How the Mountain Valley Pipeline has Continued to Survive its Legal Troubles

By: Dominic Miranda

Edited by: Sarah Wachs and olivia Paik

The Mountain Valley Pipeline (MVP) by Mountain Valley Pipeline LLC is a developing 303-mile-long natural gas pipeline that will operate from northwestern West Virginia to southern Virginia. [1] The Federal Energy Regulatory Commission (FERC) is the primary regulatory body of the pipeline because it crosses state lines. [2] The LLC also later reached an agreement with the FERC to add a 75-mile extension south that extends into central North Carolina, called “Southgate.”[3] Construction for the main segment of the pipeline began in 2018 upon receiving authorization under the 1938 Natural Gas Act and receiving its Certificate of Convenience and Necessity from the FERC. [4] Since the project’s proposal, activists concerned with potential environmental harm have heavily scrutinized and challenged the LLC and the FERC, while numerous fines were levied against the LLC for various violations. 

Some early examples of such obstacles to the project’s completion are the array of permit violations found at their facilities through several inspections made by West Virginia’s Department of Environmental Protection (WVDEP) in 2018. [5] Many of the infractions were categorized as a failure to uphold sanitation or safety standards including “land disturbances,” failing to “prevent sediment-laden water from leaving the station,” and “improperly installing water bars/slope breakers.” [6] Despite not following many of the terms and conditions of their permit, they were allowed to continue on with the project by paying these fines and meeting even more criteria to ensure they would uphold the required sanitation standards. However, after bearing witness to the environmental impact of the mainline construction in 2020, North Carolina decided to not award a water permit to the MVP developers. Moreover, North Carolina reissued their decision after the LLC appealed, with the United States Court of Appeals for the Fourth Circuit affirming the decision. [7]

Even before the LLC received construction permits and licenses in 2017, they encountered plenty of legal challenges, but successfully escaped. MVP faced a constitutional challenge from landowners, labeled as Berkeley, who claimed that the FERC’s decision to grant them eminent domain through the Natural Gas Act and a Certificate of Public Convenience and Necessity violated the 5th amendment, citing insufficiently administered tests in order to confirm a public purpose for the project. [8] A U.S. District Court denied the motion for an injunction on the construction of the project on the grounds that this Court did not have jurisdiction, which an appellate court affirmed and for which the Supreme Court refused to grant a writ of certiorari. [9] Similar cases from around this time include Sierra Club v. U.S. Army Corps of Engineers, Bold Alliance et al. v. FERC et al., Mountain Valley Pipeline, LLC v. Simmons et al., and Mountain Valley Pipeline, LLC v. Easements; in each of these cases, the MVP LLC had an involvement in claims against their right to use others’ property for construction, but in the end, were able to exercise eminent domain successfully. [10] The common idea is that many of the property owners refused to give up their land and either the MVP LLC or the property owners took it to the courts to sort out the disagreement. However, as of 2020, all of these cases were settled with various federal courts affirming FERC’s authority to grant MVP eminent domain, citing that they pass tests like the Winter four-pronged test which proves that MVP project essentially provide enough of a public benefit when given access to this land and are significantly harmed when not. [11] The courts mostly took this project as a public good; they felt that the MVP project adequately fulfilled these requirements to be considered viable and that giving them access to these properties was essential to provide the public with access to the gas. The LLC has done everything in their power to prove that the pipeline is something that is in the best interest of the public, and this has likely contributed to their continued survival.

In 2022, West Virginia senator Joe Manchin reached an agreement with Congress to make preliminary provisions for a bill to “[streamline the] process for authorizations and reviews of energy and natural resources projects.” [12] This act is part of the government’s energy independence and inflation reduction movement. [13] The intention was to lower energy costs by allowing natural gas to reach eastern coastal states in the US and reduce reliance on foreign trade. Enacting a law like this sends a message to the activists and challengers that the government is on the side of MVP, and lawsuits will likely receive some political backlash and heavy pressure from the opposition, potentially dissuading groups from suing MVP. 

Last year, the LLC seemed to have secured its most significant win yet through the official congressional approval of its project and support intended to close the book on all further legal challenges. In June of 2023, President Biden signed the Fiscal Responsibility Act of 2023, which contains clauses in direct and explicit support of the pipeline in its section 324. [14] The act essentially serves as a shield from any further litigation, as it directs jurisdiction to the U.S. Court of Appeals for the District of Columbia Circuit for any claims made about the section since it “‘ratifies and approves all authorizations, permits, verifications, extensions, biological opinions, incidental take statements, and any other approvals or orders issued pursuant to Federal law necessary’ for constructing and operating MVP.” [15] This act was signed by the President with intentions to expedite the process for the pipeline that originally began construction in 2018, yet remained unfinished and with issues to resolve. Further, another roadblock was evaded in July 2023 when the US Court of Appeals for the Fourth Circuit granted a stay on construction to “consider the constitutionality of the act,” but was subsequently saved on July 27, as “the Supreme Court granted an emergency application from MVP’s developer to vacate the stays of the Fourth Circuit, allowing construction to resume.” [16] It appears that the Supreme Court saw many of these lawsuits as redundant, since this project had already been attacked in every way conceivable. This decision was seen as a major win for the pipeline. 

In August, the Fourth Circuit denied challenges to federal authority in granting permission to the MVP LLC to continue construction, stating that there was “no longer a live controversy” after Congress passed Section 324 .[17] It was evident from this decision that the Fourth Circuit believed that the project should continue at this point and that any extra legal entanglements would be unnecessary after the passage of the Fiscal Responsibility Act of 2023. In October, property owners in Franklin, Montgomery and Roanoke counties in North Carolina decided to file an emergency injunction request to stop construction on their properties after having their 2020 lawsuit against the FERC dismissed, but were denied by the U.S. Circuit Court of Appeals for the District of Columbia. [18]

Despite the passage of the act and dismissal of lawsuits, construction was still slowed due to protestors who “coordinated with others to illegally attach themselves to the land and construction equipment.” [19] The 932-day sit lasted from 2019 to 2021 and led the LLC to sue two of the protestors to sustain their legal battles. [20] This marked a particularly slow and uneventful period in the development of the project as they were unable to get any real construction done. The MVP LLC claimed that their right to build on these lands, granted through the Fiscal Responsibility Act, was violated by these protestors, and they sought to use this right to gain financial compensation for the massive delays caused by the protestors. [21] 

Finally, in February 2024, a U.S. Court of Appeals for the D.C. Circuit dismissed a secondary appeal for the same 2020 case relating to the legitimacy of MVP’s eminent domain status from families across three counties in Virginia. [22] The group of families decided to challenge the authority of the FERC once again but was swiftly denied by the same court that denied their October injunction requests. This lawsuit is similar to those decided prior to 2020 that were previously listed involving Sierra Club, Bold Alliance, and others. It appears that the pipeline will be functional soon, maybe as early as the end of the first quarter of 2024, but a statement from the landowners’ counsel proves that the legal battles will not end here and that they will continue to weigh their options. [23] Despite the years of continued attempts at preventing this pipeline from being built and operated, the MVP LLC has managed to work through the adversity by way of their financial backing, support from the government, and continued perseverance by the project developers. 

Notes:

1. Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project." Last updated 2024. https://www.mountainvalleypipeline.info/.

2. Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project."

3. MVP Southgate. "MVP Southgate." Accessed February 22, 2024. https://www.mvpsouthgate.com/.

4. Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project."

5. West Virginia Department of Environmental Protection. "MVP LLC Signed Order." Last updated March 7, 2023. https://dep.wv.gov/pio/Documents/MVP%20LLC%20SIGNED%20ORDER.pdf.

6. West Virginia Department of Environmental Protection. "MVP LLC Signed Order." 

7. North Carolina Department of Environmental Quality. "State Reissues Denial of Water Quality Certification for MVP Southgate Pipeline." April 29, 2021. https://www.deq.nc.gov/news/press-releases/2021/04/29/state-reissues-denial-water-quality-certification-mvp-southgate-pipeline.

8. Chloe Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 2." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-2/.

9. Chloe Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 2."

10. Chloe Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 3." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-3/.

11. Marie. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 3." 

12. U.S. Senate Committee on Energy & Natural Resources. "Comprehensive Permitting Reform Text." Accessed February 22, 2024. https://www.energy.senate.gov/services/files/EAB527DC-FA23-4BA9-B3C6-6AB108626F02.

13. U.S. Senate Committee on Energy & Natural Resources. "Comprehensive Permitting Reform Text." 

14. Paul W. Parfomak and Adam Vann. "Report IN12032." Congressional Research Service, accessed February 22, 2024. https://crsreports.congress.gov/product/pdf/IN/IN12032.

15. Parfomak and Vann. "Report IN12032." 

16. Parfomak and Vann. "Report IN12032." 

17. Clark Mindock. "U.S. Appeals Court Rejects Challenge to Mountain Valley Pipeline." Reuters, August 11, 2023. https://www.reuters.com/legal/us-appeals-court-rejects-challenge-mountain-valley-pipeline-2023-08-11/.

18. Matt Busse. "Judges Deny Landowners' Emergency Request to Halt Mountain Valley Pipeline Work." Cardinal News, October 25, 2023. https://cardinalnews.org/2023/10/25/judges-deny-landowners-emergency-request-to-halt-mountain-valley-pipeline-work/.

19. Clark Mindock. "Mountain Valley Pipeline Sues Protesters Obstructing Construction." Reuters, November 10, 2023. https://www.reuters.com/legal/litigation/mountain-valley-pipeline-sues-protesters-obstructing-construction-2023-11-10/.

20. Matt Dhillon. "Tree Sitters Removed from Mountain Valley Pipeline Path." The Appalachian Voice, April 16, 2021. https://appvoices.org/2021/04/16/tree-sitters-removed-mvp/. ; Mindock. "Mountain Valley Pipeline Sues Protesters Obstructing Construction."

21. Mindock. "Mountain Valley Pipeline Sues Protesters Obstructing Construction." 

22. Matt Busse. "Southwest Virginia Landowners' Mountain Valley Pipeline Lawsuit Dismissed Again." Cardinal News, February 14, 2024. https://cardinalnews.org/2024/02/14/southwest-virginia-landowners-mountain-valley-pipeline-lawsuit-dismissed-again/.

23. Busse. "Southwest Virginia Landowners' Mountain Valley Pipeline Lawsuit Dismissed Again."

Bibliography:

Busse, Matt. "Judges Deny Landowners' Emergency Request to Halt Mountain Valley Pipeline Work." Cardinal News, October 25, 2023. https://cardinalnews.org/2023/10/25/judges-deny-landowners-emergency-request-to-halt-mountain-valley-pipeline-work/.

Busse, Matt. "Southwest Virginia Landowners' Mountain Valley Pipeline Lawsuit Dismissed Again." Cardinal News, February 14, 2024. https://cardinalnews.org/2024/02/14/southwest-virginia-landowners-mountain-valley-pipeline-lawsuit-dismissed-again/.

Dhillon, Matt. "Tree Sitters Removed from Mountain Valley Pipeline Path." Appalachian Voices, April 16, 2021. https://appvoices.org/2021/04/16/tree-sitters-removed-mvp/.

Marie, Chloe. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 2." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-2/.

Marie, Chloe. "Mountain Valley Pipeline: Overview of Litigation Regarding the Pipeline Construction Part 3." Penn State Agricultural Law, accessed February 22, 2024. https://aglaw.psu.edu/shale-law-in-the-spotlight/mountain-valley-pipeline-overview-of-litigation-regarding-the-pipeline-construction-part-3/.

Mindock, Clark. "Mountain Valley Pipeline Sues Protesters Obstructing Construction." Reuters, November 10, 2023. https://www.reuters.com/legal/litigation/mountain-valley-pipeline-sues-protesters-obstructing-construction-2023-11-10/.

Mindock, Clark. "U.S. Appeals Court Rejects Challenge to Mountain Valley Pipeline." Reuters, August 11, 2023. https://www.reuters.com/legal/us-appeals-court-rejects-challenge-mountain-valley-pipeline-2023-08-11/.

Mountain Valley Pipeline, LLC. "Mountain Valley Pipeline Project." Last updated 2024. https://www.mountainvalleypipeline.info/.

MVP Southgate. "MVP Southgate." Accessed February 22, 2024. https://www.mvpsouthgate.com/.

North Carolina Department of Environmental Quality. "State Reissues Denial of Water Quality Certification for MVP Southgate Pipeline." April 29, 2021. https://www.deq.nc.gov/news/press-releases/2021/04/29/state-reissues-denial-water-quality-certification-mvp-southgate-pipeline.

Parfomak, Paul W., and Adam Vann. "Report IN12032." Congressional Research Service, accessed February 22, 2024. https://crsreports.congress.gov/product/pdf/IN/IN12032.

West Virginia Department of Environmental Protection. "MVP LLC Signed Order." Last updated March 7, 2023. https://dep.wv.gov/pio/Documents/MVP%20LLC%20SIGNED%20ORDER.pdf.

Jennifer Crumbley - The Mother Prosecuted for her Child’s Crime

By: Ana Sofia Cucalon

Edited by: Jared fischer and Maddy Bennett

On November 30, 2021, Ethan Crumbley, a 15-year-old student at Oxford High School, in Oxford Township Michigan, used a 9 mm semi-automatic handgun to kill four of his classmates and injure seven people. His parents, James and Jennifer Crumbley, had bought the 15-year-old the gun on Black Friday as an early Christmas Present. The morning of the shooting, Jennifer was called to the school because Ethan had been drawing “very alarming” pictures. Shortly after returning to work, having chosen to leave Ethan at school, the shooting began. 

Once Ethan was apprehended by the authorities, he was charged as an adult with 24 counts. [1] However, the surprising case against Jennifer Crumbley started several days later, when both parents were charged with involuntary manslaughter. 

This case is remarkable, as it is the first time parents of school shooters have been held criminally responsible for their child’s actions, marking the beginning of an extraordinary legal battle. When the case against the Crumbley parents was first brought to court, it raised an important question: how can the law make Ethan’s parents, especially considering that Ethan was charged as an adult, criminally responsible for their son’s actions? Can the law pass liability to parents for their adult children’s actions? It was an uphill battle, fueled by an innovative prosecution and the dedication of Oxford Township to hold the Crumbleys responsible for their negligence. [2]

The prosecution, which started their case against Jennifer Crumbley in late January 2024, mainly focused on convincing the jury of one picture–a reckless, negligent mother who was concerned about everything but the care of her very disturbed son. [3] They argued that she had every reason to know that her son was distressed and, thus, was primarily concerned with proving the mother’s foreseeability of Ethan’s crimes.

This means that she reasonably should have known and did anticipate what her son might do with the weapon she provided him and should have understood the harm he was capable of committing to others. Most importantly, however, the prosecution focused on proving that Jennifer did not exercise ordinary care, meaning she did not intervene to prevent foreseeable crimes, when an ordinary person in these same circumstances could have prevented the crime, though she knew of his anticipation to engage in such proclivity. To do so, the prosecution walked the jury through the events preceding the shooting, focusing on four main areas: (1) how Ethan acquired the gun, (2) any negligence Jennifer exercised before the shooting, (3) her failure to respond to the signs signaling the danger her son posed to others, and (4) her actions the day of the shooting. [4]

First, she knew her husband had bought her son a gun, which was locked in a safe with allegedly the factory default combination and a seemingly unused cable lock. Furthermore, it is a fact that Jennifer took her son to the shooting range the Saturday after the gun was bought. Through footage from that day, Ethan is seen as very experienced with the gun, as he fired many rounds in what is called a “shooting stance”. The prosecution argued that it is reasonable to assume Jennifer should have understood her son was becoming proficient with the gun. Second, the prosecution argued that Jennifer exercised negligence in failing to intervene when clear signs of Ethan’s mental instability started becoming evident. [5] To do so, they first brought to the stand a sheriff's deputy who had been through all of the family’s texts, messages, and cell phone calls over the past year. Through this research, the sheriff found texts showing Ethan to be very distressed. The teen would talk about seeing things, how he believed there was a demon in the house, and felt “freaked out.” One day, he asked his mom to text him back after describing these hallucinations. Jennifer did not respond for many hours, as she was busy riding horses (and taking pictures of herself while doing so). In addition, text exchanges between Ethan and his best friend revealed how, according to Ethan, after he told his parents he wanted to see a doctor, he was met with laughter. The prosecution was trying to show that Ethan’s mental state was so unraveled that he was very forthcoming in asking for help and admitting he needed it. [6]

Lastly, the persecution went over the details of the day of the shooting. On the morning of November 30th, 2021, Jennifer was at work when she received a call from Ethan’s guidance counselor around 9:00 am, who had texted Jennifer a picture of a drawing Ethan had made on a school assignment. The drawing was of a figure, covered in bullet holes, lying in a puddle of blood next to a gun similar to the Crumbley’s. The drawing included phrases written by Ethan about how he needed help because the voices in his head wouldn’t stop. When arriving at the counselor’s office, she is described by the guidance counselor as cold and unconcerned with her son. In the meeting, the counselor explained that Ethan was having suicidal ideations and needed immediate help. Neither parent mentioned that the gun in their home resembles the gun in the drawing, and both parents left the counselor’s office 12 minutes after arriving, deciding they needed to return to work and it was best for Ethan to stay in school. Soon after, around lunchtime, Ethan went into a bathroom with the gun in his backpack. When he exited the bathroom, the shooting began. When Jennifer was made aware of cop cars heading to the high school, she texted her son “Ethan don’t do it,” The prosecution affirms that this text proves she knew on some level what Ethan was capable of doing and yet chose to never intervene. [7] 

Then came the defense, led by Jennifer’s lawyer Shannon Smith, and primarily Jennifer’s own witness account. Smith first argued that the Oxford Township community wanted somebody to blame, and while that was understandable, no problems would be solved by holding Jennifer responsible for a crime she did not commit. She stated that the crime was Ethan’s, reminding the jury that the boy had already pleaded guilty, and been convicted, for the crime. In response to the gun, she argued Jennifer was never the “gun person” in the house, but her husband was; therefore, it was his responsibility, not hers. In response to the claims of negligence, Jennifer called herself a helicopter parent, affirming she was in constant communication with the school, and was an extremely present parent. Jennifer also repeatedly expressed that there was nothing that concerned her about Ethan’s behavior and that the “hauntings” and “hallucinations” were a joke among the family after Ethan was given an Ouji board a past Christmas. Concerning her actions the day of the shooting, she said no one in the room reported Ethan or his behavior, that there was no immediate sense of urgency from any school staff member, and that the decision to leave Ethan in school was for his safety and health, not for her convenience. Most importantly, Smith tried convincing the jury that Ethan’s murders were only facts in hindsight, but that Jennifer never considered her own son a danger to anyone. [8]

In a groundbreaking decision, the jury found Jennifer Crumbley guilty of involuntary manslaughter. The decision raises important legal questions: is this how society is going to start holding people accountable for the problem of gun abuse? Legal scholars argue that it is risky to make parents criminally responsible for teenagers’ actions because such moves would contradict the U.S.  bedrock principle that one is only legally responsible for their own actions. After all, is this ruling asking parents to be more aware of and responsible for their children than is possible? This difficult legal dilemma will continue to be discussed in James Crumbley’s trial, which is scheduled to start in early March 2024. [9]

Notes:

1. El, Nadine. 2024. “Jury finds Jennifer Crumbley guilty of involuntary manslaughter in son's school shooting.” (ABC News, February 6, 2024). https://abcnews.go.com/US/jury-reaches-verdict-jennifer-crumbley-manslaughter-trial/story?id=106924349.

2. The Daily by The New York Times. 2024. “A Guilty Verdict for a Mass Shooter's Mother.” (The New York Times, February 6, 2024). https://www.nytimes.com/2024/02/08/podcasts/the-daily/jennifer-crumbley-michig an.html.

3. Buczek, Joseph, Andres Gutierrez, Sara Powers, and Joe Buczek. 2024. “First day of testimony concludes in trial of Jennifer Crumbley, mother of Oxford High School shooter.” (CBS News, January 26, 2024). https://www.cbsnews.com/detroit/news/watch-live-trial-of-jennifer-crumbley-moth er-of-oxford-high-school-shooter-gets-underway/.

4. (The Daily, The New York Times 2024)

5. Guevara, Selina, and Erik Ortiz. 2024. “Jennifer Crumbley, mother of Ethan Crumbley, found guilty of involuntary manslaughter in son's school shooting.” (NBC News, February 6, 2024). https://www.nbcnews.com/news/us-news/jennifer-crumbley-trial-verdict-rcna1369 37.

6. (The Daily, The New York Times 2024)

7. (NBC News, 2024)

8. (The Daily, The New York Times 2024)

9. Levenson, Eric. 2024. “Jennifer Crumbley trial: What the conviction of the Michigan school shooter’s mother means for the father.” (CNN, February 10, 2024). https://www.cnn.com/2024/02/10/us/jennifer-crumbley-guilty-james-crumbley-trial /index.html.

Bibliography:

Buczek, Joseph, Andres Gutierrez, Sara Powers, and Joe Buczek. 2024. “First day of testimony concludes in trial of Jennifer Crumbley, mother of Oxford High School shooter.” CBS News, January 26, 2024. https://www.cbsnews.com/detroit/news/watch-live-trial-of-jennifer-crumbley-mother-of-oxford-high-school-shooter-gets-underway/.

El, Nadine. 2024. “Jury finds Jennifer Crumbley guilty of involuntary manslaughter in son's school shooting.” ABC News, February 6, 2024. https://abcnews.go.com/US/jury-reaches-verdict-jennifer-crumbley-manslaughter-trial/story?id=106924349.

Guevara, Selina, and Erik Ortiz. 2024. “Jennifer Crumbley, mother of Ethan Crumbley, found guilty of involuntary manslaughter in son's school shooting.” NBC News, February 6, 2024. https://www.nbcnews.com/news/us-news/jennifer-crumbley-trial-verdict-rcna136937.

Levenson, Eric. 2024. “Jennifer Crumbley trial: What the conviction of the Michigan school shooter’s mother means for the father.” CNN, February 10, 2024. https://www.cnn.com/2024/02/10/us/jennifer-crumbley-guilty-james-crumbley-trial/index.html.

The Daily by The New York Times. 2024. “A Guilty Verdict for a Mass Shooter's Mother.” The New York Times. https://www.nytimes.com/2024/02/08/podcasts/the-daily/jennifer-crumbley-michigan.html.

Skoric v. Vermont Department of Labor: A Federal and State Government Conflict

By: Alexandra Henriquez

Edited by: Lauren Levinson and Micah Sandy

Vermont transit worker Ivo Skoric turned to medical marijuana in the hope of finally alleviating his chronic pain and depression. [1] Skoric had been legally prescribed marijuana in accordance with Vermont state law. When Marble Valley Regional Transit District, his employer, learned of his drug use via a spontaneous drug test, Skoric was terminated and barred from receiving unemployment benefits. Skoric sued his employer and the Vermont Department of Labor for discrimination on the basis of his disability and his means to manage it, which he claimed violated the Americans with Disabilities Act (ADA). The ADA, in 1990, held that no employer “shall discriminate against a qualified individual on the basis of disability in regard to job application procedures … or discharge of employees,” [2] stipulating that a qualified individual “shall not include any employee or applicant who is currently engaging in the illegal use of drugs.” [3] Such illegal use was defined in the ADA as “the use of drugs, the possession or distribution of which is unlawful under the Controlled Substances Act.” [4] Therefore, the Vermont federal district judge ruled that the ADA does not extend to disabilities treated with medical marijuana because the Controlled Substances Act of 1970 federally prohibits marijuana.

While the ruling of the district court seems straightforward, it demonstrates a more complex and longstanding issue of the contradicting legal status of marijuana at the federal and state levels. Marijuana’s legal challenges began in the 1930s, arising with state-level bans, which expanded to a federal crackdown with the Marihuana Tax Act of 1937. Despite initially delaying marijuana regulation due to the growing research on its medicinal use and the booming industry, the federal government soon followed its state government counterparts. [5] By 1970, the Controlled Substances Act federally defined marijuana as a Schedule I drug with “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and a “lack of accepted safety for use of the drug or other substance under medical supervision.” [6] Nonetheless, changes to state-level laws have occurred over the last half-century, with 37 states and the District of Columbia legalizing medical marijuana. [7]  This shift is largely attributed to the discovery that medical marijuana could actually have medicinal benefits, which contradicts its original classification under the Controlled Substances Act. Recent studies have highlighted marijuana’s effectiveness in treating a range of conditions, including chronic pain, multiple sclerosis, epilepsy, and the nausea associated with chemotherapy. [8] Research into cannabinoids has led to the FDA's approval of medications that contain cannabinoid chemicals for specific conditions, further legitimizing its medical use. So, while the FDA has “not approved a marketing application for cannabis for the treatment of any disease or condition,” they have approved a cannabis-derived drug product: Epidiolex (cannabidiol). [9] While these new findings have contributed to changes in an overwhelming number of state governments, federally, marijuana still remains a Schedule I drug.

While the scientific and ethical debate on whether marijuana should be legalized and how it should be regulated continues, we must also begin asking the question of the importance of cohesive legislation among the two levels of government. The ongoing discord between federal and state regulations might be more detrimental than beneficial. Concurrent powers, powers guaranteed by the U.S. Constitution that are shared by both the federal government and state governments, have long stood, not inherently producing conflict. Examples of harmonious concurrent powers are the powers to levy taxes, build infrastructure, and create lower courts. The issue arises when concurrent powers, instead of building upon each other like the ability to tax and create infrastructure, directly contradict one another. According to Article VI of the Constitution, the Supremacy Clause stipulates that state laws can not interfere with the execution of federal law. [10] Thus, concurrent powers are not necessarily always concurrent. State government marijuana laws are subordinate to federal law and are essentially left more as a political statement than actual legislation. In his plea for relief, Skoric articulates a significant critique, stating: “Medical cannabis law is a dead letter on paper, and the medical card is worthless if it renders the patient unemployable and uninsurable.” [11] Essentially, Skoric argues that the legal recognition of medical marijuana at the state level does not translate into tangible benefits it seeks to provide due to the conflict with federal law. While the legalization of medical marijuana on the state level should not automatically guarantee federal legalization under the nation’s founding principles of federalism and separation of powers, we should reflect on the costs of a contradictory legal framework.

The case of Ivo Skoric spotlights the intricate and often conflicting legal landscape surrounding marijuana law in the United States. Skoric’s legal battle, which hinged on the interplay between state law, federal legislation, and the Americans with Disabilities Act (ADA), underscores a broader, more systemic issue: the misalignment between state-level and federal initiatives.

Notes:

1. Ivo Skoric v. Vermont Department of Labor (Marble Valley Regional Transit District), No. 2:23-cv-00064-gwc (U.S. Court for the District of Vermont, Feb. 14, 2024).

2. Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 (1990).

3. Americans with Disabilities Act of 1990, 42 U.S.C. § 12114 (1990).

4. Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 (1990).

5. “Did You Know... Marijuana Was Once a Legal Cross-Border Import?” U.S. Customs and Border Protection, December 20, 2019. https://www.cbp.gov/about/history/did-you-know/marijuana. 

6. Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 812 (1970).

7. Sacco, Lisa  N., Joanna R. Lampe, and Hassan Z. Sheikh. “The Federal Status of Marijuana and the Expanding Policy ...” Congressional Research Service, March 6, 2023. https://crsreports.congress.gov/product/pdf/IF/IF12270.

8. Arkell TR, Downey LA, Hayley AC, Roth S. Assessment of Medical Cannabis and Health-Related Quality of Life. JAMA Netw Open. 2023 May 1;6(5):e2312522. doi: 10.1001/jamanetworkopen.2023.12522. PMID: 37159196; PMCID: PMC10170337. 

9. “FDA and Cannabis: Research and Drug Approval Process.” U.S. Food and Drug Administration, February 24, 2023. https://www.fda.gov/news-events/public-health-focus/fda-and-cannabis-research-and-drug-approval-process. 

10. U.S. Const. art. VI, cl. 2.

11. Ivo Skoric v. Vermont Department of Labor (Marble Valley Regional Transit District), No. 2:23-cv-00064 (U.S. Court for the District of Vermont, Feb. 14, 2024).

Bibliography:

Americans With Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (1990)

Arkell TR, Downey LA, Hayley AC, Roth S. Assessment of Medical Cannabis and Health-Related Quality of Life. JAMA Netw Open. 2023 May 1;6(5):e2312522. doi: 10.1001/jamanetworkopen.2023.12522. PMID: 37159196; PMCID: PMC10170337. 

Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 812 (1970).“Did You Know... Marijuana Was Once a Legal Cross-Border Import?” U.S. Customs and Border Protection, December 20, 2019. https://www.cbp.gov/about/history/did-you-know/marijuana. 

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Artificial Jurisprudence: Might AI Ever Be Tasked With Adjudicating the Law?

By: Jonah Berman

Edited by: Regan Cornelius and Colin Crawford

Artificial intelligence and its inevitable confrontation with established practices across numerous industries have become a fervent topic of discussion lately. The realm of law and legal practice stands out as particularly intriguing in this context given that, traditionally, the sector has depended on the nuanced judgment and expertise of practitioners proficient in the complexities of law. Yet, it now faces the fascinating prospect of transformation through AI. For instance, Large Language Models (LLMs) like ChatGPT are increasingly handling substantial volumes of administrative work. An LLM can meticulously search and analyze case files, compile evidence, and construct legal arguments imbued with strong precedents. A Princeton study identified legal services as one of the most susceptible professions to disruption by the advent of LLMs. It's clear that AI will impact the field of law. But, might it ever evolve to actually adjudicate law itself?

Malcolm Gladwell, in his 2019 book Talking to Strangers, cites a compelling case of man versus machine. A Harvard researcher led a significant study comparing bail decisions made by human judges in New York City with those determined by an AI system. This analysis involved records of over half a million defendants from arraignment hearings between 2008 and 2013, with the AI tasked with selecting 400,000 individuals for release based on the same data judges had. The judges had the advantage of meeting the defendants in person and considering additional courtroom information, unlike the AI, which relied solely on the given data. Astonishingly, those selected by the AI were 25% less likely to re-offend while on bail compared to those chosen by human judges. Furthermore, the AI accurately predicted a high probability of reoffending in over half of a "high-risk" group it identified. In short, the machine won this judicial “face-off”.

The potential of AI in law adjudication offers a range of benefits. AI's capacity for processing vast data impartially may lead to more consistent and precise legal decisions, as demonstrated in Gladwell's case study. An LLM can effortlessly recall any case detail, law, or even recite the entire Constitution word for word. Such comprehensive knowledge grants LLMs a significant advantage in law adjudication, allowing them to consider a broad spectrum of implicit factors and historical contexts with complete objectivity–ideally.

Another aspect worth considering is LLMs’ competence in addressing moral and ethical dilemmas. Remarkably, LLMs have already shown high proficiency in understanding human morals. One study found a .95 Spearman correlation coefficient between GPT 3.5 and human responses to moral queries, indicating an extremely strong correlation between the two sets of responses.

Nonetheless, there are significant concerns about LLMs that would hinder their ability to adjudicate law. Evident biases in AI systems have been a major issue. As AI language models are trained on pre-existing data, they may inadvertently perpetuate and amplify societal biases inherent in that data. The COMPASS system, used in the U.S. criminal justice system, exemplifies this; an investigation highlighted its disproportionate labeling of black defendants as high-risk compared to white defendants, raising questions about racial bias in AI evaluations.

Additionally, LLMs sometimes produce inaccurate responses or can be misled by complex or ambiguous prompts. Whether an LLM can adjudicate law differs from whether it should adjudicate law. I argue that LLMs are—and will soon be even more so—exceptionally equipped for legal judgment. Given that ChatGPT was launched a little over a year ago, LLMs are still in an inchoate phase. AI researchers and industry leaders are well aware of the current flaws facing LLMs; it is clear that the issues of inaccuracy and bias will be properly addressed in time. Once these concerns are mitigated, LLMs will be able to adjudicate law with greater knowledge, impartiality, and efficiency than human judges. However, the inherently subjective nature of law, with its myriad interpretations and evolving viewpoints, remains a critical barrier. The capacity for legal interpretation is not something humans are likely to relinquish. For instance, if an LLM were assigned to decide on the federal legalization of abortion in the U.S., its approach would be multifaceted, considering moral, constitutional, and historical aspects. Nevertheless, people would struggle to adhere to the ruling of a machine. The imperfect, sometimes contradictory nature of law, with its capacity for both justice and failure, is intrinsically human. While AI may in theory soon become a superior alternative for legal judgment, it is hard to imagine its full acceptance in practice. More likely, there will start to be a rise in the use of AI to augment judges’ ability to make the best decisions: a symbiotic relationship that harnesses the breadth and power of AI while still keeping the judiciary human.

Notes: 

1. Tawakol, A. (2023, May 25). “Will AI Replace Lawyers?” Forbes. Retrieved from https://www.forbes.com/sites/forbestechcouncil/2023/05/25/will-ai-replace-lawyers/?sh=58271a373124

2. Felten, E., Raj, M., & Seamans, R. (2023). “How will Language Modelers like ChatGPT Affect Occupations and Industries?” Retrieved from https://arxiv.org/pdf/2303.01157.pdf

3. Gladwell, M. (2019). Talking to Strangers. Retrieved from https://www.ericfrayer.com/wp-content/uploads/2019/11/Talking-to-Strangers.pdf

4. Dillon D., Tandon, N., Gu, Y., Gray, K. (2023). Can AI Language Models Replace Human Participants? Trends in Cognitive Sciences. Retrieved from https://www.cell.com/trends/cognitive-sciences/fulltext/S1364-6613(23)00098-0

5. Hao, K. (2019, October 17). AI is fairer than a judge. MIT Technology Review. Retrieved from https://www.technologyreview.com/2019/10/17/75285/ai-fairer-than-judge-criminal-risk-assessment-algorithm/

6. Aboze, J. (2023, August 7). Risks of Large Language Models. DeepChecks. Retrieved from https://deepchecks.com/risks-of-large-language-models/

Bibliography:

Aboze, J. (2023, August 7). Risks of Large Language Models. DeepChecks. Retrieved from https://deepchecks.com/risks-of-large-language-models/

Dillon, D., Tandon, N., Gu, Y., & Gray, K. (2023). Can AI Language Models Replace Human Participants? Trends in Cognitive Sciences. Retrieved from https://www.cell.com/trends/cognitive-sciences/fulltext/S1364-6613(23)00098-0

Felten, E., Raj, M., & Seamans, R. (2023). How will Language Modelers like ChatGPT Affect Occupations and Industries? Retrieved from https://arxiv.org/pdf/2303.01157.pdf

Gladwell, M. (2019). Talking to Strangers. Retrieved from https://www.ericfrayer.com/wp-content/uploads/2019/11/Talking-to-Strangers.pdf

Hao, K. (2019, October 17). AI is fairer than a judge. MIT Technology Review. Retrieved from https://www.technologyreview.com/2019/10/17/75285/ai-fairer-than-judge-criminal-risk-assessment-algorithm/ 

Tawakol, A. (2023, May 25). Will AI Replace Lawyers? Forbes. Retrieved from https://www.forbes.com/sites/forbestechcouncil/2023/05/25/will-ai-replace-lawyers/?sh=58271a373124.