October 16, 2017.
. See Press Release, The Norwegian Nobel Committee, The Nobel Peace Prize for 2017 (Oct. 6, 2017), https://www.nobelprize.org/nobel_prizes/peace/laureates/2017/press.html [https://perma.cc/DX5F-KHU6] (awarding Nobel Peace Prize); see also Camila Domonoske, International Campaign To Abolish Nuclear Weapons Wins 2017 Nobel Peace Prize, https://www.npr.org/sections/thetwo-way/2017/10/06/556047073/20 17-nobel-peace-prize [https://perma.cc/B2M4-2YAT] (noting ICAN’s “inspiring and innovative support” of TPNW).
. See United Nations Treaty on the Prohibition of Nuclear Weapons, supra note 2, at art. 1 (g) (explaining treaty prohibits others from testing, deploying, or possessing nuclear weapons on signatory’s land).
. See Press Release, United States Mission to the United Nations, Joint Press Statement from the Permanent Representatives to the United Nations of the United States, United Kingdom, and France Following the Adoption of a Treaty Banning Nuclear Weapons (July 7, 2017), https://usun.state.gov/remarks/7892 [https://perma.cc/N4RZ-T67P] (noting some Security Council states not participating in TPNW negotiations or supportive of treaty).
. See generally Press Release, Joint Statement on the Humanitarian Dimension of Nuclear Disarmament by Austria, Chile, Costa Rica, Denmark, Holy See, Egypt, Indonesia, Ireland, Malaysia, Mexico, New Zealand, Nigeria, Norway, Philippines, South Africa and Switzerland (May 2, 2012), http://www.acronym.org.uk/old/official-and-govt-documents/joint-statement-humanitarian-dimension-nuclear-disarmament-2012-npt-prepcom.
. See generally United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295 (Sept. 13, 2007), www.un.org/esa/socdev/unpfii/en/drip.htm [https://perma.cc/Y55N-S3NG] (declaring rights of indigenous peoples in order to protect their culture and land).
. See Xákmok KásekIndigenous Community v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 214, PP 40 (Aug. 24, 2010); see also Yakye Axa v. Paraguay, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125, PP 76 (Aug. 24, 2010).
. See United Nations Special Rapporteur on the Implication for Human Rights of the Environmentally Sound Management and Disposal of Hazardous Substances and Wastes, United Nations Commission on Human Rights, http://www.ohchr.org/EN/Issues/Environment/ToxicWastes/Pages/SRToxicWastesIndex.aspx [https://perma.cc/8FJU-FVY9].
. See Calin Georgescu, Report of the Special Rapporteur on the Human Rights Obligations Related to Environmentally Sound Management and Disposal of Hazardous Substances and Waste, A/HRC/21/48/Add.1, § 26 (Feb. 7, 2012).
Graduation is just around the corner for many law students, meaning thousands of new lawyers will be entering the legal workforce. With females now making up the majority of law students, many of these new lawyers will be women. Graduating female law students, however, should be concerned about more than just the bar examination this summer, as gender inequality is still a frequent issue women face in the legal world today. While leaders in the legal profession consistently make diversity a key goal, reports show there are still multiple reasons why females struggle to find equality in the legal workforce, yet solutions remain available to firms that can help alleviate the problem. Many argue “big law” firms should be the driving force behind eliminating gender inequality in the legal profession, but placing the focus on these types of firms is not the only path to a solution, as female law students can also start to seek out a solution to the issue before they become attorneys.
Women have been able to participate in legal proceedings for a far greater time than many realize. Margaret Brent was the first female attorney in the United States when she was officially labeled an executor and attorney in 1648. Arabella Mansfield was the first female attorney admitted into a state bar; however, she did not achieve this through traditional means, as she did not attend law school, but instead was able to pass the bar exam by observing a male attorney.
Occurrences like the above were incredibly rare, as only five female attorneys were known to be practicing in the United States in 1870. More often than not, women were blocked from obtaining work in the legal field. Throughout the 19th century the Supreme Court turned down attempts by females who sought protection under the 14th Amendment for the right to be admitted into state bars. Gender discrimination also flowed into law schools, as women were primarily barred from admission into legal academic facilities until the turn of the 20th century. Change in law school admittance only occurred as a side effect of both World Wars because many law schools were finally persuaded to admit women stemming from the need to fill in empty seats left open by men who were drafted for war, and even then, schools like Harvard University still fought to keep woman out of enrollment. Even when women were able to attend law school, they still struggled to find employment after graduation.
Nevertheless, women have made great strides in finding access to legal employment and education since the times of Margaret Brent and Arabella Mansfield. The 1960s and 1970s were a particular time of great growth in the legal world, opening doors that were previously closed to women. In the 1960s, the Civil Rights Movement stimulated interest in the legal profession for many women, which was further supported by a majority of law schools removing their bans on female applicants; this combination created a significant increase in new female law students who later became attorneys entering the workforce. In the 1970s, the legal world profoundly changed as the demand for legal work amplified and was met by an increase in firm hiring, including the hiring of women. Legislative movements also helped support the hiring and admittance of female lawyers and law students. In 1972, amendments to Title VII extended antidiscrimination rules to include smaller offices and government agencies, therefore, any firm with fifteen or more employees had to be considerably more careful with making employment decisions and fostering safe workplace environments. The 1972 Amendments to Title IX also aided female law students by reinforcing antidiscrimination policies in law school admittance and scholarships, making it possible for schools to lose federal funding if found culpable of gender discrimination. More recently, “big law” firms have started to set internal policies to help support female lawyers, and one of the most prominent policies is extended paid maternity leave, with some firms offering up to eighteen to twenty weeks.
However, even with such growth and diversification in the legal field, issues still persist. For the sizeable amount of women graduating from law schools over the past few years, there is still a stark difference in how many are actually employed in law firms. The 35% of women who work in firms are consistently found to be in lower ranking positions, making up only 20% of firms’ equity partners. Compensation has also become a hot topic, as there has been an increase in legal suits claiming firms support a pay disparity between genders. Additionally, women are finding it difficult to break into certain legal specialties, particularly the patent and intellectual property fields. Gender discrimination issues continue to extend far beyond what is seen in firms as well, including law school journals, judgeships and general counsels.
So, where can a solution to these issues be found? Many place the focus on “big law” and its need to diversify. In response, “big law” firms emphasize diversification and disparity as key objectives and have instituted diversity groups and hired diversity officers to ensure equality within its own practices. However, the fight to stop gender discrimination can start even before students become lawyers and obtain legal employment. All law students, male and female, can make a difference if they emphasize their desire for diversity in interviews, and then firm recruiters will be forced to react to this changing law school student body. Another way gender discrimination can be fought is through law schools, where career advisors can help 1L female students by providing networking opportunities with established female professionals within the legal field at the beginning of their law school careers. Establishing these professional relationships early on can help female students increase and diversify their legal connections, prepare for job interviews, and obtain a better understanding of the on-campus interviewing process. Many student-led groups already have such programs in place, including Women’s Law Association groups, but an official policy that requires law school career development offices to arrange varying networking opportunities for their female law students can ensure no female students are left behind.
Equality in the legal profession has been a difficult egg for women to crack. Over the past century the fight has been limited to gaining access to a field that was once exclusive to white males. Now that women have finally been able to enroll in law school and find employment in firms, it is time for the next step. Women need a solution to the disparity issues that remain, so a true balance can be seen throughout all areas of the legal profession. While firms, large and small, have started the initiative to diversify, it is never too early for law students to do the same.
 See Elizabeth Olson, Women Make Up Majority of U.S. Law Students for First Time, N.Y. Times (Dec. 16, 2016), https://www.nytimes.com/2016/12/16/business/dealbook/women-majority-of-us-law-students-first-time.html [https://perma.cc/G45H-GKWM] (reporting females now make majority of law school enrollees).
 See Stephane J. Kirven, Woman in the Judicial System, in Women in the Criminal Justice System: Tracking the Journey of Females and Crime 237, 238 (eds. Tina L. Freiburger & Catherine D. Marcum, 2016) (describing Margaret Brent’s legal practice).
 See Louis A. Haselmayer, Belle A. Mansfield: August 23, 1846 – August 1, 1911, 55 Women Law J. 46, 46-47 (1969) (narrating important achievements throughout Mansfield’s life).
 See Kirven, supra note 2, at 238 (naming only few women able to practice law in 19th century).
 See Bradwell v. State, 83 US 130, 133 (1872) (stating “when the legislature gave to this court the power of granting licenses to practice law, it was with not the slightest expectation that this privilege would be extended to women”).
 See Nancy Farrer, Of Ivory Colums and Glass Ceilings: The Impact of the Supreme Court of the United States on the Practice of Women Attorneys in Law Firms, 28 St. Mary’s L.J. 529, 542 (1997) (highlighting many east coast law schools were behind in accepting female applicants).
 See Cynthia Grant Bowman, Women in the Legal Profession from the 1920s to the 1970s: What Can We Learn From Their Experience About Law and Social Change? 3 (Cornell Law Faculty Publications, Paper No. 12, 2009) (describing lack of males led to shortage of lawyers); see also Herma Hill Kay, The Future of Women Law Professors, 77 Iowa L. Rev. 5, 8 (1991) (quoting Harvard Law President stating no need to admit females during war, but school admits first females four years later).
 See Ferrer, supra note 6, at 547 (explaining struggles women experienced finding employment after law school).
 See Kay, supra note 7, at 11 (providing timeline of female growth in legal fields).
 See Susan Ehrlich & Nancy C. Jurik, Women Entering the Legal Profession: Change and Resistance, in Doing Justice, Doing Gender: Women in Legal and Criminal Justice Occupations 107, 112-13 (2007).
 See id. at 114.
 See id. at 115.
 See Gayle Cinquegrani, Generous Parental Leave Policies Spreading in Law Firms, Bloomberg Law (Aug. 10, 2017), https://www.bna.com/generous-parental-leave-n73014463014/ [http://perma.cc/NR9X-5HYE] (reporting on several firms’ expansion of maternity leave).
 See Elizabeth Olson, ‘A Bleak Picture’ for Women Trying to Rise at Law Firms, N.Y. Times (July 24, 2017), https://www.nytimes.com/2017/07/24/business/dealbook/women-law-firm-partners.html [http://perma.cc/LYby-SU4B] (noting 50.3% of women graduating from law schools but only 35% of women constitute lawyers in firms).
 See id.
 See id.
 See Malathi Nayak, Is Patent Litigation Still a Man’s Game? Yes, Female Lawyers Say, Bloomberg Law: Big Law Business (Jan. 22, 2018) https://biglawbusiness.com/is-patent-litigation-still-a-mans-game-yes-female-lawyers-say [http://perma.cc/T5FK-K69C] (explaining reasons why less women go into technical legal fields).
 See generally Commission on Women in the Profession, Am. Bar Ass’n, A Current Glance at Women in the Law: January 2017 (2017), https://www.americanbar.org/content/dam/aba/marketing/women/current_glance_statistics_january2017.authcheckdam.pdf [http://perma.cc/JRC9-WRR3] (listing different disparities for women in different roles in legal field).
 See Bonnie Marcus, How One Law Firm Is Tackling Diversity, Forbes (Oct. 24, 2016), https://www.forbes.com/sites/bonniemarcus/2016/10/24/how-one-law-firm-is-tackling-diversity/#3b75e270758d [http://perma.cc/LEX3-CVRQ] (reporting on Nixon Peabody’s view on promoting diversity).
The old saying, “sticks and stones may break my bones, but words can never hurt me,” may not be as true as it once was.
In June 2017, a Massachusetts court found that a person’s words could be the direct cause of another person’s death, which can ultimately result in a verdict of involuntary manslaughter. Read about the potential consequences of Commonwealth v. Carter before the Supreme Judicial Court hears the case on direct appellate review.
The old saying, “sticks and stones may break my bones, but words can never hurt me,” may not be as true as it once was. In June 2017, a Massachusetts court found that a person’s words could be the direct cause of another person’s death, which can ultimately result in a verdict of involuntary manslaughter. In Commonwealth v. Carter, a case that became national news, a teenage girl was charged for the death of her boyfriend because she encouraged and helped him plan his own suicide through phone conversations and text messages. The judge’s guilty verdict set new precedent for manslaughter in Massachusetts and raised potential constitutional issues in other states. This blog argues the reason why this case garnered so much attention was that its legal model can extend well beyond the encouragement and assistance of suicide. In particular, district attorneys across the United States may now potentially hold school bullies criminally responsible for their mean, taunting words that result in a peer’s suicide.
On July 13, 2014, police found the body of Conrad Roy III after he committed suicide in his car. He struggled with mental health issues for several years and had attempted suicide once before. His girlfriend, Michelle Carter, was aware of his struggles and had previously advised him to seek help. In the weeks and months prior to his death, Michelle and Conrad discussed when, how, and why Conrad should commit suicide. Throughout the day before he died, Michelle sent text messages to Conrad encouraging him: “I thought you wanted to do this. The time is right and you’re ready, you just need to do it! You can’t keep living this way. You just need to do it like you did last time and not think about it . . . .” They also had phone conversations along those same lines. Afterwards, Michelle told a friend that Conrad left his car at first when the carbon monoxide started to come in, but that she then verbally told him to get back in the car. Later on, Michelle told a friend that she believed, at any point throughout that day, she could have stopped the suicide from occurring, but she did not.
When manslaughter gains media attention, it is often due to actions such as negligent driving resulting in a fatality or providing drugs to a person whom later overdosed. Technically, manslaughter is defined in Massachusetts as when “wanton and reckless conduct… involves a high degree of likelihood that substantial harm will result to another.” Such conduct can be found when: “the defendant [had] specific knowledge or . . . a reasonable person should have known in the circumstances.” With this definition in mind and considering what most people consider manslaughter, Michelle Carter appealed whether she could be charged with the crime because she lacked the physical presence at Conrad’s death and did not supply him the tools to do so, insisting her words alone were not enough to be considered wanton and reckless conduct. The Supreme Judicial Court agreed with Michelle; they had never before had a case where mere words were the basis of the indictment. But due to her words occurring in the final moments of Conrad’s life, they therefore had a “coercive quality. . . sufficient in the specific circumstances of this case to support a finding of probable cause.”
After the Supreme Judicial Court’s findings, the Commonwealth could continue with their charges against Michelle in the juvenile district court. In a bench trial that consisted of more than a week of testimony and evidence regarding Michelle and Conrad’s relationship and their conversations, Judge Moniz found Michelle guilty of involuntary manslaughter. Judge Moniz explained that a combination of Michelle’s actions were the reason for her guilty verdict. First, encouraging Conrad to commit suicide was “wanton and reckless conduct by [Michelle], creating a situation where there [was] a high degree of likelihood that substantial harm would result to [Conrad].” Second, “[Michelle’s] failure to act where she had a self-created duty to [Conrad], since she had put him into that toxic environment, constituted . . . wanton and reckless conduct” as well.
Judge Moniz’s reasoning behind his decision was monumental. Many argued this finding essentially states Michelle “literally killed Mr. Roy with her words,” and goes against the traditional interpretation of involuntary manslaughter because it lacks a direct action from the defendant. It also possibly violates First Amendment rights due to the fact this type of scenario is not included in one of the exceptions to free speech. Additionally, defense attorneys are now concerned this precedent will further confuse already muddled legal areas, such as assisted suicide and the duty to rescue. It is likely that it will take the legislature some time to clarify this, but one of the more immediate impacts from this decision is showing the possible criminal implications of someone’s words.
Bullying is hardly new; the rise of the internet and mobile communication now makes cyber bullying a pressing concern. For example, in Florida, a twelve-year-old girl, Rebecca Sedwick, committed suicide due to harassing words from her peers. After her death, authorities found out two young girls had been consistently harassing Rebecca through the internet, posting on message boards and text messages telling her to: “drink bleach and die.” In what was a groundbreaking case for Florida, the state filed felony charges of stalking against both girls because there were no other bullying laws that could apply to Rebecca’s death. However, the charges were ultimately dropped because there was no evidence of stalking, just cyber abuse.
If Florida had been able to adopt the Massachusetts Supreme Judicial Court’s reasoning and the first prong of Judge Moinz’s decision in the Carter case, there would potentially have been another way for Florida authorities to charge the two girls in Rebecca’s death. There is a similar argument that like in the Carter case, the cyber abuse against Rebecca had the same “coercive quality” encouraging her to end her own life and that a reasonable person would realize that doing so was creating a situation in which there was a substantial risk of harm. Many say that holding people criminally accountable for their “virtual presence” during a suicide like this is a slippery slope. But logic would show, if children knew the words they use in text messages and the alike could potentially be used against them in court, then some would think twice before posting, and hopefully ultimately help decrease the amount of cyber bullying throughout the nation.
There is no doubt that the Carter decision was a controversial one, and that its precedent will likely be far-reaching. But for many years, the nation has been struggling with finding ways to curb the ever-growing issue of school bullying. While only Massachusetts courts may take Carter as precedent, other states can at least use this case as an exemplar for young adults on what could happen to them if they are not careful with their words. It is inevitable this case will reach the nation’s highest court on appeal, but until then, children around the nation should understand their words carry heavy meaning, not only in the lives of others, but now also in the criminal legal system as well.
 No. 15YO0001NE (Mass. Juv. Ct. June 16, 2017); see also Commonwealth v. Carter, 52 N.E. 3d 1054 (Mass. 2016).
 See Carter, 52 N.E. 3d at 1056.
 See id.
 See Paul LeBlanc, The Text Messages That Led Up to Teen’s Suicide, CNN (June 16, 2017), https://www.cnn.com/2017/06/08/us/text-message-suicide-michelle-carter-conrad-roy/index.html [https://perma.cc/3KTM-Y5BX] (showing text message stating “[b]ut the mental hospital would help you. I know you don’t think it would but I’m telling you, if you give them a chance, they can save your life”).
 See Carter, 52 N.E. 3d at 1057-59.
 See LeBlanc, supra note 4.
 See Commonwealth v. Carter, 52 N.E. 3d 1054, 1059 (Mass. 2016)
 See id.
 See id.
 See Kiera Blessing, Salem High Graduate Convicted of Manslaughter in Drunken Driving Crash, Eagle-Tribune (Jan. 19, 2018), http://www.eagletribune.com/news/salem-high-graduate-convicted-of-manslaughter-in-drunken-driving-crash/article_25552e52-fd5f-11e7-a4c6-0fc4248a8118.html [https://perma.cc/T95P-J5AP] (reporting on drunk driving incident resulting in manslaughter conviction); Maria Cramer, Lynn Drug Dealer Convicted of Involuntary Manslaughter in Overdose Case, Bos. Globe (Sept. 28, 2017), https://www.bostonglobe.com/metro/2017/09/28/drug-dealer-convicted-involuntary-manslaughter-overdose-case/wfeX2uhY0qFZ3HpAiEZzIO/story.html [https://perma.cc/JK5X-UN7N] (explaining new Massachusetts law allows manslaughter convictions of drug dealers who provide substance in overdoses).
 Commonwealth v. Welansky, 55 N.E. 2d 902, 910 (Mass. 1944).
 Commonwealth v. Pugh, 969 N.E. 2d 672, 685 (Mass. 2012).
 See Commonwealth v. Carter, 52 N.E. 3d 1054, 1061 (Mass. 2016).
 See id. at 1061-62.
 See id. at 1063.
 Melissa Hanson, Why Michelle Carter was Found Guilty of Involuntary Manslaughter in Conrad Roy’s Suicide, MassLive (June 26, 2017), http://www.masslive.com/news/index.ssf/2017/06/why_michelle_carter_was_found.html [https://perma.cc/X4V6-ZEDJ].
 See Carla Zavala, Manslaughter By Text: Is Encouraging Suicide Manslaughter?, 47 Steton Hall L. Rev. 297, 312-16 (explaining Carter case does not fit easily into typical manslaughter through suicide case law); see also ACLU of Massachusetts Statement on Michelle Carter Guilty Verdict, ACLU (June 16, 2017), https://www.aclu.org/news/aclu-massachusetts-statement-michelle-carter-guilty-verdict [https://perma.cc/X9A5-6Y5J] (arguing Carter decision wrong and in violation of First Amendment).
 See Mark Arsenault, Experts Say Michele Carter Case Revolved Around Concept That Words Can Kill, Bos. Globe (June 16, 2017), https://www.bostonglobe.com/metro/2017/06/16/carteranalysis/VNeJVBH6phBlzfUNlsR07J/story.html [https://perma.cc/BPF8-B67H] (quoting defense attorney about concerns regarding duty to rescue); Ashley Chin, Suicide by Text: The Case of Michelle Carter, 21 J. Tech. L. & Pol’y 99, 105-07 (2017) (comparing Carter case to physician assisted suicide cases).
 See Suyin Haynes, Melania Trump Urges Adults to Teach Children About Cyberbullying ‘By Our Own Example‘, Times (Sept. 21, 2017), http://time.com/4951075/melania-trump-united-nations-children-bullying-cyberbullying/ [https://perma.cc/WV7H-4V3Z] (highlighting U.S. First Lady, Melania Trump, sets her focus on cyber bullying campaign); see also Anderson Cooper 360°: Bullying: It Stops Here (CNN 2011) (discussing issue of school bullying with victim testimony and need for school/student intervention).
 See Doug Stanglin & William M. Welch, Two Girls Arrested on Bullying Charges After Suicide, USA Today (Oct. 15, 2013), https://www.usatoday.com/story/news/nation/2013/10/15/florida-bullying-arrest-lakeland-suicide/2986079/ [https://perma.cc8352-SWGA] (highlighting story of Rebecca Sedwick and criminal implications of her attackers).
 See id. (explaining actions of young girls harmed Rebecca and drove her to commit suicide).
 See id. (quoting county sheriff regarding bullying’s criminality). “Bullying in and of itself is not a crime. But bullying makes up the predicate acts for stalking or aggravated stalking.” Id.
 See Steve Almasy, Charges Dropped in Rebecca Sedwick Bullying Case, CNN (Nov. 21, 2013), https://www.cnn.com/2013/11/20/us/rebecca-sedwick-bullying-death/index.html [https://perma.cc/7JW7-XQKP] (reporting defense attorneys pleased with district attorneys decision to drop charges).
 See Zavala, supra note 18, at 973-74 (criticizing criminalization of bullying).
Continuing to put the focus on the positive actions of well meaning lawyers can hopefully help change the public opinion of the occupation.
Lets be honest, lawyers do not always have the best reputation in today’s society. The general public loves to hate lawyers, making them the subject of jokes, complaining about legal fees, and creating derogatory names. This aversion toward the legal profession may be due to an increasing amount of attorneys working towards self-interest instead of public interest. That blanket statement, however, only epitomizes a small cross-section of the profession, but places a stigma upon an entire occupation. Catastrophes, large and small, occur frequently, and almost all require the immediate help of emergency responders. But when the exigency fades and the first responders leave, lawyers provide long-term relief for the many people dealing with the catastrophic impact.
Lets be honest, lawyers do not always have the best reputation in today’s society. The general public loves to hate lawyers, making them the subject of jokes, complaining about legal fees, and creating derogatory names. This aversion toward the legal profession may be due to an increasing amount of attorneys working towards self-interest instead of public interest. That blanket statement, however, only epitomizes a small cross-section of the profession, but places a stigma upon an entire occupation. Catastrophes, large and small, occur frequently, and almost all require the immediate help of emergency responders. But when the exigency fades and the first responders leave, lawyers provide long-term relief for the many people dealing with the catastrophic impact.
Americans do not hold lawyers in high esteem; so much so in fact that one study found that Americans believe lawyers contribute the least to society out of all major occupations. Obtaining legal help is one of the most expensive services a person may pay for in life. Lawyers are composed of a highly isolated group of people, due to years of tradition and the requirement of a specialized degree. Additionally, people usually only seek out a lawyer during stressful times when people need help dealing with difficult situations. All of these elements not only segregate lawyers from the community at large, but also make it extremely difficult for the average person to relate and connect with lawyers, leaving a negative impression of the occupation. On top of this disconnect, the media focus tends to cover only the unethical and dramatic side of lawyering, giving society a warped perception of lawyers’ actions.
While there are some unethical lawyers who are the reason so many hold such negative feelings towards the occupation, there are even more hardworking lawyers who tirelessly help individuals during the worst time in their lives. The billable hour expectation of most firms ensures lawyers work incredibly long hours, but they also work into the night to ensure a client’s goal is accomplished through client meetings, research, writing, and court appearances. While many people remember certain historical events due to the heroic actions of emergency responders or activists, which is rightfully so as many risk their lives to help others, lawyers usually become involved later, and therefore, people are unaware of the help lawyers provide as well.
This past hurricane season was one for the records. Hurricane Harvey dumped dozens of inches of rain on southern Texas causing devastating water levels to rise several feet. When natural disasters occur, lives are threatened and property is ruined. Days after Hurricane Harvey left the area and the first responders ceased rescue operations, lawyers immediately started to set up emergency legal services. Lawyers helped hurricane victims apply for FEMA relief and find health care providers open while many in the area were still under water. The Texas Supreme Court also allowed out-of-state attorneys to practice in Texas for a period after the hurricane, which allowed lawyers throughout the United States to give free and quick legal advice to those in need. Over 1,600 lawyers volunteered to help solve issues that many victims did not even realize they had until after the devastation occurred, such as tenant rights in flooded apartments or child custody issues involving displaced parents. Some of the lawyers who volunteered were even victims of the storms themselves, but put their own concerns aside because they wanted to help their local community.
In 2010, Haiti experienced a devastating earthquake flattening homes and killing almost a quarter million people. The earthquake decimated the country, including the legal and government systems, causing Haitian nationals to seek relief elsewhere. In order to leave the chaos Haitians fled to the U.S. in droves, and lawyers helped thousands of people apply for temporary protected status so they would not be deported from the United States. After that, lawyers fought for years to encourage the government to allow the Haitians’ temporary status to remain so they could continue on with the education and jobs they had established here since the 2010 earthquake. Remaining in the United States proved essential to many earthquake victims, as despite best efforts, the revitalization of Haiti never occurred, meaning children who had lived in the United States for eight years or more would be required to go back to a country where many life essentials were not yet restored. Even today, U.S. lawyers are still helping the devastated area by funding their own trips to the country to train Haitian attorneys in litigation skills and international law policies.
The recent releases of multiple popular exoneration documentaries over the past few years has also turned the public’s interest towards the injustice caused by the imprisonment of innocent persons. While the documentary was a form of entertainment for many, such undeserved imprisonment is not as rare as many may think, and the release of innocent individuals is due to the hard work of appeals lawyers. The Innocence Project, a pro bono organization that helps imprisoned individuals appeal their convictions, has helped over 1,700 innocent people be released from prison and clear their names of harmful criminal records. People are released from prison due to ineffective counsel, new DNA evidence, or technological advances. In the year 2016 alone, attorneys successfully helped 170 individuals with their appeals, meaning almost every other day an individual was found innocent for a crime a jury or judge found them guilty of committing.
These are only three examples of how attorneys have helped thousands of people recently. Attorneys have acquired a bad reputation for years, and for some unethical lawyers the reputation is well deserved, but stories like these prove there are more good lawyers than bad. When devastation occurs it is easy to place the blame on the person who is closest when it happens, and that is often an attorney. It is, however, often because a lawyer is usually there fighting to try and fix the problem, be it a natural disaster or a flaw in the legal system. Continuing to put the focus on the positive actions of well meaning lawyers can hopefully help change the public opinion of the occupation.
 See Cris Puma, The Missing Link: Does Lawyer-Bashing Warrant Additional Protection for Lawyers, 19 J. Legal Prof. 207, 207-210 (1994) (describing history of lawyer-bashing which goes back as far as Shakespeare).
 See Russell G. Pearce & Eli Wald, The Obligation of Lawyers to Heal Civic Culture: Confronting the Ordeal of Incivility in the Practice of Law, 34 U. Ark. Little Rock L. Rev. 1, 4-5 (2011) (explaining self-interest conflict within lawyers perhaps one reason why problems occur within legal profession).
 See generally Judith L. Maute, Reflections on “Public Service in a Time of Crisis,” 32 Fordham Urb. L. J. 291 (Mar. 2005) (reviewing legal professions role in emergency situations).
 See Public Esteem for Military Still High, PEW Research Ctr. (July 11, 2013), http://www.pewforum.org/2013/07/11/public-esteem-for-military-still-high/ [https://perma.cc/7U4G-J38K] (displaying data showing dislike for attorneys).
 See Martha Bergmark, We Don’t Need Fewer Lawyers. We need Cheaper Ones., The Washington Post (June 2, 2015), https://www.washingtonpost.com/posteverything/wp/2015/06/02/we-dont-need-fewer-lawyers-we-need-cheaper-ones/?utm_term=.28e9359c84b2 [https://perma.cc/7MAM-ATAZ] (arguing issues with legal profession due to unreasonable fees).
 See Victoria Pynchon, It’s OK to Hate Lawyers, Forbes (Jan. 18, 2013), https://www.forbes.com/sites/shenegotiates/2013/01/18/its-ok-to-hate-lawyers/#2019e2465694 [https://perma.cc/DJH4-DW53] (describing legal profession as “old boy’s club”).
 See Leonard E. Gross, The Public Hates Lawyers: Why Should We Care?, 29 Steton Hall L. Rev. 1405, 1406-07 (1999) (explaining emotional elements towards counseling clients); see also Jean Peters Baker, The Hardest Phone Call a Prosecutor Has to Make, The Marshall Project (Sept. 28, 2017) https://www.themarshallproject.org/2017/09/28/the-hardest-phone-call-a-prosecutor-has-to-make [https://perma.cc/Q7MC-WYCD] (explaining victim of assault crime told prosecutor “never call me again”).
 See Kathleen M. Sullivan, The Good the Lawyers Do, 4 Wash. U. J.L. & Pol’y 7, 7-8 (2000) (reviewing different forms of media that paint negative light on lawyers).
 See id. at 9-12 (highlighting good deeds of lawyers during troubled times).
 See generally Judith L. Maute, Balanced Lives in a Stressful Profession: An Impossible Dream?, 21 Cap. U. L. Rev. 797 (1992) (arguing ineffectiveness of billable hour system).
 See Nkechi Nneji, 14 Families of 9/11 Victims Settle Suit, CNN (Sept. 18, 2007), http://www.cnn.com/2007/US/law/09/18/sept.11.lawsuits/index.html [https://perma.cc/9B3M-KJRK] (explaining legal aspects of 9/11 compensation for victim families against airlines); but see Mireya Navarro, Already Under Fire, Lawyers for 9/11 Workers Are Ordered to Justify Some Fees, N.Y. Times (Aug. 27, 2010), http://www.nytimes.com/2010/08/27/nyregion/27lawsuit.html [https://perma.cc/6LXT-HY4R] (reporting lawyers who represented ground zero workers questioned by federal court over $6.1 million in legal fees).
 See Tom Di Liberto, Reviewing Hurricane Harvey’s Catastrophic Rain and Flooding, NOAA (Sept. 18, 2017), https://www.climate.gov/news-features/event-tracker/reviewing-hurricane-harveys-catastrophic-rain-and-flooding [https://perma.cc/6LXT-HY4R] (arguing impact of Hurricane Harvey one of historical proportions).
 See id. (reporting almost fifty inches of rain fell on Houston and thousands needed rescue from their flooded homes).
 See Disaster Relief, Am. Bar Assoc. https://www.americanbar.org/groups/committees/disaster/disaster_relief.html#2 [https://perma.cc/8JRW-UZTV] (listing attorney disaster volunteering opportunities).
 See Amended Emergency Order After Hurricane Harvey Permitting Out-Of-State Lawyers To Practice Texas Law Temporarily, Misc. Do. 17-9101 (Aug. 30, 2017) http://www.txcourts.gov/media/1438820/179101.pdf [https://perma.cc/AT3Q-TAVT] (ordering unlicensed attorneys to practice in Texas).
 See Nicole Hong & Sara Randazzo, In Harvey Aftermath, Lawyers Mobilize to Help Houston Victims, The Wall Street Journal (Sept. 2, 2017), https://www.wsj.com/articles/in-harvey-aftermath-lawyers-mobilize-to-help-houston-victims-1504357201 [https://perma.cc/58TG-BKEW] (listing multiple volunteer actions and legal services provided by lawyers after hurricane).
 See id. (describing one attorney’s decision to put personal hurricane damages aside in order to help Houston community).
 See Richard Pallardy, Haiti Earthquake of 2010, Britannica (Dec. 15, 2017) https://www.britannica.com/event/Haiti-earthquake-of-2010 [https://perma.cc/H73M-RGR2] (reporting official death count was 222,570).
 See id. (reviewing collapse of government buildings and lack of communication caused need for international humanitarian aid).
 See Julia Preston, Haitians Illegally in U.S. Given Protected Status, N.Y. Times (Jan. 15, 2010) http://www.nytimes.com/2010/01/16/world/americas/16immig.html [https://perma.cc/2TJT-P576] (explaining Haitian immigrants need for temporary protected status within United States).
 See Moni Basu, America Rescued Her From Haiti. Now Trump Wants to Send Her Back., CNN (Dec. 19, 2017), http://www.cnn.com/2017/12/19/us/haitians-lose-protected-status/index.html [https://perma.cc/GWH8-XPTB] (explaining effects of ending temporary protected status after extending it to son many for over seven years).
 See id. (describing Haiti still not fully recovered from effects of earthquake).
 See Section Task Force Travels to Haiti to Train Lawyers, Am. Bar Assoc., https://www.americanbar.org/groups/litigation/initiatives/good_works/haiti/section_task_force_travels_to_haiti_to_train_lawyers.html [https://perma.cc/CRR8-Z946] (relaying actions of special training task force in Haiti).
 See Trevor Timm, Making a Murderer Depicts Miscarriages of Justice That are Not at all Rare, The Guardian (Jan. 6, 2016), https://www.theguardian.com/commentisfree/2016/jan/06/making-a-murder-netflix-series-miscarriages-of-justice-are-not-at-all-rare [https://perma.cc/VJK6-5HN2] (comparing Making a Murderer to common injustices in criminal system).
 See Lisa Kern Griffin, ‘Making a Murderer Is About Justice, Not Truth, N.Y. Times (Jan. 12, 2016), https://www.nytimes.com/2016/01/12/opinion/making-a-murderer-is-about-justice-not-truth.html [https://perma.cc/7A2Q-UZGG] (detailing Innocence Project’s involvement in exoneration cases).
 See generally University of California Irvine Newkirk Center For Science and Society, University of Michigan Law School & Michigan State. University College of Law, The National Registry of Exonerations, https://www.law.umich.edu/special/exoneration/Pages/about.aspx [https://perma.cc/UAX5-TBJ9] (reporting different exoneration cases).
 See University of California Irvine Newkirk Center For Science and Society, University of Michigan Law School & Michigan State. University College of Law, Exonerations By Year and Type of Crime, https://www.law.umich.edu/special/exoneration/Pages/Exoneration-by-Year.aspx [https://perma.cc/TV3H-BE4Y] (graphing number of exonerations over past twenty-five years).
Recently, on the morning of October 3, 2017, Justice Ginsburg made an important point for mandatorily detained noncitizens: “there is something in between.”
Under Chapter 8 of the U.S. Code, the government must detain certain non-citizens throughout their removal proceedings. The issue being argued in Jennings v. Rodriguez is whether it is unconstitutional to detain these individuals for a prolonged amount of time without some form of bond review. Many complicated factors, such as the plenary power doctrine, due process issues, and the congested immigration court system left the Supreme Court of the United States befuddled on when it is appropriate to require review for potential release. What has become clear, though, is that something must be done to correct the injustices thrust upon those placed in prolonged detention, even if it requires a new middle ground, much like that which Justice Ginsburg alluded to in her statement at reargument.