Letter From the Editor

June 2023 | Vanessa Aponte (Former Editor-in-Chief)

Dear Esteemed Reader,

My name is Vanessa Aponte, and I’ve had the pleasure of serving as the Editor-in-Chief of UNLV’s Undergraduate Law Review for the past 2½ years. As graduation approaches, I have been reflecting on this organization and my time leading it. I remember when I first found ULR in the Involvement Center, searching for any clubs that had the word “law” in it. Amidst a pandemic and a severe bout of imposter syndrome, the newly-founded Undergraduate Law Review spoke to me. I applied for a leadership position and, even after underestimating my ability, I was given the opportunity to serve as an inaugural Associate Editor. After months of editing articles and helping writers through the process, my dedication was rewarded with the position of Editor-in-Chief. The rest is history. 

During my tenure, ULR has successfully published over 30 articles, educating the public on everything from defamation to tax law to labor rights to intellectual property. We’ve covered countless Supreme Court cases and pieces of legislation, carefully analyzing the constitutional legitimacy of every topic. Some of the articles have focused solely on local Nevada laws, while others have discussed laws in various other states. We’ve even had the pleasure of receiving submissions from undergraduate students in Illinois. Now, after all this time, I’m so grateful that my curiosity led me to this organization. I’m even more grateful for the opportunity to oversee it and watch ULR blossom into a respectable law review.

I’d like to thank all my executive board members across these past 2½ years who have helped me run ULR. There has always been a dedicated team behind this organization, and that teamwork truly made the dream work. Any time I felt overwhelmed or made mistakes, I could always count on them to find solutions and take responsibilities off my plate. I’d also like to thank everyone who has been a part of ULR while I have served in this leadership role. The writers never ceased to amaze me with their passion, and the editors always gave wonderful feedback during meetings. This organization’s success is not mine to claim—it is the collective work of each ULR member that poured their heart and soul into every article. Thank you from the bottom of my heart for always giving it your all, and I cannot wait to see how future publications progress beyond my wildest imagination. Finally, none of this would have been possible without ULR’s founder and first Editor-in-Chief, Kyle Catarata, as well as our faculty advisor from Boyd School of Law, Joseph Regalia. You both have my infinite gratitude.

To my successor, Annie Vong: I am so proud of you. Like many ULR members, you joined the club with so much enthusiasm. I watched your writing improve tremendously, and I was overjoyed when you applied for Associate Editor and then Editor-in-Chief. You are the embodiment of success within ULR, and I have no doubt that you will lead this organization into greatness. I’m so excited to see how ULR thrives under your leadership, and please know that I’m always here to support you and the club at large (albeit as a Boyd Law student now instead of an undergrad). If you ever need anything, I’m only a short walk away!

If you’ve made it this far into the letter, please continue keeping up with our publications. Not only will you learn the law in a digestable manner, but you will also be supporting the work of undergraduate pre-law students with no other avenue to hone their legal writing skills. We write for you, so please read for us. I promise you won’t regret it. 

Sincerely,

Vanessa Aponte

Associate Editor (2020-2021)

Editor-in-Chief (2021-2023)

---

Abortion: Troubling Legal Concerns in a Post-Roe America

April 2023 | Vanessa Aponte [former] Editor-in-Chief

In 1839, someone reading a copy of the New York Sun may have noticed an advertisement addressed to married women from a physician named “Madame Restell,” claiming to have medicine that would “alleviate private difficulties” and “remove obstructions.” [1] After mailing Madame Restell a few dollars, a person would receive a powder or some pills that contained ingredients such as pennyroyal, black draught, ergot of rye, and motherwort. These ingredients sound like a recipe from Hocus Pocus, but Madame Restell was no witch. She was an abortion provider almost two centuries ago, infamously dubbed the “Wickedest Woman in New York” due to her services.[2] Despite her notoriety, Madame Restell’s practice shows just how prevalent the issue of abortion has been over time. Abortion is defined as the intentional termination of a pregnancy and, as far back as 1550 BCE, humans have managed unwanted pregnancies by obtaining abortions. [3] The Center for Disease Control (CDC) reported about 620,000 abortions in 2020, or roughly 11 abortions for every 1,000 women ages 15-44. [4] The legality of abortion in the United States used to be protected under Roe v. Wade (1973), but after the recent Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (2022), Americans no longer have a federally protected right to abortion under the U.S. Constitution. This new ruling upended 50 years of precedent and triggered a wave of abortion bans across the country. As abortion becomes criminalized again in many states, it is imperative to understand the history of reproductive rights in the U.S. and the troubling legal concerns that arise in a post-Roe America. 

The origin of Roe v. Wade can be traced back to 1969, when Norma McCorvey found out she was pregnant with her third child. After seeking out abortion options, she was referred to Linda Coffee and Sarah Weddington. [5] These two attorneys wanted to abolish the statute that criminalized abortion in Texas, so McCorvey agreed to sign on as their plaintiff in order to sue the state of Texas. [6] Under the pseudonym “Jane Roe”, McCorvey filed a class-action lawsuit against Henry Wade, the Dallas County District Attorney at the time. Roe claimed that the law in question—which made it a crime to “procure [or attempt to procure] an abortion” except if done under a doctor’s orders for life-saving circumstances—was unconstitutionally vague and violated her right to privacy under the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. [7] Meanwhile, the state of Texas asserted that there was a compelling state interest to restrict abortion in order to protect the health of pregnant people, as well as protect prenatal life from the moment of conception. [8]

Roe v. Wade went all the way to the Supreme Court, where the Court ruled 7-2 that the Due Process Clause in the Fourteenth Amendment contains a right to privacy which protects a pregnant individual’s choice on whether to have an abortion. [9] Since the Due Process Clause protects life, liberty, and property from being taken unlawfully, the abortion decision was deemed a private matter that—for the sake of liberty—should not be infringed upon. However, the Court did not grant an absolute right to privacy for pregnant individuals, which would have allowed abortions at any point in a pregnancy. Rather, the Court did agree with the state of Texas that, at some point, it had a compelling interest to regulate this right. During the first trimester of pregnancy, the state had no compelling interest in regulating abortion. During the second trimester, the state had a compelling interest in regulating abortion as it related to parental health because, at this point, the mortality rate from an abortion procedure exceeded the mortality rate from normal childbirth. [10] Regulations of this kind could include qualifications of the abortion provider, abortion facility standards, etc. During the third trimester, the state had a compelling interest in regulating abortion entirely because, at this point, the fetus has reached the threshold of viability—where it can survive outside the womb. [11] As such, the Court allowed states to ban abortions past the threshold of viability except in cases where the pregnant individual’s life was in danger. Meanwhile, Justice White’s and Justice Rehnquist’s dissents criticized the majority for their arbitrary trimester framework, which lacked constitutional foundation, and for overstepping into legislative decision-making rather than concentrating on the intent of the Founding Fathers who wrote the Fourteenth Amendment. [12] Furthermore, the dissenters' collective focus on consistent historical restrictions on abortion foreshadowed Roe’s overruling in 2022 for that precise reason. 

After Roe, some states legalized abortion while others attempted to find loopholes to the ruling—many of which ended up in court. In fact, since Congress never codified Roe—meaning that the right to abortion never became federal law—this right has always been up to judicial interpretation. As such, a plethora of cases following Roe v. Wade gradually chipped away at abortion rights until Dobbs v. Jackson Women’s Health Organization (2022) completely overturned Roe. This case was brought about because of Mississippi’s Gestational Age Act, which made it a crime to “intentionally or knowingly perform, induce, or attempt to perform or induce an abortion of an unborn human being” past the 15th week of pregnancy except in cases of “medical emergency” or “severe fetal abnormality.” [13] Jackson Women’s Health Organization sued Thomas Dobbs, Mississippi’s State Health Officer, to challenge the Act’s constitutionality. The organization claimed that the state had not proven that a fetus was viable at 15 weeks and that Supreme Court precedent in Roe did not allow states to ban abortion prior to fetal viability. [14] The Mississippi Legislature, in justifying the Act, asserted that the state had a compelling interest in protecting unborn life against the dilation and evacuation procedure used in abortions after 15 weeks. [15]

As a consequence of polarized political ideologies seeping into the Court, the majority in Dobbs narrowly ruled 5-4 to overturn Roe v. Wade. The majority opinion relied on the framework from Washington v. Glucksberg (1997), where the Court held that physician-assisted suicide was not a constitutional right because it was not “deeply rooted in the Nation’s history and tradition.” [16] Applying that same standard to abortion, the Court conducted a historical analysis and found that, prior to Roe, there was virtually no legal support for such a right. On the contrary, abortion was criminalized for most of the nation’s history, even during the adoption of the Fourteenth Amendment—the exact amendment from which Roe had derived the abortion right. [17] Furthermore, the Court argued that a right to abortion was not essential to the “concept of ordered liberty” because there was no order in circumventing the legislative process. [18] In trying to strike a balance between the interests of pregnant individuals and potential life, Roe imposed a specific valuation onto the entire nation and prevented state legislators from expanding or tightening abortion regulations as their voters saw fit. Finally, the Court remained unconvinced that an abortion right was connected to the broader right of liberty, as that argument could lead to a slippery slope of justifying a right to prostitution, illicit drug use, and other illegal actions. [19] The Court’s lengthy opinion ultimately concluded that abortion was no longer a constitutional right, which allowed the Mississippi Legislature—and any other state legislature—the power to legislate abortion as it saw fit. 

Although the decision to overrule Roe was narrowly divided, the ultimate judgment in Mississippi’s favor was a 6-3 decision. Chief Justice Roberts concurred with the judgment, as he felt that Mississippi’s Gestational Age Act should have been upheld but not at the cost of overturning Roe. His concurrence argued that 15 weeks gave people enough time to decide how to handle their pregnancy, so the Court could have simply overturned the viability aspect of Roe’s decision while still maintaining the right to choose. [20] While Roberts concurred because he felt the Court went too far, Justice Thomas’ concurrence did not think the Court went far enough. Thomas believed that the only rights rooted in the Fourteenth Amendment’s Due Process Clause were those that concerned procedural aspects of law enforcement and did not extend further. [21] As such, his concurrence advocated for the overturning of all cases with these seemingly-fabricated rights, including the cases which granted a right to same-sex marriage, a right to contraceptives, and a right to consensual non-procreative sexual activity — Obergefell v. Hodges (2015), Griswold v. Connecticut (1965), and Lawrence v. Texas (2003), respectively. [22]

While the majority opinion assured that no other rights were at risk, the dissenters pointed out that all these rights were linked to the same framework and that, if one could fall, then so can the rest. Justice Kagan explained that abortion was rooted in the Fourteenth Amendment’s promise of liberty, as carrying a pregnancy to term undoubtedly alters someone’s life course. [23] As such, safeguarding reproductive freedom ensured that pregnant individuals were not deprived of liberty, but rather given the opportunity to make this personal medical decision for themselves. With this majority opinion, however, states could now restrict abortion as they wished—regardless of the physical, emotional, or financial impact on the pregnant person. The dissent criticized the majority for pretending to be neutral, when in actuality “the Court acts neutrally when it protects the right against all comers” rather than allowing states to decide who has a right and who does not. [24]Ultimately, the dissent warned of the damaged integrity of the Court for overturning precedent for “no good reason” and foreshadowed the harm that would come to those attempting to exercise reproductive rights when abortion is completely criminalized in their state. [25]

Anticipating the demise of Roe, 13 state legislatures passed “trigger laws” that would immediately criminalize abortion if the Supreme Court overturned Roe. Those laws went into effect after Dobbs was announced, with some states banning abortion at the moment of conception and without exceptions for cases of rape, incest, or serious health risks to the pregnant person. [26] The penalties for violating abortion bans can be as severe as a $100,000 fine and a life sentence in prison, as well as loss of medical license for abortion providers. [27] There have also been attempts to include “bounty hunter” provisions that allow individuals to sue abortion providers and receive damages, but they were struck down due to issues of constitutionality—mainly revolving around vagueness and lack of standing. [28] While certain states have waged war against abortion, others have made it a point to enshrine the right to abortion in their state constitutions. Some states also have “shield laws” in place that provide safeguards for out-of-state patients who seek abortion services in protected states, as well as for their abortion providers within those states. Nevada’s shield law states that the governor will not cooperate with states that criminalize abortion in regard to issuing arrest warrants, surrendering information about someone’s visit to an abortion provider, or utilizing law enforcement to apprehend the individual. [29] Although shield laws certainly help, the financial burden of obtaining out-of-state reproductive care makes abortion beyond reach for many Americans, especially considering most abortion-seekers are low-income and abortions alone cost over $500—not including travel costs. [30]

In spite of this, states with abortion bans are still trying to extend those bans nationwide, criminalizing their residents for obtaining an abortion even in a different state. Idaho is the first state to attempt this so far, but its law only entails minors seeking abortions out of state. [31] Regardless, these laws have contradicting support from the U.S. Constitution, as Americans have a right to travel between states and states must respect the laws of other states while also not impeding interstate commerce. [32] There is a high likelihood that the Supreme Court may be asked to resolve this contradiction. Abortions via medication may seem more feasible considering its availability through the mail, but anti-abortion states are working to restrict that as well. Although mifepristone—the primary drug for inducing abortions—was approved by the U.S. Food and Drug Administration (FDA) back in 2000, the FDA recently created some restrictions to mifepristone’s accessibility. [33] As such, two separate lawsuits came about and required the FDA to somehow revoke its approval of mifepristone and lessen regulations regarding mifepristone’s availability. [34] Since there is a disagreement between two federal courts, the Supreme Court will likely be asked to rectify this issue as well. 

Dobbs' most troubling consequence may be the confusion doctors face, which makes them hesitant to provide necessary care to pregnant patients. Physicians are so fearful of the legal recourse for performing an abortion that they wait until the symptoms are astronomically severe before providing reproductive healthcare, resulting in near-death experiences and long-term pregnancy complications. [35] Yet, the Emergency Medical Treatment and Labor Act of 1986 (EMTALA) requires medical professionals to provide stabilizing treatment in emergency situations, and violations of this federal law for the sake of statewide abortion bans are already being investigated in Missouri. [36] Amidst the legal limbo, pregnant people’s lives are at stake. Despite having good health insurance, expectant patients may be at risk for serious infections or extreme blood loss due to vague abortion bans and harsh penalties for violating them. In the worst-case scenario, a pregnant individual cannot seek medical help at all and will have to either succumb to fatal symptoms or resort to unconventional, life-threatening methods to terminate their pregnancy. Considering that the vast majority of people who obtain abortions are low-income, this future seems inevitable for anyone from an anti-abortion state wishing to terminate their pregnancy, regardless of medical necessity. 

Ultimately, the Supreme Court’s ruling in Dobbs produced more problems than solutions. Not only did the decision upend 50 years of precedent, but it also gave an avenue for the Court to rescind other rights that fall under the “privacy” umbrella. Moreover, the inconsistency across states’ abortion regulations creates inequity regarding access to reproductive healthcare—even in life-saving circumstances. The most harrowing aspect of this ordeal is that statewide abortion bans only force people to either travel to a protected state, if they have the means, or resort to unsafe methods of terminating their unwanted pregnancy. Criminalizing abortion does not stop abortions from occurring. [37] Given that financial concern is the biggest reason why people seek abortions, anti-abortion states would probably see more reduction in abortions if they provided better financial assistance to pregnant individuals. Increasing the amount of paid family leave, raising the minimum wage, or establishing a universal base income are just a few solutions that would drastically improve the financial situations of expectant people. Until then, the issue may only worsen, as the Supreme Court could hear cases in the near future regarding abortion bans’ legal contradictions. That said, while this current Supreme Court majority opposes abortion, a future Supreme Court could reverse Dobbs and repeat this cycle in another 50 years. The legal future of reproductive rights remains unclear, so until Congress establishes federal legislation regarding the matter, “[states] can force [people] to bring a pregnancy to term, even at the steepest personal and familial costs.” [38]

---

Sources

1. Horwitz, Rainey. “Ann Trow (Madame Restell) (1812–1878) .” The Embryo Project Encyclopedia, August 23, 2017.

2. Aliano, Kelly. “Life Story: Ann Trow Lohman, a.k.a. Madame Restell.” Women & the American Story, May 17, 2023. 

3.  Potts, Malcolm, and Martha Campbell. “History of Contraception.” The Global Library of Women’s Medicine, May 2009.

4. Diamant, Jeff, and Besheer Mohamed. “What the Data Says about Abortion in the U.S.” Pew Research Center, January 11, 2023.

5.  Barnard, Christianna K., "Jane Roe Gone Rogue: Norma McCorvey’s Transformation as a Symbol of the U.S. Abortion Debate." Women's History Theses. May 2018.

6. Ibid.

7. Roe v. Wade, 410 U.S. 113 (1973).

8. Ibid.

9. Ibid.

10. Ibid.

11. Ibid.

12. Ibid.

13. MS Code § 41-41-191 (2018)

14. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)

15.  Ibid.

16. Washington v. Glucksberg, 521 U.S. 702 (1997)

17. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)

18. Ibid.

19. Ibid.

20. Ibid.

21. Ibid.

22. Ibid.

23. Ibid.

24. Ibid.

25. Ibid.

26. Jiménez, Jesus, and Nicholas Bogel-Burroughs. “What Are Abortion Trigger Laws and Which States Have Them?” The New York Times, June 24, 2022.

27. Damante, Becca, and Kierra B. Jones. “A Year after the Supreme Court Overturned Roe v. Wade, Trends in State Abortion Laws Have Emerged.” Center for American Progress, June 15, 2023.

28. Ibid.

29. SB 131, 82nd Session (Nevada 2023).

30. Diep, Karen, Usha Ranji, and Alina Salganicoff. “Key Facts on Abortion in the United States.” KFF, May 11, 2023.

31. Hanna, John, and Geoff Mulvihill. “Next Abortion Battles May Cross State Borders.” AP News, April 10, 2023.

32. Ibid.

33.  Sobel, Laurie, and Alina Salganicoff. “Q & A: Implications of Two Conflicting Federal Court Rulings on the Availability of Medication Abortion and the FDA’s Authority to Regulate Drugs.” KFF, April 8, 2023.

34. Ibid.

35. Simmons-Duffin, Selena. “Doctors Who Want to Defy Abortion Laws Say It’s Too Risky.” NPR, November 23, 2022.

36. Meyer, Harris. “Hospital Investigated for Allegedly Denying an Emergency Abortion after Patient’s Water Broke.” KFF Health News, November 1, 2022.

37. Biggs, M Antonia, Heather Gould, and Diana Greene Foster. “Understanding Why Women Seek Abortions in the US.” BMC Women’s Health 13, no. 1 (July 5, 2013).

38. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___ (2022)

The Laws that Change America’s Health

April 2023 | Kira Kramer (Staff Writer & Editor)

One of the purposes of law in civil society is, arguably, to protect the general safety and welfare of all people. Laws that protect human safety may be associated with those that prevent bodily harm or wrongdoings such as robbery or murder. Bodily harm, however, can also be a result of unsafe practices such as the unsanitary handling of food. In that case, laws are developed and implemented to promote food safety. While associations with the law are not often correlated to healthcare, nearly all commonplace civilian protections towards health and safety are guaranteed to society through a specific area of the law – health law. As described by Harvard Law, “health lawyers work on cases and policy relating to access to care, insurance coverage, difficult ethical choices, providers of care, the safety of our drugs and food supply, disease prevention and treatment” and many other complex healthcare-related issues. [1] As a result of health law and policies implemented over the last century, people can enjoy longer, healthier lives. The history surrounding this type of law has not always been constructive. In today’s world, there exist many laws and policies that govern the healthcare world that threaten to discriminate against members of society, subsequently worsening healthcare outcomes.

One aspect of health law that is incredibly fascinating is the overlap between this type of law and other areas of law that are utilized to craft health legislation. Some of the types of law that are utilized within health law include: “contract law, tax law, insurance and pension law, employment and labor law, public benefits law, torts, ethics, criminal law, administrative law, privacy, civil rights, reproductive rights, constitutional law, and statutory drafting and interpretation—even First Amendment religious liberty and freedom of speech concepts can be implicated in the field.” [2] Health law is practiced at every governmental level, from local government up to the national level, and even into the private sector. Different types of groups, from nonprofit organizations, private or public interest law firms, can practice health law. Some of the major issues that health law aims to address include access to healthcare, insurance, public benefits, provider behavior, cost containment, public health, bioethics, food policy and regulation, medical malpractice, and many more. While health law may seem like a very niche area of the law, it is deeply associated with the everyday lived experiences of many people. Everything – from access to clean drinking water to laws requiring that you wear a helmet while riding a motorcycle  – has been regulated by the health law.

While health law incorporates vast specialties within the law, it also protects the health and well-being of citizens. Some of the most incredible accomplishments of health law include the Pure Food and Drug Act of 1906 and the subsequent legislative accomplishments that allowed for the regulation of “foods and prescription drugs; mandated folic acid fortification of cereal grain products; limits on chemical contamination of crops; food stamps; the Women, Infants, and Children program; and school meals” are measures that have improved the health and safety of Americans. After the publication of Upton Sinclair’s, The Jungle – which exposed the horrific working conditions in the meat-packing industry – laws and regulations were introduced to protect consumers from unsanitary food manufacturing practices. As a result of The Jungle, President Theodore Roosevelt passed a law regulating food and drugs on June 30, 1906. That same day, he also signed the Meat Inspection Act. This would eventually lead to the Pure Food and Drug Act, which regulates food additives and prohibits misleading labeling of food and drugs, as well as the formation of the Food and Drug Administration (FDA). Today, the FDA is responsible for “protecting the public health by ensuring the safety, efficacy, and security of human and veterinary drugs, biological products, medical devices, our nation's food supply, cosmetics, and products that emit radiation.” [3]

Health law, however, has not always been as forthcoming or upstanding. Sometimes the law has been downright atrocious. At times, the purveyors of the legal system have enacted laws that actively harm the health and well-being of citizens. One of the most heinous examples takes place in 1927 when the Supreme Court decided to uphold a state's right to forcibly sterilize a person they considered unfit to procreate in a 8 to 1 vote. In Buck v. Bell (1927), a young woman named Carrie Buck, whom the state of Virginia had deemed to be "feebleminded” was forcibly sterilized against her will. [4] This ruling would lead to the forced sterilization of over 70,000 people in the 20th century. [5] Justice Holmes was able to rule using ​​compulsory vaccination, validated under Jacobson v. Massachusetts (1905), to support the justification of forced sterilization. [6] He then verbally justified his decision saying that “three generations of imbeciles are enough.” [7] This was a major violation of human rights and a horrific failure of the public health law to protect the health of citizens. 

The degree to which the government can intervene in the health of a person or community has not always been straightforward. The recent COVID-19 pandemic and subsequent vaccination requirements have spurred constitutional discourse about whether or not the federal and state governments are permitted to pass public safety policies that may or may not violate constitutional rights. There are two Supreme Court decisions that guide state and local authorities to issue vaccine mandates. In 1905, the Supreme Court ruled in Jacobson that “under a state law local health authorities could compel adults to receive the smallpox vaccine.” [8] The Court justified this decision by saying that under the state’s general police power there exists the ability to enact laws that protect the health, safety, morals, and general welfare of the public. 

In 1922, the second decision on vaccine mandates came as a result of Zucht v. King,where the Court reached a similar conclusion. Henning Jacobson and Rosalyn Zucht argued that the vaccine policy violated their 14th Amendment due process rights. Similar lawsuits that occurred during the pandemic still ruled in favor of vaccination mandates, stating that there is not enough evidence to support the argument that their constitutional rights are being violated by having to observe vaccine mandates. These mandates are made possible through Section 361 of the Public Health Service Act (PHSA), which allows the Department of Health and Human Services or the Centers for Disease Control and Prevention (CDC) to make necessary measures “to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” [9] However, federal laws provide protections to employees based on religious beliefs or disability status. Enacting a federal vaccine mandate would provoke legal challenges because the 10th Amendment prohibits commandeering or forcing states to use their own resources to carry out our federal policies.

Even though there are limitations to the extent to which the government can enact health policy, there are opportunities at the state level to enact laws that change the health of communities. There does not exist a universal healthcare system in the United States, therefore, each state is able to dictate different types of health and safety laws. There exists a handful of laws and policies in the world of healthcare that are enacted and enforced by the federal government. Some examples of these would be the enforcement of the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), the Patient Safety and Quality Improvement Act of 2005 (PSQIA), and fraud and abuse laws to name a few. [10] Despite these federal regulations, much of the public health law that governs peoples’ daily lives come from state legislators. Even though Medicare, Medicaid, Children's Health Insurance Program (CHIP), and other federal programs were created by the federal government, the benefits and eligibility pertaining to each are decided differently by each state. This causes significant discrepancies and disparities between health access and coverage. Therefore, Health law advocates are siloed by the law and policy that exists in their state. 

Despite the challenges that the fragmented system presents, it is still possible for individuals to influence policies that change the health outcomes of their communities for the better. Some of these changes can be sought out through the presentation of bills at the local, state, and national levels. Legislators can develop their bills from several different sources. These sources include constituents, legislative hearings, and personal experience as well as research on the idea (current Nevada law or other states). [11] There could also be a request for a bill draft resolution (BDR) or they have the option to have the Legal Division prepare the bill draft and deliver it to a sponsor (requestor). [12] This means that people personally affected by a health issue in the community can seek out their representatives and propose a bill that addresses a concern in their community. David Bandbaz did just that. 

Bandbaz is a fourth-year medical student at the Kirk Kerkorian School of Medicine. In the spring of 2023, he matched with the University of Utah to attend their general surgery residency program. While on rotations in UMC’s trauma center, he would observe the grotesque injuries that patients would present as a result of motorcycle accidents. After becoming seriously injured in a motorcycle accident himself and researching the incidence and severity of motorcycle-related death and injury, he knew something needed to be done. Through collaborating with community partners and staff at the Kirk Kerkorian School of Medicine, he was able to work with Nevada State Senator, Dallas Harris, to propose a bill in the 2023 legislative session that aims to reduce the risk of death and injury in motorcycle vehicle accidents – SB 423. 

One of the components of this bill calls for riders who were found riding without a motorcycle endorsement to undergo rider safety training within nine months of the date of the final order of the court in lieu of assessing the fine for the violation. [13] The bill also requests that motorcycle endorsements be renewed by retesting via taking a safety course, to prove that riders are still capable of riding a motorcycle. [14]Another component of the bill is that riders under 30 years old must complete a course of motorcycle safety in order to renew their endorsement at least once every 8 years after the initial issuance of the endorsement. [15] For riders over 30 years of age, this would be at least once every 12 years after initial issuance. SB 423 passed through the Senate Committee on Growth and Infrastructure and Assembly Growth and Infrastructure Growth Committee.  It has also passed both the Assembly and State Senate as of May 25, 2023. Bandbaz has been working with legislators and community members on this bill for three years, and his dedication is a testimony to how individual community members can enact change. 

Many public health laws are being presented at the 2023 Nevada Legislative Session. This is likely due to the fact that this is the state’s entire in-person session since the COVID-19 pandemic. The pandemic shined a spotlight on the deficiencies of healthcare systems across the country, and through law and policy, legislators and public health professionals can hope to improve access to healthcare, quality of care, and ultimately, health outcomes for all people. It is imperative to public health objectives that these initiatives continue to be prioritized and given adequate attention as time goes on, and as the memory of the pandemic fades from view. Due to global warming, overcrowding, and other modern-day issues, it is likely that pandemics and other infectious diseases will arise. Creating robust public health systems supported by law and policy will allow societies to be prepared for what the future holds.

---

Sources

1.  Pattanayak, Catherine, Joan Ruttenberg, and Annelise Eaton. “Health Law: A Career Guide.” Bernard Koteen Office of Public Interest Advising. Harvard Law, 2012.

2. Ibid.

3.  “Food and Drug Administration.” USAGov.

4.  Buck v. Bell. 274 US 200 (1927).

5.  The Petrie-Flom Center Staff. “Why Buck V. Bell Still Matters.” Bill of Health. Harvard Law Petrie-Flom Center, October 15, 2020.

6.  Buck v. Bell. 274 US 200 (1927).

7. Ibid.

8.  Bomboy, Scott. “Current Constitutional Issues Related to Vaccine Mandates.” National Constitution Center. August 6, 2021.

9.  “42 U.S. Code § 264 - Regulations to Control Communicable Diseases.” Legal Information Institute. Cornell Law.

10. Kalantar, Art. “6 Key Laws That Regulate the Healthcare Industry?” Law Offices of Art Kalantar, June 12, 2020. 

11. Malkiewich, Lorne, and Allison Combs. “The Nevada Legislative Process Lorne Malkiewich.” Nevada Legislature. Accessed April 20, 2023.

12. Ibid.

13. Nevada Legislature. Senate Bill NO. 423–Committee on Growth and Infrastructure. 82nd Leg. sess. Introduced in Senate March 27, 2023.

14. Ibid.

15. Ibid.

The Fame in Defamation

April 2023 | Luke Slota (Executive Organizer) and Jesse Fager (Associate Editor)

Everything a celebrity does becomes part of the public eye in a matter of minutes. While celebrities try to keep their private life under wraps, the hopes of this happening usually fails. Pirates of the Caribbean star Johnny Depp and Aquaman star Amber Heard were no exception. Johnny Depp and Amber Heard have been caught up in a public scandal ever since their divorce in 2017. In the case of John C. Depp, II, v. Amber Laura Heard (2022), Johnny Depp (the plaintiff) sued former wife Amber Heard (the defendant) on grounds of defamation. Defamation is a false statement or claim that harms someone else’s reputation. [1] There are two types of defamation – slander, which is in oral form, and libel, which is in written form. This accusation arose when Amber Heard wrote an op-ed for the New York Times. She wrote this article from the perspective of someone who was a victim of domestic abuse and later stated how she “felt the full force of our culture's wrath for women who speak out.” [2] She never mentioned anyone by name in the article, but it was clear to Johnny Depp that it was about him. He then sued her for 50 million dollars on the grounds of defamation, specifically in the form of libel. 

After over 3 consecutive years of trial, the jury reached a verdict in favor of Johnny Depp, entitling him to 10 million dollars in compensatory damages and 5 million dollars in punitive damages. Amber Heard on the other hand, filed a countersuit against Depp for 100 million dollars alleging that Depps' legal team falsely accused her of fabricating claims against the plaintiff. [3] The judges awarded Heard only 2 million out of the 100 million requested for the countersuit. Prior to the Virginia case, Johnny Depp sued The Sun in the U.K. over their claims that he is a wife beater. The judge ended up favoring The Sun, stating that what they put in the article was proven to be “substantially true”. [4] While this is the most well-known defamation case in history, there have been many cases in the past century. 

Throughout the past century of defamation cases, the Supreme Court has attempted to find a fine line between defamation and freedom of speech. On one hand, defamation is a strong, yet necessary limitation on the first amendment, extending to both the freedom of speech and freedom of the press – without it, people’s reputations could be ruined. However, defamation suits could be seen as a limit of the first amendment if false accusations are made. It is extremely important to ensure that the defamation is either true or a case of ignorance –  otherwise, anyone could say anything without punishment. This is why it is incredibly important to have a proper balance to set a precedent for future cases of defamation.

John C. Depp, II, v. Amber Laura Heard is a libel suit as Heard had written an op-ed for Washington Post about her experience with domestic abuse. Along with this, since this case is unique and between two celebrities, specifically public figures, there is an important standard to be established to file suit for libel. This legal standard is “actual malice” - requiring that the statement from the media defendant was made “with the knowledge that it was false or with reckless disregard of whether it was false or not.” The burden of proof has a high threshold, requiring that there is “clear and convincing evidence” of actual malice. [5] Since public figures are often under high scrutiny from the public, it is important to protect them from criticism. Criticism is still an important right in the First Amendment. For example, if Amber Heard had a strong opinionated statement about Depp as her partner in the op-ed, she would have the right to do so and the libel suit would be ineligible. This right changes when an opinion becomes a false fact. Actual malice differentiates this threshold of harsh opinions from false facts.

This standard originated in the Supreme Court decision New York Times Co. v Sullivan (1964) in cases involving public officials. In a unanimous decision, the Supreme Court reversed libel damages filed by L. B. Sullivan, a city commissioner for Montgomery, Alabama. Before, libel suits were entirely under state law, making the difficulty of libel suits vary from state to state. In Alabama, the case was far too easy for Sullivan to win - all he needed to do was prove the existence of mistakes and how they harmed his reputation. [6] Had Sullivan won the libel suit, a precedent would have been set for future news outlets to chill public discourse against public officials. For the majority, Justice Willaim J. Brennan emphasized his point of concern by saying that “debate on public issues should be uninhibited, robust and wide-open.” Future events protected by this decision include Watergate, the Iran-Contra affair, Flushgate, and more, which otherwise would have been impossible to publish. [7] Curtis Publishing Co. v. Butts (1967) changed this standard to be extended to public figures, not just public officials, such as Heard and Depp. Wally Butts, an athletic director at the University of Georgia, was accused of match-fixing, an accusation that would surely hurt his reputation. The district court trial first found libel and the Supreme Court affirmed this ruling, but not without changing the standard to include celebrities, business leaders, and more. [8]

The past Supreme Court decisions definitely left a footprint in the John C. Depp, II, v. Amber Laura Heard. Being a public figure, Johnny Depp needed to prove the existence of actual malice for the defendant. The burden of proof makes it incredibly difficult for the prosecution to win - essentially, the prosecution must enter their mind in order to prove actual malice to the jury. This leans heavily in favor of the defendant since doing so can be a tall task, but was created to have a balance between defamation claims and the first amendment. Specifically, this standard would make suing the Post for the op-ed far more difficult. Firstly, there was no specific mention of Depp’s name, and secondly, Heard filed for a restraining order in 2016 which could protect the editors from being accused of actual malice since they had no reason for doubt of her abuse. However, suing Amber Heard was more straightforward. Firstly, her reference to “domestic abuse” essentially served to name Depp, and secondly, all Depp needed to prove was that she lied about her abuse which insinuates actual malice. Once the jury believed it was a fabrication, actual malice was satisfied and Amber Heard was found liable. [9]

Ultimately this case has left many major implications. One of the most prominent is that the verdict of this case could affect those who come forward about abuse, particularly against those in positions of power.  especially against those who have a lot of power. Amber Heard has even expressed on social media that future victims may hesitate to speak up due to the repercussions. The case heavily impacted Johnny Depp and Amber Heard as the public is already seeing the negative consequences that arose from this case. Johnny Depps' reputation has been severely tarnished, losing roles in the Pirates of Carribean and Fantastic Beasts franchises, and Amber Heard has filed for bankruptcy in addition to her time in the upcoming Aquaman movie being cut down to just a few minutes. While this case did not lower standards for defamation cases against the press since Johnny Depp did not pursue that route, it has left many people confused as to whether or not it lowers the standards for future defamation cases against other people.

---

Sources

1. “Defamation.” Legal Information Institute, Legal Information Institute 

2. Heard, Amber. “Opinion | Amber Heard: I Spoke up against Sexual Violence - and Faced Our Culture's Wrath. That Has to Change.” The Washington Post, WP Company, 2 June 2022

3. Chappell, Bill, and Jaclyn Diaz. “Depp Is Awarded More than $10M in Defamation Case against Heard and She Gets $2m.” NPR, NPR, 1 June 2022

4. “Johnny Depp Loses Libel Case over Sun 'Wife Beater' Claim.” BBC News, BBC, 2 Nov. 2020

5. Wermiel, Stephen. “Actual Malice.” Actual Malice,

6. Wermiel, Stephen. New York Times Co. v. Sullivan

7. Bertoni, Fabio. “Why the Washington Post Wasn't Named in the Johnny Depp–Amber Heard Trial.” The New Yorker, 3 June 2022

8. McInnis, Tom. “Curtis Publishing Co. v. Butts.” Curtis Publishing Co. v. Butts

9. Bertoni, Fabio. “Why the Washington Post Wasn't Named in the Johnny Depp–Amber Heard Trial.” The New Yorker, 3 June 2022

Russian Nuclear Weapons and the Non-Proliferation Treaty (NPT)

April 2023 | Mary Giandjian (Staff Writer & Editor)

Speculations of potential nuclear warfare put global citizens at unrest and Russia's announcement of tactical nuclear sharing reminded the international world of destructive prospects anticipated in 2022. On March 25 2023, President Vladimir Putin publicly declared his intention to store Russian tactical nuclear weaponry in neighboring country and longtime ally, Belarus. Bilateral relations of Belarus and Russia have recently driven Belarusian support for the 2022 Russian invasion of Ukraine. Putin’s decision, announced late March, in no way, lessened nuclear tensions between the West and Russia. Though, the United States and Russia—once engaged in neutrality—signed the United Nations’ Treaty on the Non-Proliferation of Nuclear Weapons (NPT), international attention gathered once more following Russia’s announcement, drawing a question of whether or not weapon storage in Belarusian territory violates the Non-Proliferation Treaty. [1] Both Belarus and Russia answered that it does not, citing the United States’ own power sharing agreement among North Atlantic Treaty Organization (NATO) countries. [2]

Russia’s tactical nuclear weapon storage in Belarus incited international speculation. The Republic of Belarus’ Ministry of Foreign Affairs declared, “[t]he strategic partnership between Belarus and Russia is based on the geographic location, close historic and cultural links between both countries and peoples, economic ties and cooperation between the Belarusian and Russian businesses.” [3] At the beginning of the 2022 Russo-Ukrainian War, however, Belarus worked to uphold relations with Kiev, the capital of Ukraine. A few days after the war’s commencement, a referendum in Belarus’ Parliament on February 27, 2022 saw to the constitution’s amendment in order to join Russian military operations. [4] Following Belarus’ switch to support Russia, it should be noted the two “have set up a joint regional military force” to “coordinate their air defense systems, perform joint military exercises, consider a number of questions regarding operative and combat training.” [5] Putin noted that ten Belarusian aircrafts have been upgraded to grant capabilities to carry nuclear weapons. The operations are said to begin April 7, Putin estimates the storage facilities, as well as Belarusian pilots and aircrafts, will be ready by July 1, 2023.

Knowing the operations to come, legality can only be assessed after examining the Non-Proliferation Treaty. The Treaty on the Non-Proliferation of Nuclear Weapons (NPT), signed in 1968 and put into effect in 1970, currently holds 190 Parties to the Treaty, following North Korea’s withdrawal in 2003. The Treaty’s objective reads: “to prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of nuclear energy and to further the goal of achieving nuclear disarmament and general and complete disarmament.” [6] This treaty, the only multilaterally-binding agreement with the goal of disarmament, was extended indefinitely in 1995. Defined in the Treaty as having “manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967,” the U.S. and Russia are two of five NPT designated nuclear weapon states. [7] Belarus, having joined the Treaty in 1994, declared itself among the non-nuclear states and ceded the nuclear missiles and weapons to Russia. 

Governing sites from both parties involved have come forward in defense on the March 25 decision. Putin explained that the weapon sharing with Belarus was an anticipated response to Britain supplying armor-piercing shells to Ukraine amidst the war. The resulting controversy, as per President Putin, was a hypocritical backlash. Putin addressed the international community by citing the United States’ own nuclear power sharing agreement with Belgium, Germany, Italy, Netherlands, and Turkey under NATO. This power sharing agreement allows for the storage of roughly 100 American B-61 gravity bombs in said countries as well as necessary training in the case of deployment. Russia argues that the United States violated the 1968 treaty by distributing the nuclear weapons to European countries, clarifying that, “We [Russia] agreed that we will do the same – without violating our obligations, I emphasize, without violating our international obligations on the non-proliferation of nuclear weapons.” [8]  

Belarusian president, Alexander Lukashenko, reinforced the statement made by Putin, clarifying that the agreed weapons storage cannot be considered a violation of the treaty since Belarus will have no authority or oversight to the weaponry. Yukashenko’s comment served as a reminder to the international community that the United States, in sharing nuclear weaponry with European states, remained in control of the distributed weapons. Similarly, Belarus will have no jurisdiction over Russian tactical nuclear weapons. Article I of the Nuclear Non-Proliferation Treaty restricts the transfer of weaponry, it reads: 

“Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly….” [9]

The defense testimonies by Putin and Lukashenko, while calling attention to the United States’ own decisions, bring forth a question of treaty enforcement: what can and will the international community do? To evaluate the present, a case of the past can be considered. The Democratic People’s Republic of Korea (DPRK), also known as North Korea, joined the Non-Proliferation Treaty as a non-nuclear state in 1985 and agreed to cease nuclear weapon manufacturing and allow for the International Atomic Energy Agency (IAEA) to perform inspections. [10] North Korea withdrew from the NPT in 2003 in pursuit of nuclear weapon manufacturing, with the argument that the United States was “threatening” its security by “hostile policy.” [11] North Korea, however, was permitted to withdraw from the NPT, as stated in Article X. The Treaty reads that parties, in recognition of national sovereignty, are able to withdraw from the Treaty in “extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country.” [12] Each withdrawing party must give notice of such withdrawal to “all other parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.” [13]

After providing a notice three months in advance, North Korea left the Treaty in 2003 after 18 years of membership. The North Korean case, therefore, serves as an example to the application of international treaties. While the withdrawal was valid under Article X’s conditions, the United Nations Security Council could have nonetheless ruled a threat to peace given the DPRK's explicit intent to resume missile testing. Under Chapter VII of the United Nations charter, the United Nations Security Council has the right to enforce “economic, diplomatic or even military sanctions” on North Korea. [14]

Besides North Korea, there has been a variety of non-compliance to the NPT that can also determine Russia’s future. Iran was another state seeking nuclear weapon capabilities, despite being a party to the NPT since 1970. In 2005, as it also concluded for North Korea, the IAEA found Iran in violation of the treaty’s safeguard, more specifically Article III. Iran disputed the uranium enrichment, the grounds for its violation accusation, by citing “peaceful” intentions under Article IV. The United Nations Security General at the time, Ban Ki-moon, had publicly displayed hopes for a resolution. Regardless, Iran faced sanctions for the treaty’s violation, some of which were imposed by former President Obama who expressed an intolerance for failure to maintain the obligations. Sanctions were then lifted from Iran by July 2015, but the path from noncompliance to consequence is one standing possibility for Russia if Putin’s claims become true in July 2023. 

In the possibility of Russian non-compliance to the NPT, the other States involved have options of what to pursue. First, though the treaty is not immediately terminated upon breach, other parties involved may act as a continuing force, in which the legal obligations would continue or choose to terminate the treaty themselves. International treaties are upheld by the general will of parties involved – by consensus ad idem. Though the option of termination is available upon the necessary support, doing so has the potential to set a harmful precedent. To disband such an expansive, legally-binding agreement of nuclear deterrence would likely allow for nuclear developments. In this case, favor contractus, which describes greater benefit from continuing a contract over letting it expire, is supported by the “moral nature of international legal obligation” also known as pacta sunt servanda. [15]

The typical response to international treaty violations has been legal penalties and moral condemnation of guilty states. [16] Given the number of parties to the treaty, the ultimate jurisdiction resides with the United Nations Security Council as it could also apply sanctions or varying legal action to Russia if it determines that weapon storage was a violation of the NPT’s terms. While the treaty has no specification on exchanged weapons storage, the possibility of violation lies in Putin’s statement of training Belarusian servicemen to handle the newly stored weaponry. It must be noted that the situation following Putin’s March 23 declaration is full of uncertainty as the international community debates possibilities of tactical nuclear weapons actually being stored in Belarus. Prospective changes will not be fully understood until July 2023, the estimated time of completion as per Putin. The future of the matter residing with the United Nations, as written in the treaty, is one “considering the devastation that would be visited upon all mankind by a nuclear war.” [17]

---

Sources

1. Murdock, Clark A., Franklin Miller, and Jenifer Mackby. “Trilateral Nuclear Dialogues Role of P3 Nuclear Weapons Consensus Statement.” CSIS, May 13, 2010

2. Al Jazeera. “Why Does Russia Want Tactical Nuclear Weapons in Belarus?” Russia-Ukraine war News. March 28, 2023

3. “Belarus and Russia.” Belarus and Russia - Ministry of Foreign Affairs of the Republic of Belarus. Accessed April 27, 2023

4. Mudrov, Sergei A. “‘We did not unleash this war. Our conscience is clear.’The Russia–Ukraine military conflict and its perception in Belarus. Journal of Contemporary Central and Eastern Europe.” 30:2, (2022). 273-284, DOI: 10.1080/25739638.2022.2089390

5. “Belarus and Russia.” Belarus and Russia - Ministry of Foreign Affairs of the Republic of Belarus. Accessed April 27, 2023

6. “Treaty on the Non-Proliferation of Nuclear Weapons (NPT).” United Nations Office for Disarmament Affairs. Accessed April 27, 2023

7. Ibid.

8.  Al Jazeera English. “Ukraine Says Russia ‘Took Belarus as a Nuclear Hostage.’” YouTube, March 26, 2023

9. “Treaty on the Non-Proliferation of Nuclear Weapons (NPT).” United Nations Office for Disarmament Affairs. Accessed April 27, 2023

10. Bai, Su. “North Korea's Withdrawal from the NPT: Neorealism and Selectorate Theory.” E-International Relations, January 28, 2022

11.  “North Korea's Withdrawal from the Nuclear Nonproliferation Treaty.” American Society of 

    International Law, January 24, 2003

12. “Treaty on the Non-Proliferation of Nuclear Weapons (NPT).” United Nations Office for Disarmament Affairs. Accessed April 27, 2023

13. Ibid.

14. Doyle, Thomas E. “The moral implications of the subversion of the Nonproliferation Treaty regime, Ethics & Global Politics, 2:2, 131-153, DOI: 10.3402/egp.v2i2.1916

15. Ibid.

16. Ibid.

17. “Treaty on the Non-Proliferation of Nuclear Weapons (NPT).” United Nations Office for Disarmament Affairs. Accessed April 27, 2023

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.

---

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.

---

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.

---

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.

---

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.

---

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. 

---

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. 

---

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. 

---

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.

---

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.

---

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).