Monkey-ing Around: How One Monkey Shaped Copyright Law for Artificial Intelligence

April 2023 | Annie Vong (Editor-in-Chief)

“Artificial Intelligence (AI) has transcended its traditional role as a mere problem-solving tool, as it now produces stunning artworks, insightful essays, and soul-stirring music that rival those created by human beings.” [1] The previous sentence was generated by an artificial intelligence bot, ChatGPT. Artificial intelligence has been top of mind since the rise of AI bots like ChatGPT. It has previously been used to screen job applications and make video recommendations on sites like YouTube, but now, AI can generate essays, art, music, and more with a simple prompt, bringing up questions over ownership rights. What is the legal future of AI? Can AI have intellectual property rights over the art it creates? Can humans who use AI as a tool have copyright over the art they used AI to create?

Firstly, to define intellectual property (IP), it gives ownership to creative works and processes and has three main types: copyright, trademark, and patents. Copyright law started with The Copyright Act of 1976, [2] which gave IP rights to artistic, literary, or intellectually-created works. Copyright differs from patents – which gives IP rights to technical inventions – and trademark – which gives IP rights to words, phrases, or designs. [3] Regarding copyright, the U.S. is one of many countries to adopt copyright law with the Berne Convention, which states that as a work of art is written, documented, or recorded physically, the creator of that work has automatic copyright, meaning that creators do not need to file any official forms to have copyright. [4]

Part One: Can Artificial Intelligence have Copyright?

The precedent for whether AI can have copyright emerges from Naruto v. David Slater et al, a case involving a monkey taking a selfie in Sulawesi, Indonesia. [5] Wildlife photographer, David Slater, left his camera unattended near the black macaque exhibit and a monkey named ‘Naruto’ took a selfie with his camera. Slater later published these photos in a photobook, claiming copyright only for himself. [6] People for the Ethical Treatment of Animals (PETA), an animal rights organization, [7] sued on Naruto’s behalf for copyright infringement, arguing that because the monkey took the selfie by itself, Naruto is the creator of the work; therefore, Naruto has copyright due to the terms from the Berne Convention. [8] (Using the courts to secure rights for animals is not new; the courts have been used in an attempt to secure bodily autonomy rights for an elephant in the Bronx Zoo.)[9] Additionally, the Copyright Act defines five rights that copyright holders have, but does not explicitly define what authorship entails. PETA argued that the term “authorship” in the Copyright Act is up to interpretation. [10] For PETA, expansion of copyright ownership to animals can set precedent for animals to have other rights as well. And so, the courts had to decide the following issue at hand: Who owns copyright? Can a non-human creator own copyright?

The defendant, Slater, argued that he owned the camera equipment and that he created the situation that resulted in the picture being taken. For example, he checked the angle of the shot, set up the equipment, adjusted exposure, etc. He also argued that he has standing whereas Naruto did not. Who the court decides to give copyright to significantly impacts Slater's photography business, however, Naruto is not financially impacted at all if copyright is granted or not. The court ruled against PETA and Naruto citing their lack of standing. The district court reasoned that because the Copyright Act does not extend copyright to animals explicitly, the law does not apply to Naruto and that both PETA and Naruto were legal strangers to the case. [11] If a human were to file a copyright infringement suit on behalf of AI, that suit would likely also be dismissed as well on the same grounds. However, unlike Naruto, if AI were to ever represent itself in court, the court may find that it is not a legal stranger to the case and has standing.

After PETA and Naruto’s loss at the district court level, PETA appealed to the Ninth Circuit Court of Appeals, which affirmed the district court’s decision and emphasized that PETA and Naruto did not have standing to file for copyright infringement. They interpreted that the authorship under the Copyright Act specifically referred to “persons” or “human beings” and that Naruto did not fit under either category. [12]

The emphasis on “persons'' holding copyright brings up the philosophical question of what counts as a “person.” Must a person have consciousness? Intelligence? Must a person be of the human race? At what point can AI cross that threshold into being considered a person? Legally, the courts have extended the definition of “persons'' to include non-human entities before. For example, in common law, courts have ruled that the Catholic Church has the right to sell property. [13] Furthermore, in Burwell v. Hobby Lobby (2014), the Supreme Court has granted corporations personhood and ruled that they can refuse to follow a federal healthcare mandate covering birth control if that mandate violated their religious exercises. [14] And, in Citizens United v. FEC (2012), the Supreme Court ruled that corporations have the right to freedom of speech via campaign contributions. [15] However, it can be argued that these groups (the Catholic Church, Hobby Lobby, and Citizens United) are collections of human members, and that AI is not, making them more different than similar to these groups that have gained rights through the courts. As rights for corporations have expanded, one question remains unexplored —  can corporations who use AI as a tool to generate works of art have copyright? Can humans who use AI as a tool to make music have copyright?

Part Two: Can humans who use AI as a tool have copyright over the art they create?

In April, a social media user named, “Ghostwriter977” posted a song that claimed to be crafted using AI. [16] The song, “Heart on My Sleeve,” used the likeness of two pop stars, Drake and The Weeknd. Universal Music Group (UMG), a corporation that owns the music label that Drake and The Weeknd have signed under, have filed a copyright claim taking down all posts containing this song. [17] UMG put out a response, “the training of generative AI using our artists’ music represents both a breach of our agreements and a violation of copyright law.” [18] Does UMG have grounds to copyright this song, even though it was not produced by Drake and The Weeknd themselves? To understand this, consider a scenario where AI was not used at all. Under the Copyright Act, use of copyright material is permitted in some cases such as in training, education, commentary, parody, etc. [19] If it is used (for example, if it is used in a parody or commentary) there must be some modification, transformation, or addition to the copyrighted material in order for it to constitute as fair use. It cannot be an exact copy of the material. 

There exists an argument that Ghostwriter977 did not use any existing copyright material (or any other published songs) in the song itself, so it constitutes as a fair use of copyrighted material. But, on the other hand, there also exists an argument that Ghostwriter977 was using published songs (copyrighted material) to train the AI and used Drake and The Weeknd’s likeness to make a profit from the song. It can be argued that even if Ghostwriter977 used copyrighted material to train the AI, the song is transformative enough to count as fair use. It is still unknown whether courts will accept the argument that using AI as a tool in creating works of art is enough for the human creator to have copyright.

 All of these cases pertaining to AI and intellectual property rights pose giant questions in copyright law. Drawing from Naruto, courts would most likely decide against artificial intelligence having copyright, but issues with copyright and AI move faster than the creation of legislation, and courts are forced to interpret law where law doesn’t exist, which can lead to a vulnerability in copyright law where it only takes one case to change the future of copyright for non-human entities forever.

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Sources

1.  “Introducing ChatGPT.” OpenAI

2.  United States Congress. The Copyright Act of 1976. 94th Congress, Introduced 

   in Senate 15 January 1975. Pub. L. 94–553

3. “Trademark, patent, or copyright.” United States Patent and Trademark Office

4. “Berne Convention for the Protection of Literary and Artistic Works” World Intellectual Property 

   Organization

5. Naruto v. Slater,  No. 16-15469 (9th Cir. 2018)

6. O’Donell, Nicholas. “Is the ‘monkey selfie’ case making a monkey out of the law?”Apollo 

   Magazine. July 28, 2018

7. “About PETA: Mission Statement.” PETA

8. Naruto v. Slater,  No. 16-15469 (9th Cir. 2018)

9.  Lissett, Jenifer. “The Legal Rights of the Elephant in the Room.” UNLV Undergraduate Law 

   Review. February 2022

10.  “UPDATE: ‘Monkey Selfie’ Case Brings Animal Rights Into Focus.” PETA, January 6, 2016

11. Naruto v. Slater,  No. 16-15469 (9th Cir. 2018)

12. Ibid.

13. Totenberg, Nina. “When Did Companies Become People? Excavating The Legal Evolution.” 

    National Public Radio. July 28, 2014

14.  Burwell v. Hobby Lobby Stores, 573 U.S. 682 (2014)

15. Citizens United v. Federal Elections Commission, 558 U.S. 310 (2010)

16. Pahwa, Nitish. “How Two Music Legends Found Themselves at Some Anonymous TikTokker’s 

    Mercy.” Slate. April 17, 2023

17. Ibid.

18. Ibid.

19. “U.S. Copyright Office Fair Use Index.” U.S. Copyright Office. February, 2023

Bankruptcy Uncoded: The Biden Administration's New Changes

February 2023 | Jenifer Lissett (Staff Writer and Editor)

I. Introduction

Student loans are a staple of higher education in this era. 43.5 million borrowers alone have federal student loan debt. [1] The amount of student loan debt in 2022 was $1,757,200,000,000, and the average amount of student loan debt is $37,574 per student borrower. [2] Furthermore, the average public university student will take out a whopping $31,410 to obtain their bachelor's degree. [3] All of these numbers reveal the massive amount of debt that students in the United States incur to attend school. Many of them will not go into million-dollar careers, leaving them to spend their adult lives paying off student loans. Given the enormity of this issue, borrowers push for federal student loan forgiveness programs—but most of the laws do not come off the ground. This article will explore one new avenue for borrowers to discharge their student loans via bankruptcy. Section II will define the basics of the U.S. bankruptcy code. Then, Section III will shift to defining the previous standard before the Biden Administration changed their guidelines of federal student loans and bankruptcy. Finally, Section IV will detail the Biden Administration’s guideline changes to bankruptcy and federal student loans.   

II. What is a debt and how does bankruptcy get rid of it? 

According to 11 U.S. Code § 10—the set of U.S. laws that govern bankruptcy proceedings—a debt is a “liability on a claim.” [4] To further clarify, a liability is used in a context where there is a risk in entering into a contract. For example, a creditor, or someone who loans a consumer money, enters into a contract where they face a loss if the consumer does not pay back the debt. [5] Although, a debt is more inclusive than this and can involve a consumer owing money to a friend or family member. A contract is not a required feature to owe someone a debt. 

These types of debts are considered consumer debts, or, in other words, these are not associated with businesses. Everyday people take out loans, charge purchases to their credit card, or borrow money from an acquaintance. If people become incapable of paying these debts, consumers can file for Chapter 7 or Chapter 13 bankruptcy to discharge, or end their liability, in order to pay the debt back to the creditors. [6] Moreover, if a consumer cannot pay these debts back, it is fairly easy within the bankruptcy code to discharge them. 

A consumer also has to pay attention to the distinction between an unsecured debt and a secured debt. Most consumer debts listed above fall under the unsecured loan bracket, as these debts do not have any physical property attached to them. [7] For example, a car loan or mortgage is a loan that is secured because there is physical property attached to the loan. The bank or lender has ownership of the property until it is paid off. On the other hand, credit card debt or payday loans are unsecured because there is no property attached to the loan. In those cases, a bank lent money to a consumer under the knowledge that it would be a standard loan with the expectation that it would be paid back. [8]

III. Student Loans and How it Differs. 

Student loans in bankruptcy are more complex to discharge than regular unsecured consumer debts. Consumers have to go through a tedious system to try and meet a difficult standard of “undue hardship.” Undue hardship is an ambiguous standard that does not have a set definition. [9] One consumer can meet the standard by having constant medical debt; however, in a different district, another consumer who is in a similar situation may not meet this standard. In some states, it is up to consumers to prove a “certainty of hopelessness,” which is an extra burden in addition to proving undue hardship. [10] As a result of this vague standard, most student loans are not discharged in bankruptcy. 

Previously, when a consumer wanted to discharge a student loan in bankruptcy, they would have needed to initiate an adversary proceeding against the student loan provider. [11] An adversary proceeding is, essentially, a lawsuit tried in bankruptcy court. [12] A consumer sues their student loan provider and fights their student loan at the adversary proceeding. [13] This process is costly to the consumer, though, as they will have to hire private attorneys to represent them. Consumers also have to fight against the seemingly endless onslaught of paperwork from the student loan provider’s legal team.

Conti v. Arrowood Indemnity Co. (2020) proves that the "undue hardship” student loan standard was an acceptable standard that the higher courts were not willing to change. In Conti v. Arrowood Indemnity Co., (2020) the plaintiff listed her private student loans in her bankruptcy and initiated an adversary proceeding to show that these student loans did not meet the student loan definition of bankruptcy. [14] The plaintiff tried to limit what could be considered a student loan, but by deciding to not hear the case, the Supreme Court of the United States asserted that the current student loan definition in bankruptcy and their dischargeability is acceptable. [15]

That said, consumers have another way of getting rid of their student loans without starting an adversary proceeding against their student loan providers, but it is very narrow in its application. Federal student loans can be discharged if they meet any one of the following conditions: (1) a student takes out a federal student loan to attend an unaccredited program or university, or (2) a student took out a student loan that surpasses the cost of attendance. If a consumer meets any of these conditions, then they, if included in their bankruptcy petition, can have these loans discharged. However, this is not always the case. Many student loan providers take advantage of the stringent undue hardship standard and do not file a claim with bankruptcy courts, meaning consumers assume they still owe the debt because it was not dischargeable. Consumers will continue making payments and student loan providers will continue collecting. This is all due to the ambiguous nature of the undue hardship standard. There are current cases, such as Fennell, v. Navient Sols. (2022), trying to fight against this abuse from student loan lenders. [16]

IV. Biden Administration’s Changes to Bankruptcy and Federal Student Loans

The Biden Administration, in their plight to ease the burden of student loans, loosened the undue hardship standard that consumers with federal student loans had to meet. The Biden Administration, along with the Department of Justice (DOJ) and Department of Education (DOE), will not oppose adversary proceedings that are dealing with discharging student loans. The DOE and their attorneys will review a plaintiff’s case information, “apply the factors courts consider relevant to the undue-hardship inquiry,” and determine whether to allow the adversary proceeding to be unopposed. [17] In other words, consumers who file an adversary proceeding against federal student loan providers can discharge their loan without having to go through the entire adversary process. [18] The DOE, after reviewing a consumer's claim, will simply not file a motion of opposition to the adversary proceeding. [19]

The Biden Administration’s changes make the process of discharging federal student loans much easier and less burdensome to consumers who are already facing other financial hardships. Consumers will not have to accrue more debt, especially in the form of attorneys fees, while trying to get rid of their debt. [20] Also, consumers, when filing for bankruptcy, can rid themselves of all their debt rather than have to keep their substantial student loan debt. In all, this is a step in the right direction for consumers to rid themselves of all debts. 

V. Conclusion

The Biden Administration, the DOJ, and the DOE have all taken a step in the right direction for student loan forgiveness. Though they made it easier for consumers to get rid of federal student loan debt, there is still more that needs to be done. Consumers who have to file for bankruptcy solely to discharge their student loans must incur a financial burden for 7 to 10 years. Credit reporting agencies (CRAs) have the right to report bankruptcies for a minimum of 7 years and up to 10 years after the date of filing, meaning any potential creditors can deny credit for up to 10 years after bankruptcy. [21] This is a harsh price consumers have to pay to try and get rid of their federal student loans.

Not only do consumers have to deal with the negative impact of a bankruptcy on their credit report, but they must also deal with any derogatory reporting from other debts that were included in their bankruptcy. [22] Creditors can choose to report inaccurate past-due payments, balances, or statuses which, without intervention, can further affect a consumer's credit history and score. So, consumers—after going through bankruptcy—will still have to deal with the possible incorrect reporting and, without knowledge of the Federal Credit Reporting Act (FCRA), consumers may unintentionally leave it alone until the credit account and its history is removed from the credit report. 

As if the negative credit impacts that a consumer faces after filing for bankruptcy were not bad enough, this change to the bankruptcy code only covers federal student loans. Just as many students take out private student loans as they do federal student loans. Students may not qualify for federal student loans, leaving them no access to discharge private student loans. This means that there are still consumers out there who have to continue to pay for their student loans just because they may have had eligibility issues in obtaining federal student loans. This highlights inequity in student loan forgiveness policies that needs to be addressed. 

Without intervention from Congress, consumers can expect inconsistencies in federal student loan forgiveness as policies change from one administration to the next. [23] To give consumers protection from policy-related instability, Congress must enact a law that stipulates what the DOE must do when adversary proceedings are brought against them in bankruptcy courts. Until then, consumers have no certainty in student loan forgiveness and must deal with fluctuating policy.

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Sources

1. Hanson, Melanie. “Student Loan Debt Statistics,” Education Data Initiative, February 10, 2023.

2. Ibid.

3. Ibid.

4. Bankruptcy 11 U.S. Code  (2018), § 101.

5. Ibid.

6. “Bankruptcy Basics Glossary.” Bankruptcy Basics Glossary. United States Courts. Accessed March 4, 2023.

7. Ibid.

8. Ibid.

9. Minskey, Adam. “Biden Administration Announces Huge Bankruptcy Changes for Student Loans,” Forbes, November 17 2022.

10. Ibid.

11. Ibid.

12. Ibid.

13. Ibid.

14. Conti v. Arrowood Indemnity Co., 612 B.R. 877 (6th Cir. 2020).

15. Ibid.

16. Fennell, v. Navient Sols., 2:22-cv-01013-CDS-NJK EMD.

17. Minskey, Adam. “Biden Administration Announces Huge Bankruptcy Changes for Student Loans,” Forbes, November 17 2022.

18. Ibid.

19. Ibid.

20. Ibid.

21. “Bankruptcy and Your Credit Report.” Bankruptcy & Your Credit Report: Western District of Washington, February 18, 2023.

22. Ibid.

23. Minskey, Adam. “Biden Administration Announces Huge Bankruptcy Changes for Student Loans,” Forbes, November 17 2022.

Telling the Whole Truth and Nothing but the Truth about Courtroom Intimidation

February 2023 | Allison Hardy (Staff Writer and Editor)

In United States v. Edgar Ray Killen (2007), Edgar Killen, a former Ku Klux Klan leader, was charged with the murder of three civil rights workers in Mississippi in 1964. One of the witnesses in the case, Louis Allen, was brutally murdered before he could testify in trial. Killen was eventually convicted of three counts of manslaughter in 2005. In Justice Dickinson’s opinion, he wrote, “The Klan's official policy, which was openly discussed at Klan meetings, was to use whatever force necessary — including harassment, intimidation, physical abuse, and even murder — to maintain racial and social segregation in Mississippi.” [1] This case is a tragic example of the lengths some individuals or groups are willing to go to in order to silence witnesses and maintain their power and control. Cases such as United States v. Edgar Ray Killen (2007) serve as a reminder of the challenges and risks involved in seeking justice. This case is crucial to the government because it highlighted the very serious consequences of witness intimidation. It also demonstrated the government's commitment to pursuing and prosecuting organized crime and set a precedent for the government's handling of similar cases.

18 U.S. Code § 1512 constitutes a broad prohibition against tampering with a witness, victim, or informant in Federal proceedings. [2] It applies to proceedings before Congress, executive departments, and administrative agencies, as well as civil and criminal judicial proceedings. The penalties for violating 18 U.S. Code § 1512 can be substantial, including fines and imprisonment for up to 20 years, depending on the specific circumstances of the offense. [3] The effectiveness of these penalties depend on their consistent enforcement and application in every case. 

Witness intimidation is but one aspect of a larger set of problems related to protecting crime victims and witnesses from further harm. Related crimes include domestic violence, acquaintance rape, stalking, exploitation of trafficked women, gun violence, gang-related crime, bullying in schools, drug trafficking and organized crime. [4] To prove that the lack of witness protection is directly affecting justice, in 2021, only about 45.6 percent of violent crimes were reported to police. Furthermore, small-scale studies and surveys of police and prosecutors suggest that witness intimidation is not only highly pervasive, but rapidly increasing. For example, a study of witnesses appearing in criminal courts in Bronx County, New York revealed that 36 percent of witnesses had been directly threatened. [5] Among those who had not been threatened directly, 57 percent feared reprisals. [6] According to the NYU Dispatch, detectives often made “minimal to no effort to locate, identify, interrogate, or investigate suspects,” leading victims to believe the effort and trauma involved in reporting a rape would all eventuate to nothing due to the “lax approach” of police officers, [7] which is the exact reason so many crimes remain unreported. 

To this day, witnesses and victims in many communities are still deprived of the opportunity to testify the truth, the whole truth, and nothing but the truth. That said, the U.S. government has policies in place that claim to protect victims and key witnesses from being subjected to intimidation in and out of the courtroom. These policies include witness protection programs, restraining orders, and other measures designed to ensure the safety and security of witnesses to prevent them from being subjected to retaliation or intimidation. In some cases, witnesses may be placed in witness protection programs, where they are relocated to a different location and given a new identity to keep them safe. Additionally, the court can also order a restraining order against the individual who is intimidating the witness. In extreme cases, law enforcement officers may provide 24-hour protection to high-risk witnesses. What other options are available to witnesses experiencing courtroom intimidation?

Victims can contact the police, reach out to a support group, report the retaliation to the court, gain a restraining order, and/or cooperate with the prosecution to build a case against the person who is intimidating them. Speaking up about intimidation can be a difficult process, but it is important for victims to know that they have the right to protection and that there are people and resources available to help keep them safe. Additionally, it is crucial for victims and witnesses to understand that their cooperation within the criminal justice system can play a vital role in holding their perpetrators accountable and stopping further crimes from being committed. Specific measures taken to protect a victim or witness depend on the individual circumstances of each case, but should there be more drastic consequences to deter criminals from undermining the justice system?

Courts should be working with victims from the beginning of a case to inform and ensure their protection in exchange for their full cooperation, such as informing the court of any injustices. Many victims do not know or think they can speak up when someone threatens them. If the court informs victims of their right to speak freely if they experience courtroom intimidation, it will establish a sense of trust. Although there should be a higher penalty in place to deter ruthless criminals from sabotaging the justice system, the government has many protections available to witnesses and victims to uphold the integrity of the court. Hopefully, the government will soon recognize that if over half of violent crimes in this country are going unreported that it will only lead to even more injustice in the American justice system.

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Sources

1. Dickinson, Justice. “Killen v. State.” Legal research tools from Casetext, June 28, 2007.

2. “1729. Protection of Government Processes -- Tampering with Victims, Witnesses, or Informants -- 18 U.S.C. 1512.” The United States Department of Justice, January 17, 2020. 

3. Ibid.

4. “Witness Intimidation.” ASU Center for Problem-Oriented Policing, December 1, 2022.

5. Ibid.

6. Ibid.

7. Dispatch. “Why Do So Many Crimes Go by Unreported in the States?” The NYU Dispatch, 31 Aug. 2018,

Is Discrimination Generally Applicable?

February 2023 | Jesse Fager (Communications Director) and Kira Kramer (Staff Writer and Editor)

One of the most popular amendments in the U.S. Constitution is the First Amendment. The high recognition of this amendment comes from the many claims of authority figures and governing bodies violating people's First Amendment rights, some more often than others. One of the provisions within the First Amendment is the Free Exercise Clause. This clause states that the practice and expression of opinion related to religion are protected under the First Amendment. It “protects citizens' right to practice their religion as they please, so long as the practice does not run afoul of "public morals" or a "compelling" governmental interest”— two vague standards. [1] Moreover, not only does this amendment protect the freedom to practice religion and express an opinion, but it also allows the exemption from some generally applicable laws, as long as the violation is for religious reasons. 

Violations of the Free Exercise clause are evaluated by analyzing if the laws or conditions being violated are neutral and generally applicable. The landmark case, Employment Division v. Smith (1990) has set the precedent for cases involving generally applicable laws. In this case, “Alfred Smith and Galen Black were fired from their jobs as private drug rehabilitation counselors for ingesting peyote as part of a sacrament of the Native American Church.” [2] When they applied for unemployment benefits, “the Employment Division denied their request because they had violated a state criminal statute.” [3] Alfred Smith filed suit against the Employment Division and won his case in the lower courts. However, the Supreme Court reversed the decision, holding that Smith’s and Black’s free exercise rights were not violated and that the denial of benefits did not violate the First Amendment. Smith held that where “prohibiting or burdening the free exercise of religion is not the object [of a law] but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” [4] A law is generally applicable if there are no exceptions or built-in opportunities for the government to target people on the basis of their religion. Conversely, “a law is not generally applicable if it invites the government to consider the particular reasons for a person’s conduct by creating a mechanism for individualized exemptions.” [5] In 2021, a Supreme Court case utilized the Employment Division v. Smith (1990) case and its definitions of neutral and generally applicable laws to rule on a court case regarding the violation of the Free Exercise clause of the First Amendment.

In Fulton v. City of Philadelphia (2021), Pennsylvania Catholic Social Services (CSS) filed suit against the City of Philadelphia for violation of the Free Exercise and Free Speech Clauses of the First Amendment, particularly those protecting religious liberty. In 2018, attention was drawn to CSS’s refusal to certify unmarried and same-sex couples as it would violate their religious ideology. The City proposed an ultimatum that unless CSS agreed to certify same-sex couples, the City would no longer refer children to that agency or enter into a contract with them in the future. The City made this decision on the grounds that CSS’s refusal to certify same-sex couples violated a non-discrimination provision in the agency’s contract as well as the City’s non-discrimination requirements stated in their Fair Practices Ordinance. As a result of the referral freeze issued by the City, CSS sought to enjoin the referral freeze on the basis that it violated their First Amendment rights.

After the referral freeze issued by the City of Philadelphia, Catholic Social Services decided to sue the city for violating its First Amendment right under the Free Exercise Clause. After CSS lost in two lower courts, the Supreme Court sided with CSS in a unanimous decision. The justification for this decision was because of the influence of “generally applicable.” In this case, the City’s action of providing an ultimatum—allowing same-sex couples or else the contract will be discontinued—burdened CSS’s religious exercise. If CSS wanted to continue operating with the City, they would have to violate their religious beliefs. This type of burdening on religion is not considered neutral and generally applicable, which means that it was subject to strict scrutiny. Strict scrutiny is used in two different kinds of cases: fundamental rights cases and suspect classification cases. The former deals with constitutional issues and the latter deals with discrimination against marginalized groups. Fulton is a fundamental rights case because the constitutionality of religious exercise is in question. Strict scrutiny is the highest level of judicial review, in which a law is presumed to be unconstitutional and the burden of proof falls on the government to prove that the law is constitutional. In order to prove this, the end goal of the law presented must be compelling, and the law itself must be narrowly tailored toward achieving that compelling goal. [6]

In Fulton v. City of Philadelphia (2021), the federal government was accused of violating the First Amendment because the discrimination policies maintained within the contract between their organization and CSS were decided as not generally applicable. In order to understand the court’s ruling on the case, it is imperative that neutral and general applicable laws be defined; in this case, “neutrality and general applicability are requirements for the validity of laws under the Free Exercise Clause because there is no legitimate state interest that justifies violating them.” [7] There is no law that legitimately holds the object of restricting religion. Laws are designed to address specific incidents where harm is caused by religion, but these incidents are not likely to be unique to religion; therefore, “a classification limited to religion carries on its face the indicia of illegitimate purpose.” [8] Essentially, cases that pursue the persecution of religion itself are illegitimate, but where specific harm is caused by religion the law can intervene.

Another important aspect is that the parties involved in this case were a government organization and a religious foster care agency. Free Exercise Clause cases almost always involve government employers. The First Amendment protects private-sector employers from government interference. In Philadelphia, there exist multiple public and private agencies that recruit and train foster parents, along with facilitating placements. There are a few differences between state-run facilities and private agencies. Every state has its own child welfare office, and those state agencies have the authority to license foster/adoptive parents and issue them certificates. Custody of all children within the foster care system falls to the state because private agencies are considered to be private businesses. Private agencies, however, must be approved and on record with the Secretary of State to ensure that they are conducting foster care and adoption services.When an agency requests approval, “the state then reviews the private agency’s request and determines whether it will approve the private agency for foster care only or for both foster care and adoption.” [9] Families can choose to work with either public or private entities when deciding to foster.

Child welfare policies and procedures are run by the state; therefore, not all states allow the operation of private organizations. Some only allow state agencies to facilitate training and placement while others create contractual agreements between private foster care and adoption agencies. The City of Philadelphia contracts with multiple private agencies to recruit and train foster parents, including CSS. Philadelphia can create annual contracts with stipulations and exemptions that the private agency they are looking to contract with must agree to. However, it is difficult to craft contracts with extreme exemptions when balancing multiple interests. 

Interestingly enough, in Fulton v. Philadelphia (2021), there was one majority opinion and two concurring opinions. The majority opinion—written by Chief Justice Roberts and joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh, and Barrett—argued that the City of Philadelphia violated Catholic Social Services’ First Amendment right because it gave CSS an ultimatum: either be cut off from the City’s partnership or curtail its mission to allow same-sex marriage couples to foster children. Chief Justice Roberts also stated that this case falls outside of the standards set in Employment Division v. Smith, (1990) because the laws that the city is burdening CSS with are not “generally applicable.” While Chief Justice Roberts stated that there was no reason to challenge Smith, Justice Barrett wrote a concurring opinion stating that the arguments against Smith are compelling. She argued that strict scrutiny is not satisfied in this case as there is no compelling end goal for Philadelphia to freeze its contract with Catholic Social Services. [10] Barrett ended up joining the majority regarding the overturning of Smith, stating that “there would be a number of issues to work through if Smith were overruled.” [11] Justices Kavanaugh and Breyer joined in Barrett's concurring opinion. Justice Alito gave another concurring opinion, in which Justices Thomas and Gorsuch joined. Justice Alito concurred, stating that he would overrule Smith and reverse the decision because Philadelphia violated the Free Exercise Clause; therefore, CSS is entitled to an injunction barring Philadelphia from taking such action. [12]

The role of the courts is to examine laws affecting religious exercise to determine if they are generally applicable and whether the object of the law is neutral. Understanding neutral and generally applicable laws is integral to interpreting the Court’s ruling on this case, previous cases, and those to come. While the LGBTQ+ community is still struggling to have the same rights and privileges afforded to heterosexual couples, the Court’s ruling did not examine this issue in terms of whether or not LGBTQ+ persons ought to foster. Their ruling came as a result of analyzing the contractual relationship between the City and CSS. The City was required to reinstate its contract with CSS and exempt CSS from Philadelphia’s nondiscrimination ordinance. This decision actually maintains LGBTQ+ rights, as it did not rule on the issue of whether or not same-sex couples ought to be able to foster through a Catholic agency. The Court managed to “sidestep addressing Smith by holding that the law prohibiting discrimination against married LGBTQ couples was not a generally applicable law because it allows for some discretion in selecting foster parents.” [13] Ultimately, this Supreme Court case still leaves the question of how the Court will deal with cases that do fall into Smith up to interpretation.

---

Sources

1. “First Amendment and Religion.” United States Courts. Administrative Office of the U.S. Courts. Accessed February 25, 2023.

2. Hermann, John R. Employment Division, Department of Human Resources of Oregon v. Smith. The First Amendment Encyclopedia, 2009.

3. Ibid.

4. “Fulton v. City of Philadelphia.” Constitutional Accountability Center, June 25, 2021.

5. Supreme Court of the United States. “Fulton et al. v. City of Philadelphia, Pennsylvania, et al.” 593 U.S. __ (2021).

6. “Strict Scrutiny.” Legal Information Institute. Cornell Law School. Accessed February 25, 2023.

7. Bogen, David S. “Generally Applicable Laws and the First Amendment.” DigitalCommons@UM Carey Law. University of Maryland Francis King Carey School of Law, 1997.

8. Ibid.

9. Hetro, Natalie. “Understanding the Differences between State and Private Foster Care Agencies.” Focus on the Family, May 9, 2022.

10. Supreme Court of the United States. “Fulton et al. v. City of Philadelphia, Pennsylvania, et al.” 593 U.S. __ (2021).

11. Ibid.

12. Ibid.

13. “Fulton v. City of Philadelphia.” Constitutional Accountability Center, June 25, 2021.

Crypto Catastrophe: After Exchange Giant FTX’s Collapse, What Comes Next?

February 2023 | Luke Perea (Staff Writer and Editor)

During Super Bowl 56, a commercial aired showing comedian Larry David traveling through time while criticizing inventions that would become successful—such as the wheel and the light bulb. The commercial ended in the present day with David responding, “eh, I don’t think so,” to the suggestion that one cryptocurrency exchange company, Futures Exchange (FTX), was a safe and easy way to get into cryptocurrency. Ironically, David’s prediction proved to be correct. FTX, one of the leading cryptocurrency exchanges, filed for bankruptcy in November 2022, a stunning downfall of what was once a shining star in the industry. A month later, its founder and CEO, Sam Bankman-Fried, was arrested under several fraud charges. Bankman-Fried is currently awaiting trial, and deliberation is underway in bankruptcy court to attempt to recover lost assets. Additionally, government agencies are debating the future of cryptocurrency regulation. The legal outcomes of FTX’s collapse may dictate the livelihood of many impacted customers, as well as the future of financial laws in the U.S.

Cryptocurrencies are a relatively new form of monetary units and their basic tenets are central to understanding why FTX failed. Despite the extensive cryptography used in its mining process, cryptocurrency—or crypto—in its simplest form is a digital currency with the intended purpose of acting as any currency does, representing monetary value and being a medium for transactions. [1] However, most crypto today resembles traditional assets such as stocks and commodities, as their value comes purely from supply and demand. Unlike fiat money—money that is managed by a central national bank—crypto is decentralized. [2] Instead of being managed by a third party, trading and purchasing of crypto are possible through a blockchain, a digital ledger that uses complex cryptography to record transactions. This process is intended to be both secure through its irreversible chaining of encrypted transactions, as well as transparent since all recorded transactions are available to the public. [3] In centralized exchanges such as FTX, individuals can make cash or crypto deposits in order to buy and trade other cryptocurrencies. [4] These exchanges generate revenue through deposit or transaction fees, but store customer funds in their own centralized wallet as opposed to each customer having an individual wallet. FTX’s collapse was a result of the mismanagement and theft of these funds and the manipulation of investors, who were unaware of the internal schemes and monetary crises occurring within the company.

On November 11th, 2022, FTX filed for bankruptcy, as $8 billion in customer funds went missing and FTX was unable to meet customer withdrawal requests. This happened because of the backdoor relationship between FTX and its sister company, Alameda Research. In 2017, Samuel Bankman-Fried, along with several of his acquaintances from college, founded Alameda Research, which operated as a crypto hedge fund and trading company. [5] Bankman-Fried initially used Alameda’s profits to fund FTX, which created its own token called FTT, allowing for discounts on exchange fees. [6] FTT was minted by FTX, meaning its value was intrinsically tied to the value of FTX itself. As FTX grew rapidly, prominent investors put new capital into the company. Behind the scenes, however, Bankman-Fried was using FTX customers’ funds to finance Alameda’s business, which was strictly against FTX’s own terms of service. By allowing an exception in FTX’s coding, Alameda could hold a negative account. With this account, Bankman-Fried could withdraw unlimited user funds from FTX to make risky bets that frequently turned into losses. [7] Additionally, Bankman-Fried and his associates used these withdrawal systems for their own agendas, such as investments into less popular—and as such, more unstable—cryptocurrencies, as well as exchanges, hedge funds, illegal political donations, and personal expenditures such as real estate. [8] In Spring 2022, Bankman-Fried diverted even more customer funds to pay off several loans due to the collapse of several cryptocurrencies, causing a minor crisis in the overall crypto market. [9]

This blatant theft of customer funds would be exposed on November 2nd, 2022, with the publication of a CoinDesk article [10] which showed that approximately half of Alameda’s assets on its balance sheet consisted of FTT tokens—meaning that Alameda largely depended on an illiquid currency that Bankman-Fried himself created. [11] Once this information became public, business rival and fellow exchange Binance liquidated their FTT tokens to create a withdrawal run, resulting in mass withdrawal requests from customers and the tanking of FTT’s price. [12] Due to Alameda having lost $8 billion worth of customer funds, as well as the inability of Alameda’s FTT to cover its losses as collateral, FTX was unable to accommodate withdrawal requests. [13] Ultimately, it was the theft of customer funds that caused FTX—and subsequently Alameda—to file for bankruptcy on November 11th, the same day that Bankman-Fried stepped down as its CEO. [14] On December 12th, because of the aforementioned schemes, Bankman-Fried was arrested by Bahamian officials and extradited to the United States. [15]

The first legal consequence of this debacle will likely come in the form of Sam Bankman-Fried’s trial, as well as the deliberation on how the lost funds will be recovered. Currently, Bankman-Fried is under house arrest at his parents' home, after posting a $250 million bail bond. [16] His arrest and extradition from his home in the Bahamas were followed by a criminal indictment in which the United States charged him with wire fraud, conspiracy to commit wire fraud, commodity fraud, securities fraud, conspiracy to commit money laundering, and defrauding the United States and its election laws. [17] Bankman-Fried pled not guilty to all charges. [18] If convicted of all these charges, Bankman-Fried could potentially face up to 115 years in prison. In addition to the criminal charges, he also faces civil suits from both the U.S. Securities and Exchange Commission and the Commodity Futures Trading Commission. [19] However, as of February 13th, 2023, these cases have been put on hold until the conclusion of the criminal trial. The U.S. attorney for the Southern District of New York, Damian Williams, cited in his February 7th appeal, “All the facts at issue in the civil cases are also at issue in the criminal case.” [20] At the time of publication, the criminal trial is scheduled for October 2nd, 2023. 

In the short time between the indictment and the time of publication, there have been several complications and interesting turns in the proceedings of the criminal case. On January 27th, the Department of Justice requested District Court Judge Lewis Kaplan ban Bankman-Fried from communicating with former colleagues or employees of FTX, as he was found to have messaged former FTX general counsel Ryne Miller via Signal—an app that allows encrypted messaging. [21] The prosecutors claimed that Bankman-Fried was attempting to sway witnesses who would potentially aid or incriminate him in October’s trial. Additionally, on February 14th, Kaplan ordered a ban on the use of virtual private networks (VPNs), which could allow someone to have their information disguised when using the internet, as a new condition of Bankman-Fried’s bail. [22] While Bankman-Fried and his attorneys asserted that he was using it to watch NFL playoff games, prosecutors alleged that Bankman-Fried may have been using a VPN to help transfer assets from Alameda. The Department of Justice (DOJ) is currently suggesting that Bankman-Fried be banned from accessing the internet and utilizing any devices that can connect to the internet, except in special circumstances. [23]

Despite the overwhelming evidence presented against Bankman-Fried, it is still unclear whether he will be found guilty of some or all of these charges due to the current stage of the case. However, these post-bail actions taken by Bankman-Fried will not only tighten his bail conditions, but also likely will not do him or his defendants any favors when the trial commences. Additionally, some of Bankman Fried’s notable colleagues, including Alameda CEO Caroline Ellison and FTX cofounder Gary Wang, have pleaded guilty to their own charges and are reportedly working with prosecutors to potentially testify against Bankman-Fried. [24] The individuals formerly in control of FTX will have their lives burdened by this trial, although  many more lives were ruined by their actions. 

The ongoing bankruptcy case of FTX is extremely important to the creditors as well as customers who lost significant amounts of money from the fraudulent exchange. FTX filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court in the state of Delaware. [25] According to a presentation by FTX’s legal counsel, including Sullivan & Cromwell LLP, the debtors have identified around $5.5 billion in assets. [26] These assets include fiat money and crypto located in brokerage accounts, venture investments, and Bahamian property. These expenditures are all being traced in order to recover as much capital as possible. [27] For example, on February 15th, reports circulated about negotiations to recover a $400 million investment made into a Brazilian hedge fund called Modulo. [28] Additionally, politicians who received donations from Bankman-Fried have been contacted about returning some of the donated capital. [29] Presuming all of the identified $5.5 billion worth of assets are recovered, it would only be a portion of the $8 billion in reported liabilities. [30] Moreover, given the early stage of the bankruptcy process, it will be some time before those who lost money can potentially see its return. The next important step will take place on March 8th, when a scheduled omnibus hearing will gather further general information and evidence for this case. [31]

The final implication of FTX’s collapse will be the future of regulatory measures on the entire crypto market. The collapse of a crypto exchange giant the size of FTX has sent shockwaves through the country, with many congresspeople beginning to call for more complex and stricter regulation of the industry. The issue is so urgent that the Republican Chairman of the House Financial Services Committee, Patrick McHenry, is cited as being “very eager to engage” with Democrats on addressing the issue of regulation. [32] While some legislation has gained traction in recent months, including legislation promoting the oversight of stablecoins—which are cryptos tied to the United States dollar—nothing substantial or impactful has yet to pass. [33] In fact, the only “regulations” currently in place at the federal level are those given by different financial administrations, such as the aforementioned Commodities Futures Trading Commission (CFTC) and Securities Exchange Commission (SEC). The pair have cracked down on several crypto exchanges, yet these agencies disagree on what crypto is. The SEC views crypto as a security, such as a stock or bond, and it has taken an aggressive approach to monitor exchanges; meanwhile, the CFTC identifies crypto as a commodity—as in a raw material worth value, such as livestock in the case of agriculture—which is not a security. [34] The federal government has not provided a concrete answer of whether crypto falls under the jurisdiction of either of these administrations, with the US Congressional Research Service stating, 

“Currently, there is no comprehensive regulatory framework for cryptocurrencies or other digital assets. Instead, various state and federal financial industry regulators apply existing frameworks and regulations where exchanges or digital assets resemble traditional financial products. As such, regulators may treat digital assets as securities, commodities, or currencies depending on the circumstances.” [35]

A bill titled the “Digital Commodities Consumer Protection Act” was primed to give the CFTC jurisdiction over crypto, but it has fallen out of favor given FTX’s collapse. [36] While this debate continues without a clear resolution, there is confidence that FTX’s collapse will drive lawmakers to have more urgency in passing legislation.

The collapse of FTX has undoubtedly left a sizable mark, not only on the crypto industry but also on the legal environment surrounding it. While Bankman-Fried’s actions have not yet been determined to have malicious intent or the result of poor organizational structure, the consequences of his actions have changed the lives of many people across the globe. When Bankman-Fried’s trial concludes, the bankruptcy case will re-appropriate as many lost assets as it can, and hopefully, the U.S. will pass legislation for a more organized approach to regulating the crypto industry. Ultimately, the crypto landscape in America will be unequivocally changed by these distinctive events.

---

Sources

1. Patel, Dee. n.d. “A Beginner’s Guide to Cryptocurrency.” Penn Today. Accessed February 12, 2023.

2. Ibid.

3. SoFi’s Crypto Guide For Beginners. Social Finance. 2023.

4. Ibid.

5. Goswami, Rohan, and Mackenzie Sigalos. “How Sam Bankman-Fried Swindled $8 Billion in Customer Money, According to Federal Prosecutors.” CNBC. December 18, 2022. 

6. Ibid.

7. Goldstein, Matthew, Alexandra Stevenson, Maureen Farrell, and David Yaffe-Bellany. “How FTX’s Sister Firm Brought the Crypto Exchange down.” The New York Times, November 18, 2022.

8. Goswami, Rohan, and Mackenzie Sigalos. “How Sam Bankman-Fried Swindled $8 Billion in Customer Money, According to Federal Prosecutors.” CNBC. December 18, 2022.

9. Ibid.

10. Allison, Ian. “Divisions in Sam Bankman-Fried’s Crypto Empire Blur on His Trading Titan Alameda’s Balance Sheet.” CoinDesk. November 2, 2022.

11. Goswami, Rohan, and Mackenzie Sigalos. “How Sam Bankman-Fried Swindled $8 Billion in Customer Money, According to Federal Prosecutors.” CNBC. December 18, 2022.

12. Goldstein, Matthew, Alexandra Stevenson, Maureen Farrell, and David Yaffe-Bellany. “How FTX’s Sister Firm Brought the Crypto Exchange down.” The New York Times, November 18, 2022.

13. Goswami, Rohan, and Mackenzie Sigalos. “How Sam Bankman-Fried Swindled $8 Billion in Customer Money, According to Federal Prosecutors.” CNBC. December 18, 2022.

14. Ibid.

15. Yaffe-Bellany, David, William K. Rashbaum, and Matthew Goldstein. 2022. “FTX’s Sam Bankman-Fried Is Arrested in the Bahamas.” The New York Times, December 12, 2022.

16. Helmore, Edward. “Sam Bankman-Fried Pleads Not Guilty in FTX Case.” The Guardian, January 3, 2023.

17. “United States v. Samuel Bankman-Fried, a/k/a ‘SBF,’ 22 Cr. 673 (LAK).” Justice.gov. January 6, 2023. 

18. Ibid.

19. Helmore, Edward. “Sam Bankman-Fried Pleads Not Guilty in FTX Case.” The Guardian, January 3, 2023. 

20. Wright, Turner. “US Attorney Requests SEC and CFTC Civil Cases against SBF Wait until after Criminal Trial.” Cointelegraph. February 7, 2023.

21. Lyons, Ciaran. “US Prosecutors Seek to Ban SBF from Signal after Alleged Witness Contact.”  Cointelegraph. January 28, 2023.

22. Kaplan, Lewis A., Daniel Patrick Moynihan, and The, Silvio J. 2023. “Case 1:22-Cr-00673-LAK 

    Document 50 Filed 01/27/23.” Courtlistener.com. 2023. 

23. Ibid.

24. Goldstein, Matthew, and David Yaffe-Bellany. “FTX Inquiry Expands as Prosecutors Reach out to Former Executives.” The New York Times, February 4, 2023.

25. “Chapter 11 - Bankruptcy Basics.” n.d. United States Courts. Accessed February 19, 2023.

26. “FTX Trading Ltd. Case No. 22-11068.” n.d. Kroll Restructuring Administration. Accessed February 19, 2023.

27. Ibid.

28. Chang, Ellen. “FTX Collapse: Creditors Could See Return of Huge Hedge Fund Investment.”  Thestreet.com. February 18, 2023.

29. Ibid.

30. Ibid.

31. “FTX Trading Ltd. Case No. 22-11068.” n.d. Kroll Restructuring Administration. Accessed February 19, 2023.

32. Hamilton, Jesse. “After FTX: How Congress Is Gearing up to Regulate Crypto.” 

    CoinDesk. January 23, 2023.

33. Ibid.

34. “How Are Cryptocurrencies Regulated in the U.S. and the EU?” Dow Jones Professional. Dow Jones. August 28, 2020.

35. Zelkowitz, Jeff. “2023 CMC Crypto Playbook: US Crypto Regulation Outlook by APCO.”  CoinMarketCap. January, 2023.

36. Ibid.

Yeezy & Adidas: The Intersection of Intellectual Property, Licensing, and Contracts

November 2022 | Tia Zghaib (Staff Writer and Editor)

Louboutin’s red bottoms, the Coca Cola recipe, Tiffany blue – these are all examples of intellectual property. Intellectual property (IP) refers to works that are created by an individual or group’s original ideas – their intellect. Intellectual property law governs the author’s ability to exercise special rights over these works. Despite many peoples’ lack of knowledge or notice of it, intellectual property has infiltrated almost every aspect of human life. Every time one sees an advertisement, buys or consumes a product, reads a book, listens to a song, or watches a movie, they are actively interacting with a form of intellectual property. 

Celebrities and public figures in particular are, in many ways, dependent on the benefits that intellectual property rights can generate. Following his extremely controversial public statements, rapper-turned-businessman Kanye West admitted to losing $2 billion worth of brand deals and business relationships in one day due to public outrage. [1] Most notably, Adidas – the manufacturer and distributor of West’s “Yeezy” products – has publicly severed ties with him and is attempting to lay claim to a large portion of the intellectual property associated with the brand. Adidas stated that it is “the sole owner of all design rights to existing products as well as previous and new colorways under the partnership.” [2] Thus, examining this dispute and its consequences provides for an effective framework to analyze the inner workings of IP as a whole. 

The three main categories of IP are copyright, trademark, and patent. Copyright protects an author’s ability to distribute and replicate their work; this includes songs, books, and films. In contrast, trademarks do not focus on replication and instead are marks that identify a particular product or company and distinguish it from others. [3] This includes logos, business names, jingles, colors, and slogans. The name and logo of West’s brand “Yeezy” are the registered trademarks of his company, Mascotte Holdings, Inc. [4] Thus, through his company, West has exclusive and sole ownership of the Yeezy trademarks and brand. Similarly, Adidas has its own registered trademarks for its name, logo, and other identifiers. The two brands’ decision to partner up for the Yeezy-Adidas line did not affect the separation of their trademarks or change their ownership. 

The third main category of IP is patent. Title 35 of the U.S. Code governs patents and requires that they be registered with the U.S. Patent and Trademark Office (USPTO). [5] Patents allow the creator of a unique invention to exercise sole and exclusive rights to produce, distribute, and profit from their invention. Utility and design patents are two types of patents. While utility patents protect the way an invention functions or how it is used, such as digital software and medical patents, design patents protect the appearance or design of a product—like the physical layout of an iPhone. [6] Design patents are often used in the fashion industry, particularly for sneakers. Thus, it is no surprise how important design patents are to the Yeezy-Adidas partnership. A close investigation of the USPTO design patents registrations for Yeezy shoes reveals that Adidas is the owner of every Yeezy design except for one: the Yeezy slides. [7] Therefore, the Yeezy-Adidas partnership is not clear cut regarding the ownership of the different IP associated with the fashion line. 

Considering the amount of IP involved in the Yeezy-Adidas line, it becomes obvious that the parties entered into a licensing agreement. Intellectual property licensing involves an owner of IP allowing another entity to use its IP in exchange for a fee, called a “royalty.” [8] Although the licensing agreement for the Yeezy-Adidas partnership is private, it is reasonable to make some conclusions regarding its nature. The agreement most likely provided for Adidas designing, manufacturing, and distributing the Yeezy products, which is why Adidas is the registered owner of these design patents under the USPTO. However, the licensing agreement allowed Adidas to distribute these products under the Yeezy name—West’s trademark—in exchange for a 15% royalty on the wholesale price per product. [9] Thus, both Adidas and Yeezy were able to profit from each others’ IP, with Yeezy using Adidas’ designs and Adidas using the Yeezy name. However, this formerly harmonious partnership now faces a potentially messy legal battle due to the recent split. 

Beginning with its statement severing ties and claiming that it is the “sole owner” of Yeezy designs, Adidas has made it clear that it intends to continue to own and profit from these designs. However, West has disputed these claims by alleging that Adidas stole his designs. [10] So, what does this mean for Yeezy? The private nature of the licensing contract limits the conclusions that can be drawn regarding possible legal battles that may stem from the dispute. If Adidas did not have the legal grounds to terminate the contract prior to its expiration, then West may be able to sue for breach of contract and other related claims. Moreover, if the contract provided that the designs be registered under Yeezy and Adidas violated this provision, West could be entitled to damages and possibly invalidate the company’s rights to the patents. However, it is highly unlikely that Adidas breached the contract in this way and exposed itself to these legal claims. 

Assuming that Adidas is indeed the rightful owner and designer of the patents, it could technically continue to distribute the Yeezy products. However, Adidas no longer has the right to use the Yeezy brand name since they terminated their contract with West, who was allowing the company to use his trademarks. Theoretically, Adidas could continue selling Yeezy products exactly how they are designed, provided that they remove any Yeezy logos and sell them under a different brand. In fact, Adidas CFO Harm Ohlmeyer confirmed the company’s intentions to sell the designs associated with Yeezy under a different trademark. Ohlmeyer summarized the implications of the Yeezy-Adidas IP split when he stated, “We own all the IP, we own all the designs… It's our product. We do not own the Yeezy name.” [11] He also stated that Adidas would be saving money because they no longer have to pay West the royalties for the use of his trademark. As for Yeezy, the brand could continue to operate, but it would have to come up with entirely new designs for all products that were associated with the Adidas partnership, since Adidas owns all the design patents except the slides. Therefore, both companies would be losing some of the benefits they gained from their partnership, but at least they would be able to walk away maintaining some of their intellectual property. 

Examining the Yeezy-Adidas split sheds light on the complexity of IP law and how it intersects with other areas of law. The IP associated with one brand can range from clear-cut ownership to a very messy relationship. Different owners of different categories of IP can split and cause more confusion about who owns what. Moreover, the licensing agreements and contracts that dictate ownership of the IP can both help and hinder this confusion. As such, it is more important than ever for both attorneys and the public to expand their knowledge of the complex yet essential area of law that governs intellectual property. 

---

Sources

1. Hipes, Patrick, “Kanye West Says He Lost $2 Billion In One Day Amid Controversy, Calls Out 

   Ari Emanuel.” (Deadline: October 2022).

2. Sarlin, Jon, “Yeezy Without The Ye? Who Is New ‘Sole’ Owner?” (CNN: October 2022). 

3. “Trademark, Patent, or Copyright.” (USPTO).

4. Isaiah Poritz, Chris Dolmetsch, and Bloomberg, “Adidas Might Be Cutting Ties to Kanye west, but The Company Could Still Be Paying Him Millions of Royalties Into 2023.” (Fortune: October 2022).

5. “U.S. Code: Title 35.” (Legal Information Institute).

6. “1502.01 Distinction Between Design and Utility Patents [R-07.2015].” (USPTO).

7. Vlahos, Nicholas, “What We Know About Kanye’s Contract With Adidas.” (Sole Retriever: 

   September 2022).

8. Isaiah Poritz, Chris Dolmetsch, and Bloomberg, “Adidas Might Be Cutting Ties to Kanye west, but The Company Could Still Be Paying Him Millions of Royalties Into 2023.” (Fortune: October 2022).

9. Ibid.

10. Ciment, Shoshy, “Does Kanye West Have a Legal Claim Against Adidas?” (Footwear News: 

    September 2022).

11. Fox 13 News Staff, “Adidas owns rights to Yeezy designs, CFO says; will sell products with different name after Kanye West fallout.” (Fox 13 News: November 2022).

Hiding in the Shadows: The Truth Behind the Supreme Court’s Shadow Docket

November 2022 | Kira Kramer (Staff Writer and Editor)

One of the Supreme Court’s more bizarre cases occurred in 1970, when two lawyers hiked six miles into the woods to request that Justice William O. Douglas prevent Portland, Oregon police officers from using violent tactics to stop protests. In the woods, Justice Douglas held an impromptu oral argument and then left his decision on a tree stump: application denied. [1] This case illustrates how the Supreme Court has relied on emergency applications and summary decisions to produce rulings in time-sensitive situations. Since 2017, however, there has been a significant increase in the number of cases decided through this emergency docket – generating speculation on whether or not its implementation is appropriate. The “shadow docket” was a term coined by University of Chicago law professor William Baude, as he explained that “outside of the merits cases, the Court issued a number of noteworthy rulings which merit more scrutiny than they have gotten. In important cases, it granted stays and injunctions that were both debatable and mysterious. The Court has not explained their legal basis and it is not even clear to what extent individual Justices agree with those decisions…As the orders list comes to new prominence, understanding the Court requires us to understand its non-merits work – its shadow docket”. [2]

Within the shadow docket, emergency applications call for a different procedure than the Court's regular docket. Emergency applications are requests for temporary relief, usually used when a party is seeking a temporary stay of a lower court order. A stay of a lower court order stops the legal proceedings or the action of a party. [3] These applications produce two outcomes: either the Supreme Court denies a petition for certiorari, which is a formal request for the Supreme Court to hear the case, or the Supreme Court accepts the petition and decides the case on its merits. [4] The most important takeaway between the shadow docket and the regular docket is how the application is processed. Emergency stay applications are filed and decided faster than petitions in the regular docket. A regular decision on the merits takes months from the filing of the petition, whereas an emergency stay application can receive a decision within days or hours—including after business hours. [5] Furthermore, emergency applications do not come with a written opinion or an explanation for the decision, which fosters a lack of transparency. 

A regular docket must be filed within 90 days of the lower court judgment. [6] The petition is usually accepted around six weeks after its filing. Then, it takes two months to be argued after the case was accepted. The case is ultimately decided one to several months after it was argued. Regular decisions using the merit docket usually have oral arguments lasting hours. Following the oral argument, a lengthy ruling is produced including opinions from both the majority and minority. The majority opinion is a decision that is joined by more than half of the judges in the Supreme Court. On the contrary, shadow docket cases do not require any oral argument, will have a decision rendered in days or even hours, and usually receive little to no explanation for that decision. Clearly, there is a significant discrepancy between the two dockets and the effect that the different procedural standards have on the laws impacted by their decisions.

There are current criteria that a case must meet in order to be considered for an emergency application. The first is that there must be a reasonable probability—a factual basis that would lead a reasonable mind to a conclusion—that four justices will grant certiorari and agree to the merits of the case. [7] Next, there must be a fair prospect—a 51% chance that a person will be successful in their pursuit of legal proceedings—that a majority of the Court will conclude upon review that the decision below on the merits was erroneous. [8] Then, after exploring the relative harms to the applicant, respondent, and the interests of the public at large, the Court must determine that irreparable harm will result from the denial of the stay. [9] Essentially, a party requests relief from a lower court order that is about to be implemented, arguing to the Supreme Court that the lower court decided incorrectly. If the party’s petition meets the aforementioned criteria and can prove that they will face irreparable harm, then the emergency application will be added to the Court’s shadow docket. 

There are two plausible tracks that the temporary relief provided by the shadow docket provides for Court decisions. [10] The decisions made by the docket only last until the Court denies the petition for certiorari, meaning the lower court's ruling stands, or the Court eventually decides the case on the merits—which will produce a final ruling. [11] However, the shadow docket ruling impacts policy beyond these two tracks. For example, any election-related issues that are time-sensitive and decided using the shadow docket take precedence over the lower court ruling because the Court will not hear the merits case before the election occurs—giving the emergency application the final say. Additionally, COVID-related rulings are an example of how shadow docket rulings become precedent across the U.S. in times of emergency and beyond.

Historically, shadow docket cases have been more controversial and obscure, leading to public disagreement and further transformation of the docket over time. At first, an individual Justice would be issued the case, and then they produced a decision without the involvement of the other Justices. The treatment of the shadow docket started in the 1980s, when the Court ceased to adjourn during summers. Justices then began to decide on shadow docket cases in unison. [12] Another historical case, coincidentally involving William O. Douglas, was the use of emergency applications to grant a stay of the execution of Julius and Ethel Rosenburg—who were convicted of spying on behalf of the Soviet Union. The shadow docket was also used to issue an emergency injunction ordering a halt on the Nixon administration’s bombing of Cambodia. [13] Additionally, the shadow docket has been used as a way for the Court to manage its workload by quickly issuing decisions to refuse to take on various cases. Whether to manage the caseload or respond to emergency situations, there has always been anonymity surrounding the use of the shadow docket.

The use of the shadow docket has continued to rise throughout history but has increased exponentially since 2017. [14] Not only has the frequency of the cases increased, but the types of cases within the docket have shifted from their former uses. Today, many of the cases decided using the shadow docket involve abortion restrictions, limited COVID precautions, religious exemptions to generally applicable rules, fast-tracking executions, reinstating anti-immigrant policies, and many more. [15] For example, during the 2020 election, the Court used emergency applications to grant a stay which reinstated modifications to election rules that were ordered by a federal judge. The judge placed the order for the November election due to the coronavirus pandemic, but the Court ruling ultimately made it harder for election officials to receive absentee ballots. [16] Additionally, in Roman Catholic Diocese of Brooklyn v. Cuomo (2020), former New York Governor Cuomo tried issuing an executive order to limit the number of people who could attend church services during the pandemic. [17] The Court issued an emergency stay ruling on Cuomo’s order, and the ruling in this case became precedential in lower courts throughout the entire country. [18] Then, in September of 2021, five justices were able to use the docket to refuse blocking a Texas law that would ban abortions after six weeks, including cases of rape and incest—which contradicted the at-the-time upstanding decision in Roe v. Wade. [19] The majority decision was only one paragraph long. [20]

There are several problematic consequences of the increased use of the shadow docket and its ramifications on laws. [21] Most of the rulings are produced without any explanation or reasoning from the Justices. That leads lower courts and executive officials to speculate why the Court ruled the way it did, and it allows the possibility for lower courts to be held to an incorrect standard.  The anonymity of the vote makes it more difficult to decipher what the Court means in its decision. The unpredictable timing of these decisions creates more public inaccessibility, as current shadow docket cases have been released late at night or early in the morning on awkward days—decreasing public awareness of the decision. The lack of merits-briefing, also known as amicus participation or oral argument, prevents affected parties from participating. The docket causes difficulties in making predictive judgments about the merits of a dispute because of the expedited process of litigation. For example, the Court can make predictions about how they can rule in cases that have not been presented to them yet. 

The most severe consequence of the recent usage of the docket is how it has led to the premature and unnecessary resolution of constitutional questions in an early stage of litigation. This can be seen in the aforementioned case Roman Catholic Diocese of Brooklyn v. Cuomo (2020), where the Court used the docket to resolve a major First Amendment question about a policy that had not yet taken place, nor had the litigation had a chance to make it through the courts on the merits. [22] Regular Court procedures involve several rounds of lower-court rulings and briefings, whereas the shadow docket requires none. Another major concern is that the amount of shadow docket cases continues to rise, while the number of opinions from merit cases has decreased. All of these ramifications contribute to an undermining of the Court’s legitimacy. Ultimately, the more decisions that are unsigned, unreasoned, and partial to the politics of the moment rather than jurisprudence principles, the more deterioration occurs within the fair and balanced decision-making process that the Court ought to be upholding.

---

Sources

1. Black, Harry, and Alicia Bannon. “The Supreme Court 'Shadow Docket'.” Brennan Center for Justice. Brennan Center for Justice, July 19, 2022.

2. Baude, William. “Foreword: The Supreme Court’s Shadow Docket.” New York University Journal of Law and Liberty 1, no. 9. (2015): 1-47.

3. Cornell Law School. “Stay.” Legal Information Institute. Legal Information Institute, Last modified August 2021.

4. Morshedi, Mariam. “The Supreme Court's Shadow Docket.” Subscript Law, January 28, 2021.

5. Ibid.

6. Ibid.

7. “Reasonable Probability Definition.” Law Insider. Accessed November 26, 2022.

8. Ibid.

9. Public Information Office Supreme Court of the United States. “Reporter’s Guide to Applications Pending before the Supreme Court of the United States”. Last modified September 2022

10. Morshedi, Mariam. “The Supreme Court's Shadow Docket.” Subscript Law, January 28, 2021.

11. Ibid.

12. Vladeck, Stephen I. “Hearing before the Subcommittee on Courts, Intellectual Property, and the Internet of the House Committee on the Judiciary.” University of Texas School of Law, February 18, 2021.

13. Vladeck, Steve I. “Symposium: The Solicitor General, The Shadow Docket and the Kennedy Effect.” SCOTUSblog, October 22, 2020.

14. “Many of the Supreme Court's Decisions Are Reached with No Hearings or Explanation.” The Economist. The Economist Newspaper, August 26, 2021.

15. Cohen, David S. “The Supreme Court's 'Shadow Docket' Is Even Shadier than It Sounds.” Rolling Stone. Rolling Stone, April 10, 2022.

16. Morshedi, Mariam. “The Supreme Court's Shadow Docket.” Subscript Law, January 28, 2021.

    and William E. Funk. “Direct Human Health Risks of Increased Atmospheric Carbon Dioxide.” Nature Sustainability 2, no. 8 (2019).

17. Supreme Court of the United States. “Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York.” 592 U.S. __ (2020).

18. Morshedi, Mariam. “The Supreme Court's Shadow Docket.” Subscript Law, January 28, 2021.

19. Ibid.

20. Whole Woman’s Health v. Austin Reeve Jackson, 594 U.S ___ (2021).

21. Vladeck, Stephen I. “Hearing before the Subcommittee on Courts, Intellectual Property, and the Internet of the House Committee on the Judiciary.” University of Texas School of Law, February 18, 2021.

22. Supreme Court of the United States. “Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, Governor of New York.” 592 U.S. __ (2020).

The Gray Area in Nevada’s Green: How Nevada is Struggling to Navigate Marijuana

November 2022 | Floyd Velasquez (Staff Writer and Editor) and Britannia Woodhouse (Associate Editor)

In 2012, Colorado and Washington became the first two states in the nation to officially legalize the recreational use of marijuana. [1] Following suit in 2016, Nevada passed Ballot Question #2, named the “Nevada Marijuana Legalization Initiative”, which legalized the recreational use of one ounce or less of marijuana by individuals 21 and over. [2] Since then, Las Vegas has become a hub for recreational marijuana use, incredibly expanding access to tourists—and more importantly—to everyday Nevadans. Four years after Ballot Question #2 was passed, however, a situation arose which raised questions about marijuana’s recreational use in regards to maintaining employment. In 2020, Danny Ceballos, a table game dealer at the Palace Station Resort and Casino, slipped and fell in the employee break room. This prompted his manager to have him submit a drug test and, after Ceballos tested positive for marijuana, Palace Station terminated his employment. [3]

Following his termination, Danny Ceballos sued Palace Station, claiming that they violated Nevada’s “Off-Duty Conduct” law (NRS 613.333). The Nevada statute prohibits employers from discriminating based on an employee’s off-duty, recreational use of products such as marijuana. Put simply, if the employee’s use of the product is outside of working hours and does not affect job performance or safety, then the employer cannot employ their use of the product as a reason to not hire or to terminate the employee. [4] Nevada Revised Statute (NRS) 613.333 “creates a private right of action in favor of an employee who is discharged from employment for engaging in the lawful use in this state of any product outside the premises of the employer during the employee’s nonworking hours”. [5] This statute applies to all Nevada employees. Ceballos’ termination then leaves the question of whether or not an employee’s recreational marijuana use qualifies as lawful “off-duty conduct” under NRS 613.333. 

Ceballos brought his complaint to the district court, where it was dismissed with no explicit reason given. The case was then brought before Nevada’s Supreme Court, where the Court decided that his recreational marijuana use did not qualify as lawful “off-duty conduct”. The reasoning for this opinion stated that, although adult recreational marijuana use has been decriminalized in Nevada, it is nevertheless illegal under federal law. Because federal law still prohibits marijuana possession, the Court ruled that marijuana use does not support a private right of action under the statute, even though it is a Nevada specific statute. [6] The conclusion of the case begs the question of when, or if, federal law can be applied in cases where the petitioner is referring to state-specific law. Can the case be appealed under these circumstances? The likely answer is that it can—and it should be.

Not only was Ceballos completely sober at the time of his fall in the break room, but he had not even used marijuana within the 24 hours before his shift. When he did use marijuana, he was at home. These reasons alone satisfy the requirements for NRS 613.333, which only says that the employee’s use of the product must take place outside of work hours and cannot inhibit their ability to work safely and effectively. The case was filed in Nevada, based on a Nevada statute that is separate from federal marijuana legislation. There’s a wide gray area around marijuana laws in Nevada and how, if at all, they resemble federal legislation. It is unclear when certain cases will or will not refer to federal legislation over NRS, and in Ceballos’ case, federal legislation was referenced in the opinion.

Outside of the inconsistencies of the ruling in Ceballos v. NP Palace, LLC (2022), there is legislation recently passed in California and legal action within Nevada that could further affect the viability of the case. In September of this year, California Governor Gavin Newsom passed AB 2188, which prohibits employers from discriminating against employees for their use of cannabis away from the workplace and outside their work hours, as well as prohibiting discrimination based on a drug test that has found the employee to have any non-psychoactive cannabis substances within their screening results. [7] This bill, which was passed by a majority of California Assembly members, is able to provide state protections for employees’ recreational use of cannabis despite the federal opposition, a model in which Nevada could—and likely will—choose to follow. 

Additionally, in the case of CEIC v. Nevada Board of Pharmacy (2022), Clark County District Court Judge Joe Hardy ruled that the listing of marijuana under Schedule 1 misaligns with the Nevada Constitution. [8] This case involved the American Civil Liberties Union (ACLU) of Nevada, on behalf of the Cannabis Equity and Inclusion Community (CEIC), who successfully won their claim that the classification of cannabis under Schedule 1 is incongruent with the Nevada Medical Marijuana Act. The aforementioned act, which was a ballot initiative passed by Nevadans in 1998, amended the Nevada Constitution to legalize medical use of marijuana across the state of Nevada. However, Schedule 1 substances are characterized as serving no medicinal purposes and cannot be safely distributed, placing marijuana among the likes of methamphetamines, heroin, and cocaine – ultimately contradicting the added language of the act in the Nevada Constitution. [9] This new ruling holds the potential to reverse Ceballos, as it mitigates the severity of marijuana as a controlled substance, thus lessening the legitimacy of the Nevada Supreme Court’s deference to federal law. With a rise in efforts contradicting the Ceballos decision, there exists a strong possibility for a much clearer path to be paved in regards to recreational marijuana and how it operates in Nevadans’ everyday lives.

---

Sources

1. Coffman, Keith, and Nicole Neroulias. "Colorado, Washington first states to legalize recreational pot." Reuters. Last modified November 6, 2012.    

2. “Nevada Marijuana Legalization, Question 2 (2016),” Ballotpedia, accessed November 27, 2022,

3. Reynolds, Lindsay, "Ceballos v. NP Palace, LLC, 138 Nev. Adv. Op. 58 (August. 11, 2022)" (2022). Nevada Supreme Court Summaries. 1527.

4. "CHAPTER 613 - EMPLOYMENT PRACTICES." NRS: Titles and Chapters - Nevada Legislature.

5. Ibid.

6. Reynolds, Lindsay, "Ceballos v. NP Palace, LLC, 138 Nev. Adv. Op. 58 (August. 11, 2022)" (2022). Nevada Supreme Court Summaries. 1527.

7. Discrimination in Employment: Use of Cannabis, A. 2188, 2022d Leg. (Cal.).

8. Cannabis Equity and Inclusion Community (CEIC) v. State of Nevada, et al., No. A-22-851232-W (Eighth Judicial District Court, Clark County, Nevada 2022).

9. Ibid.

The Tort in Torture

November 2022 | Adeshola Adesanwo (Staff Writer and Editor)

I. INTRODUCTION

The law of tort includes any wrongful act—other than a breach of contract—done intentionally or negligently, for which damages can be obtained. [1] The jurisdiction legislated by the Alien Tort Statute (ATS) has birthed controversy concerning whether the ATS works to shadow U.S. Courts from International Law, specifically human rights issues. The ATS provides:

“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” [2]

This legislation has become a law by which foreign nationals demand justice for human rights violations. Recently, human rights activists have been proponents of strict liability specifically relating to corporate use of extraterritoriality—or diplomatic immunity—while operating abroad. That is, activists have attempted to hold corporations liable for human rights violations by way of the ATS. On the other hand, this battle for human rights under the ATS is perceived as a trojan horse of types, where federal judges and courts are inappropriately used to apply and inadequately enforce international law.  [3]

The aim of this article, however, is to establish whether the Alien Tort Statute Clarification Act of 2022, which sought to include extraterritorial jurisdiction, will satisfy questions of extraterritoriality and corporate liability. In short, the clarification act seeks to grant jurisdiction, or extraterritoriality, to district courts of the United States for torts that take place outside of the domestic United States—torts that are in violation of the Law of Nations or a treaty of the United States. [4] This article will explore the recent Supreme Court decision in Nestlé USA, Inc. v. Doe (2021) to establish whether the Clarification Act should pass in order to effectively hold U.S. corporations liable for human rights violations abroad.

II.     NESTLE USA, INC V. DOE I 

In the Supreme Court’s most recent decision on the ATS, in Nestlé USA, Inc. v. Doe, the plaintiffs were a group of six individuals from Mali who alleged that they were kidnapped and then trafficked as child slaves to Ivory Coast – a West African country responsible for the majority of the global cocoa supply. [5] Defendants Nestlé USA and Cargill are U.S. companies that purchase, process, and sell cocoa from farms located in Ivory Coast, as well as provide these farms with technical and financial resources—such as training, fertilizer, tools, and cash—in exchange for the exclusive right to purchase cocoa. [6] The Plaintiffs further allege that Nestlé had economic influence over the farms and labor practices. As such, they claim the company aided and abetted child slavery while continuing to purchase cocoa, even after Nestlé “knew or should have known,” that the cocoa farms utilized child slavery. [7] Moreover, plaintiffs alleged that decisions to orchestrate a slave-based supply chain all took place from corporate offices in the United States, and thus survived the extraterritoriality bar. [8] Finally, because Nestle made decisions that constituted aiding and abetting child slavery from U.S. headquarters, including sending U.S. employees to the farms to inspect conditions, federal jurisdiction applied under the ATS. 

The 8-1 Supreme Court decision in Nestlé focuses on the question of extraterritoriality first, denying that a “sufficient connection” existed between forced labor and U.S. conduct because “general corporate activity” is not enough to support the application of the ATS. [9] Further, since all corporate conduct took place in Ivory Coast, corporate decision-making alone does not satisfy the application of the ATS. Due to extraterritoriality law, U.S. corporations cannot be held liable by foreign courts, because extraterritoriality acts as diplomatic immunity. This is how the question, and Supreme Court decision, on corporate liability comes into play in Nestlé USA, Inc. v. Doe.  

Human rights activists demand that corporations are held liable for human rights violations they perpetrate, even if not directly, given that a tort may include both intentional or negligent wrongs—where a third party may also be held liable. The Supreme Court seems to agree. In various concurring and dissenting opinions, five Justices of the Supreme Court agreed that corporations are not immune from claims brought under the ATS. [10] Although Nestlé was decided on grounds other than corporate liability, the dissenting opinion by Justice Alito added that “[c]orporate status does not justify special immunity,” and Justices Sotomayor, Breyer, and Kagan reached the same conclusion, noting that these Justices would permit U.S. corporations to be sued under the ATS. [11]

III. ALIEN TORT STATUTE CLARIFICATION ACT

With corporate liability clearly established under the current ATS, The Alien Tort Statute Clarification Act (ATSCA) aims to extend the Court's reach and authorize extraterritorial jurisdiction. [12] This directly addresses the 8-1 decision in Nestlé and grants federal jurisdiction for actions of Nestlé and other corporations, regardless of whether actions take place on U.S. territory or abroad. Specifically, the ATSCA would determine that district courts of the United States have extraterritorial jurisdiction over any tort described if 1) an alleged defendant is a national of the United States or a non-citizen lawfully admitted for permanent residence or 2) an alleged defendant is present in the United States, irrespective of the nationality of the alleged defendant. [13] In theory, this gives the Court’s jurisdiction over any conduct by U.S. corporations abroad and affixes U.S. courts to international law and the law of nations, especially with respect to human rights violations.

The Ninth Circuit court held that because “major operational decisions” took place in the United States, the plaintiffs in Nestlé could in fact sue under the ATS. [14] This might imply that under the ATSCA, “major operational decisions” that lead to aiding and abetting human rights violations could impose strict liability on all corporate activity. On the other hand, considering Nestlé, the ATSCA may not have addressed the question of “sufficient connection”, but it may have granted stronger evidence by giving courts proper jurisdiction to decide on claims of aiding and abetting. If passed, the ATSCA could serve as a stepping stone to which human rights activists—if done appropriately—may begin to hold U.S. corporations liable for human rights violations that supplement their corporate activities and profits.

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Sources

1. Mulligan, Stephen P. The Alien Tort Statute: a Primer. [Library of Congress public edition]. Vol. R44947. Washington, D.C.: Congressional Research Service, 2018.

2. Ibid.

3. Bhuta, Nehal. “The Ninth Life of the Alien Torts Statute - 'Kiobel' and After.” Journal of  International Criminal Justice 12, no. 3 (2014): 539–50.

4. S.4155 - 117th Congress (2021-2022): Alien Tort Statute Clarification Act." May 5, 2022.

5. Dodge, William S. “Nestlé USA, Inc. V. Doe (U.S. Sup. Ct.).” International Legal Materials 61, no. 2 (2022): 175–92.

6. Ibid.

7. Mulligan, Stephen P. The Alien Tort Statute: a Primer. [Library of Congress public edition]. Vol. R44947. Washington, D.C.: Congressional Research Service, 2018.

8. Ibid.

9. Nestle USA, Inc. v. Doe, 593 US __ (2021).

10. Dodge, William S. “Nestlé USA, Inc. V. Doe (U.S. Sup. Ct.).” International Legal Materials 61, no. 2 (2022): 175–92.

11. Ibid.

12. S.4155 - 117th Congress (2021-2022): Alien Tort Statute Clarification Act." May 5, 2022.

13. Ibid.

14. Nestle USA, Inc. v. Doe, 593 US __ (2021).

Is Saving The Environment Really a “Major Question?”

September 2022 | Kira Kramer (Staff Writer and Editor) and Annie Vong (Associate Editor)

Climate change is intruding into every aspect of human life. As carbon continues to build in the atmosphere, climate change will cause “increasing temperatures, shifting precipitation patterns, ocean acidification, sea level rise, and increasing intensity and frequency of extreme weather events.” [1] Given the rapidly changing environment, what has the government done in the past to preserve the environment? The Clean Air Act of 1963 (CAA) gave the federal government the authority to monitor and control air pollution through regulation. [2] Simultaneously, the federal government passed the National Environmental Policy Act (NEPA), creating the Environmental Protection Agency (EPA). [3] Through the CAA, the EPA–along with local, state, and tribal governments–were able to regulate hazardous pollutants, acid rain, and ozone through setting limits, also known as “standard[s] of performance.” [4]

In Massachusetts v. EPA (2006), Massachusetts sued the EPA for not regulating carbon dioxide and other greenhouse gas emissions. [5] The EPA argued that the CAA did not give them the authority to regulate greenhouse gas emissions and that they would need to do further research on the impact and extent of climate change. [6] The Court decided in a 5-4 decision that the EPA did have authority to regulate any air pollution agents via the CAA. [7] This case utilized the doctrine of “Chevron Deference,” which stated that federal agencies may produce regulations necessary to their organization as long as those regulations are not explicitly restricted. In this case, because regulating air pollutant agents was not inappropriate or explicitly restricted, the EPA had the authority to craft and enforce regulations. The majority opinion stated that the language in the CAA was “sweeping” and “capricious,” meaning that the EPA would not be restricted to regulating a small amount of pollutants.  [8]

However, sixteen years later, the Supreme Court would issue its judgment on West Virginia v. EPA (2022), limiting the EPA’s authority to regulate greenhouse gas emissions. [9] During President Obama’s administration, the EPA formulated a plan called the Clean Power Plan (CPP) to put limits on carbon dioxide emissions within stationary power plants by requiring coal-fired power plants to reduce production or subsidize natural gas, wind, or solar power production. [10] Under the CPP, states were in charge of making sure that power plants within their borders followed those carbon limits. West Virginia and a number of other states challenged the EPA, stating that the CPP reached beyond the EPA’s authority given to them by Congress. The final decision was split among ideological lines, with Chief Justice Roberts joining Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett in favor of West Virginia. Meanwhile, Justices Breyer, Sotomayor, and Kagan sided in favor of the EPA, with Justice Kagan authoring the dissenting opinion. 

In the majority opinion, the Supreme Court wrote that under the ‘Major Questions Doctrine,’ the law states that the EPA cannot take action to regulate carbon and methane emissions unless there is “clear congressional authority” to do so. [11] The ‘Major Questions Doctrine’ declares that “a rule of major economic and political significance [is] flatly unlawful unless Congress provided a clear statement authorizing the agency to promulgate such a regulation [that] the Major [Questions] Doctrine would ensure that Congress’s legislative power is usurped by neither the executive agencies nor the judiciary.” [12] This ruling did not necessarily overrule Massachusetts v. EPA, but rather it said that the Clean Power Plan went too far. According to the Supreme Court decision in West Virginia, agencies that regulate matters of “political or economic significance” must approve their regulations through Congress first, whereas before they could just enact their legislation because it was in their jurisdiction to do so. In the dissenting opinion, however, Kagan wrote that Section 111 of the Clean Air Act gives power to the EPA to regulate any substance that “may reasonably be anticipated to endanger public health or welfare” and that the EPA’s plan to regulate carbon dioxide fits within that description. [13]

Historically, agencies like the EPA were able to use their ‘broad discretion’ in order to operate, using their ability to act within their best judgment without overstepping their bounds or acting in a way which is explicitly restricted–per the ‘Chevron Deference’. However, by using the ‘Major Questions Doctrine’, the courts are able to curtail the ‘Chevron Deference’ by stating that intervention must occur on major questions of political or economic importance. The Supreme Court has not clarified what agency actions could constitute as a major question that Congress must explicitly authorize. In a highly-polarized political climate, what test or parameters are there for agencies to know if their actions are too political and need to be explicitly stated by Congress? After the overturning of Roe v. Wade, would the FDA need explicit congressional authority if they were to regulate medication that could induce abortions? Would the FBI need explicit congressional authority to investigate crimes committed by high-profile political figures like former President Trump or Hunter Biden? This decision will not only affect the EPA, but it could also diminish the capacity of other agencies. 

The continued use of the ‘Major Questions Doctrine’ puts Congress in charge of restricting or approving regulations for all types of agencies, not just the EPA. With severe political polarization and a gridlocked Congress, there are concerns about whether or not change can be made. The climate crisis does not have time to wait. While this may be somewhat difficult to imagine, Nevada is already seeing the effects of climate change take place. Summers grow hotter and longer, while winters get drier and colder. The valley is even seeing some snow, which is highly unusual for the usual desert climate. The Eastern United States experiences more severe blizzards and snowstorms, as well as hurricanes and monsoon storms. Additionally, zoologists are considering humankind’s current state in geologic time to be a state of eventual mass extinction as a result of human interference with the environment. According to the World Health Organization, “Between 2030 and 2050, climate change is expected to cause approximately 250,000 additional deaths per year, from malnutrition, malaria, diarrhea and heat stress, [and] the direct damage costs to health (i.e. excluding costs in health-determining sectors such as agriculture and water and sanitation), is estimated to be between USD 2-4 billion/year by 2030.” [14]

There are significant health ramifications as a result of this ruling. Pollutants found in factory emissions emit chemicals such as sulfur dioxide, nitrogen oxides, mercury, and other respiratory irritants that can lead to chronic health conditions and emergency situations such as “heart attacks, heart failure, strokes, blood clots, lung cancer, and Parkinson’s disease.” [15] Furthermore, increased levels of exposure to carbon dioxide over time can lead to “inflammation, reductions in higher-level cognitive abilities, bone demineralization, kidney calcification, oxidative stress, and endothelial dysfunction.” [16] Due to the dangerous nature of these emissions, legislative action needs to occur to protect people from these adverse health risks. The climate crisis is not just looming in the foreground of some yet to be seen future generation’s life–it is killing people now. 

What is even more horrific about the climate crisis is how it disproportionately affects people of color and other vulnerable communities. Countless studies have identified that vulnerable populations are more likely to live near polluting facilities, which puts them at greater risk for the health ramifications of air pollution. [17] As it stands currently, these vulnerable populations also have unequal access to healthcare facilities and experience prejudice from the medical community. [18] The rising rates of comorbidities and chronic health conditions in America puts stress on the healthcare system, which causes a chain reaction of worsened quality of and access to medical care.

While decarbonizing the economy is difficult and costly, especially for the fossil fuel industry, those resources are in the process of depleting. Eventually, the world will have to depend on other fuel sources in order to power the global economy. Furthermore, people’s health and wellness is an integral part of what keeps economic development in motion. It may be costly to transition society towards a greener lifestyle, but if no one takes action, the cost for human beings will be grave. Although the ruling in West Virginia is certainly a step backward, there can still be efforts by national, local, and individual initiatives to work towards reducing CO2 emissions.

The U.S. has an especially heightened responsibility to reduce its carbon emissions because this country ranks 13th highest emissions per capita. [19] Seeing as the U.S. is a world leader in producing mass amounts of greenhouse gasses, the goal of the Clean Power Plan (CPP) was to reduce air pollution by limiting greenhouse gasses and only allowing companies to produce regulated amounts of emissions. [20] At their heart, programs like these are designed to combat the disastrous consequences of climate change’s progression. As such, the U.S. cannot afford to strike down aggressive plans like the CPP in the fight against climate change. Otherwise, humanity will pay the price.

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Sources

1. “Effects of Climate Change.” WWF. World Wildlife Fund.

2. Evolution of the Clean Air Act.” EPA. Environmental Protection Agency, December 7, 2021. 

3. National Environmental Policy Act of 1969, U.S.C. § 4321 et. seq.

4. Clean Air Act of 1963, U. S. C. §7411(a)(1).

5. Massachusetts v. Environmental Protection Agency, 549 US 497 (2007) (Stevens, J.P.).

6. Ibid.

7. Ibid.

8. Ibid.

9. West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022).

10. U.S. Environmental Protection Agency. “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units” Federal Register 79, no. 117 (June 18, 2014): 34830.

11. West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022) (Roberts, J.).

12.  Sebring, Michael. “The Major Rules Doctrine.” Georgetown Law. Georgetown Journal of Law and Public Policy, September, 2018.

13. West Virginia v. Environmental Protection Agency, 597 U.S. ___ (2022) (Kagan, E. dissenting).

14. “Climate Change and Health.” World Health Organization. World Health Organization.

15. Schimelpfening, Nancy. “How the Supreme Court's EPA Ruling May Affect Your Health.” Healthline Media, July, 2022.

16. Jacobson, Tyler A., Jasdeep S. Kler, Michael T. Hernke, Rudolf K. Braun, Keith C. Meyer.

    and William E. Funk. “Direct Human Health Risks of Increased Atmospheric Carbon Dioxide.” Nature Sustainability 2, no. 8 (2019).

17. Daw, Jonathan, PhD. “Contribution of Four Comorbid Conditions to Racial/Ethnic Disparities in Mortality Risk.” American Journal of Preventive Medicine 52, no. 1 (2016): S95–S102.

18. Ibid.

19. “Carbon Footprint by Country 2022.” Carbon footprint by country 2022, 2022.

20. Schimelpfening, Nancy. “How the Supreme Court's EPA Ruling May Affect Your Health.” Healthline Media, July, 2022.

Steal, Arbitrate, & Repeat: Addressing the Wage Theft Crisis in America

September 2022 | Floyd Velasquez, Staff Writer and Editor

In 2021, wage theft was the most expensive crime in America, costing more than all other larcenies combined. [1] What is wage theft? In a general sense, wage theft occurs when employers fail to pay employees the full wages that they are legally entitled to. This is primarily seen in the form of paying workers below minimum wage, failing to pay overtime premiums, denying meal breaks, or asking employees to work outside their designated hours – essentially the most common violations of the Fair Labor Standards Act passed in 1938. [2] Between 2017 and 2020, over $3 million in stolen wages were recovered for employees who were victims of wage theft. [3]While the amount sounds costly, it only represents a small percent of stolen wages nationwide. In the United States, billions of dollars are stolen from workers’ paychecks each year. [4] Who does this impact most? Low-wage employees, most of whom are people of color and immigrants. And which industry employs a large amount of low-wage workers? The fast food industry.

Fast Food and Arbitration

Fast food chains, like most other corporate entities, include mandatory legal safeguards within their initial paperwork to resolve workplace disputes, which has become a standard in corporate America. One common safeguard is referred to as “forced arbitration,” in which the employees must contractually acknowledge their employer’s condition to mediate disputes with a third party instead of pursuing legal action. [5] The right for corporate entities to utilize forced arbitration is protected by the Federal Arbitration Act of 1925, which is meant to ensure “validity and enforcement of arbitration agreements.” [6]

At first glance, forced arbitration allows for employees to spare themselves of time, fees, and emotional stress that accompany legal action, leaving situations to be sorted out in much more private and cost-effective circumstances. In cases that involve undocumented immigrants, seeking legal action can be a confusing process that could also risk deportation and prevent citizenship. However, many have come to realize that corporations utilize forced arbitration to keep disputes away from public perspective and provide them an escape from the appropriate economic accountability that a judicial proceeding might provide. In fact, in 2019, employers who committed wage theft avoided paying $9.27 billion in wages to employees, all thanks to forced arbitration. [7] In May of 2022, the Supreme Court of the United States was faced with the opportunity to address circumstances surrounding forced arbitration, where a former employee was involved in a class action lawsuit against Sundance, Inc. – better known to most fast-food aficionados as Taco Bell.

Morgan v. Sundance, Inc. (2022)

When Robyn Morgan applied to work for Taco Bell, she entered into an agreement with Sundance, Inc.'s forced arbitration clause while completing the initial hiring paperwork. Then, in September of 2018, Morgan sued Sundance, Inc. as part of a nationwide class action lawsuit for violating the Fair Labor Standards Act by failing to compensate her for working overtime. In response to Morgan’s suit, Sundance, without exercising their agreed upon right to arbitration, filed a motion to dismiss the case. The District Court then denied their motion, leaving Sundance to respond to Morgan’s complaint, again without reference to their arbitration clause – but they did not reach a solution. About eight months after Morgan filed suit, Sundance moved to compel arbitration, finally invoking this clause. Nonetheless, the District Court denied their motion, ruling in Morgan’s favor that Sundance waived their right to arbitration by participating in litigation. [8]

Sundance subsequently appealed to the U.S. Court of Appeals for the Eighth Circuit, who overturned the District Court’s decision to deny both motions. Both denials relied on precedent set within the Eighth Circuit, in which a party waives their right to arbitration if they “acted inconsistently with that right” and “prejudiced the other party by its inconsistent actions.” The latter part on prejudice–the crucial component of the precedent on which the rulings relied–simply states that a party waives their right to arbitration if their actions outside of arbitrating have hurt the other party’s chances in any way. This special rule is derived from the Federal Arbitration Act, which ironically has been regarded by the Supreme Court as national policy “favoring arbitration.” The District Court decided that Sundance fulfilled this requirement to waive their right, but the U.S. Court of Appeals reversed that decision. Morgan then appealed to the Supreme Court of the United States, who accepted the case to answer whether or not lower federal courts have the power to create rules that prefer arbitration as a procedure. [9]

Impact of Morgan and Existing Reform

In an opinion authored by Justice Elena Kagan, the Supreme Court of the United States unanimously ruled that the federal courts below do not hold the power to create rules that enable partiality towards arbitration. The Supreme Court mentioned that the prejudice component of the precedent, which the lower courts relied on, is special because it does not exist in other cases where waivers to contractual rights are decided. However, they focused on the actions of those who held the right, not the effect it had on the opposing party. While they agreed that the Federal Arbitration Act may favor arbitration, it still does not authorize federal courts to create changes in procedure that favor it. [10]

The opinion in Morgan is one of the more successful attempts at dismantling significant protections regarding forced arbitration, and it provides for forced arbitration provisions to be treated as they are in any other contractual context, not as any greater or worse. Morgan now allows for workplace disputes to not immediately dissolve into arbitration solely because it is favored, and this decision also provides for more opportunities for those disputes to be decided fairly in court – giving victims of wage theft a chance at due process. 

While Morgan v. Sundance, Inc. is surely a notable win, there is still much more to be done to address the wage theft crisis. Even though there are many local laws in existence that impose double or even triple fines on employers, wage theft still occurs. The focus for activists instead must shift from harsh penalties to more rigorous enforcement. Most of the enforcement is done through complaints filed by workers. However, workers are likely to fail to report workplace violations due to their lack of information regarding their rights in the workplace. A better system is exemplified in targeted enforcement done by the Exploited Worker Task Force in New York, whose sole focus is to launch investigations into industries where wage theft may be highest. In this system, the burden of enforcement does not fall upon the shoulders of victims, but instead a dedicated team of individuals who are unfazed by the power dynamic between an employee and their employer. [11] This system resulted in 142 New York nail salons being ordered to pay $2 million in unpaid wages and damages. [12] Additionally, there must be stronger means of educating workers of their rights in order to curb wage theft from running rampant amongst workplaces. While the Fair Labor Standards Act requires employers to post a conspicuous notice regarding wage and hour laws, they are often posted out of plain view. [13] Moreover, those notices do not allow enough room to include everything an employee should know regarding their rights and the vast list of wage and hour laws. [14] Although Morgan makes a substantial stride in providing justice for the wage theft crisis within the realm of arbitration, it is important to note that there are still other areas that require attention from advocates in order for wage theft to be addressed with a more vigilant eye. 

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Sources

1. Alexa Liacko, “Wage Theft Is the Costliest Crime in America,” (Denver 7 Colorado News (KMGH), August, 2021).

2. David Cooper and Teresa Kroeger, “Employers Steal Billions from Workers' Paychecks Each Year: Survey Data Show Millions of Workers Are Paid Less than the Minimum Wage, at Significant Cost to Taxpayers and State Economies,” (Economic Policy Institute, May, 2017).

3. Ihna Mangundayao et al., “More than $3 Billion in Stolen Wages Recovered for Workers between 2017 and 2020,” (Economic Policy Institute, December 2021).

4. David Cooper and Teresa Kroeger, “Employers Steal Billions from Workers' Paychecks Each Year: Survey Data Show Millions of Workers Are Paid Less than the Minimum Wage, at Significant Cost to Taxpayers and State Economies,” (Economic Policy Institute, May 2017).

5. Alexander J.S. Colvin, “The Growing Use of Mandatory Arbitration: Access to the Courts Is Now Barred for More than 60 Million American Workers,” (Economic Policy Institute, April 6, 2018).

6.  Congress.gov. "Text - S.2101 - 116th Congress (2019-2020): Wage Theft Prevention and Wage Recovery Act." July, 2019.

7. Baran, Hugh, and Elisabeth Campbell. “Forced Arbitration Helped Employers Who Committed Wage Theft Pocket $9.2 Billion in 2019 from Workers in Low-Paid Jobs.” National Employment Law Project, December 8, 2021.

8. Morgan v. Sundance, 596 U.S. 21-328 (2022)

9. Ibid.

10. Ibid.

11. Hallett, Nicole. "The Problem of Wage Theft." Yale L. & Pol'y Rev. 37 (2018): 93.

12. Ibid.

13. Ibid.

14. Ibid.

You Have The Right To Remain Silent! Or Do You?

July 2022 | Jesse Fager, Staff Writer/Editor

Recently, the Supreme Court has been highlighted in the news, as related to the overturning of Roe v. Wade (1973). Since this has been more prominent in the media, another legal case has fallen through the cracks—despite its severe implications regarding the 5th and 6th amendment rights. Vega v. Tekoh (2022) ruled that police are not liable in civil court if they fail to read someone’s Miranda warnings. The Miranda warnings were first established in Miranda v. Arizona (1966), which required police to read a set of statements after an individual was arrested. These statements are as follows: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided to you. Do you understand the rights that I have just read to you? With these rights in mind, do you wish to speak to me?”[1] The main disagreement in Vega was whether or not these Miranda warnings are constitutional rights, but answering this question requires in-depth knowledge of Miranda to understand the reasoning for the creation of the Miranda warnings in the first place. 

The Miranda warnings' history started with a famous legal case, Miranda v. Arizona. In a 5-4 decision, the Court gave citizens the right to be informed of certain constitutional rights by the police, such as the right to an attorney and the right against self-incrimination.[2] This case arose when Ernesto Miranda was arrested and accused of kidnapping and raping a woman. He was then subjected to a 2-hour interrogation, during which he confessed to the crimes. After that point, since he was not aware of his 5th and 6th amendment rights, lawyers contended that Miranda was not given fair legal advice/counsel.[3] Eventually, this case went up to the Supreme Court, which changed the criminal procedure and created the Miranda warnings. In the dissent, however, Justice Harlan and Justice White argued that the majority opinion lacked support in the Constitution since no explicit clause mandates the right to have Miranda warnings read to an individual.

Interestingly enough, the majority opinion in Vega had a similar thought process to the dissenters from Miranda. In Vega v. Tekoh, Terrence Tekoh was accused of sexually assaulting a patient in the hospital where he worked at. Deputy Carlos Vega then interrogated Tekoh, failing to read his Miranda warnings before starting the interrogation. As a result of the interrogation, Tekoh wrote an official letter apologizing for sexually assaulting a patient. Tekoh was nonetheless found not guilty and decided to sue Vega for violating his rights under Section 1983 of the United States Code.[4] Section 1983 refers to the Civil Rights Act of 1871, which allows people to sue the government for constitutional rights violations.[5] Tekoh argued that a violation of Miranda constitutes a violation of the 5th amendment right against self-incrimination.[6] However, the Supreme disagreed, and in a 6-3 decision, the Court concluded that one cannot hold a police officer liable if they fail to read Miranda warnings to a suspect in custody. Although Tekoh alleged that he was deprived of his constitutional right to the Miranda warnings, the Court emphasized that Miranda warnings are simply “prophylactic rules,” not constitutional rights.[7] In short, Miranda warnings are no longer deemed constitutional rights in and of themselves, but rather preventative measures to ensure that individuals understand their rights to self-incrimination and to an attorney. However, the dissent in Vega pointed out an important detail: if Miranda warnings are necessary to safeguard the 5th and 6th amendment rights of individuals, then this ruling undermines those rights entirely by not considering a Miranda violation a deprivation of a constitutional right. 

So, what’s next for Miranda warnings? Well, the ruling in Vega v. Tekoh did not completely overturn Miranda v. Arizona. As such, the requirement to have the Miranda warnings read to an individual in custody is still in effect. However, there are ways in which law enforcement can bypass the Miranda warning requirement. Under the exclusionary rule, courts cannot use evidence gathered in violation of the U.S. Constitution, and this rule is supported through case law grounded in the 4th, 5th, 6th, and 14th amendments.[8] Even though this aims to prevent police from questioning an individual without informing them of their rights, police officers are not required to say the Miranda warnings if the individual is not officially in custody. This means that it’s common practice for police to not arrest individuals prior to interrogation, and anything an individual says to law enforcement voluntarily is not subject to the exclusionary rule. Even if an un-Mirandized statement is procured, there are other avenues to get these statements in court. This is because prosecutors have been known to use confessions like these as an attack on someone’s character or credibility rather than for the truth of the matter. And now, as a result of Vega, if prosecutors use an un-Mirandized statement that has a confession embedded into it and the defendant is later acquitted, then the defendant would not be able to sue the police for that.[9]

In conclusion, the ruling of Vega v. Tekoh has major implications when it comes to the right to have Miranda warnings read to an individual. Under this new case law, people are not able to hold police liable if the police fail to read their Miranda warnings after they are in custody. As such, the future of Miranda warnings is unclear, as now there is no accountability and subsequently no motivation for police to read the warnings. Ultimately, by denying people these rights, the Court has further widened the gap between what is guaranteed in the Bill of Rights and the ability to hold the government accountable for its actions. 

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Sources

1. “What Are Your Miranda Rights?” Miranda Warning. (n.d.).

2. “Miranda v. Arizona, 384 U.S. 436 (1966).” Justia Law.

3. Ibid.

4. “Vega v. Tekoh, 597 U.S. (2022).” Justia Law.

5. “42 U.S. Code § 1983 - Civil Action for Deprivation of Rights.” Legal Information Institute.

6. “Vega v. Tekoh, 597 U.S. (2022).” Justia Law.

7. Ibid.

8. “Exclusionary Rule.” Legal Information Institute. (n.d.).

9. Micah, Schwartzbach, “Miranda Rights: What Happens If the Police Don't Read You Your Rights.” Nolo, July 3, 2022.

The Supreme Court’s Declining Legitimacy Amidst Controversial Decisions

July 2022 | Tia Zghaib, Staff Writer/Editor

The Supreme Court of the United States, the “highest court in the land,” is the only branch of the American government that consists entirely of unelected officials. Ironically, the institution that is most responsible for protecting and ensuring justice is, by definition, the least democratic of them all. However, its impact is among the most far-reaching, as it has the ability to make decisions over almost every aspect of American life—from social issues, to elections, to the impeachment of the President. After the 1803 Marbury v. Madison decision, the Supreme Court was able to exercise the ability to strike down any law that it deems unconstitutional, which further expanded its power and ability to check the other branches of government.[1] Today, the Supreme Court consists of six conservative justices and three liberals. Liberal presidents have won the popular vote for nearly the past two decades, yet are the minority on the Court, which exemplifies how distanced it can be from American elections and the public.[2] The Court’s changing dynamic has led to the Supreme Court rolling out a variety of controversial decisions in 2022 that have prompted backlash from both Democrats and Republicans alike. 

The Supreme Court’s June 2022 decisions have prompted many critics and legal analysts to describe the Court as becoming more activist, in that it is more willing to launch major decisions and reverse precedents.[3] Beginning with New York State Rifle & Pistol Association v. Bruen, the Court, for the first time, established that Americans have a right to carry handguns outside the home for self-defense purposes, and struck down a New York law that required them to show evidence of a need for self-defense.[4] The Court’s decisions also dealt with vaccine requirements. In National Federation of Independent Business v. Department of Labor, the Court struck down a federal vaccine requirement for employers, dealing yet another blow to Democrats across the country. However, the Court’s decisions have not only targeted liberal policies. In Biden v. Texas, the Court ruled 5-4 that the Biden administration can reverse the Trump-era migration restrictions, which prompted backlash from conservatives nationwide. Perhaps the most controversial decision made by the Court in 2022 was in the case Dobbs v. Jackson Women’s Health Organization, which overturned the decades-old precedents of Roe v. Wade and Planned Parenthood v. Casey, and returned the ability to fully ban abortion for any reason back to the states.[5] This decision sparked protests in cities across the country and led to calls to undermine the Supreme Court decision in any way possible. Therefore, these controversial decisions—that had unpopular aspects among both major parties—have triggered conversations about the Supreme Court’s power, enforceability, and legitimacy. 

The Supreme Court’s power is outlined in Article III of the Constitution, but lacks in its ability to enforce its decisions. Rather, the Supreme Court had to build up its power and recognition itself, beginning with the Marshall Court in the 19th century. The Marshall Court emphasized three factors that the Supreme Court had to establish for it to be a legitimate institution: judicial independence, judicial review, and judicial sovereignty.[6] The first was established fairly quickly, as the Supreme Court is separate from the other two branches of government. Judicial review was then established by Marbury v. Madison, but judicial sovereignty was the most difficult and important factor amongst the three. Judicial sovereignty refers to the Court’s ability to have the final say on any issues that it decides and have their decisions obeyed. This judicial sovereignty depends almost entirely on the Court’s legitimacy, not only in the eyes of voters and the public, but also in the eyes of political officials who must respect its decisions. 

The instances in which the Supreme Court’s decisions were ignored are extremely rare, but the most infamous was in the 1832 case Worcester v. Georgia, in which the Court tried to protect Native American sovereignty over their land. Then President Andrew Jackson decided to ignore the decision completely, stating “John Marshall has made his decision, now let him enforce it,” leading to the Trail of Tears in which Native Americans were forced to leave their homes and travel thousands of miles away.[7] This instance drew attention to the lack of enforceability of the Supreme Court’s decisions, as their power rests entirely on their legitimacy through the eyes of the public, including government officials. Today, however, the Supreme Court’s decisions are rarely, if ever, ignored by any officials, as they recognize the importance of obeying the Court in order to protect the legitimacy of future decisions that may be favorable to the parties in question. The case of U.S. v. Nixon in 1974 further entrenched that the Court has the final say in all manners and that nobody is above the law, even the President.[8] Therefore, while the Court’s sovereignty is deeply rooted in American history, its legitimacy still plays a major role in its power today and must be considered in times when the Court is taking on a more activist position. 

As established, the Supreme Court’s June 2022 decisions have been extremely controversial among members of both major parties, considering they have released groundbreaking opinions on topics from abortion, to the Second Amendment, to immigration, and more. As a result, many who oppose the recent decisions have been asking what can be done to undermine these rulings. Now that it has been established that the consequences of merely ignoring the Court are too great, other avenues of action must be examined. There are two possible ways to undermine decisions made by the Court: court packing and legislation. The first was threatened by President Franklin D. Roosevelt in the New Deal Era, when he threatened to pack the Court with more justices in order to balance the Court with more supporters of the New Deal. As a result of this threat came the famous “switch in time that saved nine” from the West Coast Hotel Co. v. Parrish case, in which the Court began to change their votes and views on the New Deal in order to appease public opinion and save the Court’s operation as a nine-justice panel.[9] Considering that Article III of the Constitution grants Congress the power to expand the number of members on the Court, court packing—or the threat thereof—may be a solution to the Court’s unpopular activism and may be a way to reconnect the Court with democratic elections and the voice of the public. 

The second possible solution to undermine the Court’s unpopular decisions is to pass legislation that changes what the Court has jurisdiction over. If Congress were to pass legislation detailing what subjects the Court cannot decide on, or legislation reversing one of the Court’s rulings, then that would overrule a decision that the Court has made. This would be another potential avenue of action, as it would also require federal legislation to pass which would involve the cooperation of both parties and their constituents. Ultimately, there are various ways that the public and government officials can bypass the Court’s most controversial or unpopular decisions without ignoring the Court altogether. However, the Court’s legitimacy remains the biggest factor at stake amidst its activist patterns. As of a poll conducted in December of 2021, Supreme Court Chief Justice John Roberts had the highest public approval of all government officials polled, including President Biden, Vice President Harris, and Dr. Anthony Fauci.[10] His high approval rate came from both parties, signaling the high public opinion of the Supreme Court as a whole. Nonetheless, the public opinion on the Supreme Court is likely much different today due to these controversial decisions that have undermined the interests of both parties. Therefore, it is essential to keep an eye on the public opinion of the Supreme Court while it continues to make these far-reaching decisions, as low public opinion may signal declining legitimacy that is likely fatal to the Court as an institution and the role that it plays in American politics and law. 

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Sources

1.  “Marbury v. Madison.” (Oyez). 

2. Federal Elections Commission, “2004 Election Results.” (Federal Elections Commission: 2004).

3. “The Supreme Court’s Judicial Activism Will Deepen Cracks in America.” (The Economist: June 2022).

4.  “New York State Rifle & Pistol Association v. Bruen.” (SCOTUS Blog: June 2022). 

5. Ann E. Marimow, Aadit Tambe, and Adrian Blanco, “How the Supreme Court Ruled in the Major Decisions of 2022.” (Washington Post: June 2022). 

6. McCloskey, Robert, The American Supreme Court. (The University of Chicago Press, 2016). 

7. “Remembering the Time Andrew Jackson Decided to Ignore the Supreme Court In The Name of Georgia’s Right to Cherokee Land.” (Sustain Atlanta: April 2015).

8.  “U.S. v. Nixon” (Oyez).

9.  McBride, Alex, “West Coast Hotel Co. v. Parrish (1937).” (Thirteen: December 2006). 

10.  Saad, Lydia, “Justice Roberts Tops Federal Leaders in Americans’ Approval.” (Gallup: December 2021).

Is Starbucks in the Espress(o) Lane to Violating Labor Laws?

July 2022 | Annie Vong, Staff Writer/Editor

Across the United States, the influence of unions and labor movements has been spreading. Unions are organizations of employees separate from their corporations that aim to balance the power between employees and employers through negotiations on wages, schedules, working conditions, and contracts. Unions started forming in the mid-1800s as a response to the Industrial Revolution and fought for safe working conditions, overtime pay, a ban on child labor, and a reduction in work hours from 100 hours per week to 40 hours per week.[1] They were widespread across America, as the union membership rate peaked in 1954 with 35% of all employees belonging to a union.[2] However, union membership has dropped sharply since, with the rate in America in 2020 at 10.8%.[3] As workers return to the workplace, though, the rise of unions and workers campaigning for rights have been swarming headlines. So, why is there such a boom in the demand for unions in America now? The pandemic. For many employees, lockdown served as relief from the continuous monotonous shuffle of work, and employees are eager to bring some of that peace into their workplace. Going into lockdown has allowed employees to reevaluate their working environment, including America’s beloved Starbucks baristas. 

Background

The first Starbucks store to unionize in a post-lockdown wave was in Buffalo, New York in December 2021.[4] Now, there are over 100 stores awaiting union votes.[5] According to Noam Schieber, a reporter for The New York Times that covers workers and workplaces, “roughly 65 percent of employees eligible to vote in a union election had not taken part.”[6] There are many more stores that have not had a chance at unionizing yet, and the way that Starbucks manages unionized stores will determine the potential of unions forming at other stores. The Buffalo store unionized under Workers United and wanted to address under-staffing and under-training, which worsened during the pandemic. At that store, workers claimed that Starbucks was hiring excessive staff in order to dilute the number of people that would vote for a union. Additionally, Starbucks included employees from other stores that filled staff shortages into the union vote as well, despite those employees only having worked there temporarily.[7] 

In a Starbucks store in Memphis, Tennessee, seven Starbucks workers who were involved in forming a union were fired. Those employees allowed members of the press to visit the store and speak with them about their unionization efforts. However, Starbucks claimed that the press was not allowed to visit the store after the close of business, and the reason offered for the firing of those seven employees was “safety and security violations” of store policy.[8] In May 2022, Starbucks raised the wages of every Starbucks store except for the unionized stores sparking speculation that Starbucks was discriminating against its union employees.[9] 

With all these actions, has Starbucks violated labor laws?

The National Labor Relations Act (NLRA) was passed in 1935, which makes spying, harassing, firing, or retaliating against union employees and refusing to engage in collective bargaining illegal.[10] Collective bargaining is when union employees, union representatives, and employers negotiate the terms and conditions of employment. The Senate has the power to create this law via the Commerce Clause, which states that Congress “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”[11] The ability of employees to organize and collectively bargain improves the flow of commerce, giving Congress the authority to protect organizing and bargaining with legislation. 

But how is this legislation—which protects workers’ rights—enforced?

The National Labor Relations Act also created The National Labor Relations Board (NLRB), an independent federal agency that focuses on protecting employees’ rights by investigating complaints of unfair labor practices.[12] The NLRB has investigated high-profile labor issues in Tesla, Walmart, McDonald’s, and Google.[13] This board has authority over private companies and corporations because of its statutory jurisdiction over private employers that have interstate commerce above a minimum level.[14] Statutory jurisdiction is when an agency has authority conferred to them by a statutory law—in this case, the NLRA—passed by a legislature. Starbucks would fall under that jurisdiction because they are a private employer that has activity in interstate commerce above that minimum level.

Is it legal to add workers who have worked at the Buffalo store temporarily to dilute the union vote? 

The Buffalo store has filed several complaints to the NLRB, and the NLRB may find that the addition of temporary employees in the union vote undermined laboratory conditions prior to the union vote. Union elections must be held in laboratory conditions, which means that conditions must be as ideal as possible and there must be no coercion of employees’ votes. If the NLRB finds that Starbucks violated laboratory conditions, then Starbucks could be forced to put up a notice that they violated the law. 

Is it legal to fire the seven employees from the Memphis store? 

It could be seen as retaliation for forming a union, as the NLRA prohibits “discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.”[15] Could the NLRB find that the seven Starbucks employees were discriminated against in their hastened tenure of employment? Perhaps not; union membership was not explicitly listed as the reason for their termination, so Starbucks can argue that they did not fire them as retaliation for forming a union.

Is it legal to raise wages for every store except for the unionized ones?

 Starbucks may be trying to signal to its non-unionized workers that benefits are better without unionization. However, if unions are still engaged in collective bargaining for higher wages, then Starbucks is not violating the NLRA by raising the wages for non-union stores. A leaked memo from Starbucks executives revealed that collective bargaining may take up to a year, and wages may be frozen in the meantime.[16] Although refusing to engage in collective bargaining is illegal, the NLRA does not explicitly state that drawing out collective bargaining negotiations is illegal.

Conclusion

Ultimately, the decisions the NLRB makes in these complaints against Starbucks determine not only the future of Starbucks unions, but unions forming at Amazon, Trader Joes, Walmart, and other large employers. If Starbucks is found by the NLRB to have engaged in union busting, then the punishment for unfair labor practices is a slap on the wrist that tilts the balance in favor of large corporations. With consequences as weak as putting up a notice that they violated the law, Starbucks is incentivized to continue its behavior because the costs of letting a union form outweigh the consequences of union busting. If these loopholes in labor law continue to be exploited by large corporations like Starbucks, it puts workers’ rights and the legitimacy of unions in a lat-te trouble.

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Sources

1. Ward, Marguerite. “A Brief History of the 8-Hour Workday, Which Changed How Americans Work.” CNBC. CNBC, May 5, 2017.

2. Mayer, Brian. “Cross-Movement Coalition Formation: Bridging the Labor-Environment Divide*.” Sociological Inquiry 79, no. 2 (2009): 219–39. 

3. “Union Members Summary - 2021 A01 Results.” U.S. Bureau of Labor Statistics. U.S. Bureau of Labor Statistics, January 20, 2022. 

4. Scheiber, Noam. “Starbucks Workers at a Buffalo Store Unionize in a Big Symbolic Win for Labor.” The New York Times. The New York Times, December 9, 2021.

5. Amelia Lucas, Kate Rogers. “Starbucks Will Have at Least One Unionized Cafe in Buffalo, New York - A U.S. First for the Chain.” CNBC. CNBC, December 9, 2021.

6. Scheiber, Noam. “Starbucks Chief Talks of Possible Benefits for Nonunionized Employees.” The New York Times. The New York Times, April 13, 2022.

7. Scheiber, Noam. “Starbucks Seeks to Delay Union Election as Vote Nears.” The New York Times. The New York Times, November 9, 2021.

8. Morrow, Allison. “Starbucks Fires 7 Employees Involved in Memphis Union Effort | CNN Business.” CNN. Cable News Network, February 8, 2022.

9. Scheiber, Noam. “Starbucks Plans Wage Increases That Won't Apply to Unionized Workers.” The New York Times. The New York Times, May 4, 2022. 

10. National Labor Relations Act: 29 U.S.C. §§ 151-169

11. U.S. Const. art. 1. sec. 8. cl. 1.

12. “What We Do.” What We Do | National Labor Relations Board. Accessed July 16, 2022.

13. “Cases and Organizations of Interest.” Cases and Organizations of Interest | National Labor Relations Board. Accessed July 16, 2022. 

14. “The Law.” The Law | National Labor Relations Board. Accessed July 16, 2022.

15. Ibid, 3.

16. “Leaked Memo: Starbucks Threatens Pay Freeze on Workers If They Unionize.” VICE, April 15, 2022.  

Coloring Outside the Lines: The Power Play of Gerrymandering in Nevada

April 2022 | Lauryn Shatzel, Staff Writer/Editor

American politicians are always looking towards the next election: how to best serve their constituents, how to enact positive change, and how to keep their positions of power. One method of maintaining political power that has become increasingly more prevalent is the practice of gerrymandering. Gerrymandering can be defined as the manipulation of electoral boundaries in order to favor one group.[1] Two types of gerrymandering are cracking and packing. Cracking divides groups with similar characteristics to limit voting power, while packing draws certain groups of voters into the smallest number of districts as possible in order to strengthen one group’s voting power and weaken another.[2] Voter suppression entails minimizing a group of people’s voting representation to benefit another group. As such, gerrymandering would be classified as voter suppression, and the ramifications go beyond political party lines. Unfairly manipulating elections for a certain outcome is both undemocratic and unconstitutional, so the quickest way to prevent gerrymandering would be in the courts. 

Looking at the Supreme Court of the United States, there is a new consensus among federal cases regarding gerrymandering. According to Rucho v. Common Cause in 2019, partisan gerrymandering claims cannot be tried in the Supreme Court because it is a political question beyond the scope of the court.[3] This brings the issue of gerrymandering straight to the state court systems. The highest courts that can look at gerrymandering cases are the United States Circuit Courts of Appeals. The largest Circuit Court is the Ninth Circuit, which includes states such as California, Hawaii and Nevada. Looking at the voting discrimination case Brnovich v. Democratic, the Ninth Circuit found that Arizona’s specific voting policies created illegal discrimination.[4] While the Ninth Circuit declared that Arizona created illegal discrimination through the act of gerrymandering, they did not make a universal ruling on gerrymandering’s constitutionality. This hands-off approach from federal courts leaves the fate of gerrymandering schemes to state judges. 

Looking at Nevada specifically, a Republican-supported lawsuit recently went through one of Nevada’s district courts. The issue revolved around Governor Sisolak’s approved new districting maps for the 2022 midterm election, seen here, as it would take away the voting power of rural voters and instead move it towards major cities such as Las Vegas.[5] However, due to time constraints regarding the fast-approaching midterm elections, Senior District Judge Robert Estes ruled that it would be unfair to interrupt the present election procedures.[6] It’s important to note that Judge Estes’ ruling did not uphold the constitutionality of gerrymandering, so there is still a potential for Nevada courts to reassess this issue. However, the state judiciary is generally hesitant to look at gerrymandering cases, so it is up to local advocacy groups to ensure fair representation in elections. This work is already being done, as many locals have lobbied the Nevada legislature for proper voting representation for minorities in Nevada. For example, Make it Work Nevada advocates for voting equity, especially concerning Black Nevadans, considering that 12 percent of Nevadans are Black.[7] With the increasing racial diversity within the state, it is important for that diversity to be properly represented in the new redistricting maps.

While the future of legal consequences against gerrymandering remains grim, the future of fair elections seemingly depends on advocacy groups at the local level. The Supreme Court and appellate courts will not rule on gerrymandering, so it is up to the state courts to make these decisions. However, Nevada will not be changing the state electoral boundaries anytime soon, so the only way to fight against gerrymandering will be through lobbying the Nevada legislature. With enough support, elections can strive to show the racial diversity that is present among the state of Nevada. Until the state courts rule on the constitutionality of gerrymandering, the best way to create this change is for people to get involved with advocacy groups. The more people who get involved, the more likely that politicians will be forced to listen and enact laws to protect Nevadans from electoral gerrymandering.

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Sources

1. Li, Michael and Lo, Annie, “What is Extreme Gerrymandering?” (Brennan Center: March, 2019). 

2. Kirschenbaum, Julia and Li, Michael, “Gerrymandering Explained.” (Brennan Center: August 2022).

3. “Rucho v. Common Cause.” (Oyez: April 2022).

4. Morales-Doyle, Sean, “The Supreme Court Case Challenging Voting Restrictions in Arizona, Explained”, (Brennan Center: February 2021).

5. Snyder, Riley, “Judge blocks GOP-backed redistricting lawsuit for 2022 election.” (Nevada Independent: March 2022).

6. Ibid.

7.  Calderon Jannelle and Mueller Tabitha, “Minority communities fear redistricting overlook: ‘You can’t ignore us.” (The Nevada Independent: 2021). 

Saying ‘Gay’: Out of Class or Out of Mind?

April 2022 | Britannia Woodhouse, Staff Writer/Editor

In March of 2022, Florida’s governor Ron DeSantis signed a bill called the “Parental Rights in Education” bill, formally titled HB 1557. Opponents of the bill have nicknamed it the “Don’t Say Gay” bill. The bill reads “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”[1] Essentially, the bill intends to prohibit classroom discussion on sexual orientation and gender identity for this age group, as many lawmakers and parents believe it is inappropriate. The bill allows for parents to sue a school district if they violate this policy or are believed to violate it. HB 1557 goes into effect on July 1st, 2022.[2]

Supporters of HB 1557 argue that the reasoning behind its implementation is so that parents can use their own discretion to determine if, when, and how to introduce topics such as sexual orientation and gender identity to their children. DeSantis also stated that topics of this nature are not appropriate in any place, but especially not in Florida. He said that teaching kids of this age that “they can be whatever they want to be” is “inappropriate.”[3] Ultimately, lawmakers and supporters intend to keep conversations regarding sexuality and gender inside the home and outside of schools.

Opponents of HB 1557 are suing the state of Florida over the bill, as they believe its true intent is to marginalize the LGBTQ+ community. They also argue that HB 1557 violates the constitutionally protected rights of free speech and equal protection.[4] The challenge was filed in Tallahassee on behalf of two LGBTQ+ advocacy groups known as Equality Florida and Family Equality. Their reasoning is that the law purposely employs vague and arbitrary language, using phrases such as “classroom instruction” and “age-appropriate” that are never clearly defined in the bill. Broad language like this opens up the opportunity for parents to sue and possibly win over any perceived violation, no matter how subjective. Moreover, these groups argue that the vague language included in the bill is intended to be discriminatory, as it causes confusion on what is and is not prohibited. They believe this puts LGBTQ+ rights at risk because children who are a part of the LGBTQ+ community in Florida are now even more underrepresented and marginalized in schools, as discussions about their identities are being restricted and criminalized.

Opponents have repeatedly argued the constitutionality of HB 1557, as there is a possible threat to the First Amendment right of free speech and the Fourteenth Amendment right of equal protection granted by the Constitution. The argument is that members of the LGBTQ+ community have the right of free speech and equal protection like everyone else, which allows them to discuss topics such as sexuality and gender, even in schools. The bill’s supporters have argued against this, however, saying that these topics simply have no place in primary education. Nonetheless, in the lawsuit filed by Equality Florida and Family Equality, they state that “the United States Supreme Court has repeatedly affirmed that LGBTQ people and their families are at home in our constitutional order. The State of Florida has no right to declare them outcasts, or to treat their allies as outlaws, by punishing schools where someone dares to affirm their identity and dignity.”[5] It is also well-known that the historical case in the United States Supreme Court known as Obergefell v. Hodges granted the right to same-sex marriage in all states, as the right to marry falls under the equal protection clause of the Fourteenth Amendment.[6] Opponents to HB 1557 are raising the question of whether the bill puts this historical case and all of the progress of LGBTQ+ rights that stemmed from it in jeopardy. Whether or not the bill is constitutional is a highly controversial debate, but ultimately it will be up to the courts to decide.

HB 1557, also known as the “Don’t Say Gay” bill in Florida, has prompted lawmakers in other states such as Ohio, Louisiana, and Texas to consider drafting similar bills. Texas Governor Greg Abbott has stated that his top priority in the next session is to draft a bill that mimics Florida’s.[7] Although details within the bills will vary between different states, the intention for them all seems to be the same: to prohibit school discussion on sexual orientation and gender identity. Arjee Restar, an epidemiology professor at the University of Washington, says that "the institutionalization of these bills is an overt form of structural transphobia and homophobia, and it goes against all public health evidence in creating a safe and supportive environment for transgender, nonbinary, queer, gay and lesbian youths and teachers to thrive.”[8] There is a very clear risk that comes with other states adopting the same law, since it may prompt lawmakers all over the country to draft legislation that mirrors or surpasses the restrictions in HB 1557. It is especially problematic given the vague language and possible violations of the First and Fourteenth Amendments with the original bill. Ultimately, HB 1557 and similar bills in the future will endanger the rights of LGBTQ+ individuals in the United States.

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Sources

1. Jaclyn Diaz, “Florida's governor signs controversial law opponents dubbed 'Don't Say Gay'.” National Public Radio. March 28, 2022.

2. Florida House of Representatives. Parental Rights in Education. HB 1557. (2022).

3. Jaclyn Diaz, “Florida's governor signs controversial law opponents dubbed 'Don't Say Gay'.” National Public Radio. March 28, 2022.

4. The Associated Press, “LGBTQ groups sue Florida over the so-called 'Don't Say Gay' law.” National Public Radio. April 1, 2022.

5. Ibid.

6. Obergefell v. Hodges. 576 U.S. 674 (2015).

7. Dustin Jones & Jonathan Franklin, “Not just Florida. More than a dozen states propose so-called 'Don't Say Gay' bills.” National Public Radio. April 10, 2022.

8. Ibid.

The Legal Rights of the Elephant in the Room

February 2022 | Jenifer Lissett, Staff Writer/Editor

It is not a stretch to say that non-human animals (NhAs) hold a special place in many people’s hearts. People find comfort, love, and entertainment from their interactions with NhAs. Though, it is mainly with the interactions with NhAs that animal rights activists take issue with. Many groups, such as the Non-human Rights Project (NhRP), find that the exploitation and imprisonment of animals do not allow a full realization of the right to habeas corpus, or bodily liberty, to beings with the same or similar mental capacities as humans.[1] Animal rights activists argue that animals think and feel like humans and are entitled to personhood rights, such as the right to free movement. The NhRP, the main animal rights group in this article, is attempting to argue that animals with the similar mental capabilities as humans ought to have the same rights as humans due to that mental similarity.

The NhRP finds the grounds to bring Happy the Elephant’s habeas corpus violation to court because they believe that her right to bodily autonomy is being denied. Happy the Elephant currently resides in the Bronx Zoo.[2] She was captured at a young age and transported to multiple facilities until she was ultimately placed at the Bronx Zoo.[3] Happy is living in isolation from other elephants at the Zoo due to her life companion passing away, where the NhRP argues she is currently left in a small enclosure without the necessary socialization and room to live comfortably.[4] 

The NhRP argues, based on expert witnesses’ years of study, that Happy is a being with “complex cognitive abilities…. [which] include autonomy, self-awareness, theory of mind, and working memory.”[5] Essentially, Happy is a being that is capable of self-governing, who recognizes who she is and was.[6] These expert witnesses, such as Joyce Pool, have spent their entire careers studying elephants in their habitat and, as such, find that these creatures think similarly to humans and are fully autonomous.[7] Moreover, the NhRP attempts to use the precedent set in People v. Graves, which granted “certain [NhAs] beneficiary rights under EPTL [New York Consolidated Laws, Estates, Powers, and Trusts Laws] § 7-8.1 and have therefore been ‘persons’ since 1996.”[8] Because these mental characteristics are undoubtedly human-like and animals have been granted some personhood rights previously, the NhRP argues that Happy should be granted similar rights to humans, in particular the right to bodily autonomy. 

In response to the NhRP, the Bronx Zoo, a branch of the not-for-profit organization The Wildlife Sanctuary, disagrees with the methods and reasoning for the NhRP’s Complaint before New York’s Court of Appeals. First, they argue that the NhRP’s previous attempts to grant the personhood right of bodily autonomy to NhAs similar to humans have all failed.[9] The NhRP’s attempts to grant NhAs bodily autonomy rights have merely proven that even if NhAs have similar cognitive abilities to humans, they are not afforded the same rights. Moreover, The Bronx Zoo argues that the NhRP’s scope of argument is misplaced.[10] The NhRP is not arguing for the right of habeas corpus, but for a “change of conditions,” such as changing the place where Happy lives to one more suited for elephants.[11] The issue is not with the imprisonment of Happy within The Bronx Zoo, but rather with the living conditions she’s been subjected to in her current place of residence. Because of these reasons, The Bronx Zoo does not believe that Happy should be granted habeas corpus, and, consequently, bodily autonomy. 

If the NhRP wins this Complaint on behalf of Happy, the way humans and NhAs interact will face a complete overhaul, and there may be an influx of legal cases within courts. Legally speaking, this flood of animal rights cases offers a point of contention because, at some point, the courts will merely be treated as means to grant animals rights. There will be animal rights groups that will attempt to grant animals with the same cognitive capabilities as Happy, even if the same NhA has been granted the same rights. Essentially, it seems the judicial system will be used to do the job of legislators, which is clearly a misuse of the legal system.  

Another issue that must be addressed if the NhRP wins is the following: how will NhAs prove their similarities to humans so that they can gain personhood rights? As shown by the NhRP in their Complaint, Happy passed the mirror test to help establish that Happy, and any other being that passes it, has self-awareness.[12] The NhRP also has years of studies on elephants to cite as reasons in favor of Happy’s autonomy.[13] So, at its base, it seems that NhAs will have to prove that they have self-awareness and have decades of scientific study to gain the personhood rights. The resources will pose an issue for those who wish to provide NhAs with bodily autonomy, but Happy’s case shows that it is possible.

Generally speaking, human interactions with NhAs will be under even stricter control if animals are granted some personhood rights. For example, if all NhAs were granted personhood rights, then at some point it may be considered murder, legally speaking, if a human kills an NhA. To put it into specifics, people who participate in hunting, fishing, or farming may face murder or neglect charges if an animal dies at their hands. NRS [Nevada Revised Statutes] Chapter 200 lists the Crimes Against the persons, which includes the definition of murder as “...the unlawful killing of a human being: 1. With malice aforethought, either express or implied; 2. Caused by a controlled substance which was sold, given, traded or otherwise made available to a person in violation of chapter 453 of NRS; or 3. Caused by a violation of NRS 453.3325.”[14] If a hunter successfully kills an animal, the hunter could face murder charges due to the malice aforethought given to the act. If a group of NhAs are granted rights, then the recreational killing of these animals must cease due to the importance of their bodies. 

Similarly, human and NhA interactions face change in terms of humans neglecting NhAs in their care. As defined by NRS 200.5092, neglect is “the failure of a person… who has assumed legal responsibility… for a vulnerable person or who has voluntarily assumed responsibility for his or her care to provide food [and] shelter… necessary to maintain the physical or mental health of the older person or vulnerable person.”[15] Any NhA granted similar rights to humans could also potentially gain the special protection from their human guardians. For example, any common household pet, if they pass the mirror test and studies similar to elephants are conducted on them, could bring their cases to the court and face some form of repayment for the damages done unto them. If a person neglects to feed their pet, just like with children, they could be removed from their care. In all, it seems that granting NhAs personhood rights involves better protection for their interests. 

It is clear that if Happy wins the Petition of Habeas Corpus, then there would be a complete change of how humans can interact with NhAs. Meat production, zoos, and hunting will all have to experience a change to ensure that the practice does not violate the NhA’s rights. If animals are granted these rights on a case-by-case basis, just one representative for an NhA group has to gain rights to set the precedent that any unjust injury will be reprimanded by a court. All of these changes are contingent on Happy winning her case, but even if she does not, the frequency at which these cases are brought in front of courts shows that the issue is gaining traction and that a change is imminent.  

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Sources

1. The Nonhuman Rights Project, Inc. v. James J. Breheny, Wildlife Conservation Society, No. 18-45164 EMD. 

2. Lauren Choplin, “The Latest in Happy’s Elephants Rights Case,” Nonhuman Rights Blog, September 20, 2020.

3. Ibid.

4. Ibid.

5. The Nonhuman Rights Project, Inc. v. James J. Breheny, Wildlife Conservation Society, No. 18-45164 EMD.

6. Ibid.

7. Ibid.

8. Ibid.

9. The Nonhuman Rights Project, Inc. v. James J. Breheny, Wildlife Conservation Society, No. 18-45164 EMD. Memorandum of Law Response.

10. Ibid.

11. Ibid.

12.  Lauren Choplin, “The Latest in Happy’s Elephants Rights Case.”

13. The Nonhuman Rights Project, Inc. v. James J. Breheny, Wildlife Conservation Society, No. 18-45164 EMD.

14. Nev. Rev. Stat. § 200.010 (2013). 

15. Ibid.

Correcting Course: Re-Evaluating the Admission of 18 U.S.C § 922(g)(1) Convictions under FRE 609(a)

February 2022 | Joe Lehman & Safoora Salman (University of Illinois at Urbana-Champaign)

Introduction

Federal Rule of Evidence 609(a) governs the use of a prior criminal conviction to attack a witness’s credibility. In general, evidence of a prior felony “must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness [being impeached] is not a defendant,” and “must be admitted in a criminal case in which the witness [being impeached] is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant.”[1] Rule 609(a) also provides that, regardless of whether a prior conviction was a misdemeanor or a felony, the conviction “must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness admitting — a dishonest act or false statement.”[2] If the prior conviction does not meet those criteria, then the conviction may not be admitted under this Rule. 

However, the currently prevailing practice in the federal courts allows the Government to circumvent Rule 609(a) when a court permits the admission of a conviction under 18 U.S.C. § 922(g)(1),[3] but excludes the underlying felony.[4] Such admission directly conflicts with Rule 609(a)’s broad scope; the Rule is not limited to evidence of the conviction itself, but applies to all evidence of a given criminal conviction. As an important note, while Rules 609(a)(1)(A) and 609(a)(1)(B) provide different balancing tests depending on whether or not the witness being impeached is a criminal defendant, those balancing tests do not apply here. This argument only addresses situations in which a court excludes evidence of an underlying felony conviction, but then admits a conviction for being a felon-in-possession, when the possession charge is predicated on the inadmissible felony. Of course, the court must engage with a balancing test when addressing the admissibility of the felon-in-possession charge, but this argument does not address the admissibility of the felon-in-possession conviction. Rather, it addresses only the concerns regarding reference to convictions that the court has already excluded, and how to alter verbiage to shield the fact finder from improper information.

Judge Virginia Kendall of the U.S. District Court for the Northern District of Illinois squarely faced this verbiage issue in 2008, and her opinion best highlights the problems with Rule 609(a) as currently construed. 

United States v. Lewis, et. al. 

In 2008, the United States of America charged Scott Lewis, Vernon Williams, and Lavoyce Billingsly with three drug-related charges in the U.S. District Court for the Northern District of Illinois. The three defendants went to trial, were convicted on all counts, and all three defendants filed post-conviction motions.[5] As relevant here, Mr. Scott Lewis objected to the admission of his prior convictions. During the trial, the court admitted three of Mr. Lewis’s convictions: a 1998 conviction for felon in possession of a firearm, a 1998 conviction for making a false statement to law enforcement, and a 2000 conviction for theft.[6] The court declined, however, to admit Mr. Lewis’s 1991 conviction for residential burglary. These four convictions represent the extent of Mr. Lewis’s criminal history. Mr. Lewis was found guilty, and he filed a post-trial motion, arguing that “it was error to refer to this conviction as possession of a firearm by a felon because it implicitly informed the jury of his prior inadmissible conviction - possibly leading them to speculate as to the nature of that conviction.”[7] Mr. Lewis cited only two cases in support of his position and did not address the text of Rule 609(a). The court denied Mr. Lewis’s post-trial motion.[8] 

The Lewis court’s error under the plain text of Rule 609(a)

The issue arises from the government’s use of Mr. Lewis’s 1998 conviction for being a felon in possession of a firearm. The only possible predicate for Mr. Lewis’s felon in possession conviction would be the 1991 conviction for felony burglary – the same conviction that the court excluded. By permitting the government to wield the felon in possession charge against Mr. Lewis, the court permitted the government to admit evidence of an inadmissible felony’s existence. While the Lewis court’s ruling may have been correct as a matter of precedent, it was clearly incorrect as a matter of textual interpretation.

It is true that, in Lewis, the government did not enter any direct evidence of the 1991 felony. But Rule 609(a) is not limited to direct evidence of a conviction. The Rule’s scope is much broader: it applies “evidence of a conviction.”[9] The word “of” extends Rule 609(a)’s reach to any evidence “relating to” the criminal conviction.[10] Here, the court itself acknowledged that, while “the admission of Lewis' felon in possession of a firearm conviction did not reveal any of the details of the underlying felony,” it nevertheless revealed “the fact of an underlying felony.”[11] Establishing the existence of a felony unquestionably “relates to” that criminal conviction. 

The text of the Rule itself commands that it be read with a broader scope than courts currently give it. This logic is bolstered by paths taken by courts in other contexts when faced with the sometimes-difficult task of defining the preposition “of.”[12]

In 2000, the US Court of Appeals for the Third Circuit addressed a similar use of the word “of” in the construction of a medical disclosure statute.[13] The statute at issue addressed the disclosure of medical records “of any individual.” The Commonwealth of Pennsylvania argued that the phrase “of any individual” did not apply to peer review reports, because the patients did not own the peer review reports.[14] In rejecting this reading, the Third Circuit reasoned that “the preposition "of " may be used to show connection or association, as well as ownership, and it seems clear that the term is used in the former sense here.”[15] Then, in 2003, the Tenth Circuit followed the Third Circuit’s lead. They found that, in the context of records disclosure, “the word “of” need not be read so narrowly [so as to only apply to ownership]. Thus, a rational reading is that it refers to records pertaining to or relating to an individual.”[16] Finally, in 2006, then-Circuit Judge Sonia Sotomayor wrote an opinion joining the Tenth and Third Circuits. She argued that “for a statute to be ambiguous, alternative dictionary definitions of a word must each make sense within the language and structure of the statute…Here, the definition of the word ‘of’ that indicates possession or ownership would render a significant part of §10806(b)(3)(A) a nullity.”[17] Accordingly, because the use of the word “of” only made sense if it meant “relating to,” that was the proper definition to conform to the preposition.[18]

Here, Rule 609(a)’s use of the word “of” only makes sense if it is read to mean “relating to.” Merriam-Webster lists 20 other possible definitions[19] of the word “of,” none of which make grammatical or logical sense in this context; the only solution is to read it to mean “relating to.”[20] Accordingly, Rule 609(a) must be understood to say: “the following rules apply to attacking a witness’s character for truthfulness by evidence [related to] a criminal conviction.” 

Addressing stare decisis

The suggestions in this article are, of course, simplified by the fact that, while there may not be precedent requiring a court to sanitize a defendant’s prior conviction,[21] the authors have found no precedent prohibiting such sanitization. An appellate decision requiring a court to sanitize a conviction record under Rule 609(a) in the limited circumstances addressed in this article would not likely run into any precedential issues. That said, there may be an argument made that the weight of authority counsels against requiring judges to sanitize these records.[22] Such an argument, however, conflicts with the plain text of Rule 609(a) as explained supra. Judge James C. Ho recently gave a compelling argument for addressing such issues: “When faced with a conflict between text and precedent, [lower courts] should maximize the former—and minimize the latter.”[23] While Judge Ho was writing in the context of Constitutional interpretation, his argument applies equally to issues of statutory interpretation. That means that lower courts ought to be “faithful to the text and original understanding of [a given statute], to the maximum extent permitted by a faithful reading of binding precedent.”[24] In this circumstance, though, there is seemingly no conflict between the text and binding precedent, so there is no need to utilize Judge Ho’s balancing. 

If, however, an appellate court hypothetically rendered a binding decision permitting the government to use a felon-in-possession conviction to reference an underlying inadmissible felony, such a decision would directly conflict with the language of Rule 609(a). But absent an actual amendment to the Rule’s texts – an amendment that, for instance, limited 609(a) to only direct evidence of a criminal conviction – litigants would be justified in continuing to make textual arguments, and lower courts would be justified in entertaining those arguments. Indeed, “the judiciary's pronouncements do not bind successor courts, and those successor courts remain free to enforce [a] formerly disapproved statute if they have a different view of the Constitution [, a statute,] or the judicial role.”[25] And, eventually, should the hypothetical appellate court review the question for a second time, the court would be obligated to correct itself: when “a precedent clearly conflicts with the law we are sworn to uphold, the precedent normally must yield.”[26]

Public Policy of the Rules of Evidence

Setting aside the discussion of text and precedent, the policy behind the Rules of Evidence lends support to this textual approach. The Rules themselves explain that they must be construed “to administer every proceeding fairly…and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.”[27] Rule 609 generally must, then, be understood to further that goal by protecting criminal defendants from a jury deciding to convict a defendant “for crimes other than those charged -- or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment.”[28] And this logic also extends to non-defendant witnesses. It is unfairly prejudicial to the party calling the witness (and unfair to the witness himself) to functionally impeach him with an inadmissible conviction. The proper administration of the American justice system depends, in large part, on a just and proper application of the Rules of Evidence.

Fixing the current practice 

Protecting the trees in the forest of evidence law brings us back to the court’s decision in Lewis. Precedent may not require a court to "sanitize [a defendant’s] prior conviction for possession of a firearm by a felon to eliminate any insinuation that he had a prior felony,”[29] but both the text of Rule 609(a) and the purpose of the Rules of Evidence do. The Rule’s text limits the government’s ability to enter any evidence related to a prior conviction, and felon-in-possession charges clearly relate to the underlying felony. But the solution is not necessarily to exclude the felon-in-possession charge from evidence. Indeed, there are some situations where gun possession may be probative under Rule 609(a).[30] Instead, when a felon-in-possession charge is admissible, but the underlying felony is not, the only proper course is to allow the government to admit evidence that the defendant or other witness was ineligible to possess a weapon. This verbiage balances the government’s interest in admitting a relevant conviction, while also protecting a defendant’s rights under Rule 609(a) to keep inadmissible convictions from the jury. Indeed, the Sixth Circuit acknowledged that this change in wording would be well within the discretion of a district court: “if a court conducted a Rule 403 analysis and concluded that the use of the term felon or felon-in-possession was unfairly prejudicial, we see no reason such a ruling [requiring alternative language] should not be upheld.”[31] 

While the Sixth Circuit’s acknowledgment comes closer to a proper reading of Rule 609(a), it must be taken further. District courts do not have the discretion to allow the use of the term felon-in-possession when the underlying felony is inadmissible; Rule 609(a) applies to evidence related to a conviction and confirming the existence of a felony relates to the conviction.

Conclusion

Thankfully, this problem finds an easy answer insofar as 1) the text of Rule 609(a) is clear, 2) there is no need to grapple with any textually erroneous binding precedent, and 3) the purpose of the Rules of Evidence is clear. If a conviction is inadmissible under Rule 609(a), then any evidence related to that conviction must also be excluded. Why the courts ignore the clear text of the Rule is a mystery, but the solution is simple: permit the government to enter evidence of convictions under 18 U.S.C. § 922(g)(1) when they are admissible, but if the underlying felony must be excluded, only allow the government to refer the § 922(g)(1) conviction as one for “ineligible possession.” This characterization has the advantage of being both accurate and faithful to the Rules of Evidence. It’s time for the federal courts to begin to replant the trees that they inadvertently helped the government cut down.[32]    

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Sources

1. FRE 609(a)(1)(a); 609(a)(1)(b).

2. FRE 609(a)(2).

3.  This Article will refer to these convictions as convictions for being a “felon-in-possession-of a-firearm” or for being a “felon in possession.” This verbiage is for ease of reference, and because this is how federal courts permit United States Attorneys to refer to these convictions. 

4.  See, e.g., United States v. Vo, 589 Fed. Appx. 720, 724 (5th Cir. 2014) (unpublished disposition) (affirming the district court’s decision to exclude evidence of a witness’s prior felonies, while noting that, during the course of trial, “it was clearly established that [a testifying witness] had served seven months for being a felon in possession.”); United States v. Frazier, 314 Fed. Appx. 801, 804 (6th Cir. 2008) (unpublished disposition) (affirming a district court’s decision to allow “evidence of [the defendant’s prior] conviction for possession of a firearm by a prior felon to impeach him.” Neither the district court nor the Sixth Circuit addressed the underlying felony); United States v. Phillips, 487 F. Supp. 3d 1126 (D.N.M. 2020) (admitting a prior conviction – under Rule 609 – for being a felon in possession, while excluding the predicate felony); United States v. Curry, 2009 U.S. Dist. LEXIS 48930, *4 (S.D. Ill. 2009) (same); United States v. Lewis, 2009 U.S. Dist. LEXIS 96173 (N.D. Ill. 2008) (same).

5. United States v. Lewis, 2009 U.S. Dist. LEXIS 96173 (N.D. Ill. 2008).

6. Id. at *8-9.

7. Supra note 5 (internal quotation marks omitted).

8. Supra note 5 at *49.  

9. Supra note 1. 

10. Of, Merriam-Webster’s Online Dictionary (accessed Nov. 27th, 2021).

11. Supra note 5 at *14.

12. Pacific Gas & Electric Co. v. Hart High-Voltage Apparatus Repair & Testing Co., Inc., 18 Cal. App. 5th 415, 435 (Cal. 5th Dist. App. 2017) (noting that “the case law and dictionary definition establish that, in the abstract, the preposition “of” can be defined in many ways,” and noting that the 1986 edition of Webster's Third New International Dictionary “lists 20 definitions” of the preposition “of”). 18 Cal. App. 5th at 434.

13. Penn. Protection & Advocacy, Inc. v. Houstoun, 228 F.3d 423 (3d Cir. 2000) (Alito, J.). 

14. Id. at 427.

15. Id. (citing Random House Dictionary of the English Language, 999 (1967)).

16. Ctr. for Legal Advocacy v. Hammons, 323 F.3d 1262, 1270 (10th Cir. 2003) (emphasis original).  

17. Prot. & Advocacy for Persons with Disabilities v. Mental Health & Addiction Servs., 448 F.3d 119, 125 (2nd Cir. 2006) (Sotomayor, J.). 

18. Id.

19. Supra note 10. 

20. Supra note 17 at 126.

21. Supra note 5 at *13 (internal quotation marks omitted).

22. See e.g., cases listed supra at note 4.

23. Williams v. Homeland Ins. Co., 2021 U.S. App. LEXIS 35337, *22, __ F.4th __, 2021 WL 5577020 (5th Cir. 2021) (Ho, J., concurring).

24. Id., citing Gamble v. United States, 139 S. Ct. 1960, 1984 (2019) (Thomas, J., concurring) ("[F]idelity to original meaning counsels against further extension of [] suspect precedents."); Hester v. United States, 139 S. Ct. 509, 509 (2019) (Alito, J., concurring in the denial of certiorari); Texas v. Rettig, 993 F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting from denial of rehearing en banc); NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (cleaned up).  

25. Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 966-967 (2018). 

26. Lawrence v. State, 308 So.3d 544, 551 (Fla. 2020). 

27. FRE 102.

28. Thomas J. Reed, Admission of Other Criminal Act Evidence After Adoption of the Federal Rules of Evidence, 53 U. Cin. L. Rev. 113, 159 (1984) (citing United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982)).

29. Supra note 5 at *13 (internal quotation marks omitted). 

30. See e.g., United States v. Phillips, 487 F. Supp. 3d 1126, 1130 (D.N.M. 2020) (admitting a felon-in-possession conviction because the conviction 1) is relevant to proving the defendant’s felon status, and 2) the conviction would not cause “much if any additional prejudice.”); United States v. Causey, 9 F.3d 1341, 1344 (7th Cir. 1993) (affirming the district court’s admission of a defendant’s prior felon-in-possession conviction because 1) the conviction was probative of the defendant’s credibility, 2) the conviction’s recency made it relevant, and 3) the defendant had a choice to not testify). 

31. United States v. Ray, 803 F.3d 244, 260 (6th Cir. 2015).

32. Hon. Thomas B. Griffith, Lawyers and the Rule of Law, 16 Utah Bar J. 12, 12 (2003) (quoting Robert Bolt, A Man for All Seasons, 37, 38 (1962)). 

Weeding Out the Complications of American Marijuana Legislation

February 2022 | Jesse Fager, Staff Writer/Editor

It's no secret that marijuana has had a complicated past in the United States. In 1971, the federal government officially waged a “war on drugs,” passing the Controlled Substance Act (CSA), which criminalized marijuana.[1] This was a reaction to the heightened use of drugs in the 1960s, which then-president Nixon considered “public enemy #1.”[2] However, marijuana has now been highly accepted into our everyday lives, as 18 states have officially legalized cannabis for recreational use and even more for medicinal purposes.[3] While it is legal to possess marijuana in these states, the federal government still classifies marijuana as an illegal substance. This raises the question: how can state laws legalize something that the federal government deems illegal? 

To begin, federal laws supersede state laws due to Article 6, Section 2 of the U.S. Constitution, more commonly known as the Supremacy Clause. This clause states that the Constitution and other federal laws are the “Supreme Law of the Land”, taking precedence over any conflicting state legislation.[4] Therefore, it is pertinent to first understand how the federal government has classified marijuana in order to assess its legality. As stated earlier, the Controlled Substance Act (CSA) is the primary piece of legislation regarding drugs like marijuana, as it regulates the manufacture and distribution of the many different controlled substances such as depressants, hallucinogens, etc. In addition, the CSA classifies drugs into different categories based on medicinal purposes and potential for abuse. According to the CSA, marijuana is a schedule 1 drug, meaning that it has a high potential for abuse and lacks medicinal value.[5] Due to this classification, cannabis is federally considered one of the most dangerous drugs, and its manufacture, distribution, and possession are all illegal. Other schedule 1 drugs include heroin, ecstasy, and LSD. Meanwhile, cocaine and meth are schedule 2 drugs, which are seen as less dangerous to the federal government.

To fully comprehend how the legal system operates regarding drugs such as marijuana, it is also crucial to understand pertinent case law. Considering the current illegality of cannabis, states cannot prevent the federal government from prosecuting individuals over possession of marijuana, even if states have legalized the drug. For instance, in 2005, the Supreme Court’s ruling in Gonzales v. Raich solidified the federal government’s power over marijuana under Article 1, Section 8, Clause 3 of the United States Constitution. This clause, more commonly referred to as the Commerce Clause, gives Congress the authority to both regulate commerce and restrict a state's power to regulate commerce.[6] As such, in Gonzales v. Raich, the Court ruled that the Commerce Clause allows the federal government to criminalize the possession and production of marijuana, even if different state laws allow it for medicinal purposes.[7] However, the Court did not mandate for states to aid in the federal prosecution of marijuana. Therefore, states cannot stand in the way of the federal government from prosecuting someone for a marijuana-related offense, but they are also under no obligation to help. 

Even though marijuana may be legal in some states around the country, the federal government still has every right to get involved. It’s even possible for the federal government to prosecute a citizen just for having the drug in their possession. However, due to the prioritization of resources, the federal government needs to pick its battles regarding marijuana-related prosecutions. As such, the U.S. Department of Justice released the Cole Memorandum in 2013 to explain the specific set of circumstances that must occur in order for the federal government to get involved with the use of marijuana. The Cole Memorandum indicated that the federal government would only intervene with marijuana users under 8 specific circumstances, including the prevention of marijuana distribution to minors, the prevention of marijuana sales to gangs, preventing drugged driving, and preventing marijuana possession on federal lands.[8] As long as none of these circumstances are met, the federal government leaves consequences in the hands of the state government. 

To conclude, even though states have some sort of power over marijuana laws, the federal government has power over the state. The federal government has every right to prosecute a citizen who is in possession of marijuana. However, there are a specific set of certain circumstances enumerated in the Cole Memorandum which must be met in order for the federal government to get involved. If none of the 8 circumstances set forth by the Cole Memorandum are not met, then the federal government tends to leave marijuana laws up to the state government. Now, whether or not this dissonance is problematic or should be changed is up to the federal government. As long as marijuana is federally illegal, though, then the war on this drug continues. 

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Sources

1.  “A History of the Drug War.” Drug Policy Alliance.  

2.  “War on Drugs”. History.com. (New York City: A&E Television Networks, 2017). 

3.  Zoe Manzanetti. “Marijuana Legalization Continues to Grow: 2021 Laws Map”. (Governing, 2021).

4.  “Article VI,” Legal Information Institute (Cornell Law School), accessed March 13, 2022.

5.  Evan Fisher. “Federal marijuana laws”. (Findlaw, 2021). 

6. “Commerce Clause,” Legal Information Institute (Cornell Law School), accessed March 13, 2022.

7.  Gonzales v. Raich, 545 U.S. 1 (2005).

8. Deputy Attorney General James M. Cole to All United States Attorneys. “Guidance Regarding Marijuana Enforcement.” U.S. Department of Justice, August 29, 2013.

International Law and Regulations on Ocean Pollution

November 2021 | Maryam Raja, Staff Writer/Editor

It is no secret that ocean pollution is worsening and causing detrimental issues around the world, both environmentally and economically. According to Dr. Philip Landrigan, the director of Boston College’s Global Public Health and the Common Good Program, “people have heard about plastic pollution in the oceans, but that is only part of it. Research shows the oceans are being fouled by a complex stew of toxins including mercury, pesticides, industrial chemicals, petroleum wastes, agricultural runoff, and manufactured chemicals embedded in plastic.”[1] This raises the question: if oil pollution is so harmful, what types of legal measurements are in place to protect the environment? In an attempt to tackle ocean pollution, there have been different international regulations set in place by the United Nations Convention on the Law of the Sea (UNCLOS) and National Oceanic and Atmospheric Administration (NOAA) to prevent the irresponsible discarding of waste into oceans. However, there remain gaps in these regulations, which allow continued damage to the ocean at the hands of major oil companies and national governments. 

One of the most notorious oil pollution events, which sparked the conversation on preventing ocean pollution, did not occur too long ago. In the Exxon Valdez accident of 1989, an oil tanker ruptured, spilling about 11 million gallons of crude oil into the Gulf of Alaska. This disaster was the first large-scale oil spill, causing catastrophic damage on a global level. At the time, there was no “comprehensive federal legislation to determine the scope of liability for costs of cleanup and restoration.”[2] Consequently, this prompted the US government to implement stricter oil spill regulations to prevent future spills. The corporation Exxon, which is now estimated to be valued at $380 billion dollars, was only penalized “$2 billion in cleanup costs and $1.8 billion for habitat restoration and personal damages related to the spill.”[3] While the penalty cannot fully reverse the damage sustained to the environment, it did pave the way for the Oil Pollution Act (OPA). The OPA was enacted in hopes of imposing penalties and to help aid the cleanup of future oil spills. This act has been used to hold polluters accountable for depositing hazardous materials into the ocean. The NOAA, which is an organization that protects the ocean by creating damage assessments and restoration programs, believes that the OPA has been successful in fulfilling its mission.[4] The penalties the OPA impose aim to prevent future oil spills by oil corporations.[5]

Although it is a step in the right direction, charging fines cannot guarantee future spills from occurring. For example, a less advertised consequence of Hurricane Katrina was the amount of oil spilled. The Bureau of Safety and Environmental Enforcement (BSEE), which oversees oil and gas operations in the Gulf of Mexico, reported that “more than 400 pipelines and 100 drilling platforms were damaged” because of the hurricane.[6] However, corporations only pay fines when given a comprehensive report that shows how much damage has occurred. That being said, “not one assessment of the damage to natural resources after the two 2005 hurricanes has been completed.”[7] As expected, this has resulted in “none of the 140 parties thought to be responsible for the spills [being] fined or cited for environmental violations.”[8] Since the extent of the damage done to the environment is unknown, paying the fines to offset some of the damage does not properly hold the corporations accountable. 

While it is clear that corporations have dodged accountability in regards to oil pollution, can the same be said about national governments? In 2015, the Canadian government was caught dumping hazardous waste in oceans.[9] As a result, the Basel Convention took place, which is a convention held between countries to control the movement of dangerous waste. There, the member states expressed their goal “to protect human health and the environment against adverse effects from the generation… seek[ing] to minimize the generation of hazardous waste, including hazardous recyclable materials, to ensure they are disposed of in an environmentally sound manner and as close as possible to the source.”[10] Rather than focusing on consequences, the outcome of this convention concentrated on managing and reducing waste.[11] Regulations set by international organizations, like UNCLOS, help regulate and define laws on preventing ocean pollution. However, because there are different regulations for each region that is coastal-bound, it is difficult to come to a consensus on regulations for oil transportation. For example, specifications for trading rules in coastal regions allow them to “promulgate and enforce pollution regulations in their own [Exclusive Economic Zones] EEZs which may, in some circumstances, include imposition of routing restrictions.”[12] These regulations protect coastal regions and prevent different countries from impeding on those protections. 

Overall, there is only a certain extent to which national organizations with low enforcement power can hold corporations and countries accountable. While there are organizations like UNCLOS and NOAA that have set regulations for proper waste management and ocean pollution prevention, these policies can only go so far. Hosting climate conventions and merely reporting on these issues should not be the only actions taken to tackle ocean pollution. Instead, other measures should be taken, such as standardizing regulations across coastal regions or providing more enforcement power to global organizations like UNCLOS and NOAA. Moreover, there should be more serious penalty fines for corporations and countries who violate international ocean pollution laws. Current penalty fines are not severe enough to deter multi-billion dollar corporations from violating established policies, and they are virtually non-existent for national governments. As such, policies currently in place to regulate ocean pollution should be enforced to a greater degree, especially when countries are caught violating them. By increasing severity of punishments and focusing on prevention of ocean pollution, there will be a more optimistic future for the environment. If the policies in place to protect the ocean are not strengthened and stay continuously undermined, then the ocean will become unsustainable and lead to humanity’s irreversible demise.

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Sources

1.  Hayward, “Oceans in peril, humans at risk”. Boston College. December 2020.

2.  “30 Years of the Oil Pollution Act: How It Helps NOAA Prepare for and Recover from Spills | Damage Assessment, Remediation, and Restoration Program.” NOAA.

3.  Exxon Valdez Oil Spill 2018

4.  “Environmental Law Resources: Environmental Laws and Oil Spills”. Law Info.

5.  US EPA OA. “Summary of the Oil Pollution Act | US EPA.” March 2019.

6.  “How Oil Companies Avoided Environmental Accountability After 10.8 Million Gallons Spilled” ProPublica. December 27, 2019. 

7. Ibid.

8. Ibid.

9. Canada, Environment and Climate Change. “Transboundary Movement of Hazardous Waste: Basel Convention.” February 20, 2015.

10. Ibid.

11. Ibid.

12. “UNCLOS – Basics of United Nation Conferences on the Law of the Sea.” MarinerOnBoard. October 3, 2015.